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UNITED STATES SENTENCING COMMISSION 

PUBLIC HEARING ON RETROACTIVITY 

WASHINGTON, D.C. 

TUESDAY, NOVEMBER 13, 2007 

The Commission convened at the Georgetown University 

Law Center, Gewirz Student Center, 12th Floor 

Conference Room, Washington, D.C., JUDGE RICARDO H. 

HINOJOSA, presiding. 

COMMISSION MEMBERS PRESENT: 

JUDGE RUBEN CASTILLO 

CHIEF JUDGE WILLIAM K. SESSIONS, III 

JOHN R. STEER 

DABNEY C. FRIEDRICH 

BERYL HOWELL 

MICHAEL HOROWITZ 

KELLI FERRY 

EDWARD F. REILLY, JR. 
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PANELISTS PRESENT: 

HONORABLE REGGIE WALTON 

Criminal Law Committee 

STEPHEN SADY 

LISA FREELAND 

Federal Public Defenders 

DAVID DEBOLD 

Practitioners Advisory Group 

BARRY BOSS 

American Bar Association 

CARMEN HERNANDEZ 

NACDL 

GRETCHEN C.F. SHAPPERT, United States Attorney 

Western District of North Carolina 

SYLVESTER E. JONES, Assistant Director 

Witness Security and Prisoner Operations 

United States Marshals Service 

JOE I. CASSILY 

National District Attorneys Association 

STEVE CHANENSON 

Villanova University School of Law 

ANNE PIEHL 

Rutgers University 

CHUCK CANTERBURY 

Fraternal Order of Police 

WADE IKARD, Weed and Seed Coordinator 

South Statesville, North Carolina 

HILARY SHELTON 

NAACP 

PAT NOLAN 

Prison Fellowship Ministries 

MARC MAUER 

Sentencing Project 
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PANELISTS PRESENT (Continued): 

OCIE L. ACOFF, Pastor and Director 

Varner Education and Training Facility 

Selma, Alabama 

JULIE STEWART 

DE-ANN COFFMAN 

FAMM 
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I N D E X

ITEM PAGE

OPENING REMARKS............................. 6 

PANEL ONE - JUDICIAL BRANCH PERSPECTIVES 

 Hon. Reggie Walton................ 14 

Question and Answer......................... 20 

PANEL TWO - PRACTITIONERS PERSPECTIVES 

 David Debold...................... 46 

 Lisa Freeland..................... 50 

 Stephen Sady...................... 58 

 Barry Boss........................ 64 

 Carmen Hernandez.................. 67 

Question and Answer......................... 72 

PANEL THREE - EXECUTIVE BRANCH PERSPECTIVES 

 Gretchen C.F. Shappert............ 100 

 Sylvester E. Jones................ 114 

 Joe I. Cassily.................... 119 

Question and Answer......................... 126 

PANEL FOUR - ACADEMIC PERSPECTIVES 

 Anne Piehl........................ 140 

 Steve Chanenson................... 147 

Question and Answer......................... 161 

PANEL FIVE - COMMUNITY PERSPECTIVES I 

 Wade Ikard........................ 170 

 Chuck Canterbury.................. 176 

 Hilary Shelton.................... 181 

Question and Answer......................... 186 
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I N D E X (Continued) 

ITEM PAGE 

PANEL SIX - COMMUNITY PERSPECTIVES II 

 Marc Mauer........................ 202 

 Pat Nolan......................... 210 

Question and Answer......................... 220 

PANEL SEVEN - COMMUNITY PERSPECTIVES III 

 Ocie L. Acoff..................... 226 

 Julie Stewart..................... 231 

 De-Ann Coffman.................... 236 

Question and Answer......................... 240 

Closing Remarks............................. 243 

 
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 PROCEEDINGS

 (9:30 a.m.) 

 CHAIR HINOJOSA: I would like to welcome 

everyone to the United States Sentencing Commission 

Public Hearing on Retroactivity being held here at the 

Georgetown Law Center and on behalf of the Commission, 

I want to thank Dena Alexander (phonetic sp.), 

Elena Koff (phonetic sp.) and Larry Center, who are the 

-- Larry Center, who is the Director of Continuing 

Legal Education here at Georgetown Law, for their 

helpfulness in allowing us to meet here. We certainly 

appreciate their hospitality. 

 For those of you who may not be too familiar 

with the U.S. Sentencing Commission, it was created by 

the Sentencing Reform Act of 1984 as a bipartisan, 

independent agency within the Judicial Branch, whose 

principal purposes are to establish sentencing policies 

for the federal courts, including guidelines, to advise 

and assist in the development of effective crime policy 

and to collect, analyze, research and distribute a 

broad array of information on federal crime and 

sentencing issues, serving as an information resource 

on federal crime policy. There are seven members of 

the Commission. We're all appointed by the President 

and confirmed by the Senate and two ex officio members. 
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I would like to briefly introduce each one of the 

members. I have enjoyed working with them and I have 

to say it is a very hard-working group of individuals 

and I enjoy being able to chair this commission with 

them. We have Vice Chair Ruben Castillo, who has 

served as a U.S. District Judge for the Northern 

District of Illinois since 1994 and just to strengthen 

himself today, he did bring his father with him, who is 

present and we welcome him. 

 We also have Vice Chair William K. Sessions 

III, who is the Chief Judge of the District of Vermont, 

where he has been a U.S. District Judge since 1995. We 

have Vice Chair John R. Steer, who has served from 1987 

to 1999 as a General Counsel of the Commission and 

before that, as Deputy General Counsel to the 

Commission, and has served as Vice Chair of the 

Commission since 1999. 

 We have Commissioner Michael Horowitz, who is 

currently a partner with the law firm of Cadwalader, 

Wickersham and Taft here in Washington. He previously 

served in the Justice Department's criminal division as 

Deputy Assistant Attorney General and is Chief of 

Staff. We have Commissioner Beryl Howell, who serves 

as Executive Managing Director and General Counsel at 

Stroz Friedberg here in Washington, D.C. and she is the 
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former General Counsel to Senator Patrick Leahy. We 

also have Commissioner Dabney Friedrich, who has served 

as Associate Counsel at the White House 

from 2003 until her appointment to the Commission in 

December of 2006 and is a former Assistant United 

States Attorney. The ex officio members are 

Commissioner Kelli Ferry, who represents the office of 

the Attorney General for the U.S. Department of 

Justice. Ms. Ferry serves as counselor to the 

Assistant Attorney General for the Criminal Division. 

And we have Commissioner Ed Reilly, also serves as an 

ex officio member and he has been the chair of the U.S. 

Parole Commission since May 31st of the year 2001. 

 The purpose of today's hearing, some of you 

may know, is to have interested individuals and 

organizations and interest groups address the 

Commission on whether two guideline amendments recently 

promulgated by the Commission on crack cocaine and 

criminal history, which went into effect on 

November 1st, should be made retroactive. With regards 

to crack cocaine, that is an issue -- federal cocaine 

sentencing policy has been an issue that the Commission 

has worked on for a long time, promulgated amendments 

before that have not gone into effect, as well as sent 

either statements in or reports to Congress at least 
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four times on the issue, the latest being in the 

year 2007, after we promulgated the amendment, which 

the Commission felt was a very small step with regards 

to correction of a problem which the Commission 

identifies with regards to the 100 to one ratio between 

crack and powder cocaine sentencing. Along with the 

promulgation of the amendment, the Commission sent a 

report to Congress urging Congressional action because 

in the end, Congress is the one that can have the 

solution with regards to the problem concerning the 

mandatory minimum ratios. 

 With regards to criminal history, we also 

promulgated an amendment which may have the effect, 

also, of reducing sentences with regards to changing 

two minor offenses from the -- that count for criminal 

history points to do not count for criminal history 

points and trying to correct some confusion that might 

be out there with regards to cases that might be 

considered just as one case rather than as separate 

cases for criminal history points. The Sentencing 

Reform Act specifically authorized the Commission to 

make retroactive amendments that resulted in lower 

penalties. To facilitate this directive, the 

Commission has promulgated a policy statement in 

Section 1(b)(1.10) of the guidelines. Among the 
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factors which the Commission has traditionally 

considered as to whether a guideline amendment should 

be made retroactive have been the purpose of the 

amendment, the magnitude of the change in the guideline 

range made by the amendment and the difficulty of 

applying the amendment retroactively. Of course, the 

Commission, whenever it acts, whether it's the 

promulgation of an amendment, as well as a new 

guideline, as well as decisions on retroactivity, 

always takes into account all of the -- Title 18, 

Section 3553(a) factors which it needs to consider, as 

has been the directive by Congress to the Commission. 

 I will say, obviously, one of those factors 

that the court considers in each one of these decisions 

is the interests of the defendants who have been 

sentenced and/or will be sentenced and/or are serving 

sentences, as well as the interests of the public, in 

general. This hearing, of course, is designed to 

assist the Commission in its deliberation on 

retroactivity. To date, the Commission has received 

over 33,000 letters and/or written comments from 

individuals on the subject. I will say that it is nice 

to have received so many comments from so many 

individuals across the country on this particular -- on 

issues involving both crack cocaine sentencing, as well 
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criminal history. We thank all of those who have taken 

the time to give us their comment. We thank those of 

the individuals who are present today who will give 

public statements on the issue. This will certainly be 

helpful to the Commission as we deliberate on these 

important issues, as we do on all the issues before the 

Commission, and so we certainly thank the public and 

those individuals who have taken their time to be here 

with us today with regards to their comments. And at 

this point, I would like to ask any other member of the 

Commission if they would like to make any statements 

before we start and we'll start with Commissioner Steer 

and then we'll go back and forth here if anybody wants 

to make any statements on behalf of themselves. 

 COMMISSIONER STEER: Mr. Chairman, I look 

forward to the testimony of the witnesses. 

 CHAIR HINOJOSA: Judge Castillo, did you 

want -- 

 JUDGE CASTILLO: No. Thank you. 

 COMMISSIONER HOWELL: I would like -- 

 CHAIR HINOJOSA: Commissioner Howell. 

 COMMISSIONER HOWELL: I want to echo the 

comments that you made, Chairman Hinojosa, in welcoming 

the witnesses here today. I think that I'm very proud 

of the cocaine report, crack report, that the 
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Commission put out. I think it helped fulfill our 

important mission here, that Justice Breyer commented 

on in the remedial opinion in Booker, that the 

Sentencing Commission remains in place, writing 

guidelines, collecting information about actual 

district court sentencing decisions, undertaking 

research and revising the guidelines accordingly. 

 And I think that we took a very important 

step with our crack amendment by fixing, to a certain 

extent, the guideline contribution to the crack powder 

disparity issue. We fixed the guidelines with the 

crack amendment and Congress allowed us to do that by 

not acting and allowing our amendment to go into 

effect. 

 But I want to make clear that we are under no 

false illusion that this crack amendment is a cure-all, 

as you said, it's only a partial remedy to the crack 

powder disparity and only on a going-forward basis for 

those crack offenders sentenced under the guidelines 

after November 1, 2007. Whether we make that partial 

remedy apply retroactively is the question before us 

and as you've said, we've had over 30,000 comments with 

strong sentiment on both sides of the issue. I just 

want to raise one point that's particularly important 

to me and since Judge Walton is sitting in front of us, 
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it stems from some of the testimony he gave us almost 

exactly a year ago when we had our crack hearing before 

we made our crack amendment. And what Judge Walton 

told us last year was, and I quote Judge Walton, "The 

attitudes of some of the general population about the 

unfairness of our drug laws has had a coercive impact 

on the respect many of our citizens have about the 

general fairness of our nation's criminal justice 

system," and he went on to tell us that "the failure to 

fix the crack powder disparity has left many to believe 

there is an indifference to the real and perceived 

unfairness of the policy because of the population 

disproportionately impacted by it. 

 As a nation that prides itself on treating 

all who appear before our courts of law with fairness 

and equality, the time has come to address a vexing 

problem for those of us who are entrusted to administer 

the system and those who suffer the consequences of the 

policy." Those were really powerful words and they 

remain uppermost in my mind as we decide on the 

retroactivity decision, because what we want to do is 

bolster respect for our criminal justice system by our 

actions and not undermine that. So I want to join the 

Chairman in thanking all the witnesses for being here 

and appreciate the assistance of all the witnesses who 
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are testifying plus the written comments in assisting 

us in making our decision. 

 CHAIR HINOJOSA: Commissioner Horowitz. 

Commissioner Friedrich. Commissioner Ferry. Well, 

we're ready to start with the first panel, which is the 

Judicial Perspective, and we do thank Judge Walton for 

being present, the Honorable Reggie Walton, who's been 

a U.S. District Judge for the District of Columbia 

since the year 2001 and was appointed by Chief Justice 

Rehnquist to the Criminal Law Committee of the Judicial 

Conference in the year 2005. From 1989 to 1991, he 

served as an associate director of the Office of 

National Drug Control Policy and is a Senior White 

House Advisor on crime. Judge Walton, again, on behalf 

of the Commission, we thank you for taking time from 

your busy schedule to be here with us today. 

 MR. WALTON: Good morning, Mr. Chairman, 

Your Honor, members of the Commission. It is an honor 

and a pleasure to have the opportunity to be here with 

you on behalf of the Criminal Law Committee. I first 

want to ask that my written statement be made a part of 

the record. It coincides with the letter submitted by 

Judge Castillo. I will try and keep my remarks brief 

so that I can leave as much time for questioning as you 

would like. I begin and end my comments with the 
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underlying reason for why you took the action that you 

took, which was very courageous on your part, because I 

know there has been a lot of pressure, from both sides 

of the aisle, as to which position you should take and 

I commend you for what you did because I think it is a 

first good step in addressing a problem that I believe 

does have fundamental unfairness to it and expressly 

from the standpoint of the African-American community, 

considering the disproportionate number of AfricanAmerican people, primarily African-American males, who 

have been incarcerated for significant periods of time 

as a result of their involvement in crack cocaine. I 

don't in any way excuse the behavior. 

 I think that individuals who sell drugs do, 

in fact, perpetrate a harm on society and I think 

society has a right to exact a certain level of 

punishment as a result of that, but I think that the 

process, first and foremost, has to be perceived as 

fair and I think the step that you took at least starts 

to work towards arriving at that goal. I think, 

obviously, it's important that Congress address this 

issue and seek to resolve it because I do think that 

the disparity brings negative attitudes about the 

criminal justice process from a segment of our society 

that most needs the input of the criminal justice 
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system in order to address the many problems that exist 

in those communities that I'm talking about. I know 

that there are strong arguments against making this 

change retroactive. I struggled with whether that was 

the appropriate position to take, initially taking the 

position that maybe we should not weigh in, as a 

judiciary, as to what should be done, but after much 

debate and much soul searching on my part, I ultimately 

reached the conclusion that if the reason for the 

change, which is the reason, was to address what was 

perceived to be a real and fundamental problem in the 

fairness of the sentencing guidelines, I just don't see 

how, in good faith, one can say that just because 

someone was sentenced on October 30th, that they get a 

certain sentence, whereas someone who's sentenced on 

November 1st receives a different sentence. 

 I appreciate the concerns about the impact 

that it would have, conceivably, on the judiciary and 

obviously with the significant calendar that I deal 

with on a daily basis, that's a concern. But I don't 

believe that the court, as an institution, can take the 

position that if a change was adopted to address a 

fundamental unfairness in the sentencing process, that 

we, as judges, should say that well, we're going to be 

overloaded or we're going to be worked to a greater 
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extent and because of that, that change should not be 

made retroactive. I just think that that's a 

fundamentally unsound position for the court to take 

because we're in the business of trying to do justice 

and I think if we're going to do justice, that means 

not just justice in the future, but rectifying 

injustices that occurred in the past. 

 I also had concerns about the impact it would 

have, potentially, on our probation departments if we 

had a large influx of people coming back into the 

community who were anticipated to be back in the 

community at that time, and after consultation with the 

advisory group from the probation departments who 

weighed in on the issue, I'm convinced that while it 

would be somewhat of a burden, that they have the 

capacity to deal with the influx of additional 

individuals who they would have to supervise. 

 I do think that the major concern, and it's a 

legitimate concern, is the issue of public safety 

because I think, first and foremost, whenever a policy 

is enacted that has -- that addresses the issue of 

sentencing, that public safety has to be one of the 

most important factors that you consider and I do have 

concerns as to whether, if we have a significant 

increase of individuals coming into the community -- 
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and we are talking about at least, in the first year 

and maybe the second year, a sizeable number of people 

coming back into the community before it was 

anticipated -- whether that would have a serious impact 

on the crime problem. And while that remains a concern 

that I have, and I know many other members of the 

Criminal Law Committee have, we ultimately reach the 

conclusion that since this is not an automatic 

retroactive application of the change and that judges 

are going to have to make reason, decision as to 

whether the reduction is afforded to individuals who 

qualify for it, that with that in play and with maybe 

some guidance from the Commission itself as to when 

it's appropriate to grant that two-level decrease, that 

while there's a concern about public safety, that the 

bottom line, need to address a fundamental unfairness, 

outweighs that concern. 

 And I think -- first and foremost, I think 

it's important that we not take the position that every 

crack offender is the same. They are not. I think we 

all we have to do is think back a few years ago to the 

young lady down at the University of Hampton. I can't 

remember her last name, but her first name, I believe, 

was Kimba and she got caught up in a situation that she 

should not have been involved in, but unfortunately, 
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she got involved in that situation. She came from a 

good family. She was basically a good girl. But she 

got involved with a person who was involved in drugs, 

who enticed her to get involved. Apparently it came 

out that she had been physically abused and she did 

things that were totally contrary to her upbringing and 

she received a 22-year sentence. Was a 22-year 

sentence necessary to address that young lady? I 

suggest no. 

 So here we have somebody who had just had a 

child, who now was going to be locked up until that 

child would become an adult. I think that's not 

something that should happen in our criminal justice 

system. Yes, punishment was appropriate, but for 

someone like that, punishment of a lot lesser severity, 

in my view, would've been adequate to punish her and to 

send the message that that behavior is not going to be 

tolerated. 

 And I think there are many individuals who 

fit that same mold, so I don't think we can group 

everybody together. Yes, if you're talking about an 

offender who was trafficking in large amounts of 

cocaine and that having, obviously, a very serious 

impact on society, if you're talking about an 

individual who's engaged in violence or possession of 
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weapons during the commission of the crime, those are 

legitimate factors that maybe you want to address by 

way of a policy statement as to whether this reduction 

should apply to them. But I do think that fundamental 

fairness, in the end, has to control the decision and 

should dictate whether this becomes retroactive or not 

and in my view, it should and in my view, we have to 

give the judges the credit of factoring in these 

various considerations and making a determination as to 

whether this particular individual would, in fact, pose 

a community if they come back into the community two 

years or whatever prior to when it was anticipated. 

 With that, I'll leave as much time as you 

would like to try and answer your questions, but I do 

think that, from the standpoint of sending the message 

to those in our society who sometimes believe that our 

society really doesn't care about them, I think it's 

important that we send a message that we do and that 

while we're not going to tolerate aberrant behavior on 

the part of anybody, that we're going to treat 

everybody who comes into our court of law equally. 

 CHAIR HINOJOSA: Who's got the first 

question? 

 JUDGE CASTILLO: Judge Walton, first of all, 

thank you for your testimony. I certainly appreciate 
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it. I also appreciate the fact that you are one of the 

few people that's testifying today that has held a 

position of national responsibility in our country's 

struggle with drug addiction. Now, our chair is trying 

to lead our commission in a responsible way to deal 

with this issue of retroactivity. One of the things 

that has been troubling to me is the suggestion that is 

being repeated in the media that we have purposely 

delayed addressing the issue of retroactivity for some 

type of political gain. 

 What we're trying to do is operate in a 

responsible way so that the people that are responsible 

for any reentry issues can also act in a desired way. 

What would you suggest to judges and probation officers 

and people in charge of the Bureau of Prisons in terms 

of dealing with the issue of retroactivity at this 

point? Should they be doing something or should they 

just be waiting to see when and if we vote on this 

issue? 

 MR. WALTON: No. We, in fact, have asked the 

probation people to start to look at this issue and to 

start to dialog with the Bureau of Prisons about what 

could be done if this does become a reality, in 

ensuring that when it does occur, that processes will 

be in place to address the greater influx of 
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individuals who will come into the system. There have 

been some initial analysis done as to what additional 

resources in certain districts may be necessary in 

order to address the influx, so I think that all 

concerned should be gearing up for the potential that 

conceivably this will become a reality. I don't think 

we should wait until it occurs and then try and 

scramble around and put in place a system that may not 

be effective in addressing the situation. 

 JUDGE CASTILLO: So you would suggest that 

action be taken now? 

 MR. WALTON: Yeah. I think they should start 

to at least have working groups and start to look at 

the issue and assess what the impact will be and how 

they can best address it. 

 JUDGE CASTILLO: Judge Walton, you talked 

about crack cocaine sentencing policy in the crack 

amendments. Did the Criminal Law Committee have a 

position with regards to the criminal history 

amendments? 

 MR. WALTON: No, we did not address that 

particular issue. 

 CHAIR HINOJOSA: Vice Chair Steer. 

 COMMISSIONER STEER: Judge Walton, I thank 

you for your excellent statement and thanks to the 
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Criminal Law Committee for a very helpful letter that, 

I think, analyzes the many aspects of this issue in a 

very detailed and fair manner. You've mentioned the 

public safety issue and I think it's one that concerns 

all of us. What things can a judge do and the 

probation office and all of the parties concerned do to 

best address those concerns, on an individualized 

basis, to try to identify those individuals who need 

some additional supervision and put in place those 

things that are needed? 

 MR. WALTON: Well, I think the first thing 

that any judge should do before he or she decides to 

reduce a sentence is carefully review the individual 

who they have before them, to assess what their prior 

history is, is there a history of prior violent 

behavior, is there a history of prior possession of 

weapons behavior is there a history of prior drug 

dealing? I think it would obviously be helpful to know 

what that individual's institutional situation has 

been, whether that individual has been a model prisoner 

or whether they've engaged in acts that would suggest 

that they would continue to engage in such acts when 

they come back into the community. I think that, 

obviously, there needs to be some period of transition, 

so I would hope that individuals coming back would 
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transition back into the community through halfway 

houses so that they would have that opportunity for 

three, four, five, six months to transition back. I 

think it may be important -- for example, if I had 

somebody who I thought there was some level of risk 

that I was letting back, I might be inclined, as an 

individual judge, to require that that person report to 

me every six months so that I would -- that person 

would know that they were going to have to face me and 

they were going to have to show me that they're 

conducting themselves appropriately. Sure, that's 

additional work, but that's what we're here to do. So 

I think there are things that we can do to let it be 

known to individuals who come back, that they're 

expected to conduct themselves appropriately and if 

they don't, justice will be harsh. 

 COMMISSIONER STEER: You're describing a 

process of perhaps modifying conditions of supervision. 

 MR. WALTON: Yeah. 

 COMMISSIONER STEER: Would that generally 

require the presence of the defendant or not? 

 MR. WALTON: I would think not. I don't 

think, if you're going to afford, in effect, a reduced 

sentence to an individual but you're going to impose 

additional conditions, I would think that you wouldn't 
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necessarily have to have that individual before you. 

At least, you wouldn't have to bring them back at the 

expense of the Federal Bureau of Prisons, into the 

courtroom in order to announce those changes. I think 

it probably would be prudent, however, once that 

individual is released, to issue an order to require 

that once they're back into the community that they do 

appear before the court so the court can directly 

address them and let them know what these new 

conditions are and what the expectations are of the 

court regarding their behavior once they're back in the 

community. 

 CHAIR HINOJOSA: Vice Chair Sessions. 

 JUDGE SESSIONS: Judge Walton, I just -- I 

want to express my appreciation for you coming today 

and also your comments about courage, because it comes 

from a person whom I admire for just that 

characteristic, the real courage that you've shown in 

your career. And you focused in exactly on my question 

and that is the burden on judges and probation 

officers. Some people look at this question about 

retroactivity and say well, there's an automatic 

reduction of a certain period of time for crack 

defendants across the country and of course, that is 

not what this is about. This is about giving judges 
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the discretion and the burden to analyze again, in 

light of these changes to the guidelines, again, 

whether or not a person should be released early and 

that places a very heavy responsibility on all of the 

judges across the country. My question is whether you 

think -- and particularly, in those jurisdictions, like 

the Eastern District of Virginia, which has a high 

number of cases, whether you think courts can and are 

willing to take on that ultimate responsibility? 

 MR. WALTON: I believe that's the case. I, 

in fact, have two friends who are judges on the Eastern 

District who I spoke to not long ago in reference to 

this issue and they know, because of their numbers, it 

will be an added burden to a greater extent than other 

districts, but they, nonetheless, both indicated that 

they're willing to take on that challenge. 

 And in my experience and in my discussions 

with judges all throughout the country, I believe that 

judges are prepared to take on that responsibility 

because, as I say, if judges believe, and I think most 

judges do, that the fix was something that needed to 

occur to address a fundamental fairness, I believe that 

most judges -- in fact, I would hope all judges -- are 

willing and able to step up to the plate and take on 

that additional burden. 
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 CHAIR HINOJOSA: Commissioner Howell. 

 COMMISSIONER HOWELL: As you noted, we're all 

concerned about the public safety issue and you alluded 

to this in your testimony and in some of the written 

comments we've received have suggested that in the 

policy statements that the Commission issues along with 

any retroactive decision, if we decide that, we should 

restrict eligibility for the two points off the 

guideline offense level to offenders who do not have 

guns associated with their offense or violence 

associated with their offense and I was interested in 

the, you know, very thorough, thoughtful letter from 

the CLC, that the Criminal Law Committee didn't proffer 

that as one of their recommendations to the Commission. 

And I just wanted to wanted to know if you could 

address why it is that the Criminal Law Committee 

decided not to make a recommendation to the Commission 

to restrict eligibility for a reduction in sentence 

along the lines that some from state and local and 

federal law enforcement have suggested? 

 MR. WALTON: To be honest, I don't know if 

that was really something that came under 

consideration. I, in fact, thought about that last 

night as I was thinking about what I would say. I 

don't, I think, reach the point of concluding that we 
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should necessarily categorically exclude everybody. 

Now, maybe if you're talking about someone who not only 

was involved in drug trafficking, but also was involved 

in very violent behavior associated to that drug 

trafficking, someone -- I mean, we had an individual 

here in Washington who was prosecuted not long ago who 

was implicated in somewhere around 25, 30 murders. 

 For an individual like that, I could 

understand how it may be appropriate to conclude that 

he is ineligible for this reduction. But generally, I 

wouldn't say that that should categorically be the 

situation. People do change. And I think we end up, 

as a society -- and I don't think anybody would say I'm 

light on crime. I'm sort of, I guess, maybe losing the 

image that I've had as a top sentencer as a result of 

the some of the positions I've taken in this regard. 

 COMMISSIONER HOWELL: I think you'll always 

have a reputation as a thoughtful jurist. 

 MR. WALTON: But I do think that the reality 

is that we have a lot of people in our presence who 

have reached the point where they could be released 

back into society and would not be a potential threat. 

 And we pay an astronomical amount of money to keep 

those people locked up for times beyond when they need 

to be locked up, when we could be using that money to 
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maybe educate our kids and put programs in our 

communities so those kids don't end up in the prison 

cells that are being occupied by those who don't need 

to be there. So I don't like the idea of a categorical 

rejection of everybody. I could see how you may want 

to, as I say, zero out certain people who you think do 

pose too great of a threat, but by and large, I think 

that should be exercised with caution. 

 COMMISSIONER HOWELL: Thank you. 

 CHAIR HINOJOSA: Commissioner Horowitz. 

 COMMISSIONER HOROWITZ: Judge, the -- first 

of all, thank you for coming and speaking to us. In 

the letter, the CLC references the possibility of the 

Commission thinking through the Booker issues, the 

Hicks decision, that's something that you've obviously 

not touched on in your testimony today. Do you have 

any thoughts about that, either formal from the CLC or 

as a district judge who's going to have to deal with a 

number of sentencings? 

 MR. WALTON: I mean, that's a concern. As 

you know, Judge Cassell, in his letter, did address 

that, at least to some degree, and suggested that maybe 

a policy statement from the Commission might address 

that, at least to some degree, but I think at bottom, 

there is going to be a legal battle that will be waged 
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as to whether pre-Booker sentence defendants who 

received the reduction are then placed in the position 

of a post-Booker defendant and therefore the 

ramifications of Booker come into play. And that, 

obviously, is somewhat of a concern because if that is, 

in fact, what the legal landscape ends up being, it 

would have a greater impact on the workload of the 

courts. 

 But again, I guess I just say, you know, we 

were hired to do this job. Nobody asked us to do it. 

It's a great job in a lot of ways and it's a challenge 

that I think most of my colleagues -- I know I would be 

willing to take on. Sure, it may make us work harder, 

but to address a fundamental unfairness and to provide 

the relief that you have provided to those who are 

deserving, I think there's a sufficient justification 

for doing so even though the concerns that you express 

and reference, the Booker, may be a reality. 

 COMMISSIONER HOROWITZ: Can I ask just one 

other question, also. The Supreme Court heard argument 

in October on the Kimbrough case which deals with the 

crack powder ratio. It's obviously unclear how that 

case will come out. As a district judge, would you be 

inclined to wait for that decision from the Supreme 

Court given the potential ramifications it could have 
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on the crack powder sentencing and your authority in 

that regard or do you think that's something that you 

would not be inclined to wait for, assuming you were 

doing resentencings? 

 MR. WALTON: You mean if you decided to -- 

 COMMISSIONER HOROWITZ: Right. Assuming we 

decided to make it retroactive. Is that something you 

think you would additionally wait for, potentially, 

obviously, as late as June for Supreme Court's 

decision? 

 MR. WALTON: Probably not for those offenders 

who the change would have an immediate effect on. I 

don't think I should delay the decision as to what I do 

in their cases. For those whose -- you know, the 

retroactivity impact would not have an effect until 

after the Supreme Court makes its decision, in those 

situations, I might be inclined to wait. 

 COMMISSIONER HOROWITZ: Thank you. 

 CHAIR HINOJOSA: Commissioner Friedrich. 

 COMMISSIONER FRIEDRICH: Judge Walton, thank 

you for coming here today. Thank you for your time and 

your expertise. We appreciate it very much. The 

Criminal Law Committee has recommended a possible 

policy statement would be that the court should simply 

consider the change in the crack guideline made by the 
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Commission. Some of the other points you've made here 

today, such as the possibility that judges like you 

would consider having defendants report periodically, 

to deal with the public safety issue or modifying 

conditions of release. Are those things that you think 

would be best captured in a policy statement by the 

Commission or are those things that the Criminal Law 

Committee would consider recommending to the individual 

courts? 

 And secondly, if I can make one -- ask you 

one more question related to that, to what extent do 

you think the modifications in supervised release, to 

what extent can that capture or replicate the same sort 

of comprehensive assessment that occurs before a 

release, currently, in the Bureau of Prisons? To what 

extent can judges, by modifying conditions for release 

to include home confinement or community confinement, 

to what extent can they replicate the same sort of 

comprehensive risk assessment that currently occurs in 

prison? 

 MR. WALTON: Judges probably would not be 

able to make that type of assessment without some 

input, I would think, from the Bureau of Prisons. I 

would think that would be necessary because the 

individual may not have been before the court for some 
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period of time. The pre-sentence report would be 

somewhat dated. I mean, obviously their behavior in 

the community would not have changed, but they've been 

incarcerated for a number of years and I think you 

would have to have some input from the Bureau of 

Prisons as to what the institutional adjustment of the 

individual has been in assessing what type of 

additional modifications in the conditions of 

supervised release would be appropriate. Your first 

question was? 

 COMMISSIONER FRIEDRICH: Was in terms -- 

you've recommended a potential policy statement that's 

relatively narrow and you've presented some other 

ideas, both in the testimony and here today. Should we 

consider a broader policy statement or are these things 

that you think that the courts, on their own, should do 

through Criminal Law Committee recommendations or the 

like? Or is this something we, the Commission, should 

consider incorporating into policy? 

 MR. WALTON: I've looked at some of the other 

submissions that were made to the Commission. I know 

there are some who say that you should not do anything 

by way of a policy statement. I, personally -- and 

this is not the view of the committee, because it 

wasn't addressed beyond what we discussed that's in the 
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letter, but I personally view -- I personally believe 

that we, as judges, take very seriously the policy 

statements that you issue in reference to guidelines 

and I think it would have greater force if it came from 

you and I personally would appreciate that type of 

assistance from the Commission in my assessment as to 

which individuals I thought were appropriate for the 

reduction. So I would personally encourage that type 

of guidance from the Commission. 

 CHAIR HINOJOSA: Commissioner Ferry. 

 COMMISSIONER FERRY: If I may, I have two. 

One is a follow-on to what you just asked, or what you 

just answered. And let me say good morning. It's 

always good to see you again, Judge. You indicated 

that you may like to have updated input from the Bureau 

of Prisons. What format would you anticipate receiving 

that input in, from AUSAs or report from the Bureau of 

Prisons, what would you anticipate doing? 

 MR. WALTON: I would anticipate that our 

probation officers would dialog with the Bureau of 

Prisons and serve us an updated pre-sentence report 

with the information about what the individual's 

institutional adjustment had been. Obviously, if the 

government wanted to weigh in -- because one of the 

things I emphasized as we were debating this whole 
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issue, which you will see in the letter, was the fact 

that the Justice Department would need to be notified 

about the fact that we were considering this issue, so 

if the department wanted to weigh in and express their 

opposition, they would have that opportunity. 

 COMMISSIONER FERRY: My second question 

relates to one that Commissioner Horowitz asked 

regarding the Booker question and I'm curious to know 

either -- whether or not the Criminal Law Committee, 

itself, discussed this and what its opinion was or if 

you have any individual opinions on the idea that if 

Booker applies retroactively, it could inject some 

unwarranted disparity in the system, that is that all 

courts have universally held that Booker does not apply 

retroactively but yet, if a court were to determine 

that in the context of this 3582(c) hearing that the 

defendant could argue the Booker factors, the idea that 

these defendants would get, arguably, a benefit that 

other defendants who had been previously sentenced were 

not able to get and the type of disparity that injects 

into the system. Did you have any discussions or does 

the Criminal Law Committee have any conclusions 

regarding that? 

 MR. WALTON: We had some discussions in 

reference to that, but I don't think there was any 
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consensus as to what the potential impact would be. I 

think that it is a concern of many of the members of 

the committee and obviously, the cases that have looked 

at the issue to date have taken the position that if 

you're going to resentence, that Booker does come into 

play. However, as I recall, I think it's the Hicks

case, said something about maybe a policy statement 

from the Commission could conceivably have an impact on 

what factors the judge could take into account. 

 I think it's going engender, unquestionably, 

a legal battle. I think that's a reality. And where 

judges ultimately come out is going to, you know, I 

think be ultimately resolved by the courts of appeals 

and maybe, ultimately, by the Supreme Court. But I 

really, I think, can't give you a definitive 

perspective. 

 It's an issue that may come before me, so I 

don't want to opine, is that, you know, how I would 

rule on that, but it is, you know -- it does, as I say, 

previously raise some level of concern, but ultimately, 

I think, you know, the need for the perception and the 

reality of fundamental fairness outweighs that concern. 

 And the other point I want to make in that regard, 

which I didn't indicate specifically, but I do think 

it's profound, also, that, for example, in reference to 
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LSD -- now, admittedly, the numbers were not the same. 

 When the change in the guidelines regarding LSD became 

into law, it was, ultimately, made retroactive. And 

again, I think if this is not made retroactive, I think 

there will be many in the community who will say well, 

again, you see what happens when it affects a certain 

segment of our society, the benefit is awarded to them. 

 When it affects another segment of our society, it's 

not. And I just think that that's a message that we 

can't send our society if we want all or part of our 

society to respect our criminal law system. 

 CHAIR HINOJOSA: Commissioner Reilly. 

 COMMISSIONER REILLY: Thank you, Judge, and 

thank you. It's good to see you and appreciate very 

much your input. I suppose that every day of the week 

we at the -- of what's left at the U.S. Parole 

Commission, make decisions with regard to the impact 

our decisions have on individual lives and we always 

look at this issue of treatment, because when we talk 

about the offenders that I think we are all talking 

about, which are the nonviolent offenders who have been 

put in prison for extended periods of time, we really 

want to know how they've programmed. We want to know 

the institutional record, we want to know what 

treatment they've had and we want to know whether they 
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have programmed well in that treatment. And element -- 

the distributors, the major distributors of drugs, 

looking at the individual, who you indicated, got 

caught up in the system -- and I think there a couple 

of young lawyers that I read about the other day from 

Howard University that got caught up in it and are 

doing a long sentence. You know, how do we build in, I 

think, into whatever we decide to do or the Commission 

decides to do, some sort of a statement that says that, 

you know, we want to know how this person has done, 

sure, within the institution, but if they were a user 

of cocaine, were they successful in the treatment they 

received? 

 And is somebody willing to sign off that that 

has been dealt with, because to just turn them back on 

the street again, as we have seen, ourselves, both with 

the supervisory lessees from the district, who usually 

let go through at least three sanctions before we 

revoke them, if they have not programmed, if they've 

not had treatment that they've been successful at, then 

I think it's a lost cause to put them back out there 

and we're obviously not talking about the violent one, 

we're talking about the person who just has an 

addiction and how do we deal with that? I mean, how do 

we build that into whatever's done, if it is done, that 
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will guarantee that when you're looking at it, the 

courts are looking the decision they have to make, that 

this has been accomplished? And I have to tell you -- 

and this is no criticism by anybody. I've seen the 

growth of this system over a period of years here, from 

56,000 to 200,000 people in 214 prisons at the federal 

level, but treatment has been an issue and we've had so 

many people now in the system, you can't provide the 

treatment and I think that's a big question. 

 And if it weren't for a lot of the private 

sources out there who are able to extend a hand and do 

that, I don't know what we would do in this country. 

We couldn't do it because it doesn't seem that we're 

able to do it, at least in the government, so I guess 

I'm struggling -- we struggle with it every day. We 

just had safe surrender here in the District. We had 

over 530 people come in and surrender for various 

issues. 

 We were very involved in that. Many of those 

people, it was like a whole new world to them, that 

they had been -- the warrant that was on them had been 

lifted. Some of them was child support, some of them 

traffic offenses, whatever. We had 14 of our own from 

the Parole Commission. But it allows them to lead a 

new life and certainly, that's what I think all of us 
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who are in public service want to do and I commend you 

for your position as a federal judge to come forward 

and speak on this. And I think we're all struggling 

with it and certainly we're struggling -- we've got to 

struggle, as Americans, with this population issue. I 

don't see how we can continue to build prisons and take 

money away from other important social resources that 

we have and so is the treatment issue something your -- 

is a major concern to you in terms of whether they get 

it and whether they programmed and whether it was 

successful and whether it's even available? 

 MR. WALTON: I mean, that's obviously a 

significant problem because the reality is that we know 

a sizeable portion of our prison population have an 

addiction problem, whether it be alcohol or drugs and 

we don't have enough treatment capacity in our prisons. 

And while I think, obviously, we should seek to treat 

people for addiction when they're incarcerated, the -- 

a treatment they may receive in that setting may not 

really reflect their ability to adjust when they're 

back in the community, so if you have somebody who's 

had an addiction who receives treatment, I would think 

that you'd still want to continue some level of 

treatment regiment once they come back into the 

community because the same community pressures and 
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circumstances that caused him to gravitate towards that 

behavior, which may not exist in the same -- to the 

same degree in the institutional setting are going to 

still be in play once they come back into the 

community. So even if they have been successful -- and 

I think that's something that should be considered -- I 

think we still have to consider to what extent we have 

intervention once they come back into the community. 

 I mean, one of the things that I learned when 

I worked in the White House Drug Office is that 

treatment can be successful. Many times it's not 

successful. But the longer you keep a person in 

treatment, the greater likelihood you're going to be 

successful, but because of the large number of 

individuals we have who have an addiction problem and 

the limited resources we have to provide treatment, 

we've created these 30-day, these 90-day wonders. 

 In reality, we know -- I mean, it looks good, 

that we're treating all these people, but in reality we 

know that those type of programs, by and large, don't 

work. We need programs that are long-term because it 

takes a long time for people to change their behavior 

and their mindset about the use of drugs. And until 

we're willing to commit those type of resources, we're 

not going to have the level of success that otherwise I 
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think we can have in trying to impact the problem of 

addiction and even under the best of circumstances, 

even with the best resources that you have, 

unfortunately, you're going to have people who are 

going to go back to the use of drugs regardless of what 

you do, but I do think, for the population we're 

talking about, that we've got to think about treatment, 

what somebody has done in reference to treatment and 

having available for them treatment when they come back 

into the community. 

 JUDGE CASTILLO: Judge Walton, can I just 

follow up on treatment for one second. It's alluded to 

in the press that a whole bunch of individuals are 

going to be released. Will those individuals still be 

under criminal justice authority and have treatment 

available to them or not? What's your view on that, 

Judge Walton? 

 MR. WALTON: Well, they would still be on -- 

I would assume, still be on supervised release and -- 

 JUDGE CASTILLO: So if they needed treatment 

and if treatment resources were available at the 

federal level, would that be something a judge would 

do, presuming these is retroactivity and the judge did 

allow for retroactivity? 

 MR. WALTON: Yes, I would hope so. I mean, I 
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think, as was indicated by Commissioner Reilly, if 

we're going to release individuals who we know still 

have an addiction propensity -- I guess you're always 

going to have that, but if they still have an addiction 

and we don't address that, I think the handwriting's 

going to be on the wall. They're going to be back in 

the process. 

 CHAIR HINOJOSA: Judge Walton, the chair gets 

the very last question. There's some allusion here in 

the questions and your answers with regards to a policy 

statement, for example, on firearms. As you know, this 

amendment just affects the base offense level. We have 

enhancements with regards to use of firearms. Many of 

these individuals may have been convicted with regards 

to the mandatory consecutive five-year minimum with 

regards to possession of a firearm. 

 There are enhancements with regards to if you 

have an organizing role or manager or supervisor role 

or leader role and so those enhancements have been 

built into the sentences. Would it be necessary to 

have a policy statement with regards to that when the 

only -- if you have either a system in place or a 

policy statement that only addresses the base offense 

level when there's already been enhancements and the 

individuals, with using firearms and/or having a major 
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role in the offense, have already received a higher 

sentence? 

 MR. WALTON: Well, I don't think those 

factors would necessarily or should be necessarily 

determinative as to whether the reduction is afforded, 

but I think they are at least things that courts should 

take into consideration, yes. If these factors have 

already been considered and had an impact on what the 

judge decided to do in reference to the sentence that 

was given on the drug charge, itself, then obviously if 

that was factored, it should be doubled. But I still 

think it's something that the judge may want to 

consider. 

 I mean, judges may have given a lesser 

sentence, for example, in reference to the weapons 

offense if there was no violence involved, especially 

when it comes to what the sentence was on the drug 

offense and may have decided well, I'll give -- because 

I've got to give this huge sentence, pre-Booker, 

regarding the sentencing guidelines of a drug offender, 

I'm not going to maybe give the level of sentence I 

would've given regarding the weapons offence. So I 

think, you know, judges go, as you know, through those 

gymnastics in making an assessment as to what the 

appropriate sentence is. 
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 CHAIR HINOJOSA: In the end, that individual 

judge would have to make the decision -- 

 MR. WALTON: Right. 

 CHAIR HINOJOSA: -- if this was 

retroactive -- 

 MR. WALTON: Right. 

 CHAIR HINOJOSA: -- as to whether to give an 

effect to it. 

 MR. WALTON: Absolutely. 

 CHAIR HINOJOSA: Judge Walton, we certainly 

thank you for taking time from your busy schedule and 

for sharing your thoughts and the Criminal Law 

Committee's thoughts with us. As always, we appreciate 

our relationship with regards to the advice we receive 

from the Criminal Law Committee. 

 MR. WALTON: Thank you for having me. 

 CHAIR HINOJOSA: Thank you very much. Okay. 

 If the next panel would please start coming up here. 

The next panel is the Practitioners Perspective. We've 

got five excellent practitioners before us. 

Mr. David Debold currently co-chairs the Commission's 

Practitioners Advisory Group. Mr. Debold practices in 

the litigation department of Gibson, Dunn and Crutcher. 

We've got Ms. Lisa Freeland, who currently serves as 

the Federal Public Defender for the Western District of 
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Pennsylvania. Mr. Stephen Sady, who is the Chief 

Deputy Federal Public Defender in the Oregon Federal 

Defender Office, where he has been an attorney 

since 1981. We've got Mr. Barry Boss, who currently is 

the co-chair of the American Bar Association's Criminal 

Justice Section Sentencing Committee and was a former 

co-chair of the Commission's Practitioners Advisory 

Group. And Ms. Carmen Hernandez, who is the president 

of the National Association of Criminal Defense Lawyers 

and past chair of the NACDL's Federal Sentencing 

Committee, who is in private practice here in 

Washington, D.C. And Mr. Debold, we'll start with you, 

sir. If you would like to make an opening statement, 

sir? 

 MR. DEBOLD: Yes. Judge Hinojosa and members 

of the Commission, I'm honored to appear on behalf of 

the Practitioners Advisory Group and to urge the 

Commission to make retroactive the crack and criminal 

history amendments. In our group's prepared remarks, 

we note how each amendment fits sparely within the time 

honored criteria for making an amendment retroactive. 

With respect to the crack amendment, in particular, 

first, the purpose of the amendment. The purpose is to 

provide relief from problems associated with the 100 to 

one ratio that, in the Commission's own words, are so 
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urgent and compelling that interim relief is warranted. 

Second, the magnitude of the change. This also 

strongly argues in favor of retroactivity. Without 

retroactivity, defendants sentenced within months of 

one another with identical offense conduct, will be 

sentenced using guideline ranges that are significantly 

different purely because of this amendment. Over 2300 

defendants who could invoke this amendment were it made 

retroactive, were sentenced between October 1, 2006 and 

June 30, 2007. Fully one-third of those who might 

benefit from this amendment were it made retroactive, 

almost 7,200 were sentenced within the 30 months after 

the Supreme Court's decision in Booker. 

 Given that the amendment was prompted by 

problems with the ratio that the Commission has 

recognized for years, that is, since the vast majority 

of these inmates had been sentenced, consistent 

treatment of those sentenced before and after November 

1st of 2007 is appropriate. Third, in those cases 

where a defendant is eligible for retroactive 

application of the amendment, calculation of the new 

range would be -- would pose no difficulty. So what are 

the reasons to resist retroactivity? Most that have 

been articulated are no more than attacks on the wisdom 

of the amendment for prospective purposes. Yes, those 
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with the longest sentences would have the strongest 

arguments for receiving the largest reductions, but 

that is merely a recognition that the 100 to one ratio 

has distorted sentences the most at the high end of the 

drug quantity table. Yes, a large number of inmates 

would have a strong argument for prompt release and if 

judges agreed, it would be a reflection of how many 

inmates would've received lower sentences that were 

sufficient but not greater than necessary to serve the 

purposes of 18 U.S.C. 3553(a)(2) if this amendment had 

been in place earlier. 

 As for the fear of what I'll call a jolt to 

the system, the immediate release of a number of -- 

large number of defendants, it's important to remember, 

as we just learned, that we are leaving the ultimate 

decision of how soon to release to Article 3 judges who 

share an interest, a strong interest, in ensuring that 

they will not see these defendants soon again at a 

supervised release revocation hearing. The courts, 

with assistance from probation officers in the Bureau 

of Prisons can easily accommodate the need to ensure 

that an inmate be ready for release even if it means 

that less than a full two-level reduction for those 

near the end of their terms would be warranted. Will 

retroactivity require an investment of time and 
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resources? Well, when over 19,000 inmates are eligible 

for a reduction, it is no small feat to process those 

requests. But the proper focus should be on the ease 

of applying the amendment on a case-by-case basis. To 

the extent the task here is more involved than with 

previous retroactive amendments, it is because the 

number of persons deserving of a reduced sentence is 

much greater than ever before. 

 The shortcomings of the 100 to 1 ratio have 

been known for many years. The Commission, with this 

amendment, has provided modest relief while at the same 

time respecting the statutory 100 to 1 ratio. There 

are more than 19,000 inmates for whom the statutory 

minimum does not require the sentence they are now 

serving. 

 There are more than 19,000 inmates for whom a 

lower guideline range would apply under an amendment 

that was adopted after more careful and studied 

deliberation, after more years of study and analysis 

than probably any other provision in the history of the 

federal sentencing guidelines. There are more 

than 19,000 inmates for whom the Commission can 

honestly say this sentence that these inmates are 

serving may not need to be as long as it is to achieve 

the legitimate purposes of sentencing. And there are 
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more than 19,000 inmates for whom the courts should 

have the discretion, not a mandate, but the opportunity 

to reconsider the sentence in light of the Commission's 

accumulated research and analysis. If our system of 

criminal justice and its participants must make a 

modest investment in each of these cases so that 

justice can be done, it will be time, money and 

resources well-spent. The Practitioners Advisory Group 

urges the Commission to make these amendments 

retroactive. 

 CHAIR HINOJOSA: Thank you. Ms. Freeland. 

 MS. FREELAND: Thank you, Judge Hinojosa. My 

name is Lisa Freeland and I'm the Federal Public 

Defender for the Western District of Pennsylvania and 

I'd like to thank you, Judge Hinojosa, and the rest of 

the Commission for inviting me here today to testify at 

this public hearing on behalf of federal and community 

defenders on this very important issue. You've read 

all of our written testimony, opening statements and 

all of us sitting at this table here are here to 

encourage you to provide retroactive application of 

this amendment and I don't want to be repetitive. I 

want to leave time for your questions, but there are a 

couple of points that I think, from the defender's 

perspective, need to be underscored even though they've 
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already been presented in writing. As I know you're 

aware, the reason that we're here today is because you 

have made a considered judgment that the 100 to 1 ratio 

should not stand. It cannot coexist in sentencing with 

fairness and equity and that there are tens of 

thousands of people who are serving excessively severe 

and unjustifiably long sentences, not just long 

sentences, but sentences in which this amendment 

demonstrates are longer than necessary to serve the 

goals of punishment and to, in fact, undermine the 

objectives of punishment, in the Commission's view. 

 All of the reasons that this Commission has 

cited in favor of proposing and promoting this 

amendment apply with equal force to its retroactive 

application and I'd just like to echo both what Mr. 

Debold has said and what Judge Walton said about many 

of the detractors from this amendment. It's really not 

an attack on retroactive application, it's an attack on 

the decision which has already been made, that this 

two-level reduction is appropriate to serve the ends of 

punishment and the goals of this commission. This 

commission has identified the amendment as a partial 

remedy to deal with the problems associated with the 

100 to 1 ratio and I would suggest that the idea that 

this is a remedy contemplates retroactive application 
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because the only way that the Commission can even 

partially remedy the past injustices of more than a 

decade of sentencing under the 100 to 1 ratio is to 

apply it retroactively. There simply is no other way 

to provide a remedy unless your decision reaches those 

who are already incarcerated and are already serving 

the sentences which the Commission has deemed 

unjustifiable. 

 Only then, only through retroactive 

application, will every crack offender -- we hear a lot 

about consistency and disparity. The Commission has an 

opportunity to ensure that every crack offender receive 

a sentence which serves the goals of punishment and 

that's what we're here to talk about. No commission, 

no judge imposing a sentence can go beyond, can expect 

the sentence imposed can do any more than serve the 

goals of punishment as we know them and this 

commission's judgment is that this reduction serves 

those ends. 

 I understand that with change comes fear. 

There was a lot of fear about what would happen after 

the Supreme Court's decision in Booker in federal 

defenders' offices, in United States Attorneys' 

offices, in the courtrooms around the country, there 

was fear that this decision would bring federal 
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sentencing to its knees. Those fears were largely 

unjustified. But I understand that with change comes 

fear. What I'd like this commission to understand and 

I hope the Commission will be able to do is to resist 

the colored perception and the lack of clarity that 

fear brings to a decision-making process. 

 I pray that the Commission will maintain 

clarity, maintain clarity of purpose, a purpose it has 

demonstrated through passing this amendment and not be 

detracted and deterred by the predictable fears that 

this amendment's retroactive application will bring our 

criminal justice system to its knees and lead to the 

wholesale release of dangerous offenders to the streets 

of our cities and towns. 

 Although I am a public defender and my role 

in the criminal justice system is representing the 

individual -- the rights of the defendants, I'm also a 

member of the public and I am concerned with public 

safety, but I believe that based on decades of data 

collection, research, evaluation and this commission's 

considered judgment that a two-level reduction will not 

prospectively negatively impact the public safety, that 

its retroactive application will also not affect the 

public safety. Everything that the Commission has said 

about the 100 to 1 ratio over the last decade compels 
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the decision that it be applied retroactively. I agree 

with Judge Walton that there is an inevitable burden on 

the courts, but I hope this commission will maintain 

focus on the real issue, which is not whether there 

will be extra work for judges, for defenders, for 

prosecutors and probably officers, but whether that 

extra work is warranted. 

 We're talking about a burden on the system, 

it's true, but we are not talking about an undue 

burden, especially given the fundamental unfairness 

that exists in our current system and our ability to do 

something about it today. If this commission is 

concerned about burdening the courts and easing the way 

for the application of this amendment prospectively as 

well as retrospectively, it will apply it 

retroactively. 

 The only way to ease the burden on the courts 

is for this body to give the courts guidance on how to 

apply this amendment. There will be litigation about 

whether the amendment is retroactive, even if the 

Commission does not act. That's something that cannot 

be avoided, but what can be avoided is protracted 

litigation about a question that this body has the 

power to decide today. We can't decide today what will 

happen if courts choose to apply Booker upon 
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resentencing. We can't decide what to do about those 

courts that don't. We can't do anything about judges 

that may not want to apply the reduction because as you 

know, the fact that the amendment is retroactive if you 

make it retroactive does not compel a reduction. There 

will be litigation, as Judge Walton recognized, but 

there doesn't have to be unnecessary and needless 

litigation and unnecessary and needless litigation will 

be the result if the Commission fails to act. 

 Make no mistake, the question of 

retroactivity will be litigated. It'll be litigated by 

professionals, it'll be litigated by pro se prisoners, 

but it will be litigated and it will be an unnecessary 

burden, since this commission can act. Another fear 

that has been expressed by some that have filed 

comments is the fear of the wholesale release of 

dangerous offenders to the streets. 

 And I think -- I don't want to spend too much 

time on this because I know that everyone understands 

that no one will be released to the streets because 

every federal sentence is followed by a term of 

supervised release and we've talked a little bit this 

morning about how supervised release can help to ease 

the fears about dangerous individuals being returned to 

our streets. I have to say that because the Commission 
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has decided that the two-level reduction represents a 

just sentence, there is no just reason to keep people 

in prison who are serving sentences that don't take 

into account this reduction. People perspectively 

receiving the benefit of this reduction will also 

receive shorter prison sentences, will also be coming 

out of prison earlier than was previously expected by 

the Department of Justice, but if you are correct and 

this reduction reflects what must be done to serve the 

ends of punishment, no release from the retroactive 

application of this amendment will be premature, it 

will be precisely what's called for by justice. 

 The Probation Chiefs Advisory Group has told 

the Criminal Law Committee that it believes it can 

handle the influx of supervised releasees if the 

amendment is made retroactive. This assessment on 

their part means that they are not concerned that their 

agencies will crumble if the amendment is made 

retroactive, but it also represents a statement that 

the probation officers around this country believe that 

their staff is able to protect the public as it does on 

a daily basis with individuals released from federal 

prison if this commission acts and additional people 

are released prior to their expected date. In my 

district, I've already communicated with our probation 
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officer. I know that my colleague, Steve Sady, is 

going to talk about that now. We are preparing around 

the country for this and my experience in my district 

has been that there is an atmosphere of cooperation 

that will continue. We understand that this has the 

potential to burden the system, to burden the courts, 

and we are willing to work with our United States 

attorneys, our Clerks of Court, our Chief Judges and 

our probation officers to ensure that any burden on the 

courts is handled as efficiently and effectively as 

possible. Finally, I'd like to commend the Commission 

and I know that, as a federal defender, I often do not 

find myself in this position and those of you who know 

me, know this to be true. But I do. 

 This is an issue that's very important to me 

and I want to commend the Commission not only the 

decision to propose and promote this amendment this 

year, but on its decades of attempts to bring justice 

in this area of sentence -- in this area of sentencing. 

It's decades of data collection, research and 

evaluation that has put it in the position to be able 

to propose and promote this partial remedy. On behalf 

of the defenders, I urge the Commission not to allow 

its previous efforts to be diminished and to allow this 

amendment to be applied retroactively so that it can 
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bring justice to all, not just a few. 

 CHAIR HINOJOSA: Thank you, Ms. Freeland. 

Mr. Sady. 

 MR. SADY: Good morning. I'm Steve Sady, the 

Chief Deputy Federal Defender for the District of 

Oregon and I'd like to thank you for the opportunity to 

testify regarding implementation of retroactive 

amendments. Twelve years ago the Commission 

promulgated a retroactive amendment on marijuana 

guidelines and the District of Oregon had a 

disproportionate number of people who were potentially 

affected. The court in Oregon adopted a protocol for 

handling very large numbers of cases that I think have 

been helping us to give guidance on how we can most 

efficiently implement a retroactive crack amendment. 

 The successful implementation of the 

marijuana amendment depended on three basic areas. One 

was good communication; another, cooperation among the 

affected parties; and the third was good faith in the 

cooperation and trying to get to fair results in 

individual cases. Federal defenders are committed to 

making sure that each individual gets the maximum 

ability of representation, the maximum reasonable 

result in a retroactive context. That also does not -- 

permits us to act in a group manner, basically trying 
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to streamline procedures where it's reasonable and 

effective. The first step that we did in implementing 

the marijuana retroactive amendment was just trying to 

identify who the affected people were. That involved 

communication with the U.S. Attorney's Office, the 

probation office, the Bureau of Prisons, to make sure 

that we had the right group identified. So first we 

had to identify the group. 

 Second thing we did was move towards making 

sure that each individual had counsel through an 

appointment of counsel, generally to our office for an 

initial screening, and authorizations for release of 

information to allow conferring with whoever the prior 

counsel was and also to make sure that we had 

authorization to look at and evaluate pre-sentence 

report and statements of reasons, which we obtained 

with the cooperation of the probation office. 

 A third part that we did, which I think was 

essential and is a process that's already started in 

the crack retroactivity question is educating clients. 

 So for the period of time for the month or so prior to 

November 1st, 1985, we sent letters, we had phone 

calls, we met in groups with the folks in the prisons. 

We would provide a general explanation of what it 

consisted of, what the limitations were, what the 
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reality was, what the potential for a retroactive 

amendment for individuals in a group setting. We 

invited general questions in the group setting so that 

rumors and false expectations were minimized. Through 

the transparency, we were able to keep rumors and wild 

expectations to a minimum. We then met individually 

with the specific client; had our worksheet, which 

we've already adopted for the crack retroactivity, to 

be able to get a basic set of how -- what, reasonably, 

could we expect to get maximized for this particular 

client. 

 After the gathering of information and 

educating of the clients, we met with the United States 

Attorney's office and the United States Attorney's 

office, my counterpart, had been consulting with the 

individual prosecutors in cases and basically coming up 

with what they thought would be a reasonable way of 

implementing a retroactive guideline because, of 

course, once the Commission has stated that this is how 

it should apply, that they are executing. And we got 

together and decided how close we were and how we 

computed what the results should be and how close they 

were. Well, there were a certain number of cases 

where, right from the beginning, we were on the same 

page. Whatever else -- and remember, back in that 
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epoch, there was no limitation on what we could ask 

for, what we could think we should do. We were trying 

to recapitulate what would've happened if the marijuana 

correct guideline had been in effect at the time of 

sentencing. So we were feeling fairly free about what 

we could ask for in terms of getting justice in the 

individual case. We found a remarkable number of the 

cases we were in agreement on. 

 Some, we were close and send them back to the 

prosecutor, send them back to the defense lawyer, come 

back and have some more negotiation. In a remarkable 

number of the cases, we were able to get to an 

agreement of what the client, defense counsel and the 

prosecutor thought was a fair disposition. On those 

cases, in the week before the effective date, we were 

able to send letters to each individual judge stating 

-- providing the background of that individual case and 

why the parties come to a certain agreement. 

 Attached to the letter was a motion that we 

requested to be filed with the coordination with the 

clerk's office on that day, if Congress allowed the 

amendment to go into effect and that document was -- 

attached to that document was a proposed order which 

simply said here's the -- amending the judgment to read 

the new sentence and all other parts of the judgment 
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remaining in effect. On November 1st, 1995, judges in 

the District of Oregon signed 121 orders that day and 

that morning, the clerk's office had coordinated with 

the Bureau of Prisons, who provided wonderful 

cooperation throughout in terms of making sure we knew 

projected release dates, could make sure that most 

people most immediately affected were treated with a 

priority. Those -- the clerk's office was able to 

send, to the right prison, to the right fax number, so 

that people knew exactly when that order was changed on 

November 1st. The Bureau of Prisons had also been 

copied on the proposed change. 

 They had already recalculated so they were 

able to make, if that went into effect, they knew who 

should go home that day, who -- they knew who should 

start being transferred into community corrections to 

start that process if they were within a certain amount 

of their -- the new release date. And on that morning, 

after that -- with that procedure, the 121 judgments 

went into effect. Many people met in the parking lot 

with their families and went home and it was with a 

minimum amount of dislocation for the court system. 

Each individual was considered -- came to a result that 

they were comfortable with. The number of cases that 

needed litigation issues, those issues were handled 
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separately without particular strain to the court and I 

think it provides a very good model for implementing 

the crack retroactive amendments. We have circulated, 

through every federal defender, a packet with the 

worksheets and the interview sheets and suggested 

procedures. I know they're being started in both 

informal and formal steps, certainly been adopted in 

Oregon that we're already -- you say the word, we're 

ready to move. And the -- I believe, that's at least 

informally it's happening in the Eastern District of 

Virginia and other places with large numbers of cases 

that need to be addressed. 

 As you can imagine, November 1st, 1995 was 

one of my best days as a federal defender. It was also 

one of my worst, because while the predominantly white 

marijuana growers were being joyously embraced by their 

families in the Sheridan parking lot, my AfricanAmerican clients, who I knew were serving overincarceration, sentences more than necessary to serve 

the legitimate purposes of sentencing, they stayed. 

This is a day where the Commission can remedy that, at 

least partially, and to do that is fair, necessary and 

very doable. 

 CHAIR HINOJOSA: Thank you, Mr. Sady. 

Mr. Boss. 
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 MR. BOSS: Thank you, Judge, members of the 

Commission. I want to thank you on behalf of the 

American Bar Association for hearing us today on this 

extremely important issue and I will brief, because I 

know we have limited time and I want to make sure that 

Ms. Hernandez speaks her piece. I think the Commission 

recognizes that there is actually a very fine line 

between imprisoning the innocent and over-punishing the 

guilty. Both impact our fundamental notions of 

fairness and due process. It's recognized in the Brady 

Doctrine. We not only have to give exculpatory 

information that relates to guilt/innocence, but we 

have to do it with regard to sentencing. 

 This commission and the commissions that 

preceded you recognized, from a very early point in the 

process, that individuals convicted of crack offenses 

were being over-punished and it began in the 

early 1990s, culminating, I believe, in 1995 with the 

suggested amendment to try to right what everybody 

recognized was a wrong; it was an over-punishment of a 

certain category, a large category, of individuals. 

Maybe not all of them. Maybe there were some 

individuals who deserved the large sentence, but the 

judges, on an individual basis, even if the amendment's 

made retroactive, can make that determination because, 
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of course, the reduction is discretionary on the part 

of each individual judge. In recognizing the 

tremendous number of defendants who have been overpunished, we recognize that a moral imperative to 

correct that in this commission is to be commended for 

actually getting it done. But the moral imperative 

that so motivated the Commission and so many of us here 

to correct this problem also suggests and requires that 

the amendment be made retroactive. 

 Commissioner Howell, in her opening remarks, 

noted that this is not a cure-all. This is the first 

step. What is important is we communicate to other 

policy makers, to Congress, which has obviously slower 

to act than the Commission in this regard, the 

importance of this moral imperative. The Commission 

will undermine that message if it does not make this 

amendment retroactive. 

 What are we saying about the importance of 

this amendment if we're not willing to stand up for it 

and say it is so important and so essential, that it 

needs to made retroactive. Finally, I want to briefly 

touch on this issue about management because I think 

Mr. Sady has laid out something that we've all seen in 

practice will work. But I also would encourage the 

Commission not to try to micromanage this process in -- 
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particularly in this very condensed process of 

determining retroactivity. I don't think the 

Commission is in a position to make specific policy 

suggestions about how to administer what can be a very 

complicated process and on an individual basis is best 

resolved by the individual judge. 

 The Commission has been somewhat reticent to 

overhaul the guidelines to reflect the Booker decision 

and now I understand there's concern that Booker may 

apply at these resentencings. But I would really 

discourage the Commission from, at this point, trying 

to come up with very, very complicated and 

sophisticated Booker policy which may impact much more 

than this retroactive amendment in its very limited 

context where we haven't had the full opportunity for 

study and input. 

 I believe the Commission should overhaul the 

guidelines to reflect Booker in things like 6(b)(1.2), 

which still have the shall language that 11(c)(1)(c) 

plea can only be imposed where it complies with the 

guidelines and needs to be changed, as do a number of 

other provisions. But I would encourage the Commission 

to do that as part of a broader overhaul and at that 

point, if the Commission wants to address this issue of 

how retroactive amendments should be promulgated and 
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implemented and Booker should be applied in that 

context, that would be the appropriate context for 

doing it. So I want to, as I said, give Ms. Hernandez 

a chance to talk. We really commend the Commission for 

taking this action. Nothing, I think, has been more 

important over the last 10 years than to correct this 

wrong and on behalf of the ABA, we thank the 

Commission. 

 CHAIR HINOJOSA: Thank you, Mr. Boss. 

Ms. Hernandez. 

 MS. HERNANDEZ: Good morning, Commissioners. 

It's a pleasure to be here once again and I agree with 

everything that my predecessors on this panel have 

stated. I, too, want to start by commending the 

Commission. I think -- you know, Commissioner Steer's 

probably the only Commissioner who was here in 1995. 

I was representing the federal defenders at that time. 

 I think the Commission, with respect to crack 

cocaine, has worked as what everyone who supported the 

Sentencing Reform Act envisioned the Commission to be, 

an expert body that looked at the evidence, that was 

able to marshal all the studies out there, all the 

facts, and was able to come out with a report that 

everyone could understand what that particular crime 

was about and what the appropriate sentence was about. 
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I think -- and you have maintained it, despite the 

post-1995 Congressional kickback, one might refer to 

it, when they were not happy with the Commission's 

proposal to go one-to-one. You have done -- you've 

looked at the evidence. You've said this is the 

evidence; Congress, you do with it as you see fit, but 

you have not changed the facts to fit the political 

climate and so I commend you. 

 I think you've been incredibly brave and I 

think your decision earlier this year to propose a 

reduction, a two-level reduction was, you know, the 

most brave act of all the ones you've done. And I 

think every commission, from the years I've been 

observing, every commission comes to that point in time 

where they have to make the real hard decision. I 

think Judge Murphy's commission did that with the 

post-PROTECT Act departure decisions that it made. 

 It was under a lot of political pressure to 

decimate, in essence, the notion of what unwarranted 

disparity and what guideline departure was all about 

and you stood your ground and said this is what our 

position is, this is what the evidence shows, this is 

what we think our obligation is, and I think you've 

done it again with the crack cocaine. So I commend you 

for doing that. You did the right thing back in 1995; 
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you've done the right thing throughout these years and 

I am absolutely certain that you will do the right 

think again today. Having said that -- 

 CHAIR HINOJOSA: Can we go on to questions, 

then? 

 MS. HERNANDEZ: Let me just say a few things. 

 No. No, Your Honor. 

 CHAIR HINOJOSA: You were on a roll there. 

I've never heard so many positive things from you, 

Ms. Hernandez. 

 MS. HERNANDEZ: I know. 

 CHAIR HINOJOSA: Stop now. We'd be feeling 

just great. 

 MS. HERNANDEZ: I've been often told by many 

judges, asked whether I really want to snatch defeat 

from the jaws of victory and I usually answer yes. No. 

 You know, the one thing -- I don't think that there's 

-- I don't think there's an issue on administrative 

burden. All the parties who have -- who would suffer 

the administrative burden have come to you and said 

there is no burden. The courts, the courts have come 

and said when we're balancing administrative burden 

with what's right, they're telling you it's a no 

contest. What's right has got to win. The cost of 

this, frankly, every one-year reduction per defendant 
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is going to more than offset whatever it's going to 

cost the courts to handle this. So I think the only 

argument that the Department of Justice can validly 

present to you is the argument of the danger to the 

community, so let me address it. And I think the best 

way to address it is what happened after the 

Supreme Court decided the Bailey decision, which 

involved 924(c). 

 That involved every defendant in those cases, 

involved the defendant charged with using a firearm in 

connection with a drug offense or a crime of violence. 

So it isn't like crack, where only 25 percent of the 

defendants have a gun bump. And a number of those 

don't even -- don't involve defendants who personally 

carried the gun but just, you know, are part of a 

conspiracy. 

 In the 234(c) context, which I know was not a 

guideline context, but it was a Supreme Court context 

and because it was an interpretation of a statute, it 

was applied retroactively and every court in this 

country had to reassess those cases and I was an 

assistant federal defender in the District of Columbia 

at the time. There were about 500 cases in that 

district alone where 924(c) case came back to be 

reviewed. And frankly, it got resolved. The one or 
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two attorneys who were involved with it, I think, ended 

up in the hospital pulling out their hair, but that was 

a burden that the criminal defense bar is willing to 

bear. But what happened in those cases, similar to 

what Steve Sady described with marijuana, it was 

quickly resolved in conjunction and working with the 

U.S. Attorneys offices. They said some cases we're 

going to oppose. 

 Plus, in every one of those cases, because 

a 924(c) conviction was being withdrawn, the gun bump 

now came into play because at the time and it 

continues, you cannot impose a 924(c) consecutive fiveyear and also a two-level gun bump if it's a drug 

offense. So in every one of those cases involving a 

drug case, which was most of them, you withdrew 

the 924(c), but now you had to recalculate the 

guidelines to add the two-level gun bump. 

 And quickly, the prosecutors involved in 

those cases and the defense attorneys involved in those 

cases set up a pattern. In some cases, they agreed to 

them; in some cases, they didn't. Quickly, the courts 

of appeals resolved how to address the issues. You 

want questions. I'm being told to shut up. But I 

think the 924 -- the Bailey cases are the most 

comparable -- or the way to address what the government 
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is arguing about. And again, I think it's a 

mischaracterization in the press and by the government 

to say that you, the Commission, are going to 

release 19,000 people. No such thing. The only 

persons that are going to be released are going to be 

released after an adversarial hearing, if that is 

required, in front of a federal judge who will decide 

the merits of the case. And in the marijuana case 

even, cases, I remember a number of cases where -- 

judges said no, we're not going to release defendants 

even though it's a retroactive application. They want 

me to, you know -- 

 CHAIR HINOJOSA: Basically, they're using 

their prerogative of saying we used up all your time. 

 MS. HERNANDEZ: All right, okay. You know, 

I -- 

 CHAIR HINOJOSA: They didn't time themselves, 

but you are timed and so I think we're ready for 

questions. 

 MS. HERNANDEZ: Just say two things, 

Your Honor. I do want to support, also, retroactivity 

in the criminal history amendment and I want to commend 

the Commission, again, for its work in this area. 

 CHAIR HINOJOSA: Thank you, Ms. Hernandez. 

Who has the first question? Vice Chair Steer. 
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 COMMISSIONER STEER: Well, all of you have 

been helpful. Mr. Sady, I think the Commission 

particularly would find the -- protocol to be helpful. 

 It's a two-part question. Is the protocol steps 

written down other than you have described it? If so, 

could we have a copy? More importantly, with respect 

to the marijuana plans, you had six months to prepare 

because that decision on retroactivity, as you know, 

was made current with the submission of the amendment 

to Congress. I appreciate the fact that federal 

defenders have already been at work in the case the 

Commission makes this amendment retroactive. Not all 

districts have federal defender offices. How much 

time, realistically, is needed before procedures can be 

put in place to handle this the most efficient way 

possible if the Commission makes the amendment 

retroactive? 

 MR. SADY: I think that's a very important 

question and interestingly, although we had the six 

months beforehand, I don't think that we started 

planning it until late August and into September and in 

going through our archives, I was seeing that a number 

of the letters that we were sending to the clients were 

dated early October, so we needed a very short, very 

intense, but very short period of time in order to put 
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that together. Everybody, when they were all on the 

same page, trying to cooperate and make this happen, 

were able to do it in a very efficient and a short 

period of time because everybody knew that we needed to 

try to get it into effect, because there were people 

who should be out now and so that provided some 

incentive for speed and also, as far as the allocation 

within the offices, it was generally -- I took the lead 

in the defender office. 

 The -- I had a counterpart at the U.S. 

Attorney's office and we sort of funneled the 

information from the other, so that made it go a lot 

easier and faster, so the period of time that we needed 

to prepare was relatively short and as I've said, I 

think that we are already preparing, taking the steps. 

I think probation offices -- our probation office was 

right there. 

 We were not trying to egg them along. They 

were -- had their lists and we helped them by going 

through their list, running Inmate Locater, doing the 

reverse order function of Bate and all of a sudden, 

there we have -- you know, everybody's potential 

release date by who are the ones that we have to make 

sure we deal with first, although we did that also in 

the marijuana situation, we had everybody dealt with no 
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matter when they were within that very short period of 

time before the implementation date. For districts 

that don't have a federal defender, I -- many of them 

have community defenders and I believe it's very few at 

this point, but I'm sure the defenders would be 

cooperative in dealing with that and one of the things 

that we're doing, I met with all of the groups at 

Sheridan with the folks who were affected, potentially 

by the crack retroactivity, but we can meet with -- but 

I think when I'm -- this Thursday I'm hoping to meet 

with all the folks from other districts to help them -- 

make sure they have representation in their home 

districts because they're hearing the same things in 

the prison. 

 We want to make sure the same information is 

getting out so that people are not having that anxiety 

that they are missing out on something or that they're 

being taken advantage of somehow by not having 

representation. So we are going to be helping and I 

think the best part of the protocol that we've sent 

around to the other federal defenders with prisons to 

assist people getting assistance in their own district 

and that's, of course, something the federal defenders 

are great with doing as far as cooperating between the 

districts. As far as the protocols being in writing, I 
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have sent around a memo to all the federal defenders 

setting out what I believe are the advantages and 

disadvantages of the procedures. The attachments are 

full of the model forms that we've used, basically, the 

exact same letters and motions and proposed orders. 

Those materials are easily available. The material, as 

far as the protocols can easily be adapted for 

presenting to the Commission. 

 COMMISSIONER STEER: Mr. Sady, a follow-up to 

that question, then. With the rest of these protocols, 

Oregon is obviously in the 9th Circuit. 

 MR. SADY: Yes. 

 COMMISSIONER STEER: You've got the Hicks

decision there. In the 4th Circuit, you've got a 

different circuit decision; the 3rd Circuit, possibly, 

also agreeing with the 4th Circuit on the issue -- 

Booker and its applicability to 3582(c). And so the 

protocol, when you meet with these clients, what 

discussions would you have with regards to 

possibilities in the 9th Circuit or -- 

 MR. SADY: Well, since I've already met with 

them -- we've already met with the people and had 

initial interviews. I want to be careful not to betray 

any attorney/client secrets, however -- 

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lawyer, so I would -- 

 MR. SADY: So in a more hypothetical and more 

general approach to folks, there are certainly -- it's 

the same advice I give on the marijuana, which is there 

are a number of things that we may be able to do here. 

There is not a limit. It's going to the discretion of 

the court. What can we reasonably expect under the 

facts of this case and a reasonable result that the 

U.S. Attorney can agree with? Perhaps -- because that 

gives us the element of certainty or that we may be 

able to convince the judge of that would be willing to 

sacrifice the element of certainty to. 

 So it's not all that different from what I do 

all the time with my trial-level cases. I'm trying to 

assess what I can possibly -- what the best for my 

client will be and I will want to do that in every case 

where the equity is warranted. I would certainly want 

to make sure that those facts are known to everyone and 

so that we can try to get the best result and hopefully 

by agreement because we just -- we love a sure thing, 

at least the agreement of the opposing party, if we can 

get it. If we don't have agreement and we don't think 

that's the fair result, we litigate. That's what we 

do. But it's -- I don't think it's greatly different 

than what we've already seen and that's also been my 
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experience in talking to people at Sheridan. 

 CHAIR HINOJOSA: Judge Castillo. 

 JUDGE CASTILLO: All of your testimony has 

been helpful, but I'm going to address my question to 

Ms. Hernandez to even out her time. You've referenced 

our reports and here's the question. We've received 

all kinds of letters, some opposed, some in favor. The 

ones that are opposed reference the fact that there is 

about to be this huge release of major crack dealers 

and the ones that are in favor reference the fact that 

who is being affected are low-level crack defendants. 

You've looked at our reports, we've issued numerous 

ones. We've tried not to gloss these reports. Where 

do you think the truth lies as to what type of 

offenders are really covered in this 19,000-person 

group? 

 MS. HERNANDEZ: Well, I think your statistics 

have always reflected the very few crack defendants are 

those that we would call real kingpins. For the 

majority, based on your statistics and certainly, it's 

my experience, as a criminal defense attorney, the 

majority are street-level dealers because five grams of 

crack is not, you know -- and 50 grams of crack are 

generally the street-level dealers or you know, 

addition of multiple smaller sales or you know, people 
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having a crack party. One judge here in the District 

of Columbia referred to it as it's almost like keg 

party. But they aggregated all the crack and therefore 

the people ended up looking at either five, seven, 

eight years. The majority of crack defendants are not 

kingpins and I can guarantee you that those kingpins, 

if those cases come up and if there was, you know, a 

violent gang leader, I don't know what federal judges 

you know, but most federal judges I know are not going 

to release those particular people into the community 

unless the facts are justified. 

 You know that a number -- your statistics 

reflect it and my experience and every criminal defense 

lawyer's experience reflects that most crack defendants 

are not that high level of people. I mean, I think, 

again, it comes down to in an adversarial system, let 

those issues be resolved in a court of law. Those are 

not the cases that are going to be resolved probably by 

cooperation. And I want to say one other thing about 

this. You know, Congress well knew, because you noted 

the fact that you were having a retroactivity hearing 

before November 1st. Congress well knew that this was 

going to happen and this was a potential and they did 

not reject it. In fact, there are bills before 

Congress, in the Senate and the House, to equalize or 
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to make even greater reductions than what the two-level 

is. So I don't -- I mean, I don't think you need to 

take this on your shoulders alone. These decisions 

will be made -- the hard cases, the cases Your Honor is 

talking about and that nobody necessarily wants on the 

streets, are going to be made on a case-by-case basis. 

 JUDGE CASTILLO: Thank you. 

 CHAIR HINOJOSA: Ms. Howell, Commissioner 

Howell. 

 COMMISSIONER HOWELL: I have a two-part 

question and Mr. Sady, thank you very much. And I 

would echo Commissioner Steer's request that if we 

could see a copy of whatever written protocol that 

Oregon's been using, that would be enormously helpful 

to us. This is my two-part question. First -- and 

this if for, you know -- I guess, everybody on the 

panel or the federal defenders, in particular. 

 The Criminal Law Committee recommended, among 

it's multiple recommendations, that if the Commission 

decides on retroactivity, that we provide a list of all 

of the eligible offenders whom we have identified as 

part of the 19,500 people through all of our research 

and comparison of statistics we have from the judicial 

-- you know, from the federal judiciary with the Bureau 

of Prisons, that we identify who we consider to be the 
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eligible offenders and provide that to the appropriate 

district court judges, if the sentencing judge is still 

sitting. So my first question is do you agree with 

that recommendation, that the Commission identify the 

eligible offenders? And my second question is more to 

Mr. Debold and Mr. Boss, where you have cautioned the 

Commission about making policy statements similar to 

ones that the Criminal Law Committee also recommended 

that we make in connection with the retroactivity 

decision. 

 And to avoid any pussyfooting around, what 

criticisms do you have or comments or cautions do you 

have specifically about the policy statement that the 

Criminal Law Committee recommended, which states, "In 

resentencing a defendant, in light of this retroactive 

guideline change, the courts should only consider the 

change in the crack guideline made by the Commission 

and whether this change now suggests a lower sentence 

in light of the factors set forth in 18 U.S.C. 3553(a) 

to the extent that they are applicable." Is -- what 

would be the problem with us adopting that policy 

statement? So if you want to start with the first 

question and then go to the second. 

 MR. SADY: On the first question, in 1995, 

the Sentencing Commission was one of the bodies that 
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provided input in the -- to get the list of identified 

potential beneficiaries and I think that happening 

again would be very helpful. Interestingly, all the 

different bodies had incomplete lists. You had to sort 

of combine them all to make sure you picked up 

everyone. But I should -- I also want to say that to 

the extent that that would delay implementation, that 

with the other safety nets, that it should not be a 

factor in delay of implementation of retroactivity. I 

think that it would be helpful. 

 COMMISSIONER HOWELL: My second question. 

 MR. BOSS: I'll start. Mr. Debold can 

supplement. I think that it would be unwise for the 

Commission to promulgate that kind of policy statement 

because what you'd be doing is really setting a 

precedent for retroactivity policy from this point 

forward. That is, you are going to determine, 

essentially, that Booker, contrary to what Hicks says, 

Booker is not going to apply at a resentencing pursuant 

to retroactivity. I think those of us on the defense 

panel probably have somewhat of an abysmal reaction, 

but regardless of what we think about the merits, I 

don't think that in this condensed period, where we 

haven't had the opportunity for full fact finding and 

input from the public, from practitioners, that this is 
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the time to make what is essentially Booker policy. 

For the first time, the Commission, I think is really 

going to take a substantive part of Booker in terms of 

whether it applies at this kind of resentencing, 

because that's what the application essentially does. 

It says Booker doesn't apply. You consider the 3553(a) 

factors only in determining whether the two point 

reduction would exist for this particular defendant. 

 In other words, you don't take into account 

the full 3553(a) factors in determining how much of a 

reduction to give. That's a pretty major step for the 

Commission to be taking and I think it calls into 

question actually whether it's legal, whether it's 

constitutional under our new sentencing system. And I 

think the notion of doing it in this very condensed 

period is not good policy. I think that we should -- 

it's something that maybe should be suggested. It 

should be considered over the long haul, given adequate 

input and consideration by a lot of other people 

besides Mr. Debold and myself. 

 COMMISSIONER HOWELL: Do you think it would 

be superfluous, then, because the courts are already 

going to consider assessing all the 3553(a) factors and 

the safety of the community in making an evaluation in 

any resentencing of an eligible offender? 
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 MR. BOSS: Of course. 

 COMMISSIONER HOWELL: So that you think that 

having a policy statement saying don't look at the full 

realm of Booker, you know, Booker considerations and 

variances as sort of not necessary? 

 MR. BOSS: I think, to that extent, it's 

certainly superfluous because every judge is going to 

do that, consider the full 3553(a) factors. But what I 

read that application note as doing is saying you 

consider all those factors only in deciding whether the 

two point reduction applies with a particular 

defendant. And I think what Hicks says is you look at 

it much more broadly and you come back and essentially 

consider all the factors in determining how much of a 

reduction to get. 

 CHAIR HINOJOSA: Mr. Debold, did you want to 

add anything to that response? 

 MR. DEBOLD: Just that, you know, I think 

judges will want to look at the totality of the 

circumstances and deciding whether to give the 

reduction and how much of a reduction and to put in an 

artificial constraint there would be unwise and I see 

no reason why the Commission would want to sort of 

dictate what things the court can consider. This is a 

-- unlike a lot of other decisions, a decision whether 
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to reduce a sentence under 3553(c)(2) is an appeal to 

the discretion of the court. There is a lot of 

discretion there and I think that judges will be able 

to figure out the appropriate reduction ought to be in 

an individual case without that kind of additional 

constraint. 

 CHAIR HINOJOSA: Judge Sessions. 

 JUDGE SESSIONS: Well, this comes by way of a 

follow-up question, but maybe even stepping into a 

debate. One of the responsibilities of the Sentencing 

Commission is to make sure that there's not going to be 

a massive impact upon the criminal justice system and 

one of the arguments made by people who are opposed to 

this retroactive application is that because of the 

Booker decision, it is going to require the full 

hearing and transport of -- full hearing regarding all 

defendants and transport of all defendants back to 

court for a full Booker hearing. 

 The fact is there are a number of decisions 

which are directly contrary to Hicks, Hudson being the 

first one. There is now is, in the 3rd Circuit -- and 

I could ask you about that decision -- which suggests 

that Booker doesn't apply afterwards and now we're also 

told that there's an 11th Circuit case which may say 

the same thing. Now, why would you be opposed to the 
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Commission essentially giving some suggestion, as a 

part of retroactivity, which would essentially make 

sure that the guideline changes applied retroactively 

but did not significantly impact the criminal justice 

system? 

 MS. FREELAND: I mean, I hope you don't ask 

me about the 3rd Circuit's decision, because I was 

traveling to Washington while they were publishing it, 

but I think -- 

 JUDGE SESSIONS: If you look at the footnote 

at the end of the opinion, I think -- 

 MS. FREELAND: I will do that immediately 

after this hearing. But I think that -- I understand 

your concern with the impact on the courts. As an 

officer of the court and the head of an office, I'm 

concerned, as well, as the impact on my staff. But 

let's take it out of the retroactive application 

context and look at what we've seen from Booker in the 

past two years about the impact of Booker on the 

courts. The only thing that Booker has done has made 

the advisory guideline range that's calculated after 

going through the guidelines, is to make it advisory 

instead of mandatory. And there has not been an 

overwhelming or great impact on the courts by requiring 

judges to apply 3553(a) at sentencing. And not only 
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has there not been the kind of impact that should cause 

concern to this Commission, the results also should not 

cause concern, because the advisory range, in the large 

majority of the cases, has been followed. And so I 

think looking at the two years of advisory guideline 

sentencing, post-Booker, should quell all concerns 

about the impact of applying Booker at these limited 

resentencings. They've been applied in hundreds and 

thousands of cases over the last two years, without 

substantial impact. It's not going to make a different 

now. 

 MR. SADY: And on transportation, one of the 

things that we observed in the marijuana epic was that 

there was virtually nobody who wanted to be transported 

to court. I've already met with folks. One of the 

first things I do is if we get to a resolution or 

narrow the issues sufficiently, waiving any presence, 

that's one of the things we want to do. And remember, 

for most prisoners, they consider transportation diesel 

therapy, something to be avoided if at all possible. 

This is not something that folks generally want to do. 

 In the right case, I'm certainly going to maybe be 

asking for that, but so far, I don't think it's going 

to be something that's going to be a burden. 

 JUDGE SESSIONS: So you're suggesting that if 
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you apply Booker, that would not require that each 

individual inmate be transferred back to court? 

 MR. SADY: I see the same dynamic as in the 

marijuana situation, where we would say, in this 

particular case, the fair sentence, regardless of any 

other factors, we come and say, you know, Booker -- 

here's my equities, prosecutor. This is why I think 

this is a fair sentence to be three months lower than 

the two-level would get you. I think that's right and 

I think that's fair, too. It's technically, probably a 

Booker sentence. It's certainly not anything that 

anybody would want to come to court to talk about. And 

I think that -- so that would be, I think, something 

that could be waived. It's certainly been waived 

massively in the past. And depending on the interests 

of the client, that's what we're always looking at. 

But how is this going to actually help the client? 

There will be some situations, but I don't think it's 

the overwhelming burden that the Commission may be 

bearing. 

 JUDGE CASTILLO: Mr. Sady, just pursuing that 

for a second. In Oregon, with regard to the marijuana 

experience, how many of those cases, at resentencing, 

were resolved by an agreed order? 

 MR. SADY: A hundred and twenty-one on the 
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day that it went into effect. There are probably some 

other -- 

 JUDGE CASTILLO: So percentage-wise? 

 MR. SADY: We -- 

 JUDGE CASTILLO: Overall. 

 MR. SADY: -- tried to look at that, trying 

to read -- 

 JUDGE CASTILLO: Um-hum. 

 MR. SADY: -- the redWall, our archive, 

because we had forgotten a lot of this. But I think we 

probably talked to maybe a couple of dozen -- 

 JUDGE CASTILLO: Um-hum. 

 MR. SADY: -- other people who ended up 

getting -- having individual consideration and then 

individual either motions or deciding not to file a 

motion. But it was probably about 80 percent. 

 JUDGE CASTILLO: Eighty percent. Okay. 

 MR. SADY: Really rough and anecdotal. 

 JUDGE CASTILLO: Is it your prediction that 

as many as 80 percent, or possibly even higher, of 

these crack cases would be resolved, nationwide, by an 

agreed order? 

 MR. SADY: I do not know and there are some 

differences. The marijuana involved -- well, it 

generally came down to a six-level difference. 
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 JUDGE CASTILLO: Um-hum. 

 MR. SADY: And the -- so there was not a -- 

there were more people who -- 

 JUDGE CASTILLO: Right. 

 MR. SADY: -- would automatically go home and 

so that cut down on litigation. But from my experience 

in talking to folks, I think that there is still going 

to be a significant number. There's -- how it's going 

to work out statistically, it's going to depend 

district to district. If you have a U.S. Attorney's 

Office that is, that is -- here's what the Commission 

is saying, it's trying to get to fair results. You're 

going to have cooperation and negotiation and a lot of 

the cases settled. You have folks who are -- say, we 

didn't think it was a good idea in the first place and 

we're going to fight it tooth and nail. You're going 

to have more disagreements and more need for 

litigation. But that's sort of the way it is now in 

any sense and context. 

 CHAIR HINOJOSA: Commissioner Horowitz, you 

had a question. 

 MR. HOROWITZ: Let me just follow up on the 

question of Judge Sessions, and any member of the panel 

can answer it. Assuming we decided to go with a 

retroactive application, every court that has 
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considered Booker, and whether to apply it 

retroactively or not to the people in jail as of that 

day who had final appeals considered and evaluated, has 

decided that it should not be applied retroactively. 

We're now looking at a situation where a subsection of 

those individuals may be entitled to resentencing on 

our -- as to our crack amendment. As we consider 

fairness issues, why should we allow that subset to 

have the ability to have Booker applied retroactively 

to them? 

 MR. SADY: I think it's largely a matter of 

context, because we have to remember that, for that 

group, there's people who are similarly situated, who 

were sentenced the day before Booker, and the people 

who were sentenced the day after Booker, who already 

had that type of disparity. For given what the Supreme 

Court ruled in Booker, I think that having uniform 

fairness is better than having disparity where that 

perpetuates an unfairness. 

 MS. HERNANDEZ: Commissioner, also -- and the 

bottom line is the truth is that post-Booker sentences 

are about the same. So even those courts -- even those 

courts that -- first of all, you got Federal Rules of 

Criminal Procedures. 

 MR. HOROWITZ: That I understand. I guess my 
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question, though, is just explain to me the fairness. 

I understand the fairness issue and the argument and 

I'm just looking for what's the best argument to say we 

should actually allow this group to be -- to get the 

benefit of Booker -- 

 MS. HERNANDEZ: Let me -- 

 MR. HOROWITZ: -- when tens of thousands of 

individuals remain in jail who don't have the benefit. 

 MS. HERNANDEZ: I would say 85 percent or 

more of crack defendants sitting in jail are streetlevel dealers sitting next to a kingpin or an importer 

who is doing either less time or -- and because your 

statistics reflect that crack sentences are higher than 

any other sentences, no matter what the category. So 

already you've got an unfairness. All you're going to 

do is balance the unfairness. All you're going to do 

is give them an opportunity to argue their case and 

give -- 

 MR. HOROWITZ: But when we set policy, we 

don't do it just for one case. I mean, it's whether 

it's criminal history. And so that's the issue with 

regards to any policy statement. It isn't just on 

crack cocaine, it's when we set a policy statement, 

we're talking about all cases. And so you know, we, 

like judges, have to consider the 3553(a) factors, not 
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just based on our client, like some of you do, but on 

the issue of what is fair and what complies with 

the 3553(a) factors, including the issue of disparity. 

And so if we do work on policy statements, they're 

going to apply across the board, with regards to all 

matters that would ever come up with retroactivity. 

 MS. HERNANDEZ: Respectfully, Your Honor, I 

don't think the Commission -- 

 CHAIR HINOJOSA: Respectfully always means 

I'm going to disagree with you. 

 MS. HERNANDEZ: I am. I don't think the 

Commission is going to decide whether 3553(a), whether 

a retroactive guideline will be applied with the 

full 3553(a), post-Booker. I think the courts are 

going to decide that. Whatever the Commission says on 

that, some court is going to say, we already know 

the 9th Circuit has already ruled. So whatever you 

say, all the 9th Circuit cases will be covered by your 

decision. So respectfully, I don't think -- frankly, 

that's another reason why I don't think you ought to go 

-- come out with, for some of the reasons Barry said, 

come out with a policy statement on this. This is a -- 

we know. I'm going to tell you right now, criminal 

defense attorneys and pro se defendants are going to 

challenge whatever you do on that score, and it's going 
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to have been decided by the Courts of Appeals and by 

the Supreme Court, in all the post-Booker cases that 

are going up there. And the Supreme Court has yet to 

decide the Booker retroactivity issue. 

 MS. FREELAND: If I could take a stab? 

 CHAIR HINOJOSA: Commissioner Friedrich. 

 MS. FREELAND: If I could just take a stab at 

answering your question? The limitations on 

retroactive application of new rules of law is based on 

the finality of sentences. We can't have new laws 

coming in and disturbing finality. There shouldn't be 

a concern about retroactive application, in this 

context, where the Commission has already determined 

that these final sentences should not be final, as they 

were. 

 Okay, they're going to be opened up because 

this Commission has decided they were wrongly imposed. 

 They'll no longer be final, and when they're no longer 

final, there should be no bar to retroactivity. 

Retroactivity, as a legal concept, is based on finality 

and we don't have final sentences any longer. And any 

time a sentence is reversed, an individual conviction, 

if there's a new rule of law that the courts find 

should be applied retroactively, the same kind of 

disparity is going to appear. It's the way our system 
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works. 

 CHAIR HINOJOSA: Commissioner Friedrich. 

 MS. FRIEDRICH: Yes, I have one question for 

Mr. Boss. You're testified that you don't think 

additional fact finding will be necessary at 

resentencing hearings under 35 -- under 3582. But if 

you argue that Booker does apply to these resentencings 

and prevail, won't there be a whole host of issues ripe 

for adjudication, as defense attorneys make arguments 

for variances, relying on 3553(a) factors that weren't 

raised at the initial sentences? 

 MR. BOSS: I think the point we were trying 

to make was that there's not -- there doesn't have to 

be any reevaluation of the quantity of cocaine based at 

issue, and the guidelines themselves can be easily 

recalculated. But you're certainly correct. To the 

extent Booker applies, and I'm not taking the position 

that it does or it doesn't, I think it's going to be 

decided, probably, different by different courts. But 

obviously you're right. To the extent that Booker

applies, it will be a more potentially complex factfinding procedure. But I think also we should consider 

what Mr. Sady was saying, that no -- would be able to 

avoid that. Because of working together, we'll be able 

to come up with what both the defense and the 
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prosecutor agree is a just result. 

 MS. FRIEDRICH: But you really think that's 

realistic, that you're going to sit down with AUSAs and 

they're going to agree? I mean, I would think, in most 

if not all cases, you will be seeking more than a twolevel reduction, because you will be arguing if 

you're -- 

 MR. SADY: Depending on the facts of the case 

and what you got the first time around. 

 MS. HERNANDEZ: Yeah. And some percentage of 

cases -- is going to exceed their remaining sentence. 

And it's not like you're going to have 19,500 cases 

being argued. The Courts of Appeals are going to 

quickly decide which circuits will allow -- it's just 

like post-Booker. Within months, within a couple of 

weeks, each circuit had decided how Booker was going to 

be applied and it really came down to two or three sort 

of models, and that's exactly how it's going to happen 

here. There's going to be the 9th Circuit model, 

there's going to be the 4th Circuit model, and maybe 

that's it. So all the 4th Circuit cases aren't going 

to have all these arguments being made. And Rule 43 of 

the Federal Rules of Criminal Procedures say you don't 

even -- a defendant's not even entitled to come to 

court on a 3582(c)(2) resentencing. So some court will 
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have to say that that rule is unconstitutional or 

illegal, before any defendant will have to be brought 

to court. 

 MR. BOSS: And Commissioner, one other thing 

I didn't mention is, of course, as we all know, this is 

the exact same concern we had when Booker came into 

place in the beginning. What we all found out was 

judges essentially imposed guideline sentences, anyway. 

 So despite the fact that the analysis may be somewhat 

more complicated, it seems like the result ultimately 

comes out of the same place. 

 MS. FREELAND: And because of that result, 

what we've seen is that the federal system has not 

turned upside down and that, in the high 90s, 

percentages of cases are still resolved by way of 

negotiated pleas. 

 MS. HERNANDEZ: To our dismay, I may add. 

 MS. FREELAND: Post-Booker. Even with all of 

these unlimited factual considerations available, we're 

still pleading cases at 97, 98 percent of the time, 

reaching agreements with the government. 

 CHAIR HINOJOSA: Commissioner Ferry. 

 MS. FERRY: Briefly. Mr. Sady, my question 

is for you. I just want to make sure that I'm clear. 

I believe we danced around the issue. But is it the 
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public defenders' position that Booker should apply 

at 3582(c) hearings? And if so, how do you address 

what Ms. Hernandez was just talking about, the right of 

the defendant to be present? Generally, pre-Booker

case law indicates that whenever the court is making 

new factual determinations at a sentencing, then a 

defendant has a right to be present. If Booker were to 

apply, arguably, the court would be making new factual 

determinations that would require transport of the 

defendant. Is that your understanding as well? 

 MR. SADY: My understanding is that cases are 

best litigated based on individual facts, where the 

parties are presenting legal issues to judges and the 

judge makes a decision based on the policy and the law 

that applies to a certain set of facts. I think one of 

the real problems is trying to micromanage by 

hypothesizing what may happen in the future and trying 

to put into place a mechanism that tries to predict 

what might happen, so that bad things don't happen, and 

ending up with unintended negative consequences. The 

recommendation from the Federal Defenders has been to 

adopt a simple statement that was recommended, is that 

the parties cooperate to the maximum extent possible, 

consistent with their obligations to their clients, to 

impose -- to implement the retroactive amendments as 
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efficiently as possible. Other than that, the 

questions of what happens in an individual case, 

whether in an individual case I'm going to be 

advocating regarding Booker resentencing, and the scope 

of any sentencing, is going to depend on individual 

cases. There are cases where we are going to be able 

to reach agreements. There's one that will result in 

litigation. The litigation will depend on the 

interests of individual clients. And that is, I think, 

the way it should be and the way that it will be 

implemented with the least complexity. 

 MS. FREELAND: And every resentencing that's 

taken place after Booker, whether it was based on the 

Booker decision or on some other error of law, Booker

has applied. I think that defendants, prosecutors and 

judges will expect that, at any resentencing, the 

Booker decision will apply, because it is the law 

today. 

 CHAIR HINOJOSA: If not, I thank you all very 

much for taking your time to be here. We appreciate 

your thoughts. 

 MR. SADY: Thank you. 

 MS. HERNANDEZ: Thank you. 

 CHAIR HINOJOSA: If the next panel would come 

up here, please? The next panel is the Executive 
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Branch Perspectives. We have Ms. Gretchen C.F. 

Shappert. Do I have your name correct, ma'am? 

 MS. SHAPPERT: You do. Thank you. 

 CHAIR HINOJOSA: Who has been the U.S. 

Attorney for the Western District of North Carolina 

since June of 2004; Mr. Sylvester E. Jones, who is the 

Assistant Director for Witness Security and Prisoner 

Operations for the U.S. Marshals Service; and we've got 

Mr. Joe I. Cassily, who is the President Elect of the 

National District Attorneys Association. And we 

appreciate your presence. Ms. Shappert. 

 MS. SHAPPERT: Thank you, Chairman Hinojosa 

and distinguished members of the Commission. Thank you 

for allowing me this opportunity to testify. It is an 

honor to appear before you and give my perspective from 

the Western District of North Carolina, with regard to 

retroactive application of crack cocaine and criminal 

history amendments, and why I and other members of the 

Department of Justice oppose retroactivity. 

 Specifically, I'm here on behalf, not only of 

my office, but what we believe are the communities that 

will be impacted by retroactivity. We believe that the 

retroactivity will implicate retroactive application of 

Booker, at least in some areas, unjustified burdens 

upon the criminal justice system, and most importantly 
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will impact fragile communities throughout the United 

States and disproportionately in those districts where 

we have the largest number of crack cocaine cases. As 

you indicated, Mr. Chairman, I have been an United 

States Attorney since 2004. Before that, I was an 

Assistant District Attorney and an Assistant United 

States Attorney. I was an Assistant United States 

Attorney from 1990 until 2004. 

 I continue to carry a caseload as the United 

States Attorney and indeed, I have had three jury 

trials involving crack cocaine conspiracies this year 

alone. But more than that, I was in Charlotte, in 

1988, as an assistant public defender when crack 

cocaine first hit the Western District of North 

Carolina. 

 So crack cocaine has marked most of my 

professional career as a lawyer, and I have seen the 

ravages the addiction, the drug-related violence and 

the tremendous impact on communities when crack cocaine 

takes hold. The Western District of North Carolina is 

32 counties; 2.9 million people; the second largest 

banking center in America; the largest native American 

population in the United States. I have 24 Assistant 

United States Attorneys who do all of the criminal law 

in my district, and I also am one of those, and I have 
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five that do all of the drug cases. As you are aware, 

if retroactivity applies, it will have a profound 

impact on my district. Last year we sentenced 118 

defendants for crack cocaine offenses, and by way of 

comparison, that is in comparison to 123 for 

methamphetamine. Drug cases represent 46.2 of the 

entire caseload per year in my office. 

 We have seen, in the past year and the past 

three years in Charlotte, a significant rise in the 

murder rate, an increase in violence. Indeed, the 

murder rate has gone up 44 percent since 2005 and has 

remained at that level. I am concerned about the 

impact upon my office and the ability we will have to 

continue our responsibilities, if in fact 536 

defendants in my district need to be sentenced because 

of retroactivity. 

 I've also seen the tremendous impact of crack 

cocaine in Charlotte. One of the first crack cocaine 

cases we had in Charlotte I actually handled as an 

assistant district attorney and then was a federal 

prosecutor when it was resolved. The Cecil Jackson 

gang. That is typical of many crack gangs. They did 

not have a large weight of drugs, but they enforce 

their turf with semiautomatic weapons, kneecap 

shootings and kidnappings. Ultimately the 
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Cecil Jackson gang was prosecuted in federal court. As 

an assistant district attorney, I was charging 

conspiracy to kidnap, knowing that we were not going to 

be able to hold these defendants very long. 

Fortunately the federal prosecutors came in; the 

defendants are still serving massive sentences. 

 That would not have happened but for federal 

involvement. I prosecuted in a neighbor in Charlotte 

called Greer Heights. Now Greer Heights, when we 

started in the 1990s with ATF and the CharlotteMecklenburg Police Department, was a Section 6/Section 

8 housing neighborhood, made up largely of elderly 

families and families with lots of small children. 

That community was overrun with drug dealers, crack 

dealers who had turned it into an open-air drug market. 

 When I went into that community to begin 

interviewing witnesses, neighbors came out of their 

homes to shake my hand. We actually convicted over 70 

defendants in that investigation and the average 

sentence served was over 200 months. When we began the 

trails of the defendants in the Greer Heights 

conspiracy, members of the community came and sat in 

the back of the courtroom to watch and provide moral 

support. I submit to you, members of the Commission, 

that some of the most serious victims of crack cocaine 
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appear in lower-income and largely African-American 

communities. And that is true not just in the Western 

District of North Carolina, it is true in many other 

parts of the country. For example, in Selma, Alabama, 

there was a crack organization known as the St. 

Phillips boys. They ran an open-air market. You're 

going to hear this afternoon from Ocie Acoff of Selma, 

who will talk to you of what it was like for people to 

have to sleep on the floors because they wanted to 

avoid the random violence and the random shootings that 

were going on in the neighborhood; it became a war 

zone. 

 In Selma, Alabama, ATF went in with local law 

enforcement and when they made arrests, neighbors lined 

up to shake hands and cheer and called the local radio 

stations to congratulate federal prosecutors and the 

law enforcement officers for going into those 

neighborhoods. 

 My point to you is this: crack cocaine is not 

a victimless crime. The victims are the people who are 

addicted to it, their neighbors and the communities. 

They create open-air drug markets where there is 24-

hour-a-day dealing in relatively small quantities of 

crack that profoundly impact the community. In one of 

my communities, right now, Statesville, North Carolina, 
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the drug dealers have developed a strategy of addicting 

young children, eight, ten, twelve, fourteen-year-olds, 

and turning them into sellers, knowing that we, as 

federal prosecutors, typically do not go after 

juveniles. Drive-by shootings are systemic. 

 And in many areas, including Statesville, 

Shelby, Charlotte, Asheville and Selma, that I talked 

to you about, we have only been able to make great 

strides in fighting crack cocaine by being aggressive 

in our prosecutions. Now some of you may ask, since we 

know these individuals are ultimately going to get out 

of jail, what is the difference about letting them out 

a little bit early? Why does that make a difference? 

Well, I would submit to you that it makes a great 

difference, for several reasons. 

 First of all, these offenders are not low 

level, they are not small time addicts. If you look at 

your own statistics you will see that fully a third of 

the population that we are talking about, the 19,500 

defendants who would be subject to retroactivity, had 

weapons or were involved with weapons, 11.7 percent had 

aggravating roles, and fully 65.2 percent, two-thirds 

of this population, was Criminal History Category 3 or 

higher. Your studies have shown us that individuals in 

the higher criminal history categories are more likely 
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to recidivate, particularly in the first two years. So 

the population that we are talking about, at 

retroactive application of the guidelines, will be out 

of prison early, more likely to re-offend, and will not 

have the benefit of the typical reentry programs that 

we associate with an efficient prison system. 

 The Bureau of Prisons estimates that it takes 

at least 30 months, ideally, to prepare a defendant to 

return to the community. They recommend that a 

defendant receive at least 250 hours of core curriculum 

training in six different areas of study, and that they 

have community confinement or home detention or a 

halfway house as a means of transitioning into the 

community. 

 With retroactivity, many of these defenders, 

probably at least 2200 at a minimum, will be eligible 

for immediate release. Others will have their 

sentences cut in such a fashion that they may not have 

the full benefit of these programs to prepare them to 

come back to their communities. You heard earlier 

today, from Judge Walton, about the importance of 

having resources dedicated to dealing with crack and 

for protecting our communities, and let me tell you, we 

currently have those resources and we are using those 

programs. I want to talk to you a little bit about 
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Weed and Seed, because Weed and Seed, in my opinion, 

will be profoundly impacted if we have to deal with a 

large population of recidivists and retroactivity, 

providing these recidivists with an opportunity to 

return to their neighborhoods. 

 The Weed and Seed Program is based on the 

premise that we go into transition in fragile 

neighborhoods, and Weed and Seed, if you recall, was 

designed to deal with the crack problem. Weed and Seed 

is a process by which we weed out the criminal 

offenders, the crack dealers, the violent offenders, 

and we seed in community services in transition in 

fragile neighborhoods. It is a five-year program. The 

clock is ticking on each and every one of our Weed and 

Seed sites. 

 I have five Weed and Seed neighborhoods in 

the Western District of North Carolina, and in four of 

those communities we have seen a dramatic drop in 

violent and drug-related crime because of our Weed and 

Seed initiatives. My concern is that individuals who 

will be released early, if you make the guidelines 

retroactive, will be returning to these communities and 

potentially interfering with our ability to complete 

our progress with Weed and Seed. Let me tell you a 

little bit about Robert. Robert lives in the Pisca 
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View (phonetic sp.) neighborhood in Asheville, North 

Carolina. Robert is formerly homeless, although he's 

highly intelligent. He's now married, he is raising 

three children, and among the other things he does in 

our Weed and Seed area is he runs our community garden, 

the very same plot of land that was an open-air drug 

market. As a result of Weed and Seed and community 

commitment, it has been turned into an open-air garden 

where the children play, the women hold their meetings, 

and Robert tends vegetables that are sold and 

distributed in the community. 

 When I was in Asheville two weeks ago, Robert 

showed me the garden, the compost heap and the location 

where they're planning to build a greenhouse, and he 

told me about the work he's doing explaining organic 

gardening to the children in public housing, and the 

little boy who was astonished to learn that tomatoes 

grew on vines and didn't grow in cans. Robert told me 

that even some of the crack dealers in the neighborhood 

have come up to him to shake his hand and comment about 

the changes he and Weed and Seed are making in Pisca 

View in Asheville. What I also think is important for 

you to know is that Robert, every night, props his 

tools along the fence in the Weed and Seed 

neighborhood, and those tools have not been stolen. 
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This is the same community that has been ravaged by 

crack and gun and drug-related violence. But because 

of the efforts that we are making with Weed and Seed, 

that community is changing and I don't want to see that 

progress interrupted. 

 Let me tell you about Shelby, another very 

small community in the Western District of North 

Carolina, that, in 2005, had the second highest per 

capita rate of violent crime in North Carolina. It was 

a site of growing gang activity, a lot of gun play and 

crack distribution. We came in with Weed and Seed, and 

traditional racial barriers are dropping. We have 

community-based policing, and violent crime has 

plummeted. Again, this is largely the result of Weed 

and Seed. And yes, Shelby also has a community garden. 

 I want to talk to you briefly about 

Statesville, but you're going to hear from the director 

of our Weed and Seed Program this afternoon, Wade 

Ikard. Statesville is better known for good barbeque 

and local sports rivalries. But in the past couple 

years this very small southern town has been ravaged by 

crack cocaine dealing and gangs. When we came into 

Statesville with an idea of putting a Weed and Seed 

site in, I'll never forget our first meeting in that 

community, where the community stood on one side of the 
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room and the police officers stood on the other and 

neither the twain shall meet. But as a result of Weed 

and Seed, we have been able to establish a police 

athletic league, Hoops for Hope, that provides not only 

for athletics but mentoring and tutoring for our 

children, and a citizens police academy, where members 

of the community have had an opportunity to interface 

with the police and go to police training, and indeed, 

one of our recent graduates, an African-American, has 

now gone to work for the police department. The crime 

rate is dropping in Statesville. And we've also used 

aggressive code enforcement to make slum landlords 

bring their property back up to code. 

 We didn't have drug treatment in Statesville 

and we couldn't afford it, so we asked the leaders in 

the faith-based community, would you provide us with a 

coffee pot and a place to smoke and we would come in 

with 12 step programs, and that's what we're now doing 

in Statesville. I, again, am concerned that, if indeed 

you make the penalties retroactive with regard to the 

changes in guidelines, that we are going to see in 

influx of the very people who are most likely to 

re-offend and are most likely to upset these fragile 

neighborhoods. As you know, the impact of 19,500 

defendants in the criminal justice system will be 
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profound. That is 25 percent of all defendants who 

were sentenced in federal court in 2006 and represents 

10 percent of the entire criminal population. Five 

hundred and thirty-six defendants that will need to be 

re-sentenced in my district, if this is retroactive, 

represents two-thirds of all the cases we prosecuted in 

the Western District of North Carolina in 2006. 

 Think about, also, the impact of 1400 

defendants on the Eastern District of Virginia. That 

would be 80 percent of all the cases that they 

prosecuted in the Eastern District in 2006. And other 

districts have a comparable problem. I would 

respectfully submit to you that the 800-pound elephant 

in the room that my colleagues -- and I say this 

respectfully -- that my colleagues in the Federal 

Defender offices didn't want to talk about too 

specifically, is the potential impact of Booker and the 

potential disparities of the Booker application. As 

you know, the 4th Circuit, in an unpublished, per 

curium, one-page decision, has declined to follow the 

lead of the 9th Circuit in its published Hicks

decision. But I would submit to you that Hicks is 

instructive and Hicks does hold that Booker does apply 

to 3585(c)(2) hearings, and the consequences of that 

are profound. Having been an assistant public defender 
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and understanding the responsibilities of zealous 

advocacy, I am confident that if you make it 

retroactive, every single defendant of those 19,500 

will, number one, want to have a hearing, will want to 

be back in the district for sentencing, and will want 

the benefits, not only of the two-level reduction, but 

of a full-blown resentencing hearing. 

 You heard about the experience of the 

district of Oregon, in its program, in 1995, with 

marijuana. I would remind the Commission that in the 

entire United States, there were 536 marijuana cases 

implicated by retroactivity, 536 for the country versus 

19,500 for crack. Likewise, you've heard about LSD. 

That was less than 200. And oxycodone, that was less 

than a hundred. 

 So the comparison is not even close. And 

likewise, the difference is that, with regard to 

resentencing for marijuana, or even the application of 

the Supreme Court decision in Bailey and the 

implications for resentencing there, none of those had 

the factors that we had with 3553(a) and Booker. So it 

is a very different world and a very different day. 

You've also heard that there will be a cost savings if 

we are able to free up these prison beds, and we know, 

as I indicated, that crack defendants represent 10 
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percent of the prison population. It is estimated that 

each prisoner in the prison system costs about $21.70, 

and a lot of numbers have been bandied about as to what 

the prison savings will be. I would respectfully 

submit to you that there's no price you can place on 

living in a safe neighborhood. 

 And indeed, my concern is first and foremost 

not the administrative costs or the administrative 

burdens on offices in government. My concern is the 

impact on communities. It will be swift, it will be 

sudden and it will be, in my opinion, irreversible, 

particular in communities with Project Safe 

Neighborhood and Weed and Seed, where we are under some 

time pressures to try to implement and complete the 

programs that we have in place. 

 As I indicated, my concern is about the 

future and the unforeseen consequences of releasing 

large numbers of convicted drug offenders into 

vulnerable communities, in a relatively short period of 

time. As I indicated, I have seen, in my own personal 

practice, the consequences of crack cocaine. I've also 

seen how difficult it is to eradicate crack once it has 

taken hold in a community. And on behalf of the many 

good people who are trying to continue the process of 

restoring fragile communities and neighborhoods, I 
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respectfully submit that the defendants who have 

already been sentenced should be required to serve 

their sentences as we move forward. Thank you. 

 CHAIR HINOJOSA: Thank you, Ms. Shappert. 

Mr. Jones. 

 MR. JONES: Yes, sir. Good morning, Judge, 

and good morning to the distinguished members of the 

Commission. I want to thank you for the opportunity to 

testify and provide the United States Marshals 

Service's perspective on the potential impact of -- of 

this amendment. First of all, let me just give a short 

bio on myself. 

 I've been in law enforcement for 25 years, 

four of which as a police officer back in Illinois. 

I'm in my 21st year with the Marshals Service. I'm 

currently in my position as Assistant Director of 

Witness Security and Prison Operations and I've been so 

since -- in this position since June of 2004. Prior to 

that, I served for about four years as the Assistant 

Director of Judicial Security, and before that, I 

served in a field office as a Chief Deputy. I've 

served in three headquarters divisions and four field 

offices for the Marshals Service. The new amendment to 

crack cocaine sentencing guidelines would significantly 

reduce the sentence of prisoners, and the Bureau of 
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Prisons custody will apply it retroactively. Nineteen 

thousand and five hundred prisoners could be eligible 

to be brought back into the Marshals Service's custody. 

 This, for the Marshals Service, will result in 

enormous financial and workload-related costs. 

 Additional consequences would be new pretrial or sentencing reports, re-designation of some 

prisoners, the land deed judicial process for prisoners 

currently in custody, which is a problem for us now in 

some districts. The Marshals Service has in custody, 

as I speak to you this morning, 55,000 prisoners. Our 

population has more than doubled in the past decade, 

going from 28,000 to 56,000, in some cases. Southwest 

border districts are extremely overtaxed. One-third of 

the Marshals Service population is located in five 

southwest border districts. 

 The Marshals Service is responsible for 

housing, subsistence medical care, transportation, and 

production for court proceedings. We spend over a 

billion annually for federal prison detention costs, 

and that does not include the costs for our deputy 

marshals or other administrative personnel costs. The 

Marshals Service, as you may know, does not own or 

operate any detention facilities; we rely solely on 

others. Sixty-seven percent of our prison population 
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are in state and local facilities. Twenty percent are 

housed in prison facilities and the final 13 percent 

are housed in private jails. Lack of detention space 

throughout the country is a problem in many areas. We 

have emergency detention status in several of the top 

25 districts that the retroactive application could 

affect. 

 Emergency means that all bed space within a 

district is exhausted or terminated and the district is 

forced to use facilities in other districts to house 

their prisoners, sometimes requiring our Justice 

Prisoner and Alien Transportation System to land and 

provide air lift support. Emergency applies to 

Maryland, western North Carolina, South Carolina, and 

several Texas districts, which are southwest border 

districts. A district -- for example, a district has a 

population of 750 beds, but guaranteed bed space is 

only 540. 

 The remainder of their bed space depends on 

the availability in state and local facilities at any 

time. Districts have to juggle prisoners confidently 

from one facility to another. Prisoners needed in 

court are, of course, housed closest to the court. 

Prisoners moved to outlying facilities are -- they are 

moved to outlying facilities when they are no longer 
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needed in court. Just for an example, our average per 

diem rate that we pay for prisoners is $65 a day. For 

an example, ranges of the top 10 districts for 

retroactive resentencing hearings: for eastern Virginia 

it's $30 to $113, $113 -- the higher number is always 

the closest to the court; the middle of Florida, $35 to 

$80; South Carolina, $30 to $56; western Virginia, $37 

to $150; western North Carolina, $30 to $110; western 

Texas, $35 to $60; eastern North Carolina, $30 to $80; 

eastern Texas, $35 to $70; northern West Virginia, $55 

to $69; and eastern Missouri, $40 to $75. 

 Housing costs alone could be approximately 

$38 million, not including medical costs, should all 

19,500 be brought back into our custody. The average 

time in custody that we project, if we did have to take 

prisoners back in, would be approximately one month. 

It takes one to two weeks to bring a prisoner from 

another location. Our Justice Prisoner and Alien 

Transportation System stops in each region only once a 

week or once every two weeks. 

 A prisoner's attorney or the AUSA may request 

a prisoner to be brought in early to meet with them to 

prepare for hearings. It'll take one to two weeks to 

return those individuals back to the BOP facility or 

origin. Additional factors may extend time in custody, 
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such as pre-trial services may need to complete new 

pre-sentence reports, prisoners may require redesignation after resentencing. The transportation 

costs could be as much as $42.9 million. The JPATS, or 

Justice Prisoner and Alien Transportation System, the 

average cost to transport one way is approximately 

$1,100. Manpower costs. The Marshals Service produces 

770,000 prisoners in court each year. 

 Some prisoners, of course, we produce 

multiple times. Another 19,500 productions would 

require 92 additional work years or 92 additional FTEs 

for us to handle that. The cost will be another $13.6 

million. So the sum of additional costs, should we 

have to produce or take into custody all of the -- a 

hundred percent of the 19,500, is a total of $95 

million; half of that, of course, $47.5 million. 

 In summary, bringing 19,500 prisoners back 

for resentencing hearings will result in an enormous 

additional workload. It may require manpower and 

funding to be diverted from task forces, protection 

details, new initiatives such as the Adam Walsh Child 

Protection and Safety Act. It will be a huge strain on 

our already taxed transportation system. Prisoner 

housing shortage in key areas of the country will be 

compounded, and of course it would strain our manpower, 
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which is already overextended due to the high volume of 

drug terrorism and immigration cases. 

 CHAIR HINOJOSA: Thank you, Mr. Jones. 

Mr. Cassily, sir. 

 MR. CASSILY: Thank you, Your Honor. Members 

of the Commission, thank you for allowing me to appear 

today to represent the interests of state and local 

prosecutors who are represented by the National 

District Attorneys Association. A little background on 

myself. 

 I'm a 30-year state prosecutor. I've been 

the elected prosecutor for Hartford County, Maryland, 

for the past 25 years. During that time period, we 

have cooperated extensively with state authority -- 

with federal authorities, DEA, ICE, and our local U.S. 

Attorney's Office, in dealing with drug -- cocaine 

problems in my jurisdiction. My jurisdiction is about 

250,000 people, with several areas which are severely 

impacted by cocaine. 

 State and local prosecutors' interests in 

this is both the impact on past cases that we've 

already investigated with the federal authorities, and 

with the upcoming cases that I think we'd be impacted 

in our ability to take them to the federal prosecutor. 

 Let me talk first about the impact on past cases. 
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Generally, when we work cases and we do a lot of this 

with our local U.S. Attorney's Office, I'm always 

surprised -- I was surprised to hear people talk about 

the number of street-level dealers that are in the 

state and the federal system, because my experience is 

generally, with all due respect to my federal 

counterparts here, when they're finished cherry-picking 

the cases that they want, we're stuck with the streetlevel dealers and we get to prosecute the street-level 

dealer and they get the really serious people. 

 And I'm not being -- I'm not trying to 

denigrate anybody with that comment, but we're the ones 

that end up with the low-level, run-of-the-mill guys. 

They get the really scary people who tend to intimidate 

witnesses, who tend to have their boy show up and hang 

around the courthouse, and those types of things, so 

that the folks that you're dealing with are not the 

local street-level, deal-a-dime-bag, go get high for a 

few hours and get lost type of folk. They're the 

people who run those people. 

 So when divided these folks up, one of the 

things -- one of the factors that went into the choice 

of a forum of whether state or local prosecutors would 

handle this was the consideration of the sentencing at 

the time that we chose who was going to prosecute this 
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person. So we made a certain decision based on the 

guidelines and the fact at the time that we divided 

these people up, and that we looked at perhaps enhanced 

stated sentencing for repeat offenders or enhanced 

state sentences for use of a firearm. And because at 

that time the federal sentences would probably be more, 

we elected to go with federal prosecution in those 

cases. 

 And now we're coming back years after that 

decision has been made by the prosecutor and saying, 

well, we're going to change that variable, and I would 

ask you not to do that. I think that the state 

prosecutors involved in this made that decision, relied 

on that, gave up their prosecutorial prerogative to 

pursue these people, with an understanding that this 

decision would last and this would be the way it would 

go. 

 Moreover, my experience is that often, in 

cases where there were problems with prosecution, the 

federal prosecutors, in fact, already made adjustments 

and allowed people to plea out to reduce weight, so 

that if you're bringing these people back for 

resentencing, the question is are they being sentenced 

for the weight that the pled out to, or are they being 

sentenced to the weight that they actually had, and is 
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that evidence going to be introduced? In other words, 

if there was a plea agreement, the plead out to a 

reduced weight, for a reduced sentence, is that going 

to reopen that plea agreement and allow us to introduce 

evidence of the actual weight that the defendant 

involved with at this point in time? 

 I can see an irony, actually, that it might 

be the public defenders who would argue that Booker

wasn't -- isn't applicable to these sentences, because 

all they want to do is impress on you that, just do the 

math calculation and reduce it by two levels, hand them 

their reduced sentence and let them out the door. 

Don't worry about the fact that there may be other 

evidence that could be introduced against my client, 

which would now be difficult to get. And this is where 

we get into the effect of -- on current cases. My 

local -- or my Maryland U.S. Attorney has a limited 

number of prosecutors. 

 State and local prosecutors handle roughly 95 

percent of all criminal prosecutions in the United 

States, so that the cases that we're taking to the 

federal prosecutors that we really need them to take, 

often we can't get them to take because of limited 

resources. When these cases come back, if you make 

this retroactive, I think it's going to really impact 
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on the availability of Assistant U.S. Attorneys, 

because, first of all, the sentencing judge may no 

longer be available, so it's going to have to be 

resentenced. It's going to be appointed with a new 

judge. The Assistant U.S. Attorney that handled the 

case may no longer be available, so a new Assistant 

U.S. Attorney is going to have to relearn this case. 

 The investigators may no longer be available 

and therefore evidence is going to have to be dug out 

and reviewed by new investigators and by new U.S. 

assistants. And civilian witnesses, to the degree that 

they're called for, may have to be located again by 

investigators, interviewed by prosecutors, and called 

in for sentencing. This is all going to impact on the 

availability of those U.S. Attorneys to handle the new 

cases that we're bringing them that we're asking them 

to prosecute. 

 And I really think that the -- having sat in 

on some of these federal sentences, before Booker, when 

the guidelines were much more mandatory, most of the 

time the sentencing hearing largely turned on the 

weight that was involved and a lot of other evidence 

that might've been available for sentencing, because 

sentences were pretty predictable. Prosecutors didn't 

bring in lots of other evidence, because let's not piss 
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the judge off, taking a lot of extra time here. Let's 

just get to what we need to prove, get the guy 

sentenced and move on to the next case. Now if we 

reopen this, I think there's going to be a lot of other 

evidence that prosecutors are going to want to present, 

and because a lot of those -- that evidence is going to 

come from my state investigators. 

 Most of the cases that we send down do not 

involve DEA or ICE or FBI agents testifying. They 

involve my local police department, my sheriff's 

department, my state police officers, being called back 

in as witnesses. So you're going to impact ongoing 

investigations by calling my people back, having them 

pull out five and ten-year-old cases, to review those 

cases and the facts, and perhaps pulling out cases that 

they didn't investigate in the first place, because, 

again, the investigators are gone. 

 But I think this is going to have a serious 

impact on how we, as state prosecutors and state law 

enforcement, work in terms of dealing with our federal 

counterparts to put these kind of cases on. And I 

think in many instances, evidence that is no longer 

available, or witnesses that are no longer available, 

will not be there to give the true picture to the new 

federal sentencing judge to really get the appropriate 
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sentence that should've been handed or should be handed 

out in these cases when they come back. And I would 

ask -- and I understand the sense that there was a 

great inequity in the sentencing of cocaine cases. But 

knowing the people that we've sent to the Feds for 

sentencing, nobody's in there doing time unfairly. 

 These were people that needed to do that kind 

of time, and had they not gotten that kind of time 

federally, we very may well have pursued them in state 

court, for enhanced state sentencing, for repeat 

offenders, repeat dealing, conspiracy, all of the other 

types of things that we might've elected to go after 

them for, had we not gone with the state -- with the 

federal forum. So I would urge the Commission, for all 

of those considerations, not to make this a retroactive 

application. Thank you. 

 CHAIR HINOJOSA: Thank you, Mr. Cassily. And 

I do want to correct something that perhaps maybe 

there's a misimpression left when we hear the different 

panels who have spoken. The Commission has been very 

clear that the approximately 19,000 number that we have 

used is based on a model of a pre-Booker system. We 

don't want to leave anybody with the misimpression that 

we have not been clear about that, that that number is 

a number that would be effected if we had the 
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pre-Booker system with regards to making the amendment 

retroactive. Obviously, if we have a Booker system, 

that number would be different and in all likelihood 

higher. Judge Castillo. 

 JUDGE CASTILLO: Ms. Shappert, you say in 

your written testimony and you said here orally, 

"retroactive application of the crack amendment will 

result in serious and often violent drug dealers being 

returned unexpectedly early to their reviving 

communities." 

 MS. SHAPPERT: Um-hum. 

 JUDGE CASTILLO: Isn't there a good chance 

that your office, led under your great leadership, will 

be able to convince colleagues of mine to keep in 

violent and serious drug dealers? Isn't there a good 

chance that you could win those battles? 

 MS. SHAPPERT: That will be their marching 

orders. But here's the problem. 

 JUDGE CASTILLO: No, I'm not saying they're 

marching orders. I'm saying, don't you think that 

judges would keep in violent and serious drug 

offenders? That's my question to you. 

 MS. SHAPPERT: I think they will in some 

instances, but I think there are a couple things that 

are coming -- 
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 JUDGE CASTILLO: So you're saying -- hold it. 

 MS. SHAPPERT: Okay. 

 JUDGE CASTILLO: In some instances -- 

 MS. SHAPPERT: Yes, I think -- 

 JUDGE CASTILLO: So in some instances -- 

 MS. SHAPPERT: Yes. 

 JUDGE CASTILLO: -- which I would assume to 

be a minority of the time, judges will make the right 

decision. 

 MS. SHAPPERT: No, I would not say in a 

minority of the time. That would be unfair to our 

judges. I think -- 

 JUDGE CASTILLO: Well, I think it would be 

too, so -- 

 MS. SHAPPERT: I would not -- 

 JUDGE CASTILLO: -- why don't you quantify -- 

 CHAIR HINOJOSA: I think -- 

 JUDGE CASTILLO: Why don't you quantify how 

many -- 

 CHAIR HINOJOSA: Could I just -- 

 JUDGE CASTILLO: Yes, I will. 

 CHAIR HINOJOSA: We need to go ahead and let 

the witness finish and then we can proceed with the 

next -- 

 JUDGE CASTILLO: Well, I just had to defend 
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our colleagues, in terms of in some instances. Go 

ahead. 

 CHAIR HINOJOSA: Well, we -- 

 MS. SHAPPERT: I would tell you that we have, 

in my opinion, exceptionally good judges -- 

 JUDGE CASTILLO: Um-hum. 

 MS. SHAPPERT: -- in the Western District of 

North Carolina, who try to follow the law to their best 

ability. I have great confidence in them and if I 

suggested otherwise, that was not my intention. I 

think judges will attempt to make findings and apply 

the law as it's written. I, at the same time, believe 

that there will be disparity across the country, 

because there are many different judges. 

 The prosecutors who originally handled the 

cases will not be available. The witnesses who were 

involved in the case will not be available. Cases 

where there was a plea agreement and no appeal, 

transcripts from the original proceedings will not be 

available. They will have to be re-transcribed. So my 

concern is not the integrity of the bench. My concern 

is the tremendous strain upon the system and the 

inability of prosecutors to present all of the 

information that needs to be presented. 

 JUDGE CASTILLO: Thank you. 
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 CHAIR HINOJOSA: Commissioner Howell. 

 COMMISSIONER HOWELL: To follow up a little 

bit on what Judge Castillo said, I have to say that, 

you know, we're all concerned and we're interested in 

what you have to say and what the Department has to say 

about the administrative burdens of processing for the 

19,500 eligible offenders who we've identified, which 

may be both an overstatement and an understatement, but 

in terms of recalculating their sentence if we make the 

amendment retroactive. 

 But I have to say that I have been quite 

troubled by the Department's letter, where they talk 

about "the unexpected release of 20,000 prisoners or 

more," because it's not going to be a release. It 

gives the impression that 20,000 crack offenders are 

going to be put out on the streets in one fell swoop, 

and I think you would agree that that is a totally 

wrong impression to give. 

 MS. SHAPPERT: If anybody has that 

impression, I agree with you, that is wrong. That is 

not what we are suggesting. 

 COMMISSIONER HOWELL: And in addition, you 

have talked about the 536 offenders identified by the 

Commission, which again may be an over and an 

understatement. 
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 MS. SHAPPERT: Yes. 

 COMMISSIONER HOWELL: And those 536 people 

are also not going to be released in one fell swoop. 

It's over probably 30 years. 

 MS. SHAPPERT: Well, here's the thing. We 

know that 536 people will be eligible for resentencing. 

 We know that each of them is probably going to want to 

have a sentencing hearing of some variation or another. 

 Notwithstanding Rule 43, they're going to want to be 

in the district, that if possible, they're going to 

want an appointed counsel, and if possible, they're 

going to want to talk about rehabilitation in prison, 

any changes in their family circumstance or situation, 

and we will have, if Booker does apply, a lopsided 

Booker proceeding where we consider all of the 

minimizing factors but not the aggravating factors that 

would've been available at the original sentencing. 

 COMMISSIONER HOWELL: And I understanding the 

administrative issues with the resentencing for the -- 

 MS. SHAPPERT: Yes. 

 COMMISSIONER HOWELL: -- 536. But by our, 

you know, estimate, the most number from your 

district -- 

 MS. SHAPPERT: Um-hum. 

 COMMISSIONER HOWELL: -- out of the 536 who 
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might even be eligible, if a judge decides that a 

reduction in sentence is appropriate, would be about 

40, 42, maybe, people in your district alone, which is 

a far different subset of the 536 that would be 

released. 

 MS. SHAPPERT: The problem is going to be 

those same people who will be getting out early would 

not have had the same services in the Bureau of 

Prisons, would not have the same transition into 

society that we think is optimal or that we in the 

federal system aspire to. It increases the chances of 

recidivism and the Commission has identified that this 

population is more inclined to recidivate, based upon 

the aggravated criminal histories. 

 COMMISSIONER HOWELL: Well, let me ask you 

the same question that I asked the panel before you 

from the defenders, which is that the Criminal Law 

Committee, that gave an awful lot of thought in their 

submission to us, suggested a policy statement. 

 MS. SHAPPERT: Um-hum. 

 COMMISSIONER HOWELL: And if the Commission 

decides to make the crack amendment retroactive, can 

you speak for the Department as to what the 

Department's position would be on the Criminal Law 

Committee's policy statement proposal? 
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 MS. SHAPPERT: Speaking for the department, 

as you know, we believe Booker should not be 

retroactive or applied to 3582(c)(2). If the 

Commission is going to apply the guidelines 

retroactively, we would encourage the Commission to 

make a policy statement as clear and specific and as 

refined -- and I don't have the specifics and we would 

be -- we would endeavor to assist in any way we can. 

But we would encourage you to be clear. We think that 

is more conducive to an efficient administration of 

justice. 

 CHAIR HINOJOSA: Judge Sessions. 

 JUDGE SESSIONS: I appreciate your comments, 

Ms. Shappert. I think it's probably fair to say that 

your comments could also have been relevant to our 

initial decision to apply two-level reduction to crack 

cocaine cases in the future. I would assume, from the 

nature of your comments, that that would've been your 

position because of your feeling about crack in the 

communities. The issue before us now, of course, is 

not that. It's a question of retroactivity. And 

you've heard Judge Walton testify about respect in the 

community for the criminal justice system, particularly 

involving those communities that are impacted by crack 

cocaine. We have reduced penalties for marijuana. We 
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have reduced penalties for oxycodone. We have reduced 

penalties for LSD. All of those defendants primarily 

-- those offenses primarily involve white defendants. 

Here we have a situation, an offense which involves 

predominantly African-American defendants. And to what 

extent do you think our refusal, if we were to refuse 

to apply it retroactively, would impact the community 

respect, or lack thereof, of the criminal justice 

system within the African-American community? 

 MS. SHAPPERT: Let me preface it by saying, 

first of all, the Department of Justice opposed 

retroactivity in all of those other situations, with 

regard to LSD, marijuana and the other drugs. So the 

Department has been consistent. Secondly, I think that 

it's important to remember that we need to remember 

that we focus on conduct in prosecution. We prosecute 

conduct. We don't prosecute based upon race. 

 The other thing is, with regard to the 

modification of penalties and retroactivity in the LSD 

and marijuana situation, you did not have the Booker

effect looming out there, and I do believe it will -- 

it will potentially harm the criminal justice system if 

large numbers of individuals who are likely to damage 

poor, largely African-American communities, are in fact 

released early, people who are most likely to 
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recidivate. That's what I'm concerned about. 

 JUDGE SESSIONS: So if we pass a policy 

statement which in some ways modified or mollified the 

impact of Booker and resentencing, then I would expect 

that at least the severity of your statements would be 

reduced or mollified as well. 

 MS. SHAPPERT: The Department continues to 

believe that the guidelines should not be retroactive 

because of the consequences of letting people out who 

don't have the benefits of treatment and training in 

prison. But I would encourage the Commission, if the 

Commission is going to make them retroactive, to make 

the clearest policy statement it can, understanding, as 

we do, that Hicks and Forty Estremera call into 

question how binding the policy statements of the 

Commission will be. 

 MR. CASSILY: Can I just comment, too, that 

-- I mean, having listened to the panel before us, no 

one on that panel, none of the defense counsel, was 

prepared to just say, oh, we'll accept that and that 

won't be a basis for litigation. So I think that that 

will create just as much litigation and they're all 

saying that, in the best interest of the client, 

they're going to fully litigate their client's right to 

Booker, anyway. So I'm not clear that the Commission's 
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desire to limit that will have an effect whatsoever. 

 CHAIR HINOJOSA: Does anybody else have any 

questions? 

 COMMISSIONER FRIEDRICH: I have one question. 

 Ms. Shappert, the courts have estimated that they will 

need to add approximately, I think they said, 95 new 

probation officers to account for the surge in cases 

that retroactive application of the amendment would 

cause. Has the Department done any similar sort of 

analysis? And I pose the same question for Mr. Jones, 

whether you all had a chance to try to calculate to 

what extent you would need to add prosecutors or 

marshals, in order to continue to be proactive in the 

areas of violent crime and terrorism and other 

important initiatives. 

 MS. SHAPPERT: Well, as you know, over half 

of the individuals implicated are in the 5th, the 11th 

and the 4th Circuit, so we're talking about a 

disproportionate impact on certain circuits. The 

Department has not offered any additional resources and 

I seriously doubt, though I don't know this for a fact, 

I doubt that I would be getting additional prosecutors, 

because this is going to be a temporary problem of a 

span of years, probably within -- whatever the 

decision, we're talking a one to ten-year period as 
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opposed to a systemic situation where I would be 

entitled to additional prosecutors. So would I like 

more help? Yes. Am I aware of any plans to provide 

additional help to districts that would be impacted? I 

am not. 

 MR. JONES: In response, Commissioner, to the 

question as far as the Marshals Service, as I mentioned 

in my summary of the testimony, which I provided a 

written copy, we just -- our analysis shows that we 

would probably need 92 people to offset the call to 

produce that amount of prisoners, notwithstanding that 

it'll be that amount. I'm not certain what that amount 

would be. But if it was 19,500, we'd look at 92. And 

we have not factored that in as far as any -- you know, 

within the President's budget call. 

 And so that's what we're saying that if we 

have to tap into existing resources, that it may affect 

some of the other initiatives that we have underway, 

such as the Adam Walsh sexual offender act. I do want 

to add that, within the 4th Circuit and specifically 

South Carolina and North Carolina, there was a couple 

-- the districts in those circuits are hurting right 

now, as far as the bed space. We are moving -- in 

South Carolina we're moving prisoners. We're housing 

their prisoners as far away as Tennessee. And we're 
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working, definitely, with the districts in North 

Carolina to house their already taxed prisoner load. 

And the only thing I wanted to mention was I heard 

earlier, in testimony, that prisoners may not want to 

get involved and be transported back, you know, for the 

hearing, but I would -- from my experience of moving 

prisoners, as a deputy marshal, they always enjoy a 

chance to get out of jail and take a ride and get some 

different food and have some other things in place, a 

chance of scenery and -- 

 CHAIR HINOJOSA: Mr. Jones, sometimes the 

complaint is that they have been taken away from a drug 

care program or some other, or from their working 

program, that they may be involved in the prison system 

and that, therefore, they're taken away and go to the 

county jail system and that it takes a long time. And 

then to try to get back into the drug program or the 

workforce, or any of the other programs that they're 

involved in, that it would cut into it. Those are the 

complaints that we hear in the courtroom when we do 

call prisoners in for resentencings or other matters. 

 MR. JONES: Yes, sir. 

 CHAIR HINOJOSA: Or sometimes when there are 

witnesses in cases. 

 MR. JONES: Sure. And I'm aware of those 
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complaints. 

 COMMISSIONER FRIEDRICH: I have one 

additional question to Ms. Shappert. You've expressed 

some legitimate concerns about early reentry of 

prisoners should this amendment be made retroactive, 

and I'm wondering if you -- the Department has any 

reaction to the Criminal Law Committee's recommendation 

that probation officers seek to modify conditions of 

release for offenders, so that there would be a period 

of time where they would be at a halfway house or home 

confinement, where some of the reentry types of things 

that occur in prisoner could occur in this instance. 

Do you think those would be effective or do you still 

have concerns? 

 MS. SHAPPERT: I have not seen any position 

by the Department on that. I do know the Bureau of 

Prisons says that to prepare someone for a halfway 

house usually takes 11 to 13 months, but it can be 

truncated to a period of five to six months, but it 

does require some planning time, and my concerns about 

the lack of planning time continue. 

 COMMISSIONER FRIEDRICH: Um-hum. 

 CHAIR HINOJOSA: I have the last question. 

Mr. Cassily, you made the point about how if someone 

was brought back and there had been a plea agreement, 
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but it would certainly be understood that certainly you 

couldn't reopen the sentencing hearing to give somebody 

a higher sentence based on another weight. You meant 

in relationship to whether the reduction would be 

granted at all or -- 

 MR. CASSILY: Well, I think my point was, 

then, is the evidence that the -- in fact, the amount 

that was involved was greater than that which he pled 

to. The defendant pleads to a certain amount. Is he 

going to then object to the fact that because it was 

understood, basically, that this would result in this 

specific type of sentence. Now that he's being brought 

back to be resentenced, based on the fact that, for 

that amount, he might get less time, will the 

prosecutor be able to introduce evidence of the actual 

amount that was seized, or involved in that specific 

criminal case, to keep the sentence from being reduced? 

 CHAIR HINOJOSA: If there's no other 

questions, thank you all very much. And we're ready 

for the next panel. Have a seat, please. Next we have 

the Academic Perspective. We've got Anne Piehl, who 

joined the faculty at Rutgers in 2005. Professor Piehl 

is an associate professor in the Department of 

Economics, and a member of the Rutgers Criminal Justice 

Program, research associate at the National Bureau of 
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Economic Research. And we've got Professor 

Steven Chanenson, who is a professor at Villanova 

University School of Law. Professor Chanenson was a 

law clerk to Judge Kravitz of the 11th Circuit, as well 

as Supreme Court Justice William Brennan, Jr. 

Ms. Piehl. 

 MS. PIEHL: Thank you, Judge and 

commissioners, for the opportunity to appear before you 

today, regarding the issue of crack cocaine guideline 

amendments and its retroactivity. In my academic work, 

I assess policies from the perspective of a 

representative citizen. I've heard already that we've 

had representatives from various agencies that would be 

impacted by such a policy change. But what I want to 

do is take a slightly broader perspective, thinking 

about society at large. And the way I'm going to do 

this is by the framework of benefit cost analysis. 

Okay. 

 Benefit cost analysis is a widely accepted 

approach to totaling up all of the consequences of a 

proposed policy change. Benefit cost analyses are 

required in many areas of federal government work, and 

OMB has many circulars on how it's to be done, and it's 

often required of grantees, et cetera, by the federal 

agencies. The purpose of this kind of analysis is to 
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aid decision making by comparing the impacts of 

proposed policies. Its particular value as an analytic 

frame is that it incorporates all the consequences of a 

policy choice and emphasizes the tradeoff. And the way 

this is done is by putting things into a common metric, 

money. Now some people are offended sometimes by 

economists' willingness to monetize certain costs and 

benefits, but I find it is useful to think about these 

tradeoffs simultaneously and make it explicit where the 

tradeoffs are and that's what I want to do today. 

 Now, one thing that benefit cost analysis is 

not very good at is thinking about fairness or 

distributional concerns, and you've had a lot of input 

in that regard already, so I don't need to repeat that. 

 But it is important to recognize that any benefit cost 

analysis should be accompanied by a discussion of 

fairness and distributional concerns and it should be 

considered just one input into a decision-making 

process. 

 Now, I didn't have time nor the access to the 

necessary data to do a complete cost benefit analysis 

for my testimony today, but what I'd like to do is make 

a couple of highlights of what a thorough analysis 

would look like. So the bottom line, as has been 

discussed earlier, from the Commission's research is, 
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you know, for our purposes today, thinking about 19,500 

people being resentenced perhaps at a reduction of 27 

months. This impact is staggered temporarily and 

dispersed geographically. So what the policy does is 

move up the release dates. What's the impact of that, 

if it were to be adopted? Well, what it saves is 16 

million bed days. Okay. So that's the 19,500 inmates 

times 27 months times 30 days per month. 

 So the question is how do you value the 

savings of those 16 million bed days for society? In 

technical terms, what we want to think about for 

benefit cost is what's the incremental, incremental 

change to social costs of no longer using that resource 

in that way? Now, we heard earlier an estimate of $20 

per day and that really comes from just the incidental 

costs of incarcerating an inmate for a day. So that 

would be extra food, some healthcare, that kind of 

thing. 

 Okay. That's the appropriate number if 

you're thinking about sentencing a single inmate for a 

single day. But when you think about a broader-scale 

change, you want to use a much larger number, because 

you would be able to avoid certain construction costs. 

 You might be able to delay hiring, et cetera, if you 

had a smaller prison population. So what's an 
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appropriate measure of that? One way to get a measure 

is to take the federal prison system's budget and 

divide by the number of inmates there. That gives you 

an estimate of about $63 per inmate day. That's not an 

unreasonable number, but I still think that that's too 

low because it ignores capital construction costs. 

 Okay. So in the academic literature, when 

people are doing benefit cost analyses, they're not 

necessarily trying to get the right number but they're 

trying to get in the right ballpark, and about $40,000 

a day -- $40,000 a year, or $110 per day, is the one 

that is sort of favored by researchers now. All right. 

 So if you multiple that out at $110 per day, you end 

up with $1.7 billion of social cost savings. If you 

prefer a lower number like $70, you would end up with 

something close to $1 billion. 

 All right. So we've heard a lot of about 

some of the costs of the impacts on the administrative 

units, but those will obviously be much smaller in 

magnitude than this particular cost of incarceration. 

So on the other side, what -- so it's a benefit to your 

representative citizen, a reduction of tax dollars. 

What is the primary cost? Well, it think the primary 

cost would be a potential increase in crime. You have 

people being released differentially. What are the 
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crime impacts? Well, we mostly tend to think of the 

consequences of sentencing as effecting deterrents and 

incapacitation. There are other purposes of 

sentencing, but they don't have the same kind of 

impacts that I'm measuring here. Deterrents will be 

unaffected by retroactivity, right, because you've 

already -- the new amendment has already gone into 

place, so well-informed inmates are -- well-informed 

potential offenders are already responding to that 

circumstance. 

 So deterrence is not an issue here. So let's 

turn to incapacitation. It's a little bit more 

complicated. We will be letting people out, but one of 

the incapacitation benefits from sentencing, say, a 

drug dealer, usually is that you remove them from the 

community. These people have already been removed and 

whatever their slot was in the business of crack 

distribution has long ago been filled. 

 So the incapacitation loss from moving up 

release dates is really that incremental extra time 

that people will be on the street, that they wouldn't 

under the status quo. All right. So to me, the most 

interesting impact is that if people are released 27 

months earlier than scheduled, they're going to be 

younger than they would otherwise, right, and we all 
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know that crime is very strongly associated with age. 

So I did some calculations from the Bureau of Justice 

Statistics' recidivism study and found that we expect, 

when people age a couple of years, there'd be a one to 

two percent increase recidivism over a three-year 

period. Now, I consider that to be an overestimate of 

the additional crime that would happen, because of what 

was just being discussed in the last panel. 

 Judges will have an opportunity, at 

resentencing, to not provide this relief to people who 

are -- have shown themselves to be of high risk of 

recidivating. So by my calculations, this results in 

an overestimate again, but a projection of maybe 390 

additional crimes. Okay. So that has to be traded off 

against the one to two billion dollars in cost savings, 

if you were doing this as -- you know, in the framework 

that I, that I propose. 

 So if you want to value those crimes, each of 

those crimes would have to be valued at a social cost 

of about $4 million to make this be a breakeven, right, 

which is higher than we would use for any crime other 

than murder. And it's important to recognize that 

recidivism rates are much higher for property crimes 

than they are for violent offenses. Finally, you might 

want to consider what impact there might be of a mass 
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release of inmates, this kind of suddenness of a group 

of a releases. As has been noted, we're really 

thinking about moving up the bulge of releases and 

having 2500 extra releases in the first year, and then 

having a lower rate after that. So this should be -- 

you know, it's a large number in terms of an increase, 

denominated by certain values. 

 But relative to the 45,000 that are released 

every year from the Federal Bureau of Prisons, it 

doesn't seem like anything that's kind of out of the 

ordinary. And for communities who are receiving 

inmates daily from state prisons and from jail 

facilities, I don't think it's going to be noticeable. 

 Not that it won't have an impact, but it's not going 

to be kind of a very large impact. And with the social 

cost savings from the incarceration, it might be 

possible to reallocate those to some kind of other 

prevention efforts. 

 So in conclusion, I want to say that benefit 

cost analysis shows that the proposed retroactivity 

will substantially reduce the cost of incarceration on 

the order of one to two billion dollars, and this is 

particularly important in the context of the high 

levels of overcrowding in the federal system. So it is 

not unreasonable to think that this could defer some 
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prison construction or hiring. So I think this could 

actually be a realized savings. So from the 

perspective of an American citizen, there will be 

small, perhaps, increases in crime across the country, 

but the consequences I think favor -- represent a win 

if you think about the taxpayer savings. It's not 

always true that economic efficiency and fairness 

considerations operate in the same direction, and 

policymaking is particularly difficult when they 

conflict, right? In this case they go together and I 

urge you to support the retroactivity. 

 CHAIR HINOJOSA: Thank you, Professor Piehl. 

 Professor Chanenson, sir. 

 MR. CHANENSON: Chairman Hinojosa, members of 

the Commission, I find myself in the unenviable 

position of being between all of you and lunch, but I 

will -- I will, keeping that in mind, try to be as 

brief as a law professor can. In my comments today -- 

 CHAIR HINOJOSA: Just don't call on us. 

 MR. CHANENSON: Yeah. The fact that you're 

all sitting in the front row is something unheard of. 

In comments today, I hope to convince you that simple 

justice, both real and perceived, counsel in favor of 

making Amendment 706 retroactive in some form, and that 

there are several ways to achieve that goal, all of 
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which involve the Commission doing what it does best, 

providing guidance. The United States Sentencing 

Commission, as you well know, is facing this very 

important issue. It is one that combines both pure 

policy and practical procedure, implicating matters of 

both equity and efficiency. But as I said, you know 

that already. 

 You have known that since at least 1995 and 

for more than a decade this Commission, constituted 

with different members appointed by different 

presidents, confirmed by Senates of different parties, 

has all endorsed the idea that something, at least up 

until last week, was amiss and still is amiss with 

respect to our sentencing for cocaine base or crack. 

In fact, each of your many thorough reports on crack 

cocaine sentencing has emphasized that a faithful 

commitment to the principles of the Sentencing Reform 

Act demands modification. 

 And while passing Amendment 706, you stated 

clearly that, while justice demands further reforms and 

explained that what you're taking is a partial action, 

you stressed, "the problems associated with the 100 to 

1 drug quantity ratio are so urgent and compelling, 

that this amendment is promulgated as an interim 

measure to alleviate some of those problems." As you 
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know well, by your own guidelines, 1B1.10, the 

Commission looks at three things in deciding whether or 

not to make a guideline change, a reduction, 

retroactive; the purpose of the amendment, the 

magnitude of the change, and the difficulty involved, 

rather, in applying that change. The first two of 

those, in my opinion, clearly support a retroactive 

amendment -- application, rather, of Amendment 706. 

 The third is more complicated, but taken 

together, I believe they all counsel in favor of 

retroactive application. The purpose of this amendment 

is to take a step toward righting a significant and 

longstanding wrong that was depriving many defendants 

of their liberty well beyond what was justified by 

Congress' statement of valid sentencing purposes. The 

Commission cannot fully realize and effectuate the 

purpose of righting that wrong, unless there's at least 

a possibility for retroactive application in the 

appropriate cases. 

 Concerning the magnitude, the Commission has 

adopted the benchmark from the Senate report 

accompanying the Sentencing Reform Act of 1984, 

focusing on around six months as being big enough to be 

worth the effort. This average change of approximately 

27 months is certainly well above that. Difficulty -- 
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it was a little difficult for me to try and sort it 

out. One logical concern, when you think about 

difficulty of application, is the ability of the judge 

to reevaluate the defendant's sentence in light of the 

newly revised guideline. On that basis alone, 

Amendment 706 should not be too difficult to apply, 

because the sentencing judge originally had to come to 

some conclusion about the amount of crack involved. 

 Let me take one moment just to comment on 

something that Mr. Cassily mentioned with respect to 

cases being pled out. And there was some -- a somewhat 

puzzling reference to this in Assistant Attorney 

General Fisher's letter as well. It is not, to my 

knowledge, the policy of the Department of Justice, it 

was certainly not my practice when I served as an 

Assistant United States Attorney, to engage in fact 

bargaining. 

 So while there may be other things that were 

swirling around that may be of some relevance to the 

judge, positive or negative, whether to exercise the 

judge's discretion under 3582, I would be surprised to 

learn that the judge was not aware of all of the 

quantity of crack that the government felt it had 

enough evidence to bring forward. That kind of 

information is not supposed to be kept from the court 
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and in fact, as we all know, the Department of Justice 

takes a strong stand on that, so I think that really 

should not be a concern. But difficulty can be looked 

at more broadly. We have to ask ourselves whether 

we're thinking about some of the practical details that 

you've heard about today, and to get to that, I'd like 

us to pretend, perhaps, that we're in law school for a 

moment and go back to the statute. 

 When we look at 3582(c), what you see is 

Congress providing a few situations, and just a few, in 

which a sentencing judge may make changes after 

imposing a sentence. It seems to me, contrary to some 

of the loose language in a variety of opinions, and I 

respectfully disagree with the panel's opinion in 

Hicks, that a 3582(c)(2) proceeding is not a 

sentencing. 3582(c) proceedings are not mentioned, or 

course, in the Federal Rule of Criminal Procedure 32, 

the standard rule for sentencing. 

 And in fact, Rule of Procedure 43(a)(2) 

requires defendants to be present at sentencings, but a 

few lines down the page, 43(a)(2) -- 43(b)(4) -- pardon 

me -- states, the defendant need not be present when 

the proceeding involves the correction or reduction of 

a sentence under Rule 35 or 3582. This would be a 

peculiar resentencing indeed, if it could happen sua 
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sponte, as 3582(c)(2) proceedings could. So what 

exactly is the congressional vision of 3582(c)? In my 

opinion, it is an equitable mitigation device granted 

by Congress to the judiciary, subject to significant 

regulation and control by this Commission. It's a form 

of equitable sentencing relief that Congress authorized 

the Commission and the District Court, acting 

separately, to grant. 

 The District Court is authorized, but not 

required, to grant equitable sentencing relief in the 

form of an imprisonment reduction if three conditions 

are satisfied. First, the defendant must've been 

sentenced to a term of imprisonment based on the 

sentencing range subsequently lowered by the 

Commission; second, either the defendant, the director 

of the Bureau of Prisons, or the court must move to 

lower the sentence; and third, the contemplated 

reduction must be consistent with applicable policy 

statements issued by the Commission. 

 Without all three of these conditions, the 

District Court has no authority to reduce the 

imprisonment term at all. Congress provided even more 

specific guidance on this power that the Commission has 

to authorize sentence reductions, when it promulgated 

-- pardon me -- 28 U.S.C. 994(u). That provision 
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states in part that the Commission shall specify in 

what circumstances and by what amount the sentences of 

prisoners may be reduced. Thus it appears to me that 

this Commission has not only the express authority, but 

an expressed statutory duty to regulate with 

specificity the circumstances in which terms of 

imprisonment may be reduced. 

 Many courts have acknowledged, to one degree 

or another, that 3582(c)(2) proceeding is not a "doover sentencing, " though few courts have really 

attempted to articulate the full contours and 

implications of these sentencing reduction proceedings. 

 And no court admittedly has apparently adopted what 

seems to me to be the obvious interpretation of 

3582(c). And before United States versus Booker, that 

ambiguity was arguably harmless enough, facing more 

mandatory guidelines as a default position. 

 The is, in my opinion, no longer so harmless. 

 As you know, United States versus Hicks has held that 

Booker applies to 3582(c) proceedings. It seems 

inappropriate for many reasons to me, primarily, as I 

said, because 3582(c) is not a resentencing in which 

guidelines apply. It is a clemency-like, equitable 

sentencing reduction proceeding where a minimum nature 

and maximum extent of the reduction is, according to 
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statute, regulated by the Commission. So Hicks, in 

short, concludes that once the Commission deems a 

guideline to be retroactive, a fairly normal Booker

resentencing follows. But presumably even Hicks would 

not allow, as Judge Hinojosa pointed out correctly, for 

an increased sentence, given the express language of 

3582(c). 

 Curiously, in my opinion, Hicks also rejects 

the idea that the Commission's policy statements could 

provide a hard limit on the District Court's power to 

reduce a sentence consistent with Booker, although 

arguably that portion of Hicks is dicta. Even if 

Booker somehow applies to 3582(c), the Commission 

should have the power to place an absolute ceiling on 

the amount of the sentencing reduction. This is not 

making guidelines, so called, mandatory again. It is, 

rather, limiting the extent of the clemency-like, 

equitable sentencing reduction that the District Court 

can bestow. That's a law professor's view. 

 We all know how many people listen to law 

professors. So what happens if all of the courts 

decide contrary to my truly compelling argument that 

Booker applies? Well, what can the Commission do then 

and what should it do? Well, I believe that the 

Commission can and should provide more specific policy 
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statements, no matter what level of legal force they 

carry. Even if they are simply deemed to be advisory, 

these policy statements can be helpful. The Commission 

can make clear, I think, as it has already, but it 

could stand to be made even more blunt, that the 

Commission, I believe, would not want a retroactive 

amendment -- application, rather, of Amendment 706 to 

yield a sentence lower than two full levels below the 

sentence previously imposed. 

 It can at least discourage judges from 

granting reductions for certain offenders. I agree 

completely with Judge Castillo that experienced judges 

know what they're doing. But part of what our entire 

structured sentencing system is about, is trying to 

provide guidance and interaction between the trial 

court and the Commission and the Court of Appeals and 

Congress. 

 So I think there is nothing inappropriate 

with the Commission providing that kind of guidance, 

and of course, in a post-Booker world, if Booker

somehow applies, the District Court can reject it. I 

think the Commission would be well served to also 

promulgate procedural policy statements along the lines 

that either the Criminal Law Committee or the defenders 

have talked about encouraging working with each other, 
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as well as encouraging judges to solicit the views of 

the Bureau of Prisons concerning an individual's 

specific reentry needs. The Department of Justice, 

though, highlights a potential problem, when it notes 

there may be uncertainty and a lack of uniformity 

concerning the applicability of a legal standard if 

some courts follow Hicks and others do not. 

 Now of course there is going to be 

uncertainty with any retroactive application of a 

guideline in a post-Booker world. It is arguably a 

larger problem in the context of Amendment 706 because 

the volume of cases is so high. Misapprehension, not 

ungrounded, should not though spark paralysis and do 

retroactivity. I go back to my initial position with 

respect to the purpose that is involved here. You've 

set that out clearly and I think the Commission should 

not break from its longstanding position. 

 There are other options. I'll touch on them 

briefly because, admittedly, they do wander into the 

realm of academia. You can provide a more muscular 

response, or at least call an inter-branch 

collaboration to provide a more muscular response to 

the Department of Justice's considerations and 

concerns. For example, with the help of Congress, 

Congress can reduce this uncertainty and lack of 
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uniformity in several ways. First, as I have written 

elsewhere and bored literally dozens of people who've 

read it, Congress can and should create a Court of 

Appeals for sentencing. This would afford greater 

consistency and guidance for all aspects of federal 

sentencing, not to handle every last sentence, but to 

help provide a unified judicial voice on matters of 

sentencing. 

 By speaking with one appellant analytic 

voice, the judiciary would communicate more effectively 

with the Commission. And Congress, on a more targeted 

basis, Congress could direct that all 3582(c) appeals, 

assuming they are appealable, and there's a 

disagreement about that, but most courts believe that 

they are, can go to a specific Court of Appeals, either 

an existing one, or a special court staffed with 

existing federal judges on a staggered term basis could 

be created. 

 Another possibility would be for Congress to 

direct that all such motions be heard in the first 

instance by a special trial court, and if 

transportation issues are that serious, the court could 

move to large institutions in order to minimize that. 

All of these possibilities would serve to make the 

retroactive application of the guidelines more uniform, 
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while maintaining an individualized determination of 

how to proceed in each case. There is, of course, an 

even simpler method to bring reasonable uniformity and 

procedural ease to the process of resolving these 

claims. It still requires the guidance of the 

Commission, but Booker would not be an issue. Even if 

you agree with Hicks, hard limits on who would receive 

a reduction could still be established in advance, and 

individualized determinations could still be made. 

Drawing inspiration from President Ford's clemency 

board, the President could issue an executive order 

directing the Parole Commission -- there's still enough 

of you left, sir -- 

 COMMISSIONER REILLY: Right. 

 MR. CHANENSON: -- the Parole Commission to 

review the cases of defendants sentenced under the 

former guidelines for crack. This is not inconsistent 

with what the Parole Commission still does and would 

obviate many of the procedural discussions and issues 

that we have had today. No matter what the Commission 

chooses to do concerning retroactivity of Amendment 

706, it has the opportunity to improve the overall 

state of criminal sentencing by how it does what you 

choose to do. We ask United States District judges to 

explain their reasoning so we can better understand the 
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federal sentencing structure. Greater understanding 

can lead to substantive improvements, increased public 

respect for as well as acceptance of the criminal 

justice system. While much remains to be done to 

improve transparency at the trial court level, 

including, in my opinion, the provision of greater 

access to data, including judge-specific information on 

sentencing, the Commission has an opportunity here to 

lead by example. 

 The Commission should clearly and publicly 

explain its reasoning, regardless of whether it makes 

the crack amendment retroactive. Especially in light 

of this broad public interest in the crack amendment, 

this is the perfect time to begin a new and rigorous 

tradition of explanation. I have great faith in all of 

you, that you take your responsibilities seriously and 

will continue to give this issue deep thought toward 

whatever decision you make. 

 Tell us about it. Tell us in a manner 

acceptable to all -- accessible -- pardon me -- to all, 

why one argument was persuasive over another and help 

us understand what this signals for the future. You 

can serve as a shining example to the hundreds of 

federal judges who must make equally challenging 

individual sentencing decisions every day. I guess I'd 
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like to, before I get peppered with questions, which 

law professors don't like, I want to just address two 

other things that came up in earlier questions. There 

was an issue raised by Judge Castillo, about the fact 

that the Commission has kind of bifurcated this 

process, passing the amendment and now dealing with 

retroactivity. 

 Of course, as you know, this has been the 

practice in a number of previous instances, not all, 

and admittedly I think your internal procedures 

encourage you to decide it as a package. There are 

reasons to take this on a step-by-step basis. And most 

importantly, this was not a surprise to anyone. This 

hearing was announced long before November 1. Your 

statistical data was set out there, indicating that in 

the neighborhood of 19,500 people could be considered 

for application of a retroactive amendment, so I don't 

think that's anything that should give you pause. 

 Finally, Commissioner Horowitz mentioned, and 

he asked Judge Walton, as I believe, whether the 

Commission should wait for the Supreme Court to decide 

Kimbrough. In my opinion, you should not. No one 

knows what the Supreme Court is going to do. They no 

longer have the tradition of re-listing and re-listing 

that they did years ago. But I am reminded of 
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something and you'll see this as a blatant suck-up that 

it is. But years ago I appeared before 

Judge Castillo in a very different capacity, as an 

Assistant United States Attorney, at several 

sentencings, and I was always struck by how 

Judge Castillo, in many ways, articulated and embodied 

the parsimony provision of 3553, where he would tell a 

defendant -- and you would always get a fair sentence 

from Judge Castillo. 

 But he would tell a defendant that you've 

done something wrong, this is what the punishment is, 

but I am not going to be responsible for you serving 

one more day in prison than you deserve. This 

Commission has determined that crack offenders do not 

deserve to be sentenced for as long as they have been. 

 If it is your determination to apply this 

retroactively, you should do it now. With that, I 

thank you for your time. 

 CHAIR HINOJOSA: Thank you very much, 

Professor. Vice Chair Steer. 

 COMMISSIONER STEER: Thank you both for your 

testimony. Professor Chanenson, I'm very pleased that 

your -- with your analysis on the applicability of 

Booker. It certainly is in accord with my thinking and 

I think probably the thoughts of most of us who have 
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looked at the law and the legislative history and 

thought about it. You mentioned a number of possible 

things that could be done. One, of course, would to be 

strengthen the Commission's policy statement. I wonder 

if you would be willing to work with the Commission and 

its staff, in the case the Commission wants to go in 

that direction. 

 Secondly, what would you think about 

legislation that the Commission might Congress to enact 

that would make it clear, even clearer, if that is 

necessary, that Booker does not apply for these kind of 

remedial limited -- I think you're absolutely right. 

They're not a resentencing of these remedial actions. 

 MR. CHANENSON: Of course I always stand 

ready to help in any way that I can and I would be 

honored to work with Commission staff on any of these 

matters. As far as the possibility of new legislation, 

I think that, again, I agree with you. It seems fairly 

clear to me what 3582(c) is and it's not a bad idea at 

all. But if the courts are going to disagree over it, 

I'm not sure. I mean, it's certainly possible to make 

it clearer. I think it's a viable option. But if 

Congress is going to get involved, which I know is a 

big step, perhaps there would be additional things that 

the Commission might ask Congress to do in addition to 
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clarifying this. 

 CHAIR HINOJOSA: Judge Castillo. 

 JUDGE CASTILLO: Thank you both for being 

patient and standing by for your testimony. It was 

very helpful. Professor Chanenson, good to see you in 

a different capacity. It strikes me that we've been 

talking all morning to some members of the general 

public about this Hicks issue without really explaining 

it. Hicks would entitle a criminal defendant at 

retroactivity, if retroactivity is decided upon, to 

argue at resentencing that they're entitled to an 

entire new, fresh look at all of the sentencing 

factors. But there have been some courts that have 

rejected Hicks, including the 4th Circuit, right? 

 MR. CHANENSON: That's my understanding, 

although the 4th Circuit was not expansive in its 

reasoning and -- 

 JUDGE CASTILLO: Um-hum. 

 MR. CHANENSON: -- I hope I was traveling 

when the 3rd Circuit issued its opinion. No matter 

where I was, I haven't seen it. 

 JUDGE CASTILLO: To your knowledge, has any 

court accepted Hicks as binding precedent? Any Circuit 

Court? 

 MR. CHANENSON: No, no Circuit Court of which 
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I am aware of. There are some isolated District Courts 

that have found it at least persuasive, being outside 

the 9th Circuit. 

 JUDGE CASTILLO: So it's only precedent in 

the 9th Circuit? 

 MR. CHANENSON: To my knowledge. 

 JUDGE CASTILLO: And the 9th Circuit happens 

to be a circuit with about maybe 500 of these affected 

crack cases, is that about right? 

 MR. CHANENSON: That's my recollection, yes, 

sir. 

 JUDGE CASTILLO: And the 4th Circuit, which 

has rejected Hicks in this one-page opinion, has about 

over 5,000 of these 19,000 cases, right? 

 MR. CHANENSON: Yes. 

 JUDGE CASTILLO: What does that tell you 

about what we should be doing on retroactivity, and is 

it a situation where Hicks is sort of the tail wagging 

the dog? 

 MR. CHANENSON: It tells me that you should 

not allow Hicks to be the tail that wags the dog. I 

think that Hicks is wrongly decided, but both the 

facts, from a practical standpoint, that the 4th 

Circuit does not follow that rule and that the 

Commission still has the ability to promulgate policy 
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statements that could even guide 9th Circuit -- the 

overwhelming balance of the equities, in my opinion, 

advocates in favor of retroactivity. And let's not 

forget Rita, Rita versus United States, where of course 

the guidelines are still effectively advisory, but the 

Supreme Court has provided a tremendous incentive to 

district judges to pay attention to what the Commission 

has to say, creating a safe harbor of sorts. And if 

you make that harbor more welcoming for the issue of 

resolving of these kinds of cases, I think certain 

issues of the concerns that the Department has with 

respect to disparity of individuals, where Amendment 

706 would apply, can be reduced. 

 JUDGE CASTILLO: Thank you. 

 CHAIR HINOJOSA: Commissioner Horowitz. 

 COMMISSIONER HOROWITZ: Yeah. Let me just 

follow up on what Professor Chanenson said. I 

appreciate your testimony. Let me also just clarify. 

The question I asked, or so meant to ask, Judge Walton 

this morning, wasn't that we wait for the decision of 

retroactivity, until the Supreme Court decision in 

Kimbrough, but whether District Courts should then 

wait, if we did decide to make the guideline amendment 

retroactive, before sentencing. And his answer, I 

think obviously was the right answer, which is, for 
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those individuals who would be released anyway, there's 

no reason to wait. And so let me just ask the question 

to you, then. If a district judge decides to wait, in 

an appropriate circumstance, and the court reverses the 

Kimbrough decision of the 4th Circuit, do you see that 

having any impact on a decision to make the guideline 

retroactive? Does Kimbrough overlay at all with the 

decision we're making? 

 MR. CHANENSON: It impacts it, certainly. It 

impacts -- again, if I understand the question, and I 

apologize for misunderstanding it before, but it gave 

me a chance to say something nice about Judge Castillo. 

 COMMISSIONER HOROWITZ: That's right. And we 

all try to do that occasionally, on the Commission. 

 JUDGE CASTILLO: Occasionally. 

 COMMISSIONER HOROWITZ: Occasionally. 

 MR. CHANENSON: If I understand the scenario 

correctly, what you're positing is a situation where 

judges are freer than some of the Circuit Courts have 

up to this point allowed to disagree with the 100 to 1, 

or now whatever it is, ratio embedded in the 

guidelines, and that Booker would apply on these 3582-

type proceedings. It makes the promulgation of policy 

statements all the more important. But again, I think 

that the retroactivity of this issue, to me, still is 
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the appropriate course to follow on the simple justice 

of it. So yes, this will make life more complicated. 

It raises issues of serious concern as to disparate 

treatment from judge to judge, as we have not seen too 

big of an issue after Booker, but it's the -- you know, 

the monster hiding under the bed of Booker. But I 

think that we can mitigate that or the Commission can 

mitigate that through the promulgation of greater 

policy statements. 

 COMMISSIONER HOROWITZ: Thanks. 

 CHAIR HINOJOSA: Commissioner Ferry. 

 COMMISSIONER FERRY: Let me echo the thanks 

of my colleagues. I found your presentation extremely 

helpful and thank you for the thoughtfulness given to 

the policy statements. On that note, would you -- 

what's your reaction or what your recommendation be to 

whether or not the Commission should enact a policy 

statement indicating that the court should not consider 

new factual arguments that may be raised under 3553(a), 

that is essentially arguing that new facts and things 

which aren't relevant to the two-level reduction should 

not be part of the 3582(c) hearing? Would that be 

helpful to the District Courts and do you think that 

would be wise for the Commission to do? 

 MR. CHANENSON: I've struggled with this 
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because 3582(c)(2) proceedings are different, at least 

in my mind. Again, no, I don't think that they are 

resentencings, but they're not exactly Mr. Reilly's 

bailiwick, either. I think it probably would be best 

not to promulgate a policy statement in that regard, in 

part because we don't want to -- within limits and 

guidelines provided by the Commission, I am reluctant 

to tell a District Court judge that an individual's 

misconduct while in an institution is not relevant. 

 I'm reluctant to tell a District Court judge 

that something, you know, wonderful that's happened to 

a defendant is not relevant. Again, by providing 

guidelines focusing on specific concerns, if you want 

to identify a population that the judge should look at 

with a particularly jaundiced eye, and by providing the 

hard limit that I think already exists, I think within 

that range of those two levels, I do think that the 

judge can make that determination. 

 Otherwise, if I understand what you're saying 

correctly, we're looking purely at historical matters. 

 And while there's certainly -- it's certainly a 

plausible position and truthfully, I did struggle with 

it. I think, on balance, I would encourage the judges 

to, within the limit of the two levels, consider 

everything. 
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 MS. PIEHL: Can I add to that, because I 

would make the same argument. I think it would 

mitigate some of the reentry concerns that we heard 

earlier, if the conduct while in prison, whether it be 

to the inmate's benefit or detriment, would be helpful 

and mitigate some of the concerns about shifting the 

release date when the Bureau of Prisons hadn't planned 

for that particular progression. 

 So it would be nice for the Bureau of Prisons 

to be able to contribute the information that they 

would otherwise have contributed at a parole hearing, 

for example. That would perhaps allow for conditions 

of release or some effort to even determine the 

particular length of release. For the first group to 

be released very soon, you might want to make sure they 

had several months left of a sentence that would allow 

for halfway house placement before completion of the 

sentence. 

 CHAIR HINOJOSA: There being no other 

questions, we thank you all very much. 

Professor Chanenson, on behalf of all us, we do thank 

you for the nice things you said about Judge Castillo. 

 And his father also thanks you. 

 MR. CHANENSON: Thank you all very much. 

 JUDGE CASTILLO: Thank you very much. Call 
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this first panel with regards to different member of 

the community expressing their perspectives with 

regards to the issues before the Commission involving 

the decision with regards to the retroactivity of new 

guideline amendments, both in the crack cocaine 

sentencing matters, as well as criminal history. 

 We have Mr. Wade Ikard, who currently serves 

as the Weed and Seed Coordinator for the South 

Statesville, North Carolina community, where he has 

been involved in community development and outreach 

through quite a few organizations in the community and 

we certainly appreciate his presence here today. We 

also have Mr. Chuck Canterbury, who is the National 

President of the Fraternal Order of Police, having 

served in quite a few capacities within the 

organization, both at the local level, where he was 

local lodge president for 13 years and state lodge 

president for eight years and we certainly also 

appreciate your presence and your willingness to share 

your thoughts with us today, Mr. Canterbury. 

Mr. Ikard, sir. 

 MR. IKARD: Good afternoon. My name is 

Wade Ikard. It's a pleasure to be here today to share 

my testimony before the Sentencing Commission. Again, 

I am a native of Statesville, North Carolina, father of 
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three and married. I'm a graduate of Statesville High 

School and also attended Mitchell Community College. 

As a community activist, I serve on several boards in 

my community in South Statesville; the Boys and Girls 

Club, I Care, Human Relations Council, the 115 Corridor 

Statesville Redevelopment Community. All these 

programs are involving helping restore our community. 

My job is currently the Weed and Seed Coordinator, 

South Statesville. 

 Weed and Seed is a Department of Justice base 

program whose goal is to prevent, control and reduce 

crime, drug abuse and gang activity in target highcrime neighborhoods. Weed and Seed strategies follow a 

two-prong process; local law enforcement agencies and 

prosecution weeding out criminals as they engage in 

criminal activities. Weed and Seed, I can say, has 

been the best that has happened in South Statesville. 

We have numerous goals that we have set. 

 One of the most important goals was building 

bridges, relationships, with our local law enforcement. 

 At one time, community meetings, all of our meetings 

were our police was on one side of the room and our 

community sat on the other side of the room. No 

counter-communication, whatsoever. But now, through 

Weed and Seed, we build great bridges, great 
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relationship with our local law enforcement. Numerous 

of community events are being held, National Night Out, 

fall festivals, back to school rallies, Community Watch 

and more. Also, with the assistance of Weed and Seed 

initiative, we have a fully functional police 

substation in our Weed and Seed target area also, which 

-- this gives the residents to have police at their 

disposal. 

 Also housed in our substation is a full-time 

code enforcement officer who focuses just on our Weed 

and Seed target area. Fifteen to 20 years ago, South 

Statesville was a very vibrant community, but over the 

15 to 20 years, we have seen crack cocaine devastate 

our community. South Statesville was, at one time, a 

very mid-class community but now, I guess you can call 

it what some would say a ghetto. Crack cocaine has 

broken our neighborhoods. 

 The violent crimes that are now being 

committed due to crack cocaine has skyrocketed. Gang 

activity has flooded our communities and terrorized the 

residents, especially the elderly, who are frightened 

for their lives because they have been threatened by 

these gang members, not mentioning the young, from the 

age of 11, that are selling crack, been forced and 

pushed into selling crack because they feel like this 
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is the way out, this is the only way out. Why? 

Because of the lack of education and not having parents 

in the home. Also allow me to share a few testimonies, 

which are personal, with you today. These are real 

people, but for confidentiality purpose, I'm going to 

pursue another name. I want to speak on Morris. 

Morris and I, believe it or not, were once -- at one 

time, enemies. 

 We worked in the same neighborhood, but as I 

separated from my wife, he dated my wife and you can 

understand, when you have someone else dating your 

ex-wife, but Mark (sic) was a very vibrant young man, 

worked very hard, had quite a few things going for 

himself, but over a period of time, a change came in 

Morris's life. Excuse me. I was confronted by Mark 

one evening and Mark asked me could he have a ride and 

I said sure, so I gave him a ride. And we got to a 

certain location, he asked me to borrow some money and 

I declined. 

 He said well, can I borrow $5? And I'm 

thinking, you know, Mark is asking me for money and we 

don't even get along. But then, excuse my language, 

but I'm going to say it the way Mark said it to me, 

Mark said give me $5 and I'll suck your dick. What 

caused a man, 30 years old, to lower his standards to 
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say give me $5 to perform such an act? Now, Kim, Donna 

and Janet, all three of these are close friends and 

classmates of mine. All have been physically quickened 

in age, rotting teeth, body deterioration, loss of 

hair, blotchy skin, constantly in jail for theft, 

prostitution, in and out of courts for neglect and 

child abuse. 

 What would make an A-plus student, a talented 

singer, an artist, a possible college graduate, a 

mother, abandon her children and begin to sell her body 

on the streets for just a few dollars? Again, to 

support the habit of crack. Now, this name I'm not 

going to make up because this is personal. Charles, my 

uncle, whom I funeralized (phonetic sp.) due to crack 

cocaine. Our family members knew that Charles was 

addicted to crack and we tried very hard to get Charles 

into some rehab programs. He would go to rehab, get 

out of rehab, go back into a program, go into 12-step 

programs, all to no avail. 

 Charles' crack habit got so intense that he 

owed hundreds of dollars to a dealer. He couldn't pay 

it off. What happened to my uncle? Shot, run down, 

bullet lodged into his pelvic. The next day Charles 

died because he wasn't able to pay off his crack 

dealers. These criminals that we are here talking 
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about today, they know what they do. They know the 

harm that crack does to people, but do they care that 

mothers are taking their money they should feed their 

children to buy crack? No. They don't care at all. 

They just continue to do it. They need to make the 

best of their sentences to help themselves to be 

revitalized while they are incarcerated. 

 I feel that very strongly. In April, the 

Commission voted to lower recommended sentencing for 

those caught with distributing crack cocaine, sent to 

Capitol Hill on May the 1st and was passed as of 

November 1st after Congressional review. Today's 

hearing is focusing on 2,000 convicted prior felons. 

In analysis, the Commission has estimated the change to 

lower the prison population to reduce the size of 

federal population within the next 15 years, estimated 

3800 drug dealers, if not all, from the majority of 

crack cocaine and saving about $87 million, according 

to the Sentencing Commission. 

 I read where a private organization is 

tracking the issue. I have a question to ask. Who's 

tracking the issue of where these individuals will 

reside and a rehabilitation process while they're 

incarcerated? Who's tracking the jobs that would be 

available for them, even the transition back into the 
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community? Who's tracking the Morris, Leslie, Kim, 

Donna, Jack, Janets and the Charles that may be 

affected in the community that are trying to be 

revitalized? Who is tracking the crack babies and the 

increase of gang violence in our communities? $87 

million may have saved, but what about the millions 

that will and could be affected by this retroactive 

sentencing, if passed? 

 And the millions that would be used to take 

the cases back to court when the U.S. Attorneys already 

got pending cases? Last year, four-fifths of those 

federal courts were African-American, a message to 

African-American women, African-American men, stop 

selling drugs. Stop selling crack. Stop distributing. 

 This is not a black issue or a white issue. It's 

reality. You are contributing drugs to what is killing 

your own race. Thank you for having this opportunity 

to speak before you today. 

 CHAIR HINOJOSA: Thank you, Mr. Ikard. 

Mr. Canterbury, sir. 

 MR. CANTERBURY: Good afternoon, 

Mr. Chairman, Vice Chairman, distinguished 

Commissioners of the U.S. Sentencing Commission. I 

think that you all remember me from my previous 

testimony and I'd like to thank you this opportunity to 
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be here today to present the rank and file 

practitioner's view of retroactivity. As you know, this 

Commission voted earlier this year to reduce the 

penalties for crack cocaine and at that time, my 

testimony was that even if there was a disparity, we 

believed that maybe powder cocaine should've been 

increased rather than crack cocaine reduced and we 

still feel that way. 

 Regrettably, this time Congress failed to act 

and the amendment lowering the penalties for crack 

cocaine were adopted November 1st. With these changes 

already in place, the issue before us today is whether 

these recent changes to the sentencing guidelines 

should be applied retroactively and I'm here this 

afternoon to urge you, in the strongest possible terms, 

on behalf of practitioners, not to do this. 

 To begin with, at least 19,500 crack dealers 

will have their sentences reduced and that in addition 

to any other reduction that that offender may have 

already received for cooperating with the government 

for good time credits. It's important to realize that 

these criminals are not low-level dealers or first-time 

offenders. Eighty percent of them have previously been 

convicted of a crime. A majority of them have multiple 

prior convictions and 35 percent of them possess the 
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firearm in connection with their drug dealing 

operations. Further, more than 15 percent of these 

offenders are in the highest criminal history category. 

 Projections show that at least 2500 additional crack 

dealers will be released into the community either 

immediately or within the first year of retroactive 

application and another 5,000 could be released into 

the community within two years. 

 Some offenders, those who are the most likely 

to be high-level dealers with significant criminal 

histories, could see their sentences reduced in excess 

of 49 months. At a time when law enforcement is seeing 

an increase in crime rates that have fallen for more 

than a decade, it seems at variance with common sense 

and good public policy to release, en masse, crack 

dealers and drug offenders back into our neighborhoods. 

 Let me give you some concrete examples as to 

how the retroactive application of these new guidelines 

may affect real communities. I'd like you to consider 

the case of Leonard Brown. Mr. Brown, before his 

arrest, conviction and sentencing, was the main drug 

supplier for Sandersville, Georgia, a rural community 

with approximately 10,000 residents. Mr. Brown, prior 

to being selected by a jury of his peers, to serve a 

sentence that this Commission now deems to be too 
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lengthy, had an impressive, long criminal history, 

which includes crimes of violence and drug dealing. 

Yet despite this impressive body of work, the best 

efforts of local and state law enforcement authorities 

were not sufficient to remove Mr. Brown from the 

community. The state judicial system had become a 

revolving door that resulted in placing this violent 

drug dealer back into the community after a very brief 

period of incarceration. Obviously, this frustrated 

local and state law enforcement officers, as well as 

the residents of Sandersville, Georgia, whose safety 

was at risk while Mr. Brown's business was in 

operation. However, the federal prosecution and 

sentencing of Mr. Brown had a ripple effect in 

Sandersville. 

 Admittedly, the actual amounts of crack 

cocaine possessed by Mr. Brown at the time of his 

arrest, which he's currently incarcerated for, were not 

particularly high, but for a community that size, he 

was a drug kingpin and supplied the community a 

substantial amount of drugs. As befits a person of his 

standing, he employed minors to do the actual legwork, 

exposing them to the risk, while he reaped the rewards. 

It was not until he was prosecuted by federal 

authorities, however, that he was held accountable for 
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his crimes. His conviction, the significant sentence 

he received and the fact that he would not be eligible 

for parole, sent a clear message that there were 

serious consequences for drug dealers if they were 

prosecuted by federal authorities. It also sent a 

message to the residents and the children of 

Sandersville that the criminal justice system was not 

completely broken and that a long-time drug dealer, 

like Brown, could and would go to jail. 

 If the changes in the sentencing guidelines 

were made retroactive, Mr. Brown's sentence will be 

reduced by approximately three years, making him 

eligible for immediate release. This sends a clear 

message that we're not serious about getting and 

keeping drug dealers out of our community. The 

residents of Sandersville, Georgia should be outraged 

because they knew how long it took to put Mr. Brown in 

prison. 

 This one example of how the retroactive 

application of the new rules will just be multiplied by 

the number of 10,000 member communities there are in 

our country. It's important to remember that the 

incalculable devastation wrought by our nation by crack 

cocaine and the millions of lives that were damaged and 

families that were wrecked by this drug in many of our 
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cities have never fully recovered. And as you know, 

the crime rate in the United States is on the rise 

again and I believe it's directly correlated to the 

crack cocaine and the methamphetamine in the country. 

I'd like to thank the Commission for the opportunity to 

give you the rank and file perspective from the people 

on the streets that are dealing with the crack dealers 

and I'll be glad to sit for any of your questions. 

Thank you very much. 

 CHAIR HINOJOSA: Thank you, Mr. Canterbury. 

And the panelist, the third panelist, has just walked 

in at a very appropriate moment. Mr. Hilary Shelton, 

who's the director of the Washington bureau of the 

NAACP. Prior to that, of course, he has served as the 

Federal Liaison and Assistant Director of the 

Government Affairs Department of the United Negro 

College Fund and Mr. Shelton, we appreciate your 

presence and you would like to give us your opening 

remarks, sir. 

 MR. SHELTON: Thank you, sir. I'd like to 

thank the Commission for inviting me here to today on 

behalf of the NAACP, our nation's oldest and largest 

grass roots based civil rights organization. As you 

mentioned, my name is Hilary Shelton. I'm the Director 

of the NAACP's Washington bureau. The Washington 
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bureau is a federal legislative and national public 

policy arm of our nation's oldest and largest grass 

roots organization. I'd also like to begin by thanking 

the United States Sentencing Commission for your 

steadfast efforts to eliminate the racially 

discriminatory sentencing laws, mandating that a 

conviction for possession for five grams of crack 

cocaine is equivalent to 500 grams of powder cocaine, 

despite the fact that the two drugs are 

pharmacologically indistinguishable. 

 The result of this 100 to 1 ratio has been 

the incarceration of a vastly disparate number of 

African-Americans and Americans of Hispanic origin. As 

such, the NAACP would like to commend the Sentencing 

Commission for its May 2007 amendments to sentencing 

guidelines for crack cocaine, which will have the 

effect of lowering the guideline sentencing range for 

certain categories of offenses and offenders. 

 While it is not all that we have been 

advocating for, it is an important first step. The 

NAACP strongly supports making the amendments 

retroactive in those currently incarcerated for crack 

cocaine convictions. It has been a year almost to the 

day since I last testified before you in opposition to 

this injustice. At the time, I told you that despite 
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the fact that cocaine use is roughly proportionate 

among the different populations of our nation, the vast 

majority of offenders who are tried, convicted and 

sentenced under federal crack cocaine mandatory minimum 

sentences are African-American. Our people in our 

communities continue to be disproportionately 

devastated by the law. Almost 83 percent of those 

convicted of federal cocaine offenses are AfricanAmerican, while according to the 2000 census, only 12.9 

percent of the entire U.S. population is AfricanAmerican. Furthermore, according to the federal 

government's most recent survey, less than 18 percent 

of our nation's crack cocaine users in 2005 were 

African-American. 

 Few people today argue that policy makers 

could have foreseen, 20 years ago, the vastly disparate 

impact the 1986 law would have on communities of color, 

yet the fact that African-Americans and especially 

low-income African-Americans continue to be 

disproportionately and severely penalized at much 

greater rates than white Americans for drug use and 

that the policy of the federal government is having a 

devastating effect on our communities and that these 

laws continue to be maintained show, at the very least, 

a callous disregard for our people in our communities. 
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 And it is the disregard for the fate of our people in 

our community that we continue to erode our confidence 

in our nation's criminal justice system. How can 

African-Americans trust or respect policy makers 

perpetuate a law that clearly has such a racially 

discriminatory impact? 

 And because it is only human nature to punish 

the messenger, the resulting distrust, disrespect and 

anger that African-American communities feel often 

result in a lack of necessary cooperation with law 

enforcement representatives and the criminal justice 

system, as well. Reform of our nation's cocaine laws 

have been a priority to NAACP since the resulting 

disparities in incarceration became evident and it is 

now a rallying point for our members and the 

communities we represent. 

 And so I would like to reiterate the NAACP's 

support and appreciation for the Sentencing 

Commission's continued call for a repeal of the 

mandatory minimum crack cocaine sentences. I would 

also again like to extend our gratitude for the 

Commission's recent amendment which will, on average, 

trim over 15 months from current crack sentences. And 

I would like to strongly repeat the NAACP's strong 

support for making this amendment retroactive. As you 
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know, a decision to make this amendment retroactive 

will impact roughly 19,500 men and women currently in 

jail, approximately 86 percent of whom are AfricanAmerican. It only makes sense that a person who was 

sentenced between October 1st, 1991 and June 30th, 

2007, should not have to spend more time in prison than 

those sentenced after November 1st, 2007, simply 

because they had the misfortune of being sentenced at 

the wrong time. As I have said earlier, the 

continuation of the 100 to 1 sentencing ratio and the 

disparate impact it has on our communities exacerbates 

our mistrust of the American criminal justice system. 

 It is my hope that the November crack cocaine 

amendments will help again in addressing this problem 

and failure to apply them retroactively, however, as it 

has been done in the past relative to LSD, marijuana 

and oxycodone, all which benefit other groups more so 

than African-Americans, would perpetuate and perhaps 

even intensify the image of injustice. I would like to 

thank the Commission again for all of your work on this 

issue. Together, we can hopefully persuade members of 

the Congress, as well as the American public at large, 

for a dire need to reform crack cocaine sentencing. In 

the meantime, please note that the NAACP supports and 

appreciates your recent amendment to crack cocaine 
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sentencing guidelines and strongly urge you to apply 

these changes retroactively. This is indeed a matter 

of fairness and simple justice. At this time, I'd be 

delighted to take any questions you have. 

 CHAIR HINOJOSA: Thank you, Mr. Shelton. 

 COMMISSIONER FERRY: Mr. Ikard, you've heard 

others indicate, as Mr. Shelton did, that the current 

crack penalty structure has a disproportionate impact 

on African-Americans. Can you speak a little bit to 

what the impact of retroactivity will be upon the 

African-American community in Statesville? 

 MR. IKARD: To allow -- I don't know the 

number of offenders that would be released back into 

the community if this is passed, but our communities 

would be devastated if this law was to pass. I mean, 

we're currently trying to revitalize, enhance the 

quality of life of families in these areas and to allow 

criminals to come out of prison early, at this 

particular time, our work -- I mean, it's just going to 

be like well, you know, where do we go from here? Do 

we start at ground zero again? My thing is they come 

out, where are they going? They're coming back to the 

same place, the same community, and if not -- if they 

have not yet been revitalized or getting their life 

straightened out while they're in prison, what are they 
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going to come back and do? Jobs are going to be 

scarce. I can tell you what they're going to do. I 

know for a fact. I have family members, I have a 

brother and I'm going to say this, I have a mother that 

was convicted for it and what did they go back to do 

again? Selling. So to me, what do they do? They go 

right back sometimes to selling drugs again, to home. 

 The people that I testified about, those are 

the ones that are hurting and yes, their numbers are 

high. I agree a little with what the gentleman said, 

but it's going to affect the community. So what's 

going to be for the community to allow this to come 

back, that African-American people can continue to have 

to go through this process of not -- being able to 

possess all these drugs, this crack cocaine? Crack, 

you can get if for $5. What would a woman do for $5 to 

get it? What will she do? I told you earlier what a 

gentleman would do to get it. These are things that 

need to be taken into consideration. Thank you. 

 CHAIR HINOJOSA: Vice Chair Steer. 

 COMMISSIONER STEER: I guess I want to wade 

into a little bit of a thorny issue that bothers me. I 

think all of the members of the Commission are aware of 

the disproportionate racial impact of the crack cocaine 

sentencing policies. One of the themes that permeates 
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the public comment and the testimony, including your 

testimony, Mr. Shelton, is that the Commission should 

make this amendment retroactive because it made several 

other amendments retroactive in the past; not this 

commission, but previous commissions. And those 

amendments that are mentioned are the marijuana plant, 

oxycodone and you know, the -- you know, that list is 

incomplete because there were a few other amendments, 

one involving the definition of what, under the 

guidelines, constitutes crack -- constitutes cocaine 

base where the Commission said it's only crack cocaine 

and that amendment was also made retroactive. 

 And then the Commission, as you may know, 

lowered the top level of the drug quantity table, Level 

42 to 38. I frankly don't know what the ratio of 

impact of those two amendments were, but I suspect it 

was different from those three that are mentioned. I 

guess my basic question is this. Why shouldn't this be 

decided on the merits of the -- what does the impact of 

the race of the offender have to do with whether or not 

a commission that is charged, under the law, to be 

entirely racially neutral in its decision making, what 

does it have to do, what does it add to the decision 

making process? 

 MR. SHELTON: If I understand your question, 
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you're asking what difference it makes that we actually 

introduce the issue of the racial disparities and how 

this particular sentencing guideline has been utilized. 

And very well, crack cocaine is clearly the cheaper of 

the drugs of the two, powder cocaine, crack cocaine. 

It's much easer to get at a lower cost, yet it has a 

much higher price in our criminal justice system. 

 So what we're saying is that those people who 

happen to be poor, those people who happen to be 

African-American or Hispanic, which of course, the 

largest demographics prosecuted for the drug and 

incarcerated for possession of the drug are those that 

are going to be most affected, though even the 

Commission -- I shouldn't say even the Commission -- 

the Commission had the foresight to see that this will 

be a problem further down. It was the Commission that 

said there should have been no difference between the 

two drugs initially. 

 It was the Commission that recommended to the 

Congress that indeed, we do a one-for-one. It was the 

Commission that was right then and it's the Commission 

that's right now. Very clearly, if even the Congress 

would be able to have the foresight to see the 

disparate impact this would have on African-Americans 

and other racial and ethnic minorities in a scenario, 
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our universe in which race becomes a determinate of 

whether is someone is going to be discriminated and be 

punished more harshly or whether they're going to be 

treated fairly in this country. And indeed, we 

recognize that over the course of years, indeed, those 

who happen to be black and brown are to be more heavily 

penalized for utilizing the same drug, though even the 

Department of Human -- Health and Human Services says 

that we use illegal drugs at about the same rate. 

 Now, don't get me wrong. The NAACP's not 

suggesting that anyone should use illegal drugs at all, 

but in these, we talk about equal protection under the 

law and -- very well that if you commit the same crime, 

you should do no more than the same time. And indeed, 

when we have these drugs that are pharmacologically 

indistinguishable, that have no other affect, indeed, 

we should treat them the same way. 

 I think it's really problematic, quite 

frankly, when you end up with a scenario where AfricanAmericans, the poorest of the poor in our country and 

in this particular case, are those who spend the most 

time in jail. And quite frankly, if you want to find a 

better use that $25,000 a year plus that it takes for 

someone to spend time in prison over the course of a 

year, then program to provide a road to full 
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participation in our society, like job training, drug 

assessment, drug counseling, other programs like that 

are a much utilization of that money then keeping 

people in prison one year or more longer, which is 

exactly what would happen if we don't make this 

retroactive. 

 JUDGE SESSIONS: I'm going to expand a little 

bit on that question. For others, the real question is 

the perception of the criminal justice system within, 

well, the entire country, but also within the AfricanAmerican community. And to what extent does the 

disparity, the 100 to 1 ratio, impact the view, among 

the African-American community members, that the system 

is unfair and therefore essentially result in bringing 

disrespect on the criminal justice system? 

 MR. SHELTON: May I begin by saying that this 

is not in a vacuum and that quite frankly, there was a 

time when we had different laws on the books for 

African-Americans that committed the same crimes as 

white Americans in our society. I still look and 

almost want to laugh, if it weren't so seriously, about 

African-American men being brought up on charges of 

rape and the category of rape is malicious ogling and 

only African-American men looking at white women would 

be sentenced for malicious ogling, that form of rape. 
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It's almost funny when you think about it, but there 

are men that have spent time in prison for just that 

particular offense in our society. So that being part 

of the context that we're having this conversation, we 

know that there have been many circumstances where 

African-Americans were committing the same crime, ended 

up being punished much more harshly in terms of time 

spent in prison and even the utilization of the death 

penalty. So we're not talking about a discussion 

that's outside the context of a history that we have in 

this country that's been extremely troubling. 

 CHAIR HINOJOSA: Commissioner Howell. 

 COMMISSIONER HOWELL: I just want to talk a 

little bit with Mr. Canterbury and also Mr. Ikard to 

both frame a question, but also just to try and address 

some of what I view as some of the more alarmist 

statistics that you may have heard without the 

appropriate caveats. And sometimes that's difficult in 

the media, but here, I think it's really important to 

make it clear that, for example, Mr. Canterbury, in 

your example of the drug dealer who, after, you know, 

the enormous effort of law enforcement, put away a 

violent drug dealer and put him in jail. I think it's 

worth noting, if you weren't here for the earlier 

morning or I think many of my fellow commissioners 
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brought this out, that the two-level reduction in our 

crack amendment, if we do make it retroactive, really 

isn't automatic reduction in prison time for anybody 

who's currently in prison. It really is an opportunity 

for a judge, if the appropriate motions are filed, to 

consider whether a reduction in the sentence is 

appropriate. 

 So I think the facts relating to that 

particular person's offense conduct would probably be 

something that a judge -- I'm confident the judge would 

look at that. So I just want to allay your concern 

that, you know, violent drug offenders are 

automatically going to have the key unlocked from the 

door of their prison cell. That's not exactly how it's 

going to work. 

 Mr. Ikard, also, you also heard and you've 

used some of the statistics about the numbers of 

defendants who may be released should a judge, 

evaluating each of those individual cases, decide the 

reduction is necessary, talked about the numbers who 

might be released into your community and I commend you 

on the time and the effort that you're spending to put 

your community and hold your community together and 

it's -- I think we're all very impressed by that. I 

think, although numbers of 19,500 people have been 
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discussed, I just want to make sure you understand that 

that's over the course of over 30 years, so it's not 

going to be all at once and in fact, from the district, 

I think, that you're in, in the first year it would 

only be about 42 people who would be released, so it's 

not a huge influx of individuals. 

 Nonetheless, you know, the Commission is very 

cognizant of the fact that, you know, people who are -- 

who have been incarcerated, this population consist of 

people who may have criminal history scores, and those 

are all things that we have enormous confidence that 

the federal judges in this country will be able to 

evaluate on making the particular decisions and 

particular cases as to whether a reduction in sentences 

is reduced. 

 And so I just want to make sure that, to the 

extent that there is public listening to your comments 

and your very legitimate concerns, that those are not 

concerns that the Commission has ignored, we're well 

aware of them, but I also wanted to make sure that you 

understood that in the context of how this is actually 

going to operate, that alarmist concerns are not really 

appropriate. 

 MR. CANTERBURY: I don't want 42 more drug 

dealers in my city. 
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 MR. IKARD: May I? 

 COMMISSIONER HOWELL: Um-hum. 

 MR. IKARD: Whether it be 42 in the Western 

District and 42 in the next city and the next state, 

releasing them, having the U.S. attorneys having to go 

back to court and try these cases over or whomsoever 

and there are already pending cases, it's just going to 

delay things and give other people opportunity that are 

like well, I've got -- now I got to go court, but now I 

have another year and a half on the streets. 

 What are they going to do? I can tell you 

what they're going to do because I deal with them every 

day. They continue to do what they were doing. And to 

allow 42 to come out early, all right, 42. That's an 

impact in the South Statesville community, that's an 

impact in North Carolina. That's detrimental to us. 

That will hurt us. My thing is this and I stand firm 

on this, I have a young lady to tell me I don't have 

crack, crack has me. To hear someone say it has me, 

that's hurting. I want off, I can't get off. And for 

one or whether it be two or 42, to come out and 

possible enhance that, no. 

 CHAIR HINOJOSA: Well, I guess this question 

is both to anybody who wants to answer it, but is there 

-- let's leave aside the issue of retroactivity, but is 
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there no prison sentence that, when someone comes out, 

they're going to go right back to doing the same thing? 

I mean, is it the length of the sentence or what is it 

that you think would, at some point, when someone's 

released, they're not going to back to be -- 

 MR. IKARD: Well, let's look at the fact that 

you're already reducing the time, so now they know, if 

they come out and have not yet been rehabilitated, 

well, if I get caught again, I'm out early, five or six 

years now, to go back. Sometimes you have to think 

like a criminal, so sometimes you have to think like 

them and that's how a lot of them think. I work with 

them every day. I walk the streets with them. I visit 

the prisons. I do ministry in the prisons. I do 

ministry in the communities. 

 I try to minister to these people, but when I 

go to jail and I hear that some of these offenders are 

still running the streets from the prison, from the 

phone, through letters, telling their boys how to still 

do what they were doing before they came in and no 

change, my thing is this, use your time, use it wisely, 

rehabilitate yourself, come out to be a better citizen 

to help us better our communities, because that's what 

we're trying to do. Thank you. 

 MR. SHELTON: If I might -- I'm sorry. I 
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didn't want to interrupt. I feel like I've dominated 

the conversation. But if I might add that all we're 

doing is taking steps to bring crack cocaine sentencing 

ranges a step closer to being in compliance or in line 

with powder cocaine sentencing ranges. It's not giving 

anyone a pass or anyone a buy. They still get 

punished. 

 The issue is should they be punished more 

than if they were taking powder cocaine, the more 

expensive, the more luxurious drug? The sure answer 

that most Americans would say is absolutely not. In 

these cases, you still have the opportunity for judges 

to review these particular inmates to find out if, 

indeed, they should be able to take advantage of the 

reprieve they're giving, the 15 month or longer 

reprieve they'll be given and get it a little bit 

sooner than they would for crack cocaine. 

 But again, the crack cocaine sentencing 

guidelines are out of alignment with the powder cocaine 

sentencing guidelines. I'd like to again commend the 

Commission for their first decision that said that 

powder cocaine and crack cocaine were indistinguishable 

in many ways and the sentencing range should be much 

the same. You're making the right step in the right 

direction. The problems that are being raised at the 
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table are not problems of the issue of how long you're 

in prison, they're problems of how we deal with people 

who are reentering our society and our communities. 

That's why organizations like the NAACP is working on 

bills like the Second Chance Act because we know that 

we're not providing enough assistance to our local 

communities to provide what they need to help these 

people come back into society and not commit the same 

crimes that ended them in prison in the first place. 

We all agree. 

 We all know that the definition of insanity 

is when you do the same thing over and over again in 

the same way and expect a different result. We need a 

different result here, but we need it in a way that it 

is also under the grounds of fairness and justice for 

all Americans regardless of race, gender, ethnicity or 

other differences and this is the right move in the 

right direction. 

 CHAIR HINOJOSA: Mr. Canterbury, you wanted 

to say something? Well, I guess it would also be 

helpful, Mr. Canterbury, with regards to this example 

of -- I think it was Mr. Brown, is that right? What 

was his total sentence, originally? 

 MR. CANTERBURY: I don't think I have that 

information, but I can get it. 
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 CHAIR HINOJOSA: Did you want to respond or 

make comments on -- 

 MR. CANTERBURY: Yeah. You know, I agree 

with Mr. Shelton on the Second Chance Act. We know, 

from practitioner's sake, that when these people are 

released, the majority of them have nothing when they 

get home and the system, themselves, puts them back 

into the only lucrative market they've ever known in 

their life and we, as practitioners, would agree with 

that. The problem is, we're putting people back into 

the same scenario that are convicted criminals, people 

that did a criminal -- committed a criminal act and the 

difference between -- and we talked about this before. 

 The difference between crack and powder 

cocaine may chemically not be different, but I can tell 

you the results on the individuals are much different. 

 The violence associated with crack cocaine is much 

higher than with powder cocaine and that's from a 

street practitioner. I don't care what the scientists 

say, I can tell you, dealing with somebody that snorted 

cocaine versus somebody that's been smoking rock, it's 

a lot different on the street, a lot different. And 

so, you know, we're not talking about people that are 

victims, we're talking about people that committed 

crimes, got caught, got prosecuted and if my figures 
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are right, in the federal sector, about 98 percent of 

them pled guilty and -- after a plea -- a one-chance 

plea agreement. So we're not talking about people that 

didn't know the consequences of their actions. 

 CHAIR HINOJOSA: Does anybody else have any 

questions? Commissioner Reilly. 

 COMMISSIONER REILLY: I'd kind of like -- 

excuse me -- like to go to Mr. Ikard and recognizing 

that you've been engaged in your human relations 

commission, Boys and Girls Club and all of those 

community activities, I suppose -- and I've been on the 

Commission off and on here for 10 or 12 years now, so 

I've heard the arguments. I've supported the fact that 

we do need to do something to remove the disparity, 

whether that was brining powder up to the same level, 

which I just was handed an article a moment ago that 

the state senate of Ohio has done. 

 It has raised cocaine powder level to the 

same as the crack, in other words, increasing the 

penalties by a minority of leadership in the Ohio 

senate. But my question to you, I guess, as someone 

very involved in the Boys and Girls Clubs and you 

obviously are quite street smart about things, is what 

is the message we do send to our young people and what 

is the message you would carry back if, indeed, we did 
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make it retroactive, to the young folks and how you 

would approach them and explain to them what we have 

done? 

 MR. IKARD: Well, as you say, serving on the 

boards that I do serve on and working with some of the 

children that I work with on a day-to-day basis and -- 

and it's just so that you asked me that, just a few 

days ago I had, I guess, a blood -- I guess I can say 

that, to visit my home, currently trying to get him 

into a program and I told him about some of the things 

that I was involved in, trying to do and they tell me 

I'm still swinging, I'm still doing the same thing. I 

know you got this going on and you got this and you got 

this program going on, but you'd rather still do this. 

 And then to take the message back to say 

well, one law has already passed and your homies 

(phonetic sp.), as you call them, are going to get out 

early now, possibly one, maybe 42, just give them the 

incentive to say well, I think I'll continue to do what 

I've been doing. It's not as bad anymore. They roll 

for the bling-bling, the $200 tennis shoes, the high 

lifestyle, the 22's on the escalades, these are what 

the kids see and how do they think they can achieve to 

get it? A lot of them, by selling drugs. By selling 

drugs. To whom? Their friends, their uncles, their 
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aunts, their cousins, anybody that will buy it. And to 

go back and have to tell these children, share with 

them this or whether it be aired or however they found 

out, you know, if -- which way it goes, I think it 

would be devastating to some of the efforts that we're 

trying to do in our community, very much so. 

 COMMISSIONER REILLY: Thank you. 

 CHAIR HINOJOSA: Thank you all very much. 

 MR. IKARD: My pleasure. 

 CHAIR HINOJOSA: We appreciate your time. 

 MR. CANTERBURY: Thank you. 

 CHAIR HINOJOSA: If the next panel would 

please step forward. Our next panel, already seated, 

consists of Mr. Marc Mauer, who has been the Executive 

Director of Sentencing Project since the year 2005, 

having joined that organization in 1987. Prior to 

working with the Sentencing Project, Mr. Mauer served 

as the National Justice Communications Coordinator for 

the American Friends Services Committee. And we also 

have Mr. Pat Nolan, who is the President of Justice 

Fellowship, the Criminal Justice Reform Division of the 

Prison Fellowship Ministries, and Mr. Nolan served for 

15 years in the California State Assembly. Mr. Mauer, 

sir. 

 MR. MAUER: Well, thank you so much. I'm 
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delighted to be here and I appreciate all the hard work 

the Commission has done over the years, on this issue. 

We have previously submitted a letter to the 

Commission, on this issue, and I've submitted testimony 

today, too. It seems to me, given the discussion so 

far today and I've heard a good deal of it, it might 

make more sense for me to focus on some of the public 

safety concerns that have been covered here, and to try 

to lend some perspective on what we know about that 

from a sort of criminological perspective and how we 

can sort of put some of that into context. 

 And it seems to me, you know, if we look at 

the testimony this morning from the U.S. Attorney from 

the Western District of North Carolina, we have some 

real issues here. So we have potentially 536 offenders 

who might benefit from a retroactivity proposal and get 

out of prison, as she said, unexpectedly early. I 

don't think it'll be unexpected too many people. But 

first, you know, as you all have pointed out, this is 

over a period of 30 years that we're talking about. 

 So during the first year, we're looking at 

possibly a hundred people coming out who would not have 

gotten out that year. This drops off rapidly after 

that in that district, so we're looking at, at most, 30 

or 40 people a year. In the tail-end years it declines 
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much more rapidly than that. Now, to put some 

perspective on that, you know, as we've discussed 

recidivism issues and the potential for some of the 

crack offenders to become involved in crime again, we 

don't want to lose sight of the fact that when we think 

about reentry, obviously the federal court system, the 

federal prison system, are a relative drop in the 

bucket of the criminal justice system. 

 As you well know, 90 percent of the people 

housed in prison are in state prisons around the 

country. In North Carolina, for example, there are 

9,000 people who are released from state prison each 

year, roughly one-third of them, 3,000, released to the 

Western District of North Carolina. So we're looking 

at 3,000 people coming out of state prison and 

generally speaking, about 30 or 40 people getting out 

unexpectedly early on one of these crack retroactivity 

sentence reductions. 

 So we do want to monitor these 30 or 40 

people who get out. We want to make sure that there's 

effective supervision of them. We want to do all the 

right things to prepare them for getting out. We are 

talking about a very small drop in the overall bucket. 

Now, we have serious issues of reentry in this country 

and this is being dealt with on Capitol Hill this week 
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and elsewhere. We want to address that. This is not 

-- you know, as much as we need to supervise these 

people appropriately, this is not going to affect the 

crime rate in Charlotte, or any place else in that 

district, to any significant degree. It doesn't mean 

we're happy if anyone recidivates, but this is not the 

crux of the problem. 

 The Department of Justice, in its testimony, 

was concerned. They look at a group of offenders, 

crack offenders, between 1993 and 1995 and they point 

out correctly that these -- this group of people has a 

higher rate of weapons involvement in their crime, a 

higher rate of obstruction of justice, and so they're 

concerned about the release of this group of people. 

At the very least, if these people get whatever 

retroactive benefit that might accrue to them, they 

will have served at least 13 to 15 years, in many 

cases, 20 years or more in federal prison before 

they're released. 

 Now whatever reentry services go on in 

federal prison, it would seem there is more than 

sufficient time to do whatever can be done to prepare 

this group of people for release. Another aspect of 

the issue that I think was not addressed very well is 

that, particular for the long-term offenders who the 
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Department is most concerned about, we're looking a 

group of people who in many cases will be well into 

their 40s and 50s, and criminological research over 

many years has demonstrated the best way to reduce 

crime is to wait until people reach middle age, and by 

the time people reach 40, 45 and 50, they're rates of 

re-involvement in crime drop dramatically. 

 This is true both for people who have never 

been in crime -- involved, and people who have been 

involved in crime. It doesn't mean it gets down to 

zero, it doesn't mean there's no concern, but it drops 

significantly. In the federal system we know, for 

example, recidivism rates for this age group are about 

one-third lower than they are for a group of offenders 

from their mid-20s to their mid-30s. So we have the 

aging process working in our favor, if you think of it 

that way. We also have -- this is true both in the 

federal system and in state prisons as well. 

 We're dealing with drug offenders and for a 

variety of reasons drug offenders typically have lower 

recidivism rates than people convicted of other 

offenses. In the federal system, drug offender 

recidivism rates are about 20 percent lower than those 

persons convicted of fraud or larceny; 38 percent lower 

than people convicted of a burglary offense. Again, I 
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don't say this to minimize the scope of the problem, or 

suggest that none of these people recidivate, or that 

there aren't supervision issues, only that the scale of 

the problem, as it's -- I hear it defined by the 

Department of Justice, I think is very much overblown 

in many ways. 

 On this issue, of course, too, as you -- many 

of you have pointed out today, of course, you know, any 

given individual has no absolute guarantee of getting 

out early or late or anything like that. And obviously 

this is up to a judge to decide. A somewhat related 

issue that has been raised in some of the testimony 

today and previously to you, has to do with some of the 

cost issues involved, to the federal courts and to the 

Federal Bureau of Prisons. And on the one hand I don't 

think we've seen very much in the way of hard figures 

here. 

 There's one figure. The Department of 

Justice estimates something like $9 million in 

additional District Court costs to process the cases 

that would come through. On the one hand, you know, it 

seems to me that the cost issue should be fairly 

irrelevant. You know, as you've suggested, we want to 

evaluate the issue on the merits and that's clearly the 

most important thing to do. But we're living in a real 
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world and the cost will enter into it to certain 

extent. $9 million is nothing to laugh at, but the 

Department makes absolutely no attempt to estimate what 

this would mean for the federal prison system. After 

all, we're talking about potentially releasing more 

than 19,000 people roughly two years sooner than they 

would otherwise. Well, just in very round terms and 

using conservative cost estimates for the cost of 

incarceration, two years early release is going to be a 

little more than $50,000 per person in the federal 

prison system. If we're looking at 19,500 people, if 

in fact all of them got out, we're literally looking at 

something in the range of $1 billion over the course of 

30 years, in terms of reduced prison costs. 

 Now, I'm very well aware that when you 

calculate prison costs, you have fixed costs and 

marginal costs and it doesn't mean that you save this 

entire amount if you actually release people from 

prison, but there's no question that there'd be a very 

dramatic cost savings, either in being able to close 

some federal prisons, in fact, or at least not build 

new federal prisons, as a result of a policy like this. 

Now if this was a policy that was going to produce very 

bad results for crime, very bad results for deterrence 

or send a bad message to the public, it seems to me the 
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cost factor should not be a concern. The taxpayers 

should be willing to pay that cost and do the right 

thing. In this case, the right thing to do is to use 

the policy of retroactivity, and as bonus benefit there 

is also a substantial potential cost saving that the 

Federal Bureau of Prisons will achieve. 

 There may be some additional upfront costs at 

first, but the long-run savings would be very 

significant. Finally, let me just close by saying the 

issue of racial justice has come up repeatedly on this 

issue and this goes back 21 years as well as today. I 

would agree that, again, the issue should be addressed 

on the merits. The crack cocaine sentencing policy, 

giving people a mandatory five years in prison for five 

grams of crack, is not a very rationale policy and it 

doesn't matter if every offender is white, black or 

Latino. It doesn't serve the interests of crime 

control very well. 

 In addition, though, of course we've had 

these terrible racial disparities that have been sued. 

 I think there's certainly an argument to be made that 

when Congress passed these laws initially in the 1980s, 

it was very difficult to separate out the racial 

imagery and racial -- racial ideas about crime from the 

policy itself. Whether this was intentional or 
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unconscious, we could debate it for quite some time. 

The point is I think there was no question that the 

image of a crack offender was a young black male in the 

minds of the cover of Newsweek Magazine, on the 

television news and things like that. So it's been 

very much a part of this issue ever since day one. It 

seems to me that we could do the right thing, in terms 

of criminal justice goals, by enacting retroactivity. 

And in addition, we would save money and we would take 

some small but significant steps towards reducing 

unwarranted racial disparities in the system. Thank 

you. 

 CHAIR HINOJOSA: Thank you, Mr. Mauer. 

Mr. Nolan. 

 MR. NOLAN: Mr. Chairman and members, my name 

is Pat Nolan and I'm a Vice President of Prison 

Fellowship and lead their criminal justice reform arm, 

Justice Fellowship. And I'm also a member of both the 

Prison Rape Elimination Commission and the Commission 

on Safety and Abuse in America's Prisons. I served 15 

years as a member of the California State Assembly, 

four of those as the assembly Republican leader. I was 

a leader on crime issues, particularly on behalf of 

victims. I was one of the original sponsors of the 

Victims' Bill of Rights and received the Victims 
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Advocate Award from the parents of murdered children. 

I also authored several mandatory and minimum bills and 

voted for every one that came before me. I was then 

prosecuted for a campaign contribution that I accepted, 

which turned out to be part of an FBI sting. I pleaded 

guilt to one count of racketeering and served 29 months 

in federal custody. 

 I sit before you as a conservative 

Republican, a former legislature, and former prisoner 

who's convinced that this country needs a more 

rationale approach to apprehending, prosecuting and 

sentencing those who traffic in cocaine. Prison 

Fellowship applauds the Commission to move us closer to 

a more rationale policy, with the amendments that went 

into effect on November 1st. We respectfully now ask 

that you take the next important step, to apply those 

changes retroactively. 

 I know you've heard from legislatures, both 

in support and in opposition to retroactivity, but I'd 

particularly like to address the concerns of several 

Republican members of the House and Senate who argue 

against applying this retroactively. I have a very 

high regard for each of those members and worked very 

closely with them on criminal justice issues, and I 

probably would've signed a similar letter, if it had 
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come before me when I was in the legislature. However, 

as a result of my experiences in prison, and as a 

member of the two commissions studying violence in our 

prisons, I would not sign it now. I strongly disagree 

with the letter's predictions about the impact that 

retroactivity would have. 

 When I was a state legislature I thought that 

locking up people for long sentences made us safer, but 

I know differently now. Long sentences are not an end 

in themselves, but merely a means to make the public 

safer. In the case of crack cocaine sentences, 

Congress specifically sought to give prosecutors the 

tools they needed to get at the large traffickers. The 

theory was that huge sentences would encourage street 

dealers to rat on their suppliers, who would then rat 

on their providers, and so on up the chain until the 

kingpins were nailed. In practice, the opposite has 

occurred. 

 Instead of ratting up the chain, offenders 

rat down the chain. They're afraid of those above them 

in the flow of cocaine, but are glad to offer up small 

fish in return for a shorter sentence. In reality, 

those that have the smallest involvement in the 

movement of crack generally serve the longest terms 

because they have no one to rat out. While 
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incarcerating these small dealers may make prosecutors' 

win/lose percentages look good, it doesn't stop the 

flow of cocaine into our cities. The small dealers are 

easily replaced with other young people gullible enough 

to think that they can rich quick dealing in crack. 

The real life stories related by Mr. Ikard serve as 

reminders of the horrible toll that crack takes on our 

people in our communities daily. 

 We must have effective policies to stop the 

flood of that poison into our cities. But those same 

stories he told also demonstrate the utter failure of 

the current crack policies. Every one of those people 

he described became a crack addict while this absurd -- 

absurdly long sentences were in place. We had what we 

told would get rid of the crack problem, and yet those 

lives were still being destroyed. 

 If these policies had worked, we would see a 

reduction in crack traffic, but we don't and we owe it 

to our people to come up with more effective strategies 

for helping them stop the flow of this poison into our 

cities. I served time with plenty of crack dealers in 

prison for long sentences under the mandatory minimums. 

Typical of these was a small-time dealer. It was the 

kid in the bunk above me. Jody was a 19-year-old and 

doing a 10-year stretch for crack. We were at the 
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federal prison camp at Pleasanton, together. He was no 

Mr. Big. He could hardly organize a two-car funeral, 

let alone a massive crack conspiracy. Each prison cell 

costs about a hundred thousand dollars to build and 

each felon costs about $30,000 a year to house and care 

for. Add that to the cost of arresting and prosecuting 

Jody and it'll cost the taxpayers about $500,000 for 

this minor player in the crack trade. 

 Are we any safer spending half a million 

dollars to lock up Jody for 10 years? In my 29 months 

in custody I met plenty of small-time dealers, but I 

never met a kingpin. And the numbers confirm my 

observation. Only seven percent of federal crack 

cocaine cases are directed at the high-level crack 

dealers. Only seven percent. Instead, federal 

authorities squander huge amounts of resources on small 

cogs in the cocaine distribution network. 

 One-third of all federal cocaine cases 

involve an average of 52 grams, the weight of a candy 

bar. A third of the cases are for that tiny amount. 

This is a terrible misuse of the time and talent of 

federal law enforcement and prosecutors. Plus, it has 

filled our prisons to overflowing. Prisons are for 

people who we're afraid of, but we've filled them with 

people who we're just mad at. If we're to stop the 
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flow of cocaine into our cities, federal resources 

should be focused on the high-level traffickers. 

Making the amendment retroactive will help target our 

resources on those who are causing the greatest harm, 

freeing up the resources being spent on these lowhanging fruit. I'm not alone as a Republican who feels 

that crack cocaine sentences are horribly out of 

balance. 

 You heard earlier from Judge Reggie Walton; 

certainly not a soft-on-crime Republican. Former 

Congressman J.C. Watts recently joined me in an op-ed 

in the Washington Times. In that article, we wrote, 

"If we're to stop the flood of cocaine coming into the 

country, federal resources should be focused on the 

networks that bring in boatloads of cocaine, and on 

people who shoot and kill, the large and violent 

operators that the local and state authorities cannot 

effectively combat. 

 This would be good for the taxpayers and more 

effective in stopping the flow of cocaine. After 

almost 21 years, the 100 to 1 crack and powder cocaine 

sentencing disparity has resulted in federal resources 

being misdirected on small-time drug dealers and not 

stopping the flow of drugs into the country." The 

letters from the Republican legislatures warn that 
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retroactivity will significantly shorten the sentence 

or result in the release of, in their words, "major 

crack dealers with long criminal records, including 

firearms offenses." The letters go on to say, "Yet, 

these -- those convicted of simple possession will see 

little, if any, reduction." These claims are partially 

correct. 

 Yes, those convicted of simple possession 

will receive shorter reductions than offenders serving 

longer sentences, but that's merely a result of the 

function of the two-level limitation in the guidelines. 

 And the letters are right that some people sentenced 

for simple possession will not see any reduction, but 

that's not the result of anything the Commission will 

do. That's the result of statutes passed by Congress 

and only Congress can change them, the mandatory 

minimums. 

 One assertion in the letters is flatly 

mistaken: major dealers will not be set free if you 

apply this retroactively. In fact, not a single 

offender will be set free automatically. Retroactivity 

will merely permit certain offenders, who have already 

served long sentences, to request a reduction in their 

sentence. The decision to grant a sentence reduction 

can only be made before -- by a judge, the sentencing 
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judge. If there's reason to believe that the offender 

remains a danger to the community, the government can 

present that evidence to the judge. In fact, the 

statute that allows you to do the amendment 

retroactively, directs the courts to take public safety 

into account. 

 Prison Fellowship believes that public safety 

is a top priority in our justice system, and making the 

Commission's policies retroactive would be consistent 

with protecting the public. In fact, I would assert 

that not making the policy retroactive will endanger 

the public. Let me explain why. Our prisons are 

bursting at the seams. Overcrowded prisons contribute 

to a toxic environment that results in horrible 

violence, endangering both correctional officers and 

inmates. 

 As I mentioned earlier, I serve on the Prison 

Rape Elimination Commission and the Commission on 

Safety and Abuse in America's Prisons. In dozens of 

hearings around the country, corrections officials 

testified to the Commissions that prison crowding makes 

it almost impossible to manage their institutions. 

Former California Corrections Secretary Rod Hickman 

managed a system that confines twice as many people as 

his facilities were designed to hold. He listed 
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overcrowding as the first among the significant factors 

contributing to prison violence. The report of the 

Commission on Safety and Abuse found that "the majority 

of prisons and many jails hold more people than they 

can deal with safely and effectively, creating a degree 

of disorder and tension almost certain to erupt into 

violence." 

 Reducing prison crowding was the Commission's 

number one recommendation on how to do deal with prison 

violence. Retroactivity would help address that goal. 

 By applying your policy retroactively, the Commission 

will help reduce prison crowding and violence in a very 

intelligent way, by allowing offenders, who have 

already served long sentences, to be released unless 

the judge finds they pose a risk to security. With an 

average sentenced served of over 21 -- 27 months, no 

one's getting off easy. 

 By lessening prison crowding, retroactivity 

will also increase safety in our communities, by 

creating a better environment in which inmates can 

prepare to healthy, contributing lives after they're 

released. As the Commission stated, "What happens in 

prison doesn't stay in prison." The skills inmates 

develop to survive inside violent prisons make them 

antisocial when they come home. Lessening the crowded, 
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violent environment in prisons will allow the 

institutions to prepare inmates to be better neighbors 

when they're released. The shear number of inmates has 

forced corrections officials to turn every available 

areas of prisons into housing for inmates, thereby 

squeezing out space for programs that prepare inmates 

for release. 

 I serve on Governor Schwarzenegger's 

Rehabilitation Strike Team. One of the largest hurdles 

we have is that every classroom, chapel, hallway and 

closet has been converted into bed space. This means 

that there's nowhere to hold GED courses, drug 

treatment classes, life skills training, Bible studies 

or other programs. Sending inmates home without 

preparation only increases the risk for all of us. Now 

let me turn to the fairness of your policies. 

 The Commission has concluded that the 

sentences for crack offenders are so harsh, that they 

will no longer be imposed on people who commit that 

offense in the future. The Commission's policies are 

correct and they are just as correct for those 

sentenced before November 1st, as they are for those 

after. I thank you so much for this opportunity to 

address you and express our concerns. Our ministry is 

devoted to helping prisoners and their families 
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successfully return from time in prison, with a changed 

heart and changed habits. The crack disparity has been 

so destructive of the order and discipline in prisons, 

and it's caused such disrespect for the law, it makes 

our ministry significantly more difficult. And I 

commend you for changing the policy looking forward, 

and urge you to make it retroactive. Thank you. 

 CHAIR HINOJOSA: Thank you, Mr. Nolan. Does 

anybody have any questions? Yes, Judge Sessions. 

 JUDGE SESSIONS: Could I just follow up on 

that last thing that you said? What do you mean the 

disrespect for the community or the impact -- 

 MR. NOLAN: Disrespect for the law. 

 JUDGE SESSIONS: -- on discipline within -- 

within the prisons? 

 MR. NOLAN: First overcrowding and secondly, 

the inherent unfairness of it. You know, here I'm a 

fat old white guy coming to the prison and you can't 

but notice the racial disparity. It's overwhelming. I 

don't know anybody that did time in the federal prison 

that isn't smacked in the face by that reality. And 

the you talk to them about their situations. And 

again, I didn't see any kingpins. They were all small 

fries and yet doing long stretches. Jody would lay in 

his bunk every day, staring at the ceiling. Nineteen 
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years old. He wasn't getting out until he was 29. 

He's not going to have dated anybody. He's not going 

to have a college education. He's not going to work 

for anything in his life. And he'd lay there staring 

at the ceiling, feeling betrayed. Sure he did a stupid 

thing. But you know, one of the things is they 

predicted -- Chuck Cole (phonetic sp.) and I talked 

about this. 

 Conservatives say that, well, if we ratchet 

up sentences, prisoners -- offenders will take that 

into account and not commit the crime. That presumes 

that offenders are rational calculators, that they say, 

well, I would do this but gee, the sentence is higher 

and all of that. The fact of that matter is most 

inmates never think they'll get caught. They think 

they're smarter than the system. It doesn't occur to 

them in what they do, what the sentence will be. 

 And then they're shocked to find out they've 

got 10 years out of their lives as young people. So it 

creates a disrespect for the law. They see people in 

for violent crimes getting out sooner than they do. 

Across the street from the first prison I was in was a 

lady who had taken phone messages for her boyfriend 

drug dealer. He of course dropped the dime on her. He 

got a short sentence; she got a five-year sentence. 
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She was in prison talking to her mother on the phone 

when her mom began to scream. Her mother -- someone 

had broken into their home and her mother was being 

raped. She got the attention of a correction officer, 

who called the local police, who went out and rescued 

her mom. 

 This man was arrested, tried and convicted 

for rape and walked free, while the young lady, who had 

had a boyfriend that was a drug dealer, remained in 

prison because of the crack sentences. That shows the 

absurdity. A rapist does less time than this 

girlfriend of a small-time drug dealer. That's absurd. 

 And situations like that breed a disrespect for the 

law. You see it from the folks inside. They see the 

system, they feel the system is rigged against them, 

that it makes it no sense, and they have no hope, 

because nothing's done inside. 

 Less than 20 percent of the inmates receive 

any drug treatment while they're in prison. Joe 

Califano, Former Secretary of Health, Education and 

Welfare under President Johnson, said, to lock up an 

addict for a period of years and do nothing about the 

underlying addiction and then release them is a fraud 

on the public. It is. You know, does just warehousing 

somebody help deal with their addictions? Does it make 
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them a better person? Does it prepare them to be a 

good citizen when they get out? I don't care if it's 

27 months or 43 months. If nothing's been done to 

change them while they're in, they're not going to be a 

good neighbor. 

 JUDGE CASTILLO: Mr. Nolan, I agree with many 

of your statements about our flawed drug policy, in 

particular not focusing in on drug kingpins. In the 13 

1/2 years of being a federal judge, after prosecuting 

drug cases, I've yet to see the appropriate defendants 

with the control over large amounts of drugs or control 

over large amounts of assets, and from what you're 

telling me, you didn't see them in the federal prisons, 

either. 

 MR. NOLAN: Um-hum. 

 JUDGE CASTILLO: What I fail to see is 

exactly how do you see the retroactivity decision that 

we're about to make, linking up with sort of waking up 

the Department of Justice in focusing on the right drug 

defendants? 

 MR. NOLAN: Um-hum. 

 JUDGE CASTILLO: How does that play together? 

 MR. NOLAN: I'm not sure that will. I think 

Congress has to. 

 JUDGE CASTILLO: Um-hum. 
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 MR. NOLAN: I've had to think about what the 

proper role of the federal government is in the drug 

trade, and the reason you don't see many kingpins is 

there aren't crack kingpins, there are only cocaine 

kingpins. 

 JUDGE CASTILLO: Um-hum. 

 MR. NOLAN: Crack is an inherently unstable 

drug, so it's sold close to where it's cooked and it's 

the powdered cocaine that flows across borders, and 

across state lines, that's the real problem. That's 

what the federal government needs to be concentrating 

on. But the guy cooking a small amount of crack, he 

can't carry it very far, it's so unstable. It's a 

danger to him and everybody else. So it's really a 

local boutique drug. 

 JUDGE CASTILLO: Um-hum. 

 MR. NOLAN: And so we need to shift federal 

policy. I don't think retroactivity will necessarily 

do that, but it will -- for those prosecutors, and 

there are some who only look at notches on their belt 

and running up the score, it'll take away some of the 

incentive for those low fish. I think the biggest 

benefit will be the impact on prisons, lessening the 

crowing, freeing up space so that -- and federal 

prisons are horribly overcrowded and very little is 
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done. One of the previous witnesses said, well, these 

guys are going to be released with no preparation. 

Preparation doesn't start years before you get out. My 

preparation for release started about three months 

before I was released and it was a very one-sided 

process. It didn't involve my family. It didn't -- 

you know, it was going through the motions. We're 

trying to change that, and the BOP is trying to change 

that. To their credit, they really are. But the fact 

of the matter is these people haven't been prepared and 

keeping them another 24 or 46 months probably wouldn't 

anyway, unless we change those policies. 

 JUDGE CASTILLO: Thank you. 

 CHAIR HINOJOSA: Does anybody else have any 

questions? Well, thank you all very much. The next 

panel. We're ready for our last panel. We've got 

Ocie L. Acoff, who is a minister and currently serves 

in Selma, Alabama, as the Director of the Varner 

Education and Training Facility, which is an 

educational and training center for troubled youths. 

Prior that, he served as a probation -- juvenile 

probation officer for more than 20 years. 

Ms. De-Ann Coffman is a member of Families Against 

Mandatory Minimums. At the age of 21 years, 

Ms. Coffman was convicted of distribution of crack 
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cocaine in '91. She sentenced to life plus five years 

for her role in the offense. That sentence was later 

reduced to 85 years and in 2001 she was released from 

prison, after her sentence was commuted by 

President Clinton. And we have Ms. Julie Stewart, who 

is the President of Families Against Mandatory 

Minimums, which she founded in 1991. And prior to 

that, Ms. Stewart worked at the Cato Institute for 

three years as the Director for Public Affairs. 

Mr. Acoff. 

 MR. ACOFF: First of all, I'd like to say 

good afternoon to the Commission and to the Chairman. 

My name is Ocie Acoff. I'm from Selma, Alabama, born 

and raised there, educated there. I currently serve as 

the Executive Director of the Varner Education and 

Training Facility. I also served on boards and worked 

in affiliation with Habitat for Humanity, the National 

Kidney Foundation, ICARE (phonetic sp.), and also 

served on the YMCA. 

 I come before you all today to share with you 

all some experiences that we have encountered in Selma, 

Alabama. Most people know Selma, about the civil 

rights, the march from Selma to Montgomery. As a 

matter of fact, I was one of the ones that participated 

on that Sunday. I marched all the way from Selma to 
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Montgomery, the original march, and understand the 

plight of people that have felt discriminated against 

and so forth. But I come today to publicly thank the 

fellow agencies that worked together to shut down the 

1400 block of St. Phillip in Selma, Alabama, which held 

the citizens there in hostage for years. The local law 

enforcement officers were not able to go in on account 

of the situation. 

 The drug dealers openly conducted business. 

They did not care and had no regard for law, no respect 

for the people of that community. Elderly people were 

unable to even enjoy the civil liberties of sitting on 

their porch to fellowship with one another. Children 

were not able to play in that community, in the 

streets. I had an elderly citizen, who had served in 

World War II, share with me that he had to sleep on the 

floor at night, for fear of stray bullets coming 

through his house. 

 I know of a man, who was elderly, whose son 

beat him to death because of the fact that he would not 

give him his Social Security check anymore, that he can 

go out and purchase crack. I come before you today to 

just share with you those things. I want you to know 

that crack has created so many problems in Selma, 

especially in that community, that I don't know if we 
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ever will recover. It seems like crack, it's like a 

fungus, like a wildfire. It destroys everything in its 

path. It is something like -- in that community. You 

don't hear laughter, you don't hear the joy. Now even 

after those agencies came in and shut those individuals 

down, their work was still following them by way of the 

addicts who had gone in now, burglarizing homes and 

going in to strip the wire out of houses, the copper 

and so forth. 

 They are even bold enough to go into your 

yard and put a chain behind your car and pull it out 

and take it to a recycling company and just destroy 

your car. Our law enforcement situation in Selma is at 

an all-time low, I would say. I talked with our 

district attorney about two weeks ago and shared with 

him some of the concerns about some of the property 

owners, of how their property is being vandalized and 

burglarized, and he sympathized with me. 

 He said, well, you got to realize that Selma 

only has 32 police officers now. And I said what? And 

so to release people back into the community -- and I'm 

not trying to infringe upon anybody's civil liberties, 

but I hear argument about someone wants their loved 

ones to come home, and I want to share with you about a 

young man that's in the facility of which I am the 
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Director. He's about 14 years of age. He has two 

sisters. His mother is avid crack addict. She's 

deserted him. She prostitutes in the streets. And 

this young man is bitter. Her daughters, who happen to 

be a member of the church of which I pastor, they have 

the father there to embrace them and they have a 

chance, but the young man is bitter. He's bitter with 

society, he's bitter with himself, and he's waiting for 

his mother to come home from being addicted to drugs. 

I have a young nephew. Well, he's not young anymore. 

He's started on crack when he was 15 years of age. 

He's 37 now and he still acts like he's 15 years old. 

He's been in and out of prison for the past 22 years. 

Well, the last 20 years. 

 I have an occasion when he got of prison and 

he wasn't out six hours before he was back in jail. 

Yes, they say there's a difference in the sentences for 

crack, in comparison to cocaine, but I think crack has 

a more severe effect on our community and our citizens 

than cocaine does. And I'm not saying to lessen the 

penalty for selling cocaine, but I'm just talking about 

what the devastation of crack has done to the black 

communities, since we want to talk about race. It has 

taken, I would say, the essence of life out of our 

communities. The communities are not the same. It's 
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just like it's been ravaged by a wildfire, just tear up 

the community. You go through there now, it's -- the 

neighborhoods are not the same. You don't have 

laughter. You don't have people playing, the kids, 

like were growing up in my days. All of that's gone 

because of the fear of drug pushers that's placed on 

the citizens there, of Selma, Alabama. 

 I would ask that you would do what you're 

doing. I feel that -- I have confidence that you all 

are going to do the right thing, but I just want you to 

take into consideration those people that are not here 

to speak for themselves, those individuals that you 

probably do not have contact with. As the reverend 

from North Carolina shared with you, those things -- 

those things are happening and we talked about blacks 

doing it to blacks. 

 So it's not a point, if we were talking about 

putting a color on this, I think we just need to deal 

with the drug issue at large, regardless of what type 

of it is. I just found out the other day that they 

have a new drug out and it's going to be cheaper than 

crack. It's killing young people in Texas right now. 

It's going to have a mix of heroin in it. So what's 

that going to do when it's the streets? What's it 

going to do for us? We need to address that. Thank 
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you. 

 CHAIR HINOJOSA: Thank you, Mr. Acoff. 

Ms. Coffman. Or did you want to go first, Ms. Stewart? 

 MS. STEWART: We'll leave the best until 

last. Although I was told that we are the best panel 

and that's we're last. I may have been placated. Good 

afternoon, Commissioners, and thank you for your 

attention this late in the day. And thank you for 

allowing me to testify today on behalf of FAMM's 13,000 

members, many of whom have loved ones serving crack 

cocaine sentences and who are passionate about this 

issue, as I know you know, because you've received 

something like 30,000 letters from a lot of them. 

 So I'm sure you're aware that we have a very 

interested constituency. First, I just do want to add 

my voice to those that have come before me, to thank 

you for sending the guideline forward on May 1st, to 

make the crack cocaine guideline change, reduced by two 

levels. I have participated in and observed the 

efforts of this Commission, or the Sentencing 

Commission, not you, Commissioners, and in Congress for 

15 years, around crack cocaine, and until now, nothing 

has been done successfully. So I applaud you for 

accomplishing that feat. It's not small feat. Last 

spring each of you, when you voted on the guideline 
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amendment, you each voted, saying sort of at the same 

time, that it was a modest step forward. And I 

remember that each of you pretty much repeated the same 

word and it struck me as, yes, it is a modest step 

forward, perhaps, but it's still a very critical one 

and as I just said, the first one that's actually done 

anything, and it's really broken the legislative logjam 

around crack cocaine sentencing bills. 

 And we can attest to that by seeing at the 

Senate, there are now three crack cocaine bills. In 

the House there's one and perhaps another one the way. 

 So your step really did make a big difference. Now 

you have the opportunity to turn that modest step into 

a really significant one. There is, as you heard 

earlier today, no legitimate argument against making 

the crack cocaine amendment retroactive. In fact, 

there's a moral imperative to do so. 

 And as a former chief judge for one of the 

U.S. Courts of Appeals told me, what's right is right. 

 And I don't doubt that each of you share that 

sentiment. If a sentence is sufficient to serve the 

purposes of punishment for defendants in the future, 

it's sufficient for those who were sentenced under 

unjust rules in the past. And clearly, I think it's 

been well expressed here, justice should not turn on 
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the date that an individual was sentenced. I know that 

of greater concern to you is how to apply the guideline 

retroactively, the mechanics of the process, and that's 

what this morning's panels, I think, were able to 

hopefully answer some of those questions and give you 

some guidance. I know that it can be done because I 

was here in 1993 and 1995 with Mr. Steer, when crack -- 

when LSD and marijuana guidelines were made 

retroactive. 

 So it's certainly been possible and Steve 

Sady did a good job of explaining that to you. The 

commissioners, then, who made those decisions were also 

under pressure not to appear soft on crime, but they 

made the tough but fair decision to remedy the 

injustice and I think that -- I hope that this 

Commission will do the same. And whether or not race 

should be a determining factor in the decision to make 

this retroactive, I do think that making this guideline 

retroactive does help underscore that at least justice 

can be colorblind. 

 It is not the only reason that this should be 

done, however. The Commission has determined that 

nearly 20,000 prisoners would potentially be affected 

by retroactivity. I think that often those numbers 

have been abused and I believe some of the questioning 
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earlier today was getting at the point that 20,000 

prisoners are not going to be released on the streets 

tomorrow, if you make this retroactive. That number is 

over quite a period of time, as I understand, and that 

all of those people are going to be released at some 

point. They just might have the possibility of having 

their sentences come down a couple of year, a year or 

something. 

 But also, when we use a figure like 20,000 or 

19,500, I think it's easy to forget that each of them 

is a human being and that, for their own complicated 

economic and social and personal and psychological 

reasons, they broke a law and as a result they ended up 

in prison. It's easy to paint them as the -- some 

members of the House and Senate Judiciary Committee 

members have, as major crack dealers with long criminal 

records. 

 I think that when you hear from 

De-Ann Coffman in a moment, you'll see that that's in 

fact not always true. What members of Congress ignore 

is that even if the Commission makes these crack 

guidelines retroactive, the eligible prisoners will 

still serve a very long time in prison. The people 

deserve to be punished for breaking the law, but their 

punishment needs to not be excessive or gratuitous. 
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And because sentences have become so inflated in the 

past two decades, a 10-year sentence for a nonviolent 

offender no longer sounds harsh, but 10 years is an 

extraordinarily long period of time. It's a long time 

to be away from society. It's 10 years of missed 

Thanksgiving dinners with your family. It's 10 years 

of missed birthday celebrations, the prisoner's and his 

family; missed marriages and child births and even 

funerals. 

 My dad died while my brother was in prison 

and it was -- it was devastating for Jeff, because it's 

time that cannot be recaptured, those last days with 

dad. There are certainly people in this room today who 

know all too well what I'm talking about. Some of them 

have traveled from a great distance to be here today. 

One person flew up from Florida this morning to be at 

this hearing today and is returning later on this 

evening; to be here at this moment because her child is 

serving a crack cocaine sentence. 

 We have people from Kansas, Georgia, Texas, 

southern Virginia, here as well. And they're here 

because they are really desperate to find any hope for 

their loved ones. They want to understand how this 

decision is going to be made and this -- today's input 

is part of what will help you make your decision. And 
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I think they also want to see the seven people who will 

make that decision that will impact their loved ones. 

Unlike members of Congress, where there's 535 faces to 

look at and it's confusing, this is pretty 

straightforward. There are seven of you who will make 

the decision. 

 I don't want to take a lot of time, but I 

would ask -- like to ask that everyone who has come 

today, who has a loved one in prison, would stand up 

just so that you can see their faces, please. Thank 

you. And many of them are holding photographs of the 

loved one that they have in prison. Thank you very 

much. I'll close simply by saying that, as you well 

know, the power is in your hands to positively affect 

not only the lives of nearly 20,000 individuals in 

prison, but thousands of lives more, the mothers, the 

fathers, the daughters, the sons, who wait for them to 

return home. I know you will consider this enormous 

responsibility and this opportunity, with care and 

deliberation, and I think you for that. 

 CHAIR HINOJOSA: Thank you, Ms. Stewart. 

Ms. Coffman. 

 MS. COFFMAN: I am De-Ann Coffman and I want 

to thank you for giving me the opportunity to speak to 

you today. When I was 21 years old, I was sentenced to 
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life and five years in federal prison for my role in my 

boyfriend's drug operation. After numerous appeals and 

many years in prison, my sentence was lowered to 85 

years. Well, that still sounds like a very long time. 

 I saw it as I had a release date. Were it not for 

President Clinton's commutation of my sentence, I would 

not have left prison until I was 95, if I were to live 

that long in there. 

 I was freed in January of 2001, after serving 

nearly 10 years in federal prison. To be clear, the 

crack cocaine amendment would not have helped me. I am 

really here to speak for the many women serving 

sentences for crack cocaine that I know from my time in 

prison. I will try to tell you what I think they would 

say if they were given the opportunity to be here as I 

have today. If they were here, I believe they would 

tell you how much it means to them that you've lowered 

these crack cocaine sentences. 

 The Commission has provided important 

leadership to challenge this terrible sentencing law 

and take a meaningful step towards reform. I ask you, 

for the sake of the women I served with, to now take 

the next step. The Sentencing Commission has been in 

the forefront of exposing the severity of crack cocaine 

penalties. You have explained how crack sentences do 
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not fit the crime, how they condemn low-level 

participants such as street dealers, girlfriends and 

couriers to kingpin-sized sentences, and how they 

result in racial disparity. People serving sentences 

for crack cocaine are immensely heartened by your 

efforts. You have helped others raise their voices 

against this injustice. 

 You have given judges and lawyers, and 

advocates like FAMM, the information they need to fight 

to change these laws. You know all of this already. 

What I think you don't know is how it feels like to 

serve a sentence that the Commission and all these 

others know is unjust and say is unjust and yet are 

unable to correct. I woke up every day for five years 

with my first thought being I may never leave here. It 

is profoundly frustrating. 

 By any assessment, my sentence was too long 

and yet no one in the criminal justice system could do 

anything to shorten it. People convicted of crack 

cocaine offenses serve years longer in prison than they 

would serve if they were sentenced to powdered cocaine. 

 They keep hearing how wrong it is and can't understand 

if so many people, even the Sentencing Commission, feel 

this way, why nothing changes. So the years stretch 

one. It is intolerable and times unbearable. As 
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someone who has spent time in prison, I can testify 

that every day and every month is hard. It puts a 

strain on the person in prison. It puts a strain on 

the people outside of prison, waiting for a loved one 

to come home. To those who are not in prison, reducing 

a sentence by 10, 15, 20 or 25 months may not seem 

worth the trouble of extra court proceedings or 

paperwork. 

 But to someone in prison, it means making it 

home before you get that phone call that one of your 

parents is dead, that one of your children has resorted 

to the streets because their mother and father are both 

in prison for what seems like a lifetime. Every day 

counts. Every second counts. Once lost, neither that 

time nor those people can ever be replaced. So you can 

imagine, while you're taking this first step that 

correct that injustice, it means so much to me and 

women I have left behind. I feel their pain each and 

every day. 

 Today, you are considering whether to permit 

people serving guideline sentences for crack cocaine, 

the opportunity to apply for a sentence reduction. To 

declare the guideline amendment retroactive would be an 

act of justice. I was the beneficiary of an act of 

justice. When President Clinton commuted my sentence, 
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I was literally handed my life back. Certainly being 

released from prison was enormous, but the clemency 

meant something else as well. That day, I was 

important. That day, I counted. That day, I was no 

longer just a number. I cannot begin to tell you what 

that means. It meant that someone who had the power to 

correct an unjust sentence cared enough to do so for 

me. I had almost given up believing that such a thing 

could happen. You have that same power. You have the 

power to correct unjust sentences in thousands and 

thousands of cases. 

 If you exercise it, you are telling nearly 

19,500 people, not only that their sentences are 

indefensibly long, but that you will not tolerate this 

injustice. By doing so, you are telling these 

prisoners that what happens to them matters to you, 

that they matter to you. And in the process, you may 

even help restore some of the lost faith in the 

criminal justice system and mankind. I speak for every 

women I served with. May you hear my voice thousands 

of times today, in my effort to convince you of your 

power to do justice in these cases. I thank you for 

letting me speak in front of you today. 

 CHAIR HINOJOSA: Thank you, Ms. Coffman. 

Does anybody have a question? Commissioner Horowitz, 
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did you have a question? 

 MS. STEWART: We persuaded you. 

 JUDGE SESSIONS: I have a question for 

Ms. Stewart. I shouldn't let her off entirely. Thank 

you all for your testimony. Very moving. Ms. Stewart, 

your organization is, I think, in an almost unique 

position to be helpful with respect to one of the 

concerns that has been raised about making this 

amendment retroactive, and that is that, although we 

estimate some 19,500 offenders might be eligible for 

release if the amendment is made retroactive, many more 

may apply, hoping that lightening will strike and that 

they will get lucky. 

 And that creates a potentially significant 

additional burden on the courts and the Justice 

Department, and everyone, to ferret through those, what 

would be unmeritorious applications. And while we 

can't say exactly what the parameters of the eligible 

would be, because, as you've heard, there's some legal 

uncertainty, we do know that some are not going to be 

eligible and they are the ones that are stuck with the 

mandatory minimums that your organization focuses on, 

in addition to the sentencing guidelines issues. So it 

seems to me that what your organization is in the 

position to do is to communicate to families, and to 
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inmates themselves, that it's not going to be in the 

best interest of this process if the Commission makes 

it retroactive for this amendment, and it's not going 

to be in the best interest of keeping that process in 

the future, and I think that the ability of the 

Commission to make amendments retroactive is something 

that was a very good part of the Sentencing Reform Act, 

that regardless of how this issue comes out, ought to 

be -- ought to be maintained and I don't want Congress 

to take it away. So I just hope that your organization 

will, if the Commission does make this decision the way 

you want it to, will do everything that you can to help 

to communicate the acceptable parameters of the 

eligible. 

 MS. STEWART: Yes, we definitely will. We 

already have a one-pager, which is maybe two pages, but 

of all the, you know, sort of questions and answers 

that prisoners and their families have about the 

guideline going forward, as well as retroactive -- 

retroactively. So no, absolutely. When the marijuana 

guideline was made retroactive, it only applied to 

growers or people that had plants. It did not apply to 

people had pounds of marijuana already processed. That 

was a good example of saying to those people, I'm 

sorry, it doesn't help you. But we are always wanting 
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to be helpful. I've already had conversations with the 

Bureau of Prisons about how we can help them to even 

diffuse current tensions, because people think that, 

after today, the guideline will be retroactive. 

There's a lot of rumor out there, of course, and so we 

are trying to help people understand that, you know, 

maybe in January the decision will be made. It's not 

going to happen right away. So it's -- we're very 

willing and wanting to be of help. 

 CHAIR HINOJOSA: Does anybody else have any? 

 Well, we thank you all very, very much. We appreciate 

it. And I want to say, on behalf of the Commission, 

today has been very helpful. We have heard, as we have 

said this morning, from over 30,000 individuals, in 

writing. We have heard from 19 individuals today, in 

person, with different perspectives. 

 And I will say, at the end of the day, that I 

judged things in the last several months, based on the 

Anacrecina Baker (phonetic sp.) standard, who is my 

two-and-a-half-year-old godchild who, when recently I 

told her she needed to share something with her younger 

sister, she turned to me and she said, you be quiet. 

And I have to say that every single one of you didn't 

deserve a you be quiet, because all of the individuals 

today, with different perspectives, were very helpful 
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to what we needed to do and none of you needed to be 

quiet. And at the same time, I have to say that when 

we make decisions -- and crack is a hard decision, but 

I have to say that every single decision that a judge 

makes with regards to sentencing, and every single 

decision that the Commission makes with regards to 

sentencing, is a difficult one. 

 We didn't hear much about criminal history 

today, but that's also a difficult decision. They're 

all difficult. But hearing from individuals is 

important and it's also important -- we also have to 

keep in mind, from those we don't hear, that this 

affects the entire public and each one of the 

defendants, whether we ever hear from a defendant or 

not, as well as from the general public. And so we 

make those decisions under the law and we certainly 

take into consideration everything that we hear. 

 And we realize many of you have come from far 

and many of you have brought different perspectives and 

they all will be taken into account. And so on behalf 

of the Commission, I thank all of you. I also thank 

the Georgetown University Law Center for letting us use 

their facilities, as well as Larry Center, who has been 

with us today, who is the head of the Continuing Legal 

Education Department here at Georgetown University, 
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with regards to his help. And certainly to the staff 

of the Commission, every single one of them. Judy 

Shoner (phonetic sp.), our Staff Director, and every 

member of the Commission staff who has worked on this, 

has worked on this tirelessly, and we certainly 

appreciate the help that they gave us in setting this 

hearing up, as well as all the help we get from them on 

every issue before the Commission. And at this point, 

I also would like to give the opportunity to any other 

commissioner who would like to say something before we 

close here today. 

 JUDGE CASTILLO: I just wanted to thank you, 

on behalf of my fellow commissioners, for holding this 

hearing. In particular, I thank the family members for 

coming. And even though they didn't all get to 

testify, we certainly will take this matter seriously. 

 JUDGE SESSIONS: And I want to say I 

appreciate your courage. 

 COMMISSIONER HOROWITZ: And just to the 

people who watched in the audience, who didn't get a 

chance to testify, I think all of us up here certainly 

appreciate your listening to us and communicating your 

views through various speakers today. So we certainly 

appreciate your coming and speaking to us through your 

representatives and directly through your written 
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submissions. 

 CHAIR HINOJOSA: Well, thank you all very 

much, and this hearing is adjourned. 

 (Whereupon, at 4:30 p.m., the foregoing 

public hearing was adjourned.) 
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CERTIFICATE 

This is to certify that the attached 

proceeding before 

UNITED STATES SENTENCING COMMISSION 

PUBLIC HEARING ON RETROACTIVITY 

PLACE: Washington, D.C. 

DATE: November 13, 2007 

was held according to the record, and that this is the 

original, complete, true and accurate transcript which 

has been compared to the recording accomplished at the 

hearing. 

_____________________________ 

SEAN WILLIAMS, Court Reporter 

 _____________________________ 

 DAVID MARTINI, Transcriber