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S. HRG. 111–559 

RESTORING FAIRNESS TO FEDERAL SENTENCING: 

ADDRESSING THE CRACK-POWDER DISPARITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME AND DRUGS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 29, 2009 

Serial No. J–111–17 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON CRIME AND DRUGS

RICHARD J. DURBIN, Illinois, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

BENJAMIN L. CARDIN, Maryland 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

LINDSEY O. GRAHAM, South Carolina 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JEFF SESSIONS, Alabama 

TOM COBURN, Oklahoma 

JOSEPH ZOGBY, Democratic Chief Counsel 

WALT KUHN, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 1 

prepared statement .......................................................................................... 103 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 105 

Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina ......... 11 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 152 

WITNESSES 

Breuer, Lanny, Assistant Attorney General, Criminal Division, U.S. Department of Justice, Washington, D.C. ..................................................................... 4 

Hinojosa, Ricardo H., Acting Chair, U.S. Sentencing Commission, Washington, D.C. ........................................................................................................... 9 

Hutchinson, Asa, Asa Hutchinson Law Group, Rogers, Arkansas, and former 

Administrator U.S. Drug Enforcement Agency ................................................. 26 

Parker, Cedric, Alton, Illinois ................................................................................. 28 

Timoney, John F., Chief of Police, Miami Police Department, Miami, Florida .. 25 

Walton, Reggie B., District Judge for the District of Columbia, on behalf 

of the Judicial Conference of the United States, Washington, D.C. ................ 7 

QUESTIONS AND ANSWERS 

Responses of Ricardo H. Hinojosa to questions submitted by Senators Coburn 

and Grassley ......................................................................................................... 36 

Responses of Asa Hutchinson to questions submitted by Senator Grassley ...... 80 

Responses of Reggie B. Walton to questions submitted by Senator Grassley .... 81 

Questions submitted by Senator Grassley to John F. Timoney and Lanny 

Breuer (Note: Responses to questions were not received as of the time 

of printing, August 9, 2010) ................................................................................ 82 

SUBMISSIONS FOR THE RECORD 

Austin-Hillery, Nicole M., Director and Counsel, Brennan Center for Justice, 

Washington, DC, statement ................................................................................ 84 

Breuer, Lanny, Assistant Attorney General, Criminal Division, U.S. Department of Justice, Washington, D.C., statement .................................................. 90 

Hall, John Wesley, President, National Association of Criminal Defense Lawyers, Washington, DC, statement ....................................................................... 106 

Hanson, Glen, Professor, Department of Pharmacology and Toxicology, University of Utah, Salt Lake City, Utah, statement ............................................. 110 

Hillier, Thomas W., II, Federal Public Defender, Western District of Washington, Chair, Federal Defender Legislative Expert Panel, and Jon Sands, 

Federal Public Defender for the District of Arizona, Chair, Federal Defender Sentencing Guidelines Committee, statement ....................................... 111 

Hinojosa, Ricardo H., Acting Chair, U.S. Sentencing Commission, Washington, D.C., statement ........................................................................................ 130 

Hutchinson, Asa, Asa Hutchinson Law Group, Rogers, Arkansas, and former 

Administrator U.S. Drug Enforcement Agency, statement .............................. 146 

Kosten, Thomas, MD and Andrea Stoler MD, Baylor College of Medicine, 

Departments of Psychiatry and Neuroscience, Houston, Texas, statement .... 150 

Page

IV 

Mauer, Marc, Executive Director, Sentencing Project, Washington, DC, statement ...................................................................................................................... 155 

NAACP Legal Defense & Educational Fund, Inc, John Payton, Director-Counsel and President, Washington, DC, statement ................................................. 165 

National District Attorneys Association, Joseph I. Cassilly, President, Alexandria, Virginia, statement ..................................................................................... 173 

Parker, Cedric, Alton, Illinois, statement .............................................................. 180 

Price, Mary, Vice President and General Counsel, Families Against Mandatory Minimums, Washington, DC, statement .................................................... 183 

Seventy-Five Organizations & Law Professors in Support .................................. 189 

Susman, Thomas M., American Bar Association, Washington, DC, statement . 196 

Timoney, John F., Chief of Police, Miami Police Department, Miami, Florida, 

statement .............................................................................................................. 204 

Volkow, Nora D., MD, Director, National Institute on Drug Abuse, National 

Institutes of Health, Department of Health and Human Services, Washington, DC, statement .......................................................................................... 207 

Walton, Reggie B., District Judge for the District of Columbia, on behalf 

of the Judicial Conference of the United States, Washington, D.C., statement ...................................................................................................................... 215 

(1) 

RESTORING FAIRNESS TO FEDERAL SENTENCING: ADDRESSING THE CRACK-POWDER DISPARITY 

WEDNESDAY, APRIL 29, 2009 

U.S. SENATE, 

SUBCOMMITTEE ON CRIME AND DRUGS, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Durbin, Feinstein, Klobuchar, Kaufman, Graham, and Hatch. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Chairman DURBIN. This hearing will come to order. The subject 

of today’s hearing is ‘‘Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity.’’ 

This is the second hearing of the Crime and Drugs Subcommittee 

in the 111th Congress, and first, a word about our initial hearing, 

which focused on the greatest organized crime threat to our country—the Mexican drug cartels. Based on what we learned at the 

hearing, Senator Graham and I are working on bipartisan legislation to crack down on drug cartels, which we will introduce very 

soon. 

There is a direct connection between Mexican drug cartels and 

the subject of today’s hearing—our drug sentencing policy in America We learned at our first hearing that Mexican drug cartels supply 90 percent of the cocaine in the United States and that our 

drug policy, which focuses largely on criminal sanctions instead of 

prevention and treatment, has failed to stem America’s insatiable 

demand for illegal narcotics. 

Cocaine, whether powder or crack, has a devastating impact on 

families and on our society, but we cannot address this problem 

through law enforcement alone. We need a comprehensive approach that cracks down on drug-trafficking organizations while 

emphasizing prevention and treatment for addicts. 

Our drug sentencing policy also is the single greatest cause of 

the record levels of incarceration in America. Today in the United 

States, more than 2.3 million people are imprisoned. We have the 

most prisoners of any country in the world, as well as the highest 

per capita rate of prisoners in the world. One in 31 Americans are 

2 

in prison, on parole, or on probation, including one in every 11 African-Americans. And over 50 percent of Federal inmates are imprisoned for drug crimes. 

The United States has made great strides in the last half century 

in ensuring equal treatment under the law for all. When it comes 

to the Federal criminal justice system, however, inequalities are 

growing rather than shrinking. African-Americans are incarcerated 

at nearly 6 times the rate of white Americans, while Hispanics are 

incarcerated almost twice as much. 

Today we turn our attention to one especially troubling aspect of 

our failed drug policy: The so-called crack-powder disparity. It 

takes 100 times more powder cocaine than crack cocaine to trigger 

the same harsh mandatory minimum sentences. This chart here 

will indicate that disparity by chart. Under current law, mere possession of 5 grams of crack—the weight of five packets of sweetener—carries the same sentence as distribution of half a kilogram 

of powder—or 500 packets of sweetener. That is the difference. 

The crack-powder disparity is one of the most significant causes 

of the disparity in incarceration rates in America, particularly the 

disparity between African-Americans and Caucasians. The dramatically higher penalties for crack have disproportionately affected the African-American community: 81 percent of those convicted for crack offenses in 2007 were African-American, although 

only about 25 percent of crack cocaine users are African-American. 

The low crack threshold also diverts scarce law enforcement resources away from efforts to combat major traffickers and drug cartels. 

These racial disparities undermine trust in our criminal justice 

system and have a corrosive effect on the relationship between law 

enforcement and minority communities. As the U.S. Sentencing 

Commission has said, and I quote, even ‘‘perceived improper racial 

disparity fosters disrespect for and lack of confidence in the criminal justice system.’’ 

This sentencing framework, created in 1986, was fueled by fears 

about the newest drug epidemic and based on assumptions that we 

now know were exaggerated or just plain false. And let me tell you, 

I was one of those who voted for this disparity. And if you look at 

the debate, when I was a Member of the House of Representatives, 

you will find leading African-Americans in the House of Representatives who were arguing for this disparity. Crack was a new phenomenon. It was viewed as a scourge. It appeared to be something 

out of control that needed to be dealt with harshly and quickly, and 

that was the reason that many of us supported that sentencing disparity. Today, on reflection, we realize that decision was wrong. 

We have learned a great deal since that vote. Vice President 

Biden, the previous Chair of the Committee, was one of the authors 

of the disparity himself. When he chaired a hearing of this Subcommittee on this issue last year, he said, ‘‘each of the myths upon 

which we based the disparity has since been dispelled or altered.’’ 

Some argue that the sentencing disparity is justified because 

crack cocaine is associated with more violence than its powder 

counterpart. But the truth is that crack-related violence has decreased significantly since the 1980’s, and today 94 percent of crack 

cocaine cases do not involve violence at all. And cases that do inVerDate Nov 24 2008 09:16 Aug 13, 2010 Jkt 057626 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57626.TXT SJUD1 PsN: CMORC
3 

volve violence are subject to increased sentences, anyway, including 

a mandatory minimum for use of a weapon in connection with 

drug-trafficking offense. 

Sadly, both the crack trade and, as we are witnessing along our 

Southern border, the trade in cocaine powder are frequently associated with violence. But the evidence just does not justify a sentencing disparity between the two forms of the same drug. 

In the 110th Congress, I was the Chair of the Human Rights 

Subcommittee, and we focused on issues like genocide in Darfur, 

Internet censorship in China, and rape as a weapon of war in the 

Democratic Republic of Congo. But Americans must also be prepared to look ourselves in the mirror and recognize that we are not 

above reproach. Our record-high incarceration rates and the racial 

disparities in our criminal justice system are human rights issues 

that we must face honestly. 

The first important step we should take is to completely eliminate the crack-powder disparity and to adopt a one-to-one sentencing ratio for crack and powder cocaine. As the Sentencing Commission has said, ‘‘Revising the crack cocaine thresholds would better reduce the [sentencing] gap than any other single policy change, 

and it would dramatically improve the fairness of the Federal sentencing system.’’ Given what we have learned during the last 23 

years, the sentencing disparity between crack and powder cocaine 

is both unjustified and unjust. 

During the course of these hearings this morning, we are going 

to hear of one family that has been impacted, a family from my 

State, by this sentencing disparity. It is shocking to hear what has 

happened to this family because of a decision which we made many 

years ago to create this disparity. 

In closing, it is important to note that there is a bipartisan consensus that we must address the crack-powder disparity. In particular, I want to acknowledge and commend the leadership of 

members of this Committee, Senators Hatch and Sessions who 

have looked at this issue carefully themselves. I look forward to 

working with them as well as my Ranking Republican, Senator 

Graham, and other members of the Committee, and the Obama administration to address this important issue on a bipartisan basis. 

Other members of the Committee will be joining us as we proceed this morning, Senator Graham included, and he will have an 

opening statement, which will be made part of the record at this 

point in the record for this hearing. 

Unless Senator Feinstein has an opening statement, I will turn 

to our first panel of witnesses. 

Senator FEINSTEIN. If I could just say one thing. I have been a 

cosponsor with Senator Hatch on changing the formula to 20:1. My 

interest in coming here this morning is to try and see what the appropriate change should be. There are pros and cons, if you go to 

10:1, if you go to 0:0, whatever you go to. But what I am most interested in, Senator—there is no question in my mind that it needs 

a change—is to exactly what. 

Chairman DURBIN. Thank you, Senator Feinstein. 

Now we will turn to our first panel. Each witness will have 5 

minutes to make an opening statement before questions, and their 

complete written statements will be included in the record. 

4 

As is the custom of the Judiciary Committee, I ask the witnesses 

to please stand and raise your right hand to be sworn. Do you solemnly swear that the testimony you will give is the truth, the 

whole truth, and nothing but the truth, so help you God? 

Mr. BREUER. I do. 

Judge WALTON. I do. 

Judge HINOJOSA. I do. 

Chairman DURBIN. Let the record reflect that the witnesses answered in the affirmative. 

Our first witness, Lanny Breuer, was just sworn in last week-– 

7 days on the job now—as Assistant Attorney General for the 

Criminal Division at the Department of Justice, following unanimous confirmation by the Senate last week. I am appreciative that 

your first congressional testimony as head of the Criminal Division 

is before this Subcommittee on this issue. Your presence speaks 

volumes about the administration’s commitment to restoring fairness to Federal sentencing. It is also a significant day because I 

understand Mr. Breuer is going to make an important announcement, and we look forward to hearing it. 

Mr. Breuer began his career as an Assistant District Attorney in 

Manhattan where he prosecuted both violent and white-collar 

criminal cases. He later joined the law firm of Covington & Burling, where he has worked with the exception of a 2-year period, 

since 1989. From 1997 to 1999, Mr. Breuer served as Special Counsel to President Clinton. He received his B.A. and J.D. from Columbia University. 

Thank you for being here today, Mr. Breuer, and please proceed 

with your testimony. 

STATEMENT OF LANNY BREUER, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, 

WASHINGTON, D.C. 

Mr. BREUER. Mr. Chairman, thank you so much, Senator Feinstein, thank you for giving the Department of Justice the opportunity to appear before you today to share our views on the important issue of the existing disparities in Federal cocaine sentencing 

policy. 

The Obama administration firmly believes that our criminal and 

sentencing laws must be tough, predictable, fair, and not result in 

unwarranted racial and ethnic disparities. Criminal and sentencing 

laws must provide practical, effective tools for Federal, State, and 

local law enforcement, prosecutors, and judges to hold criminals accountable and to deter crime. Indeed, the certainty of our sentencing structure is critical to disrupting and dismantling the 

threat posed by drug-trafficking organizations and gangs that 

plague our Nation’s streets. It is vital in the fight against violent 

crime, child exploitation, and sex trafficking, and it is essential to 

effectively punishing financial fraud. 

Ensuring fairness in the criminal justice system is also especially 

important. Public trust and confidence are essential elements of an 

effective criminal justice system. Our laws and their enforcement 

must not only be fair, but they must also be perceived as fair. The 

perception of unfairness undermines governmental authority in the 

criminal justice process. It leads victims and witnesses of crime to 

5 

think twice before cooperating with law enforcement, tempts jurors 

to ignore the law and facts when judging a criminal case, and 

draws the public into questioning the motives of governmental officials. 

Changing these perceptions will strengthen law enforcement, and 

there is no better opportunity to address these perceptions than 

through a thorough examination of Federal cocaine sentencing policy. 

Cocaine and other illegal drugs pose a serious risk to the health 

and safety of Americans. Drug-trafficking organizations and gangs 

that manufacture and traffic drugs have long posed an extremely 

serious public health and safety threat to the United States. The 

administration is committed to rooting out these dangerous organizations. 

In the 1980s, crack cocaine was the newest form of cocaine to hit 

American streets. In 1986, in the midst of the exploding epidemic, 

Congress passed the Anti-Drug Abuse Act, which set the current 

Federal penalty structure for crack and powder cocaine trafficking, 

punishing the crack form of cocaine far more severely than the 

powder cocaine. 

Since that time, in four separate reports back to 1995, the Sentencing Commission has documented in great detail all of the 

science of crack and powder cocaine, as well as the legislative and 

law enforcement response to cocaine trafficking. 

I will not review all of the information here other than to note 

the mounting evidence documented by the Commission that the 

current cocaine sentencing disparity is difficult to justify based on 

the facts and science, including the evidence that crack is not an 

inherently more addictive substance than powder cocaine. Moreover, the Sentencing Commission has shown that the quantitybased cocaine sentencing scheme often punishes the low-level crack 

offenders far more harshly than similarly situated powder cocaine 

offenders. 

Additionally, Commission data confirms that in 2006, 80 percent 

of individuals convicted of Federal crack cocaine offenses were African-American while just 10 percent were white. The impact of 

these laws has fueled the belief across the country that Federal cocaine laws are unjust. We believe that the Commission’s work 

forms the foundation for any thorough review of Federal cocaine 

sentencing policy, and we commend the Commission for all that it 

has done in this area. 

Based in significant part on the work of the Commission, a consensus has now developed that Federal cocaine sentencing laws 

should be reassessed. Indeed, as set forth more fully in my written 

testimony, may have questioned whether the policy goals that Congress set out to accomplish have been achieved. 

In the administration’s view, based on all that we know now, as 

well as the need to ensure fundamental fairness in our sentencing 

laws, a change in policy is needed. We think this change should be 

addressed in this Congress, and that Congress’ objective should be 

to completely eliminate the sentencing disparity between crack cocaine and powder cocaine. 

The administration is, of course, aware that there are some who 

will disagree. The supporters of the current cocaine penalty strucVerDate Nov 24 2008 09:16 Aug 13, 2010 Jkt 057626 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57626.TXT SJUD1 PsN: CMORC
6 

ture believe that the disparity is justified because it accounts for 

a greater degree of violence and weapons involvement associated 

with some crack offenses. This administration shares these concerns about violence and guns used to commit drug offenses and 

other crimes associated with such offenses. Violence associated 

with any offense is a serious crime and must be punished. And we 

think that the best way to address drug-related violence is to ensure that the most severe penalties and sentences are meted out 

to those who commit violent offenses. 

However, increased penalties for this conduct should generally be 

imposed on a case-by-case basis, not on a class of offenders, the 

majority of whom do not use any violence or possess a weapon. We 

support sentencing enhancements for those, for example, who use 

weapons in drug-trafficking crimes. 

But we cannot ignore the mounting evidence documented by the 

Commission that the current cocaine sentencing disparity is difficult to justify. At bottom, the administration believes that the 

current Federal cocaine sentencing structure fails to appropriately 

reflect the differences and similarities between crack and powder 

cocaine, the offenses involving each form of the drug, and the goal 

of sentencing serious and major traffickers to significant prison 

sentences. We also believe that the structure is especially problematic because a growing number of citizens view it as fundamentally 

unfair. 

Accordingly, as I mentioned a moment ago, the administration 

believes that Congress’ goal should be to completely eliminate the 

disparity. 

Earlier this month, the Attorney General asked the Deputy Attorney General to form and chair a working group to examine Federal sentencing and corrections policy. I have the privilege of being 

the Vice Chair of that effort. 

In addition to studying issues related to prisoner re-entry, Department policies on charging and sentencing, and other sentencing-related topics, the group will focus on formulating a new 

Federal cocaine sentencing policy, one that aims to completely 

eliminate the sentencing disparity between crack and powder cocaine, but also to fully account for violence, chronic offenders, 

weapons possession, and other aggravating factors associated in individual cases with both crack and powder cocaine trafficking. 

We look forward to working closely with Congress, Mr. Chairman, and the Sentencing Commission on this important policy 

issue and finding a workable solution. 

As I stated at the outset, this administration believes that our 

criminal laws should be tough, smart, fair, and perceived as such 

by the American public, but at the same time promote public trust 

and confidence in the fairness of our criminal justice system. Ultimately, we all share the goals of ensuring that the public is kept 

safe, reducing crime, and minimizing the wide-reaching negative 

effects of illegal drugs. 

Thank you for the opportunity to share the administration’s 

views, and I welcome any questions you may have. 

[The prepared statement of Mr. Breuer appears as a submission 

for the record.] 

Chairman DURBIN. Thanks, Mr. Breuer. 

7 

The next witness is Judge Reggie Walton, here to represent the 

Judicial Conference of the United States. After being nominated by 

President George W. Bush, Judge Walton has served on the U.S. 

District Court for the District of Columbia since 2001. He previously was an Associate Judge of the Superior Court of the District of Columbia from 1981 to 1989, and from 1991 to 2001, having 

been appointed by Presidents Reagan and George H.W. Bush. Between 1989 and 1991, Judge Walton was Associate Director of the 

Office of National Drug Control Policy and Senior White House Adviser for Crime. From 1976 to 1981, he also served as a Federal 

prosecutor. He received his B.A. from West Virginia State College 

and his J.D. from American University. Judge Walton has been 

outspoken about the need to address the crack-powder disparity as 

well as other racial disparities in our criminal justice system. 

Thank you for your leadership on this and so many issues and 

for joining us today. The floor is yours. 

STATEMENT OF HON. REGGIE B. WALTON, UNITED STATES 

DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA, ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED 

STATES, WASHINGTON, D.C. 

Judge WALTON. Thank you very much. Good morning, Chairman 

Durbin and Senator Feinstein. I would ask that my written testimony be made a part of the record, which I would like to summarize. 

Chairman DURBIN. Without objection. 

Judge WALTON. It is an honor to have the opportunity to be here 

on behalf of the Judicial Conference of the United States to address 

what I believe is one of the most important issues confronting our 

criminal justice system today. No one can appreciate, I think, the 

agony of having to enforce a law that one believes is fundamentally 

unfair and disproportionately impacts individuals who look like me 

who appear before me all too often and we have to impose sentences that we know are unjust. And I hope that we finally have 

reached the point in our history that we are prepared to address 

this significant issue. 

I, too, when I was a part of the Drug Office, advocated in support 

of disparity between crack and powder because I, too, thought, 

based upon the information available to us at that time, that disparity at least on some level was appropriate. However, we now 

know, as you indicated and as Mr. Breuer indicated, that we were 

mistaken in many respects in reference to crack cocaine. And I can 

tell you in reference to the issue of violence that I see no greater 

level of violence in reference to the cases that come before me involving crack cocaine as compared to any other drug. And I think 

that alone is sufficient justification to address this issue. 

One of the other things I do in addition to my judicial responsibilities is I chair the National Prison Rape Elimination Commission, and in that capacity, I have traveled all over the country into 

prisons and jails and held hearings on that issue. And the one 

thing that I always find very disturbing is when I go into prisons, 

even in parts of the country where you think there are not a lot 

of African-Americans, our jails are loaded with people who look like 

me. And I believe that we have to do something and we have to 

8 

do something now to address this phenomenon that is affecting our 

country and having a devastating impact on the African-American 

community. 

The problem not only affects what happens in the Federal system, but it also has a significant impact on the entire system. As 

a District of Columbia local judge, I experienced circumstances, 

even though the sentencing law did not apply to cases brought in 

the District of Columbia court system, when jurors were unwilling 

to serve, who knew about the disparity and said that they could 

just not do it because they thought the process was unfair. I know 

of jurors who would tell me after the fact, when they refused to 

convict, that even though they thought the evidence was overwhelming, they were not prepared to put another young black man 

in prison knowing the disparity that existed between crack and 

powder in those types of cases. And I think it is very unfortunate 

in America that we have a sizable portion of our population who 

feel that the system is unfair and feel that race underlies what is 

being done in reference to how we prosecute and how we sentence 

certain offenders. 

So I hope that the Congress, with the support of the administration and the understanding that the judiciary also supports the effort, will finally address this problem. This is not an issue that relates to the question of whether we are being lenient on crime by 

addressing this problem. If that is what it was about, people who 

know me know I would not be here testifying because I believe that 

when people engage in aberrant behavior, punishment is appropriate. But punishment has to be fair, and it has to be perceived 

to be fair. And we have to ensure that our citizenry is supportive 

of our laws, because when you think about it, it is amazing that 

our court system has the authority that it does within our society 

because we do not have armies to enforce what we do. People go 

along with what we do because they believe, by and large, that the 

process is fair. But as I say, there are many of our fellow Americans who do not believe that is true, and therefore, I think it is 

time that we address this problem because fundamental fairness 

requires that it be done. 

Thank you. 

[The prepared statement of Judge Walton appears as a submission for the record.] 

Chairman DURBIN. Thank you, Judge Walton. 

Judge Ricardo Hinojosa is Acting Chair of the U.S. Sentencing 

Commission. After being nominated by President Reagan, he 

served on the U.S. District Court for the Southern District of Texas 

since 1983. He is also an adjunct professor at the University of 

Texas Law School, and prior to being appointed to the Federal 

bench, Judge Hinojosa was a partner at the law firm of Ewers and 

Toothaker. Judge Hinojosa is a graduate of the University of Texas 

and Harvard Law School. I want to thank the Sentencing Commission for its efforts over the last 14 years to call attention to the unintended effects of the crack cocaine sentencing disparity. Since 

1995, the Commission has issued several reports exhaustively documenting these effects and has consistently urged Congress to address the disparity. I hope 2009 will be the year that Congress responds to the Sentencing Commission’s recommendations. 

9 

Judge Hinojosa, thank you very much for being here today, and 

you may proceed with your testimony. 

STATEMENT OF HON. RICARDO H. HINOJOSA, ACTING CHAIR, 

UNITED STATES SENTENCING COMMISSION, WASHINGTON, 

D.C. 

Judge HINOJOSA. Chairman Durbin, Senator Feinstein, I appreciate the opportunity on behalf of the United States Sentencing 

Commission to discuss this morning Federal cocaine sentencing 

policy. 

As you have stated, Chairman Durbin, the Commission has considered cocaine sentencing issues for many years and has worked 

closely with Congress to address the disparity that exists between 

the penalties for crack cocaine and powder cocaine offenses. 

As everyone knows, in the year 2007 the Commission promulgated a crack cocaine guideline amendment to address some of the 

disparities, but was and continues to be of the view that any comprehensive solution to the problem of Federal cocaine sentencing 

policy requires revision of the current statutory penalties and, 

therefore, must be legislated by Congress. The Commission once 

again urges Congress to take legislative action on this important 

issue. 

In the interest of time, I will briefly cover some of the information submitted in my written statement. 

Of the information that was sent to the Commission for fiscal 

year 2008, approximately half of the cases that are drug-trafficking 

offenses were either crack cocaine cases or powder cocaine cases. 

Approximately 5,913 defendants were sentenced for crack cocaine, 

about 24 percent of the drug-trafficking cases, and 5,769 powder cocaine defendants were sentenced in fiscal year 2008, which represents about 23 percent of the drug-trafficking cases. 

African-Americans continue to comprise the substantial majority 

of Federal crack cocaine offenders, approximately 80.6 percent of 

the defendants sentenced in fiscal year 2008, while Hispanics comprised the majority of the powder cocaine offenders. Approximately 

52.5 percent of powder cocaine offenders are Hispanic. 

Federal crack cocaine offenders consistently have received longer 

average sentences than powder cocaine offenders. In fiscal year 

2008, the average sentence for crack cocaine offenders was 115 

months compared to 91 months for powder cocaine offenders, a difference of approximately 24 months, or about 26.4 percent. Most of 

the difference is due to the statutory mandatory minimum penalties. In fiscal year 2008, crack cocaine and powder cocaine offenders were convicted under mandatory minimum penalties at virtually equal rates—about 80 percent of the offenders—even though 

the median drug weight for powder cocaine offenses was 7,000 

grams of powder compared to 52 grams for crack cocaine offenders. 

In fiscal year 2008, only 14.3 percent of crack cocaine offenders 

compared to 42.4 percent of powder cocaine offenders received relief 

from the statutory mandatory minimum penalties pursuant to statutory and guideline ‘‘safety valve’’ provisions. This is partly attributable to differences in criminal history and weapon involvement. 

In fiscal year 2008, 28.1 percent of crack cocaine offenders compared to 16.9 percent of powder cocaine offenders either received 

10 

the guideline weapon enhancement or were convicted pursuant to 

Title 18 U.S. Code Section 924(c). Crack cocaine offenders generally 

have more extensive criminal history, and 77.8 percent of crack cocaine offenders were ineligible for the safety valve because they 

were in criminal history categories higher than Criminal History 

Category I, compared to 40.0 percent of powder cocaine offenders. 

Another factor is the applicability of mitigating role adjustment 

as provided by the courts in fiscal year 2008. Approximately 5.1 

percent of the crack cocaine offenders received the mitigating role 

adjustment as opposed to 20 percent of the powder cocaine offenders who received the mitigating role adjustment. 

The sentencing disparity has been the subject of recent Supreme 

Court case law. In Kimbrough v. United States, the Court relied on 

the Commission’s conclusion that the disparity between the treatment of crack cocaine and powder cocaine offenses fails to meet the 

sentencing objectives set forth by Congress in both the Sentencing 

Reform Act and the 1986 Act. The Court held that a sentencing 

court may consider the disparity when determining an appropriate 

sentence in a crack cocaine case. 

In the Spears case, the Court held that under Kimbrough, a sentencing court may vary from the crack cocaine guidelines based on 

policy disagreements and may substitute with regards to crack and 

powder its own drug quantity ratio with regards to the crack cocaine guidelines. 

With regards to the operation of the Commission’s decision to 

retroactively apply the 2007 guideline amendments, I would like to 

give some information. 

In the 1 year since the guideline amendment of 2007 was made 

retroactive, the Commission has received approximately 19,239 

sentence reduction motions that have been acted on by the courts. 

Of those, approximately 70 percent—13,408—have been granted, 

and the average reduction was 24 months from approximately 140 

months to 116 months. Approximately 30 percent have been denied, 5,831. Some of those have been denied because the defendant 

had not been sentenced with regards to crack cocaine. Others have 

been denied because the defendant was not eligible either because 

of statutory mandatory minimums or a career offender or armed 

career offender status and/or were denied on other reasons on the 

merits. 

The Commission’s belief continues to be that there is no justification for the current statutory penalty scheme for powder cocaine 

and crack cocaine offenses and is of the view that any comprehensive solution requires revision of the current statutory penalties by 

Congress. 

The Commission remains committed to its 2002 recommendation 

that such statutory drug quantity ratio should be no greater than 

20:1 and recommends further that Congress increase the 5-year 

and 10-year statutory mandatory minimum threshold quantities for 

crack cocaine offenses, repeal the mandatory minimum penalty provision for simple possession of crack cocaine, and reject addressing 

the 100:1 drug quantity ratio by decreasing the 5-year and 10-year 

statutory mandatory minimum threshold quantities for powder cocaine offenses. 

11 

The Commission believes that the Federal Sentencing Guidelines 

continue to provide the best mechanism for achieving all of the 

principles of the Sentencing Reform Act of 1984 and recommends 

that congressional concerns about the harms associated with crack 

cocaine are best captured through the sentencing guideline system. 

The bipartisan United States Sentencing Commission continues 

to offer its help, support, and services to the Congress, to the Executive, and to the Judiciary branch, as well as to all others interested in the subject who are interested and continue to be interested in this important issue and requests that any congressional 

action include emergency amendment authority with regard to 

guideline amendments so that they would go into effect as soon as 

Congress acts. 

Again, on behalf of the United States Sentencing Commission, we 

thank you very much for holding this hearing, and we appreciate 

the continued interest in this very important subject. 

[The prepared statement of Judge Hinojosa appears as a submission for the record.] 

Chairman DURBIN. Thank you very much, Judge. And before we 

ask questions of the panel, I would like to invite my Ranking Member, Senator Graham, to make an opening statement. 

STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR 

FROM THE STATE OF SOUTH CAROLINA 

Senator GRAHAM. Thank you, Mr. Chairman. I will be very brief. 

I think this is a topic long overdue for discussion. When you look 

at your panel, you have got a very unusual group of people, political divergent who have the same message. I am looking forward 

to listening. 

Chairman DURBIN. Thank you very much. 

I would like to ask the first question of Mr. Breuer so that there 

is clarity on the record. I listened carefully to your testimony. You 

testified the administration believes Congress should completely 

eliminate the sentencing disparity between crack cocaine and powder cocaine. To be perfectly clear, does the administration believe 

that Congress should set the sentencing ratio for crack and powder 

at 1:1 ? 

Mr. BREUER. Mr. Chairman, the administration does believe 

that. We believe that should be part of a comprehensive approach, 

but that is the position of the administration. 

Chairman DURBIN. There may be some disagreement among 

those who are on the panel here, but I would like to go to the next 

question that crosses my mind. What are we to do with all the people who were sentenced over the last 23 years with this disparity 

of 100:1 ? What is the appropriate thing, the just and fair thing to 

do, for those who are currently in prison? 

Mr. BREUER. Mr. Chairman, that is, of course, a very difficult 

question, and, of course, within the Department of Justice at the 

Attorney General’s request, we are having right now a Sentencing 

Working Group that is going to go and reach out to members of the 

Commission, the judiciary, and all the stakeholders. Whether at 

the end of the day the issue of retroactivity is one that should be 

adopted, I am sure that will be a topic that will be discussed. 

12 

Senator, it is a very hard issue. I do not think there is an easy 

fix to it. I think the process is just going to have to take forth so 

we can figure out the best resolution there. 

Chairman DURBIN. If I could ask the two other witnesses that 

question, and add a little context to it. In December 2007, the Sentencing Commission unanimously decided to apply its reduction in 

crack sentences retroactively. The Commission estimated that it 

would affect the sentences of approximately 19,500 inmates over 

the course of several years. At the time, opponents of retroactivity 

argued that the courts would be flooded; the judiciary would be 

hard pressed to handle all these cases. 

So what is the verdict? I ask of the two other witnesses. Have 

the courts been flooded, or has the process gone smoothly? Has 

ever defendant seeking a sentence reduction received one? And if 

not, why not? And are judges still able to consider the individualized factors such as the use of a weapon or crimes of violence and 

an offender’s criminal history while incarcerated and similar aspects? I would like to ask Judge Walton and Judge Hinojosa to respond. 

Judge WALTON. As you know, there was tremendous concern 

when the Commission was considering the issue of retroactivity as 

to whether it would overload the court process. And I had some of 

those concerns, but the Criminal Law Committee did recommend 

to the Judicial Conference that we support retroactivity, and we 

did so. 

My feeling is that the process, as far as the District of Columbia 

is concerned, has gone smoothly, and based upon what I know from 

my colleagues throughout the country, it has gone smoothly also. 

Has it placed a burden on the courts? Yes, it has. But I do not 

think we can let that burden impair us from doing what fundamentally has to be done to make our process fair. 

So if it means my probation department and as individual judges 

we have to work a little harder in order to address the problem, 

we are prepared to roll up our sleeves and do it. 

Chairman DURBIN. Judge Hinojosa. 

Judge HINOJOSA. Chairman Durbin, with regards to that issue, 

the Commission, when it acted in 2007 amending the guidelines, 

seriously looked at the issue of retroactivity. As you know, the statute gives the Commission the opportunity when it changes guidelines to decrease sentences, to apply them retroactively and allow 

the courts to apply them retroactively if they so desire. 

We held hearings. We heard from individuals from the judiciary 

as well as other interested groups, as well as the executive branch 

of the Government, and then decided unanimously to apply it retroactively. We did put it off for a period of about 3 months. This was 

going to be the largest number of defendants that had ever been 

eligible for a sentence reduction. This gave the courts, as well as 

the executive and defenders’ organizations, an opportunity to be 

prepared with regards to the motions that would be filed. 

We also amended Section 1B1.10 of the guidelines with regards 

to the matters that could be considered by a court in determining 

whether to reduce the sentence. 

I will indicate that it appears to have run smoothly across the 

country so far. We have received information as of March of 2009 

13 

of approximately 19,239 motions, as I indicated. About 70 percent 

of those have been granted; 30 percent have been denied, as I stated a little while ago. About 11 percent of them have been denied 

because defendants filed them who did not have crack cocaine convictions. The others have been denied either because the mandatory minimums apply and/or career offender status or armed career 

offender status applies as well as for other reasons on the merits. 

It is totally discretionary with regards to a sentencing judge as 

to whether to grant the motion to reduce the sentence, and the 

Commission provided some guidance with regards to that. 

I will indicate that any action on the part of the Commission 

with regards to retroactivity would be guided, as it always has, by 

deliberative effort, certainly consultation with the other branches of 

Government, as well as individuals who are interested on this 

issue; and we would certainly proceed to act in that way to make 

a decision with regards to any guideline amendment that would 

come as a result of any reduction that might apply. 

Chairman DURBIN. Thank you. 

In addition to considering the impact or burden of retroactivity, 

I want to share with the panel some statistics from our Nation’s 

capital. In Washington, DC, 52 percent of Federal cases involve 

crack cocaine—52 percent. That is 21⁄2 times the national average. 

Then 92.8 percent of the city’s incarcerated population is AfricanAmerican and over 50 percent of young black men in the city are 

either incarcerated or under court supervision. Over 50 percent. 

Judge Walton, you sat on the Federal bench here for 8 years and 

presided over hundreds of cases involving crack cocaine. In your experience, what effect does this sentencing disparity between crack 

and powder have on the criminal justice system? I gave as an illustration earlier that this much crack would be viewed the same as 

this much in powder cocaine. To put that in dollar terms, 5 grams 

of crack now selling at $69 would market for $342, would merit the 

same criminal penalty at 500 grams of powder cocaine now selling 

at $73 on the street, $37,000—$342, $37,000, same sentencing aspect. 

So can you tell me, have you—you have seen this up close, and 

we are going to hear some further testimony on this. Can you tell 

me the burden on the current system and the impact this has on 

the sentencing aspects? 

Judge WALTON. Yes, Senator. As I indicated in my opening remarks, I know from personal experience jurors during the voir dire 

process who would come up and say that they were not willing to 

serve as a juror because they know about the disparity, and I think 

that is unfortunate when our citizenry is not prepared to participate in our judicial process because they believe it is fundamental 

unfair. 

As I also indicated, we have had jurors who have said after the 

fact, who would not convict and there was a hung jury, that the 

reason they would not convict is because they know of the disparity 

and they were not prepared to contribute another young black 

male—who it usually is—to the system knowing the unfairness of 

the process. 

I know, because I spend a lot of time talking to people in the 

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14 

ward and cooperate with law enforcement because, again, they believe the system is unfair. 

So I think it does have a perverted impact on the attitude that 

many people in our country have about the fairness of the process. 

And whenever that happens, I think it builds disrespect for our judicial process, which obviously has an overall impact. And as I 

said, it is just not within the Federal system, because when I 

served on the superior court, even though the Federal sentencing 

laws did not impact what was taking place in that court, we had 

the same attitude being expressed by jurors and other citizens 

about the fairness of the process. So it had an impact on the process in that system also. 

Chairman DURBIN. Thank you very much. 

Senator Graham. 

Senator GRAHAM. Thank you. A very good discussion. 

Generally speaking, do you believe that crack cocaine has been 

a detriment to minority communities in terms of their health and 

their future, Judge? 

Judge WALTON. Absolutely. There is no question that crack cocaine has had a devastating impact on African-American communities. I know that there are people who are afraid to even come 

outside of their homes because of the violence that exists. But I 

have seen violence in reference to other drugs in addition to crack. 

And as I indicated earlier, I cannot say, based upon the cases I see 

coming before me, that at this time the level of violence is any 

greater as it relates to crack and other drugs. 

We know a lot of our children who are having difficulty educationally, academically, are children who were born to women who 

used during their pregnancy. So, yes, it has had a tremendous impact. But it also has had a tremendous impact because the breakdown of the African-American family has had a devastating impact 

on the African-American community, and to a large degree, when 

you go into many of these communities, there are no men because 

so many of our young black men are locked up. And I think that 

is a major problem that this country has to confront. 

Senator GRAHAM. The only reason I mention that, you know, 

when you go back and look at a law, there is a reason that laws 

exist, and history sometimes will say that was a dumb reason. We 

have had laws to do some things that, in hindsight, were just really 

racially motivated or just, you know, Neanderthal. 

But when it comes to this drug, I think I understand why people 

back in the 1980s and the early 1990s really wanted to declare war 

on crack cocaine and making it very difficult to be involved with 

its use or sale. So I think Senator Durbin probably during that period of time had that motivation, anybody that supported this original statute. 

The one thing we can say for us is that all this enforcement and 

punishment you said—has it gone up or down throughout the communities? Has it had any impact in terms of deterrence? 

Judge WALTON. I do not have any statistics or empirical data I 

can provide to you to support the position I am going to take. But 

I have come to believe, in the context of this type of crime, that 

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15 

ment. Obviously, for repeat offenders and for offenders involved in 

large trafficking organizations or those involved—— 

Senator GRAHAM. With that in mind, Judge, a mandatory minimum, does it have a place here for simple possession, do you 

think? 

Judge WALTON. Not for simple possession. The Judicial Conference has opposed mandatory minimums. 

Senator GRAHAM. OK. From the administration’s point of view, 

do you have any—could you give me an answer to that question; 

has the use of crack cocaine gone up or down after we passed these 

very tough statutes? 

Mr. BREUER. Senator, it is my understanding that use of drugs 

throughout has somewhat gone down, so not just for crack cocaine. 

Whether that is the result of this sentencing regime, I think one 

would be hard pressed to say it is the result. But I think overall 

what we say about crack cocaine would be true for other drugs and 

powder cocaine as well. 

Senator GRAHAM. I think the most revealing testimony is the fact 

you talk about jurors who openly understand that—you know, they 

understand the consequences of one type drug versus the other and 

are very reluctant to find people guilty. So I think the Committee 

is doing a good job here to try to figure out how to create justice. 

But the goal is to protect people from the scourge of this drugs. Let 

us do not lose sight of that. And from the Sentencing Commission 

point of view, if you have applied—if you did away with the simple 

possession standard and you went back in case files and you reviewed cases of people who are in jail based on simple possession 

of crack cocaine with a mandatory sentence, how many people are 

we talking about letting out of jail? 

Judge HINOJOSA. Last fiscal year of 2008, I believe it was about 

105 cases of simple possession, and about half of those cases were 

subject to mandatory minimums. 

Senator GRAHAM. So not that many people. 

Judge HINOJOSA. It was a small number, but, nevertheless, it is 

the only drug that carries a mandatory minimum for simple possession. 

Senator GRAHAM. So if you did away with the mandatory minimum, you are not—it is only 105 cases that it was used in, right? 

Judge HINOJOSA. It was 105 cases, and about half of those, I believe, actually were subject to the mandatory minimum. Nevertheless, it is about 50-some defendants who were affected by mandatory minimum with regards to that particular drug who were not 

affected with regards to any other—possession of any other drug. 

Senator GRAHAM. Well, here is my statement to you and the 

Committee as a whole, and really to the country, I guess. If we 

change the law to do away with what appears to be an injustice, 

that you get so much more punishment for one type of cocaine 

versus the other, and it has such a disparate effect in terms of our 

demographics, what do we do if we change the law to do away with 

that harshness and make the law still punishment, what do we do 

to prevent the problem? I mean, isn’t that the goal? The goal is to 

prevent the problem. And if I thought passing a 1,000:1 ratio would 

do it, I would vote for the law. Obviously, it is not and it is creating 

a counter-effect, and it is creating a backlash that is not what we 

16 

want. We do not want the community to stop convicting people because they think it is unfair. We want people convicted that deal 

in this stuff and abuse it. But we also want to help them get off 

of it. So if you could just in a minute or so, tell me what do we 

do if we change the law to make it less punitive. How do we fix 

the problem? 

Mr. BREUER. Well, Senator, from the administration’s point of 

view, what we would do is we would have a regime that would be 

more case specific. So we would have very severe punishments for 

those who are deserving of severe punishments. If you are a serious 

or major trafficker, you are someone involved in violence, you use 

children, you sell to children, you sell near schools or whatever, in 

that case you should get—and there should be certainty to it. And 

with that, in the comprehensive approach we would want rehabilitation so that if you are someone who has simple possession or you 

are someone who has had just a small amount of cocaine or such 

a substance, but you do not have violence, that once you are out 

of jail, if you go to jail, that we have some way of dealing with you 

so that we do not have you re-entering the Bureau of Prisons system. 

Senator GRAHAM. One last question. If we change the law or we 

change the sentencing to be more balanced and, quite frankly, fair 

given powder cocaine, do you worry that we send the wrong message? 

Mr. BREUER. Senator, from the administration’s point of view, we 

think today we are sending the right message. We are sending——— 

Senator GRAHAM. Do you agree with that, Judge? 

Judge WALTON. I do. I agree with everything that Mr. Breuer 

has indicated about how we should address this problem. And I do 

not think we send the wrong message. I believe that enforcement 

is very important to addressing this problem. But I also believe 

that prevention works, and I also believe that treatment works. 

But we have not made the investments in those arenas that I believe are necessary. 

Senator GRAHAM. Thank you. 

Chairman DURBIN. Without objection, a statement by Senator 

Leahy will be entered into the record. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Mr. Breuer, obviously this is a very major recommendation, and 

it carries with it a lot of concomitant issues, and not the least of 

which is retroactivity. And it seems to me you cannot eliminate the 

disparity without having a program to release people from prison 

who are under these laws, thereby unfairly sentenced. And I think 

we need to know exactly what we are talking about. 

Mr. Hinojosa, I was reading your written statement, and the 

question you just answered, and I read something different from 

what you have just responded to. On page 3, powder cocaine and 

crack cocaine offenses together historically have accounted for 

nearly half of the federally sentenced drug-trafficking offenders; 

24,600 total drug-trafficking cases in 2008; there were 5,900 crack 

cases. That is 24 percent of all drug-trafficking cases, and 5,760 

17 

powder cocaine cases. That is 23 percent of all drug-trafficking 

cases. So there are a lot of people in prison with this disparity. 

Do you want to say something on that? 

Judge HINOJOSA. The number I gave was those that were eligible 

with regards to the 2007 guideline amendment. Some of them had 

already served their sentences, some of them had been obviously 

released, and some were not eligible for other reasons. And so the 

number that I gave is not everyone who had been sentenced under 

the crack-powder ratio, but those who might be eligible with regards to the 2007 guideline amendment. We have done no study 

with regards to eligibility with regards to any others, nor have we 

looked into that. 

Senator FEINSTEIN. Well, what would be the eligibility of people 

in prison for immediate parole, assuming there was retroactivity 

and the 1:1 standard was in place? 

Judge HINOJOSA. That would depend on what the ratio was and 

what Congress actually decided the ratio should be. 

Senator FEINSTEIN. Well, I am just saying the administration has 

suggested a ratio. Supposing that were, in effect, the law. How 

many Federal offenders would then be subject to release? Because 

you would have a clamor if we changed the disparity and kept people in prison. 

Judge HINOJOSA. If that were the case and that was the legislation, of course, we would do all the numbers with regards to whatever that might be. 

Senator FEINSTEIN. But right now we do not know how many 

people would be——— 

Judge HINOJOSA. No, but we would be glad to get that for you, 

and we have prepared some information with regards to the reduction possibilities, but not with regards to the numbers presently in 

custody that might be eligible for retroactivity, if that was the way 

it was proceeded with. 

I will say that one of the things the Commission is also attempting to do and has started doing—and this does take some time— 

is to look at the recidivism rates with regards to those who have 

had retroactivity applied with regards to the 2007 guideline 

amendments. 

Senator FEINSTEIN. Well, let me ask you, I would appreciate getting those numbers, because I think we have to look at this. Philosophically, I agree with what the administration has said. Practically, before we proceed, I sure want to know the impact. And so 

I think we need that. Now——— 

Judge HINOJOSA. And I hope I did not leave you with the impression, Senator, that the number I had used involved if there was a 

change to 1:1. It was simply the number with regards to the 2007 

guideline. 

Senator FEINSTEIN. I understand. Thank you. That is helpful. 

Now, there are 14 States that do have crack cocaine disparities, 

mine being one of them. Our disparity in California is based on the 

actual minimum sentence, with crack defendants sentenced to a 

3-, 4-, 5-year term, and powder cocaine to 2-, 3-, 4-year terms. So 

that is not, I think, as difficult to change. But, again, I would want 

to know what is the practical impact of this. 

18 

Let me ask you, Mr. Breuer, I am sure that when you make this 

suggestion, you have analyzed the practical impact of this both on 

the Federal system and the fact that States are apt to follow and 

what the impact would be with those States that do have disparities. 

Mr. BREUER. Well, Senator, what I would say with respect to 

that is that, of course, this is the very beginning of the process, and 

we have a working group where we want all the stakeholders to 

get involved. The issue of retroactivity I think will be an 

issue——— 

Senator FEINSTEIN. Is the answer that you have not looked at 

that? 

Mr. BREUER. Well, the answer is not that we have not looked at 

it, but the answer is that in speaking—for instance, I personally in 

the first week on the job, when I have spoken to those like Judge 

Walton and Judge Hinojosa and other judges, they have said in the 

past when, for instance, the Sentencing Commission decided to 

have a two-level reduction, that those people thought in the beginning that it would be overwhelming, that, in fact, judges, as Judge 

Walton said, were able to do it and roll up their sleeves. 

Whether or not if we were to do this now it would create an overwhelming burden I do not think has yet been quantified. But I 

think it is an issue and, on the one hand, will be the practicality 

of doing it and, as the Senators have indicated, is the fundamental 

justice in doing that. Somewhere in that will be where that discussion comes out. 

Senator FEINSTEIN. I am sure you have talked with law enforcement. 

Mr. BREUER. Yes. 

Senator FEINSTEIN. What is the law enforcement view of this? 

Mr. BREUER. Well, Senator, I think like everything, there is not 

unanimity. I have had the privilege—yesterday, I spoke, for instance, with Chief Bratton, the police chief in Los Angeles, who 

said to me, ‘‘Lanny, you should quote me as saying I fully support 

1:1, and I fully support the administration’s position.’’ 

I see Chief Timoney there, and I had the pleasure of having 

breakfast with him about a week ago, and I think there is a lot of 

support for it. 

I do not want to suggest there is unanimity, but I think a lot of 

law enforcement believes that the current status is unsatisfactory. 

There is probably going to be some debate whether it should be 1:1 

or something else, but I think there are a lot of informed sources 

who are now very much in agreement with this position. 

Senator FEINSTEIN. What would be the administration recommendation on retroactivity? 

Mr. BREUER. I do not think yet, Senator, we have one, and the 

reason we do not have one is that in beginning this process, I think 

the administration believes it is essential that in a more comprehensive way, we are able to reach out to law enforcement, to the 

Congress, and to other stakeholders. Intuitively, there is a lot 

about retroactivity that seems right. But I think if we were to take 

a firm position now, we, in fact, would disenfranchise those who we 

very much want to bring into the process as we all discuss in an 

informed way this issue. 

19 

Senator FEINSTEIN. For whatever it is worth, it is my position 

that any change has to have retroactive consideration, because we 

have to know what we are doing when we do it and what the practical application of what we are doing is, not just the theoretical 

application, because you are going to have 14 States very concerned 

as well. 

So I would very much appreciate it, Mr. Chairman, if it is agreeable with you, that the Attorney General’s Office really look into 

this and give us some recommendations of what they think this 

should be as part of any bill. 

Mr. BREUER. Senator, just to reassure you, our goal, in fact, for 

the working group is that the working group within a period of a 

few months, not very long, will, in fact, have coalesced all of these 

issues, and we would be delighted to do exactly that. 

Senator FEINSTEIN. That would be very helpful. 

Thanks very much, Mr. Chairman. 

Chairman DURBIN. Thank you, Senator Feinstein. I agree with 

you on that point. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you to all of you. 

As you know, I am a former prosecutor, and when I was listening 

to Senator Graham talk about going back to how this happened, 

these disparities in the first place, I think part of this was—which 

I still see today—the scourge of crack cocaine and what it does and 

the very violent offenses that get committed with it. So I think it 

is very clear to say that we are not talking about decriminalizing 

this—right, Mr. Breuer? 

Mr. BREUER. That is exactly right. 

Senator KLOBUCHAR. All right. Very good. And that we understand it is a very serious problem. 

On the other side, I think of a judge in Minnesota named Pam 

Alexander, who was a district court judge, who was one of the first 

to strike down the crack cocaine disparity in Minnesota. It went up 

to the Supreme Court, and in 1991, in the case of State v. Russell, 

the Minnesota Supreme Court struck down our disparity in our 

State. 

Pam Alexander was nominated or her name was seriously considered for Federal district court judge, and I hope she is watching 

this hearing today, because she was not able to advance because 

of this decision that she had made. 

So I am well aware of this issue, and I think the first thing I 

wanted to say and ask you about was that there were reasons 

given back then for this disparity—and I am sure some of them 

were real, but some of them were—that crack could be worse, the 

effect it had on babies and things like that. And is that still true, 

the crack cocaine? Any comments on that? 

Mr. BREUER. Senator, based on my understanding of the Commission’s excellent work and its work with respect to science, there 

is no basis for that conclusion. 

Senator KLOBUCHAR. All right. And then, second, the fact that 

sometimes crack, for maybe reasons outside of the drug itself, it is 

involving more gun offenses, more violence; it may be those that 

are using this illegal drug compared to those that are using coVerDate Nov 24 2008 09:16 Aug 13, 2010 Jkt 057626 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57626.TXT SJUD1 PsN: CMORC
20 

caine; it may have nothing to do with the drug, but there was some 

more propensity of cases involving gun and violence with crack. 

Mr. BREUER. I think though the numbers have gone down, there 

is still some more prevalence of those who are on the streets trading in crack possessing guns or using guns. It is why the administration feels we should have a much more targeted approach. 

Senator KLOBUCHAR. So your answer to that, for my law enforcement people out there who are listening to this very carefully, 

would be that it is not like we are going to disregard the fact that 

guns are used with these crack crimes, that you are going to use 

enhanced sentences. Or how are you going to get at that fact? Because, clearly, when you have guns with drug cases, it means 

something more. 

Mr. BREUER. That is exactly right, Senator. What we would propose is through the working group and making recommendations 

ultimately is either through enhancements or through further legislation that we ensure that those who are trafficking in crack cocaine, for instance, who are using guns, that they get extremely severe sentences. And so we are not in any way proposing that we 

are going to ignore it. Through a comprehensive regime of legislation and enhancements, we very much want to address that issue. 

Senator KLOBUCHAR. OK. I think that is very important for people to know, and I do think it gets at Senator Feinstein’s retroactivity question to some degree, which I think is going to be very 

difficult, and that is that perhaps—I am just guessing this, judges, 

but because of the sentences for crack, that sometimes those sentences were used, weapons charges may have been dropped even 

though a weapon was present. And so the retroactivity argument 

becomes more difficult in those cases. You may have a severely violent case or a gun case, but because the crack sentence was so long, 

perhaps those charges were dropped. Do you want to address that 

at all? It just complicates saying, well, because someone was put 

in for a crack charge for this long, they should be let out, when, 

in fact, maybe there were other factors there. 

Mr. BREUER. Senator, I think that is exactly right. I defer to the 

judges on the implementation, but, of course, any issue of retroactivity will have to be case by case for the very reasons you have 

identified. 

Senator KLOBUCHAR. Judge. 

Judge HINOJOSA. Senator, I do want to make it clear that the 

guidelines themselves do provide some enhancements already with 

regards to a weapon involvement if you are not convicted under the 

statute. They also provide enhancements for use of minors, enhancements for roles in the offense, as well as some of the other 

matters that would be of concern to individuals. They are provided 

within the Sentencing Guideline system with regard to some of 

these enhancements that have been talked about with regards to 

certain specific characteristics of the way a defendant may be involved in a particular case. 

And so some of these individuals may have already gotten the 

weapon enhancement under the Sentencing Guidelines even 

though they were not convicted under the statute itself. 

Senator KLOBUCHAR. I understand. My focus here is that you 

may have some violent offenders that were simply convicted under 

21 

this crack law, and so it just makes it much more complicated to 

look at the retroactivity issue. 

The other thing that was raised and Senator Graham addressed 

was just other reasons to look at changing this disparity, and one 

of them is that the judges have been downgrading the sentences 

out of a realization of what they perceive is this unfairness, as well 

as the fact, which he referred to, that juries are aware of this in 

many parts of the country and have reactions to this, or people. 

And I am very interested in mostly effectively using our laws and 

making sure they are targeted, as Mr. Breuer pointed out, at where 

we need them. But could you comment a little bit about that? I 

think it was you, Judge Hinojosa, that brought up the issue of the 

judges’ departing downward. 

Judge HINOJOSA. There has been some since Kimbrough and 

Spears. Post Spears, the departure or variance rate that is not Government sponsored is about 18 percent in crack cocaine cases, 

which is higher than it had been. It was probably 3 percent lower 

than that prior to that, and so there has been an increase. That 

is only with 900-some cases that have come in since Spears that 

we have been able to code. We will continue to put out that information. It is different than it has been. 

We have seen about five cases where judges actually decided to 

use their own ratio. Some have used 20:1. Some have used 1:1. And 

so this may lead to disparity with regards to how individual judges 

look at what they feel might be the ratio. And so we are coding 

that information and would certainly make it available. 

Senator KLOBUCHAR. Thank you. 

Judge Walton, do you want to comment at all on this? 

Judge WALTON. Which particular—— 

Senator KLOBUCHAR. Well, just on the judges’ departing downward, maybe your own feelings or changes in your feelings about 

this disparity in these laws over time. 

Judge WALTON. Under our current system, I do have concerns, 

because I know within my own courthouse there is a difference of 

view of what that disparity should be. So you do have some judges 

going 1:1, 10:1, 20:1, and I think that is problematic because I 

think disparity is a problem within our system. So, to the extent 

that there can be greater uniformity, I think that is important. 

On the issue of retroactivity, I agree, that is a significant issue. 

There are a lot of factors that have to be weighed in assessing 

whether it would be appropriate to do that, and one of the things 

I do not think I would be saying off the reservation on behalf of 

the court system to say this is that if retroactivity is a reality, then 

I would hope that the needs of the court financially would be considered, because if we need additional resources in order to carry 

it out, I would hope that they would be made available to us. 

Senator KLOBUCHAR. OK. I could tell you that I totally understand that from seeing court cases, but, again, the public safety 

issues with making sure that any retroactive changes that are 

made are going to also be, I think, foremost in people’s minds. But 

thank you. 

Judge WALTON. But I think one thing that is important, if you 

look at the statistics that Judge Hinojosa indicated with the experience of what has happened now in reference to what the CommisVerDate Nov 24 2008 09:16 Aug 13, 2010 Jkt 057626 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57626.TXT SJUD1 PsN: CMORC
22 

sion did, there has not been a significant number of people who 

have been released who have come back into the system. According 

to the statistics, it is only about 0.6 percent of the individuals released pursuant to the action of the Commission who have committed new offenses and come back into the process because of 

that. 

Senator KLOBUCHAR. Right, and I am a big supporter of treatment. I come from the land of, well, 10,000 treatment centers—that 

is what we say—in Minnesota, and we believe in it. My own father 

is a recovered alcoholic, so I completely believe we need to look at 

that and drug courts as part of our laws, and that there are much 

better ways we can handle this. But at the same time, I want to 

make very clear to the public—and Mr. Breuer did that—that we 

are not talking about decriminalizing that, that we are going to 

move very carefully as we look at any talk of retroactivity, and that 

we do understand that crack cocaine is, as Senator Graham said, 

a scourge on our community and that we want to do everything to 

get people off of it and to make sure the laws are enforced and to 

focus very much on these violent offenses and gun offenses, while 

understanding that this disparity has not been fair and it has not 

seemed to have been effective in how we enforce our drug laws. 

So thank you very much, all of you. 

Chairman DURBIN. Senator Kaufman. 

Senator KAUFMAN. Mr. Chairman, I want to thank you for holding this hearing. I think this will go a long way to deal with popular misperceptions about the disparity between the crack cocaine 

and powder cocaine differences, and I think it is a real service. 

Mr. Breuer, I want to follow up on Senator Klobuchar’s question. 

I know about the children, but what are the things that we have 

learned since 1986 that make us now, the Department, to feel that 

it is important to remove this disparity? 

Mr. BREUER. Well, Senator, where we were right, of course, and 

what we have known throughout is that crack cocaine, drugs in 

general, such as crack cocaine and powder cocaine, are, in fact, a 

scourge and they are very bad for the community and they can be 

associated with violence. What we have learned is that if we punish based on a class as opposed to case specific or one form versus 

another, then, in fact, what we begin to do is deteriorate the 

public’s confidence in our justice system, as Judge Walton so eloquently described, and that cannot be the case. 

We need to protect our citizens. They need to know there is certainty of punishment. And they need to know that we are putting 

in jail those who should be in jail as opposed to, as Judge Walton 

said, young African-American men who have no business being in 

jail perhaps for as long as they are based on the crime. That is a 

terrible injustice. I think that is the lesson we have learned. 

Senator KAUFMAN. To follow up on that, one of the findings in 

the Sentencing Commission’s most recent report to the Congress 

said that more than one-third of all crack cocaine cases in 2006 involved fewer than 25 grams while powder cocaine cases typically 

involved far larger quantities. 

Can you kind of talk about how that happens? 

Mr. BREUER. Well, Senator, I think what has happened under 

the current regime is that, in essence, there is sort of a de facto 

23 

process, and because the quantities are lower in some cases, people 

are targeted because there is a sense that perhaps they are more 

involved in other kinds of criminal activity. 

The result, however, is somewhat artificial. If we had a 1:1 level, 

then, in fact, I think what we would find is sentences throughout 

would be proportional based on what they should be. Now I think 

what is happening is people are using their own independent judgments to try to take the system that most people think is not working and try to make it work a little better. But that is a very imperfect system. 

Senator KAUFMAN. Thank you. Now, we know, talking about 

doing away with the disparity—and I think there seems to be good 

agreement on that. I mean, do you have any thoughts about whether we are going to raise the current powder levels or lower certain 

crack levels in order to get to what we should be doing? Just your 

thoughts on that. 

Mr. BREUER. Well, Senator, based on the Commission’s work and 

the work that we have heard about, I am not aware of any compelling arguments—at this point, none—to say that we should raise 

the powder cocaine penalties or raise the powder cocaine. But I 

must say that the working group will do what we have said it will 

do. It will remain open to all issues, and so if there are those arguments, we want to hear them, and we want to assess them. But 

at this point, I have not heard any compelling arguments there, 

and I do not think the Commission in its work has found any. 

Senator KAUFMAN. Thank you for that. 

Judge Hinojosa, on the subject of violence, does your data suggest that the violence associated with crack distribution has 

changed at all over the years? 

Judge HINOJOSA. The last coding project that we did with regards to violence was that there was a slight difference between 

crack and powder cases. It was not present in about 89-point-some 

percent of the crack cases and not present in about 93 percent of 

the powder cases. And so that was a coding project with regards 

to 2005 cases. 

The other thing that we judge it by is the weapon enhancement, 

which is applied in about 28.1 percent of the crack cases and 16.9 

percent of the powder cases. And so, therefore, that is the information that we do have. 

Senator KAUFMAN. All right. Thank you. 

Judge Walton, obviously, in addition to your long service as a 

trial judge, you served with the Office of National Drug Control 

Policy. How has that experience affected your positions and your 

views on this issue? 

Judge WALTON. Well, as I indicated earlier, I did advocate a disparity when I worked in the Drug Office because of the information 

we had available to us at that time. As has been indicated, a lot 

of that information we know was incorrect, and so it has altered 

my view about the disparity, coupled with the fact of my experience 

that I have had with people who would come into the process, like 

jurors, who did not want to be a part of the process because of the 

disparity. 

24 

So I think, as I have indicated before, that public confidence is 

critical if our laws are going to be respected and followed, and I 

think this adversely impacts the ability to have that occur. 

Senator KAUFMAN. Great. Thank you all for your comments. 

Again, Mr. Chairman, thank you for holding this hearing. 

Chairman DURBIN. Thank you, Senator Kaufman, and I would 

like to thank this panel for their testimony. I believe this has been 

long overdue, and your statements are going to help us understand 

this issue and I hope motivate us to move forward. Some of the little huddles that you have seen taking place here are among Senators who are thinking about what is the next step, so we are consciously thinking of an active response to your suggestions today, 

and I thank you for motivating and for joining us. 

Judge WALTON. There is one statement I would correct. I said 

that it was 0.6 percent who have been rearrested who had been released. It actually is 0.6 who were revoked based upon a rearrest. 

Chairman DURBIN. I see. Thank you very much, Judge Walton. 

Thank you all. 

Chairman DURBIN. We now invite the next panel of three distinguished witnesses to join us, and before swearing them in, while 

they are taking their seats, I will give you a little background on 

each one of them. 

John Timoney is going to testify first. He is the Chief of Police 

of the Miami Police Department. He has been in that position since 

January of 2003. His law enforcement career began in 1967 when 

he joined the New York City Police Department. After serving in 

a variety of leadership positions during three decades with NYPD, 

Chief Timoney was for 4 years the police commissioner of Philadelphia, where he commanded a force of approximately 7,000 officers. 

He is President of the Police Executive Research Forum, serves on 

the Board of Penn Institute for Urban Research in Philadelphia 

University, Co-Chairman of the FBI’s South Florida Joint Terrorism Task Force. His 40 years of local law enforcement experience give him a unique perspective on these issues. I thank him 

for being here. 

Asa Hutchinson is a familiar face here on Capitol Hill, currently 

practicing law at the Hutchinson Law Group which he and his son 

founded. He began his legal career as a city attorney in the famed 

Bentonville, Arkansas, before he was appointed by President 

Reagan as U.S. Attorney for the Western District of Arkansas. He 

served in the U.S. House of Representatives from 1997 to 2001, appointed by President Bush as Administrator of the Drug Enforcement Administration in 2001; 2 years later, he became the first 

Under Secretary for Border and Transportation Security at the 

newly created Department of Homeland Security. He has an undergraduate degree from Bob Jones University and a law degree from 

the University of Arkansas. Mr. Hutchinson, welcome. 

Cedric Parker, one of seven children, born in Tampa, Florida, 

grew up in Alton, Illinois, home of the Red Wings. Upon graduating 

from Southern Illinois University, he joined the U.S. Army and 

served his country for over 7 years. Mr. Parker, after leaving the 

military, returned to Alton, Illinois, where he managed a residential diagnostic and treatment facility for troubled and abused adolescents. He met his wife, Christie, there, who is a psychotherapist 

25 

in private practice. Their four children—one son and three daughters—range in age from 24 years to 11 months. 

That is a wide spread there, sir. Mr. Parker, thank you for the 

sacrifices you made to be with us today. 

He is here to testify about his sister, Eugenia Jennings, and before I—I will wait and show that a little later. We have a picture 

here of the family which we would like to show when the time 

comes for your testimony. 

If I could ask the three witnesses to stand to be sworn in, I 

would appreciate it. Do you solemnly swear that the testimony you 

are about to give is the truth, the whole truth, and nothing but the 

truth, so help you God? 

Chief TIMONEY. I do. 

Mr. HUTCHINSON. I do. 

Mr. PARKER. I do. 

Chairman DURBIN. Thank you. Let the record indicate that all 

the witnesses responded in the affirmative. 

Chief, I am going to let you open up. The floor is yours. 

STATEMENT OF JOHN F. TIMONEY, CHIEF OF POLICE, MIAMI 

POLICE DEPARTMENT, MIAMI, FLORIDA 

Chief TIMONEY. Thank you very much, Mr. Chairman, and good 

morning to the distinguished members of the Committee. I want to 

thank you for affording me the opportunity to testify regarding reforming the Federal cocaine sentencing laws, commonly referred to 

as the ‘‘crack-versus-powder cocaine controversy.’’ As you mentioned in your introduction, I have spent the last 40 years in local 

law enforcement—the last 61⁄2 years as the Chief of Miami, 4 years 

before that as the police commissioner of Philadelphia, and then 

291⁄2 years in the NYPD, beginning as a young cop in the South 

Bronx and working my way up through the ranks to become the 

youngest four-star chief in that department’s history. So I come at 

this as a police professional. 

Others this morning have testified regarding the 100:1 disparity, 

and you had very good graphics there, Senator. They testified to 

the efforts of many, including the United States Sentencing Commission, to try to rectify or mitigate the disparity. To date, none 

of these efforts have been effective, having, for whatever reason, 

fallen on deaf ears. I am here today to lend my voice to the chorus 

pleading with Congress to right a wrong. 

I have no idea if the original reasons for establishing this dichotomy that somehow crack cocaine was more powerful and, therefore, 

deserved a stiffer sentence—I did not know if they were right or 

wrong. I have heard the arguments on both sides. But what I can 

tell you from a practitioner’s perspective is that the results or the 

unintended consequences—and I do not think the consequences 

were ever intended in this situation. But the results have been one 

unmitigated disaster. 

Making an artificial distinction about a particular form of the 

same drug is a distinction without a difference, and that is bad 

enough. But when the distinction results in a dramatic disparity in 

sentencing along racial lines, then that distinction is simply unAmerican and intolerable. Furthermore, it defies logic from a law 

enforcement perspective, and here is what I mean. 

26 

If I arrest a guy carrying 5 grams of crack cocaine—that is less 

than a fifth of an ounce—I figure this guy is a low-level street corner dealer, or maybe he just has a good amount of crack for personal consumption. But if I arrest a guy with 500 grams of powder 

cocaine—and that is about half a kilo—I assume that this individual is a serious trafficker in narcotics. The notion that both of 

these guys are equal and deserve the same sentence is just ludicrous on its face. 

Now let me take my two guys and show you how the monetary 

value of their illegal contraband plays out in the street. In Miami 

today, you can purchase 5 grams of crack for around $150. In New 

York and in Philadelphia, my prior two cities, it will cost you 

around $200—a little more expensive. In Miami today, my undercover officers for powder cocaine spend between $700 and $1,000 

per ounce, or around $14,000 for half a kilo, which is 500 grams. 

In New York and in Philadelphia, probably $2,000 more. The bottom line is the difference—it is a hell of a difference. It is $150 

versus $14,000. 

Now, if you were to present those numbers to the average eighth 

grader, they could figure out who is the narcotics trafficker and 

who is not. It is quite simple. And the answer is quite simple. 

Finally, when unfair laws are passed, police officers see the impact at the local level. Citizens do notice the things you do up here 

in Washington, and they do play out in the street. And in this case, 

the people become cynical. 

I remember back in 1974 when I was a young cop in the South 

Bronx, and President Ford issued the pardon to former President 

Nixon. I was amazed at how many times that issue was thrown up 

in our face as we made arrests on the street. We would get the accusation: ‘‘Oh, Nixon gets pardoned, but the poor people get arrested.’’ 

Now, I know a lot of that was just street-level nonsense and jargon, but the point was well taken. And police departments across 

America face a much more difficult challenge gaining the trust of 

their communities if there are glaring inequities in the justice system that are allowed to persist. These inequities breed cynicism, 

mistrust, and should be eliminated. 

Thank you, Senator, for your indulgence today. 

[The prepared statement of Chief Timoney appears as a submission for the record.] 

Chairman DURBIN. Thank you for your testimony. 

Mr. Hutchinson, you have an opportunity now, 5 minutes, and 

we, of course, will enter into the record any written statement you 

would like to submit. Please proceed. 

STATEMENT OF ASA HUTCHINSON, ASA HUTCHINSON LAW 

GROUP, ROGERS, ARKANSAS, AND FORMER ADMINISTRATOR, UNITED STATES DRUG ENFORCEMENT AGENCY 

Mr. HUTCHINSON. Thank you, Senator. I am delighted to appear 

before your Committee. I am grateful for the invitation. I am here 

today, of course, reflecting my background as a Federal prosecutor 

in the 1980s, when we really commenced the strong effort against 

illegal drugs. I am reflecting my background as a Member of Congress when I had oversight responsibilities on the House side for 

27 

some of our law enforcement agencies; and then, most significantly, 

as a former Administrator of the U.S. Drug Enforcement Administration. In all of those recent positions, Congress and the DEA, I 

have been a long-time advocate for reducing the sentencing disparity between crack and powder cocaine. I have advocated this position for a couple of very simple reasons: 

One, the justice system should be about fairness, and I do not believe that this sentencing disparity reflects the fairness that is required. 

Secondly, it obviously has a disparate racial impact on our communities and undermines what we are trying to accomplish in the 

justice system. 

Today I express my support for legislation for Congress addressing this disparity, and I believe that this is the time that this can 

be done. The reasons that I am strongly advocating congressional 

action in this regard are that I see the impact of the disparity as 

undermining the confidence, credibility, and cooperation that are 

important in our criminal justice system; and also—and I think 

this has not been talked about enough—the present disparity 

skews law enforcement priorities. It encourages law enforcement to 

pursue lengthy sentences when the offenders are not high-level 

dealers. In Arkansas, where I hail from, I want to cite this particular statistic: 41 percent of the drug-related Federal offenses in 

Arkansas are crack related—41 percent—and that is compared to 

a national average of 20 percent. Powder-related Federal offenses 

in Arkansas are 12 percent of all Federal offenses, or drug-related 

offenses. That compares with 22 percent nationwide. 

In Arkansas the African-American population is approximately 

16 percent, but we have a higher percentage of crack-related offenses compared to the national average. I believe that congressional sentencing priorities impact law enforcement patterns and 

practice to our detriment in effectively fighting the war on drugs. 

Now, perhaps the easier part of this debate is to convince policymakers that we have got to do something. The more difficult aspect 

is to address how to do it, and what is the right way to do it. Let 

me just offer a couple of views in that regard. 

First, the issue of retroactivity has been discussed today, and I 

applaud Congress that in implementing the changes of the Sentencing Commission last fall you did not reverse the retroactive application. As Judge Reggie Walton, who previously testified, has 

said, ‘‘I do not see how it is fair that someone sentenced on October 

30th gets a certain sentence when someone sentenced on November 

1 gets another sentence.’’ And so whatever changes you make, I do 

believe have to be applied retroactively. 

The most strenuous objection comes from the Department of Justice, who says it takes extraordinary U.S. Attorney resources and 

court resources to process these. The courts do not object, and since 

they have gone through the resentencing on many, you have not 

seen any mass resignations of U.S. Attorneys or Assistant U.S. Attorneys saying they are overworked. So the process has worked, 

and, most importantly, when you are dealing with an issue of fundamental fairness, adjust the resources, apply the resources, make 

changes where necessary to make sure that the individualized approach can be handled and they can be reviewed. 

28 

Second, I would suggest that in terms of adjusting the disparity, 

mandatory minimum sentences required of cocaine traffickers 

should be more clearly directed toward those who are engaged in 

the business of trafficking, and it should not all be quantity based. 

Right now you have got the sentencing disparity because it is all 

based upon quantity. Well, a mule who is transporting a large load 

of cocaine across the border is not the high-level trafficker we actually want to get. We have got to adjust our sentencing priorities to 

include different criteria rather than simply the quantity aspect. 

Under the current formula, a dealer charged with trafficking 400 

grams of powder worth approximately $40,000 could receive a 

shorter sentence than a user he supplied with crack valued at 

$500. Obviously, there has to be more than quantity. We have to 

adjust that criteria. Quantity should be one factor, but it has been 

an unreliable ally in determining sentencing priorities and in determining law enforcement priorities. 

And, finally, whatever Congress does in terms of changing the 

sentencing structure, give it time to work, and then listen to the 

Sentencing Commission as they review what has been accomplished. And, obviously, anything we do has to be subject to adjustments down the road. Make the change and then let us evaluate 

the change after we give it an opportunity to work. 

Thank you, Mr. Chairman, Senator Hatch, for the opportunity to 

appear before the Committee. 

[The prepared statement of Mr. Hutchinson appears as a submission for the record.] 

Chairman DURBIN. Thank you, and we will have a few questions 

for you. 

Mr. Parker, I want to give you a chance to testify. As I mentioned at the opening, Mr. Parker is here testifying on behalf of his 

sister, Eugenia Jennings, and before you begin, I wanted to show 

a picture of your sister’s children. I would ask you to tell us their 

names and ages, if you will, please. 

Mr. PARKER. OK. To the left is Radley. That is her son, he is 14. 

In the center, Radisha Berry. And to the right is Cardez. He is the 

one that lives with me. And that is my son, front and center. 

Chairman DURBIN. Thank you very much. Please proceed with 

your testimony. 

STATEMENT OF CEDRIC PARKER, ALTON, ILLINOIS 

Mr. PARKER. First I want to thank you, Chairman Durbin and 

Senator Hatch, for giving me the opportunity to testify before you 

today. Of course, you know my name is Cedric Parker. I am from 

Alton, Illinois, and I am here to tell you the things my sister, Eugenia, would say if she was here today. The severity of the mandatory minimums and especially the sharp disparity between those 

for crack and powder cocaine have touched my family directly. Eugenia cannot be here because she is in Federal prison for selling 

crack cocaine. 

I spoke with my sister when I learned you wanted to hear from 

me, and these are the things she would like you to know. I want 

to say first that Eugenia does not excuse her conduct or hide behind her problems. She took immediate responsibility for her acVerDate Nov 24 2008 09:16 Aug 13, 2010 Jkt 057626 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57626.TXT SJUD1 PsN: CMORC
29 

tions, and I know a day does not go by that she is not sorry for 

what she has done. 

Eugenia is the youngest of seven and our mother’s only daughter. 

She was born and growing up as I was leaving Alton for college 

and then eventually to the military. As I began to hear about all 

the things that were happening to my little sister, I tried repeatedly to intervene from overseas and find a safe harbor for her, but 

I could not. 

Our mother was terribly challenged by illness, poverty, and other 

problems that made it difficult to provide us a stable family and 

a safe environment or to get help. When Eugenia was very young, 

our mother would leave her with the Smith’s, their family friends 

that were in our projects, until she stopped bringing Eugenia home 

hardly at all. 

Eugenia had an unspeakable childhood. Her surrogate mother, 

Annie, beat her and emotionally brutalized her from the time she 

arrived. Annie’s children all abused drugs and alcohol, and when 

Eugenia was only 7 years old, she was left for days with a prostitute who sexually assaulted her, and also a teenage neighbor of 

the Smiths. A year later, one of the her half-brothers sexually assaulted her, and when she became a teenager, her stepfather tried 

to rape her. 

Eugenia escaped the Smith, household when she was only 13. 

She dropped out of school and went to live with her boyfriend in 

a house where drugs and alcohol were the norm. She began abusing drugs and became addicted to crack by the time she was 15. 

She stopped using when she learned she was pregnant, but after 

giving birth at the age of 16, desperate for money to support her 

and her daughter, she began selling and using drugs. Of course, 

she was eventually caught. 

Eugenia was convicted in Illinois in 1996 for two drug sales totaling less than 21⁄2 grams of crack cocaine. While in prison, she 

sought treatment for her drug addiction and resolved to remain 

drug free. She studied for and completed her GED. She gave birth 

to her youngest son Cardez while she was incarcerated. 

Eugenia tried to live up to her commitment. But following her release from prison in 1999, she relapsed again and began using 

drugs and alcohol. 

In June of 2000, Eugenia was arrested for trading crack cocaine 

on two different occasions for designer clothes. One sale involved 

1.3 grams, and the second, a few days later, involved 12.6 grams. 

Eugenia was charged in Federal court with two counts of distributing crack cocaine. She accepted responsibility and pleased guilty. 

The Federal prosecutor decided to charge her as a so-called career 

offender. A career offender is someone who has two or more prior 

felony drug offenses. Her two small Illinois State prior convictions 

were enough to treat her as a major drug kingpin, driving her sentence from the mandatory minimum of 5 years to a sentence of almost 22 years. My sister was barely 23 years old and the mother 

of three young children when she was sentenced in January of 

2001 to over two decades behind bars. 

Had Eugenia been sentenced for powder cocaine instead of crack 

cocaine, even as a career offender, her sentence would have been 

less than half of the one she received for crack cocaine. Today she 

30 

would be getting ready to come home, probably already in a halfway house. She will not be released from prison until 2019. 

Eugenia has worked very hard while in prison to better herself 

and maintain ties with her children. They correspond regularly, 

and what little money she has managed to earn, she has sent home 

to them for birthdays and holidays. My sister has never been in 

trouble in prison and is very well regarded by staff and other prisoners. She is an avid student and a model employee. She is involved with supporting battered women and is a member of the 

Youth Awareness Program, speaking with young people about the 

dangers of drugs. After a lifetime of substance addiction, Eugenia 

is proudly sober. 

It strikes me that whatever the Government had hoped to 

achieve by locking Eugenia up has been accomplished, and yet she 

still has 10 more years than someone convicted of powder cocaine. 

My sister’s children, 11, 14, and 15, have only seen their mother 

once since she has been in prison. 

My sister is a remarkable woman of courage and principles, and 

I would give anything not to be here today to tell you this sad 

story, but I hope that my words will convince you to change this 

terrible law. 

I want to leave you not with Eugenia’s words or mine, but with 

the words of the Honorable G. Patrick Murphy, who sentenced my 

sister. Here is what he told her: 

‘‘Mrs. Jennings, I’m not mad at you....The fact of the matter is, 

nobody has ever been there for you when you needed it. Never. You 

never had anyone who stood up for you. All the Government has 

ever done is just kick your behind. When you were a child and you 

were being abused, the Government wasn’t there. When your stepfather abused you, the Government wasn’t there. When your stepbrother abused you, the Government wasn’t there. But when you 

had a little bit of crack, the Government’s there.’’ 

‘‘And it is an awful thing, an awful thing, to separate a mother 

from her children. And the only person who had the opportunity to 

avoid that was you....At every turn in the road we failed you. And 

we didn’t come to you until it was time to kick your butt. That’s 

what the Government has done for Eugenia Jennings.’’ 

I am here to bring you Eugenia’s message to end the sentencing 

gap between crack and powder cocaine. It causes racial disparities 

in sentencings, and Eugenia has witnessed this every day. It also 

results in unduly harsh sentences for people whose only crime is 

selling the same drug but only in a different form. The fact that 

the 13 grams of drugs that my sister sold were the crack form and 

not the powder form of cocaine surely cannot be enough to justify 

adding a decade to an already lengthy sentence. 

Thank you for hearing me. 

[The prepared statement of Mr. Parker appears as a submission 

for the record.] 

Chairman DURBIN. Mr. Parker, thank you, and, Mr. Hutchinson 

and Mr. Timoney, thank you as well. That was powerful testimony. 

Powerful. 

Tell me about her kids. How are they viewing this? And how are 

they doing without her for 10 years? 

31 

Mr. PARKER. It was very difficult for them in the beginning—actually for several years. They had a lot of problems in school. The 

boys, you know, I guess they feel abandoned, so they started having troubles with pretty much dealing with women. They felt abandoned by her. And, you know, I stay in contact with them. I see 

them every day, help them with homework. 

The youngest, he lives with me, so I have been raising him. He 

went from D’s and F’s to honor roll now, and he is enjoying life. 

They all are doing a little better now. But, you know, they really 

miss their Mom. I cannot replace their Mom, or their father. Their 

father is not around. So it has been very difficult for them. 

Chairman DURBIN. Chief Timoney, I am sure you are well aware 

of stories just like this. 

Chief TIMONEY. Yes, sir. 

Chairman DURBIN. In the course of your professional career as 

chief in Philadelphia and now in Miami. And I want to thank you 

for your testimony because it really means a lot when a law enforcement professional will step up and use the words you did, you 

know, to call this ‘‘one unmitigated disaster,’’ which you said, ‘‘unAmerican,’’ ‘‘intolerable,’’ ‘‘defies logic.’’ 

So when you hear from the Justice Department about eliminating this disparity and bringing it down to a 1:1 ratio, I would 

like to know your response or reaction. 

Chief TIMONEY. I actually do not think there is any other option. 

Any other option is a false distinction. So if you go 10:1, 20:1, it 

is the same drug, just manufactured differently. And I think 

whether it is 100:1 or 10:1, you are going to have that cynicism. 

In fairness, it needs to be 1:1, and as Mr. Hutchinson pointed out, 

we want to get the right people, the people who are profiting, the 

profiteers, the traffickers, not some poor person that did not—you 

know, that bought too much or had too much on them to meet some 

really crazy guideline of 5 grams, which really is not a lot. 

You know, I was a young cop in the South Bronx. Just to make 

you all feel better regarding your votes in 1986, in the early 1970s 

in the Rockefeller law, the same thing happened in New York. And 

guess what? The same results happened. Mules or some grandmother or housewife that was asked to hold something, and if it 

met the proper weight, there was no judicial discretion. You had 

to go away. And, finally, last week, Governor Paterson has signed 

a bill revoking the Rockefeller laws. I think this Congress should 

do the same. 

Chairman DURBIN. So you heard Senator Graham earlier, and he 

expressed a sentiment we all feel. We want fairness and we want 

justice, but we want to do something smart to reduce the use of 

narcotics. 

Chief TIMONEY. Right. 

Chairman DURBIN. You have been on one end of this conversation, risking your life in New York and Philadelphia and Miami, 

and watching your men and women in uniform doing the same 

every day because of the scourge of drugs in America. 

What is the smart thing to do, assuming we get this one right 

and get this disparity fixed? But what is the smart thing for us to 

do so we can say to the American people we are not going soft on 

drugs here, we are going to go at this a different way, a smarter 

32 

way that could be more effective? You are on the firing line. Your 

men and woman are. What do you recommend? 

Chief TIMONEY. Two things. I think, one, those that are profiting, 

making money, deserve to go to jail. I think as far as sentencing, 

there are lots of aggravating factors you could put into the law, 

such as possession of a gun, violence, by a school, things of that 

nature. 

But when it comes to what my mother would say, the ‘‘poor 

unfortunates,’’ those that are addicted, that use it, they are sick, 

then I think the right option is treatment. But use the criminal justice system as a lever to force them into treatment. 

I did something like that in Philadelphia. It was successful. I do 

not think it was continued after I left. But what we did, when we 

would do these—I do not want to call them ‘‘round-ups,’’ but you 

would do an operation to get sellers, but we would also get some 

users. We had a drug treatment center, and with the concurrence 

of the D.A., we told them, ‘‘Here is your choice. You can come with 

us now to jail, or you can go over here and register with this drug 

clinic.’’ And most of the time they went over to register with the 

drug clinic. 

Now, the problem was there was not enough money available. 

There was not enough treatment. But I think you have to do both. 

You need to be tough on the enforcement end, but on the treatment 

end, I think you need to have a heart. 

Chairman DURBIN. What do you think about the fact that so 

many people are in prison today for drug-related crimes, many of 

whom were addicts themselves, and most of whom receive little or 

not treatment or counseling once incarcerated? 

Chief TIMONEY. You know, whether it is treatment for drugs or 

education, you really have a captive audience—I hate to play that 

pun—and why wouldn’t you use that year or 2 years or 3 years to 

create some good in there? So if it is drug treatment, by all means, 

give them that, but also the education. What we see in Miami and 

other cities are young men going in, late teens, early 20s, do not 

know much, do not have a high school education. But the one thing 

they learn in there is how to be better criminals when they come 

out. And I am not a softie, but that is the reality that we face. And, 

you know, it is no surprise that they come out and reoffend within 

3 to 6 months, because there has been no effort—you know, the 

non-sexy part of the criminal justice system is the corrections part. 

Everybody wants to—and I like getting the resources to the cops. 

We are the sexy part. But the hard part is the back part, the corrections, and not enough money goes there. 

Chairman DURBIN. That is your point, Mr. Hutchinson. You 

talked about resource allocation here and putting a lot of resources 

and going after the crack cocaine offender instead of going after 

what you think—and I happen to agree—are the real sources of the 

problem. And I thought you made an interesting challenge to us, 

and I am going to challenge you right back. If you do not go after 

it by quantity—you have been around this as a prosecutor and at 

the Federal policy level—what do you think is a more effective way 

to go after this scourge of narcotics? How would you write the law 

now that you have seen this from so many different aspects? 

33 

Mr. HUTCHINSON. Well, the Sentencing Guidelines have built in 

different criteria that they give credit if you are in a managerial 

role or you have a sentence enhancement, you know, if you are 

profiting, if you are financing, if you have got financial assets that 

you have invested as a result of the drug trade. All of these indicate that you are—whether you are kingpin or whether you are a 

mid-level dealer, it shows that you have a high level of culpability 

and responsibility. 

Those are the types of factors that I think Congress should build 

into targeting our resources, and obviously, you build the sentencing structure, but the law enforcement officials are going to 

take that and say this is the priority. And so that is where we 

ought to be investing our resources. 

As I indicated, in Arkansas—and I think this is reflected nationwide—whenever you can put somebody away for 5 to 10 years on 

a mandatory minimum for crack cocaine, well, that is rewarding 

law enforcement with long penalties. We want to encourage them 

to go beyond that to the higher-level dealers, and I think it starts 

with, if you are going to have mandatory minimums, let us not just 

have it quantity based but have it based upon the real role they 

play in the trafficking enterprise. 

Chairman DURBIN. You heard Mr. Parker’s story about his sister. 

She does not sound to me like a big trafficker in drugs. The story 

sounds to me like a very vulnerable woman who faced addicting 

and a lot of bad choices and now is sentenced to 22 years in prison 

as a result of it. So let me ask you to respond to his story from 

his family’s side. 

Mr. HUTCHINSON. Well, his point is well taken that if it had been 

powder cocaine, then it would have been probably half the sentence. But the fact is that if it had been powder cocaine, a Federal 

prosecutor probably would have looked at that and said let us defer 

this to State prosecution; it is not a serious enough offense even to 

pursue. 

We do not know all the factors, but I think that very well could 

have been the judgment. And if it, in fact, had been in State court 

then, I would hope they would look at this and say this is a lady 

with an addiction problem. Primarily she has an addiction problem. 

And let us make sure that she has the treatment necessary to get 

over that addiction. And that is not to minimize the conduct. There 

is a second offender element here. There is a selling offense that 

is here. But, clearly, his heart-wrenching story really cries out to 

Congress for the need to remedy this disparity. 

Chairman DURBIN. Thank you. 

Senator Hatch? 

Senator HATCH. Well, I want to thank all three of you for being 

here. I am in the middle of a big Finance Committee markup—not 

markup but session on health care. But I have appreciated all the 

testimony I have heard. 

Chief Timoney, I think you have added a lot here today, and nobody is going to think you are a pushover, so do not worry. 

[Laughter.] 

Senator HATCH. And, Asa, you have been one of the more erudite 

people around here for years, and, frankly, I am very pleased to listen to your testimony. 

34 

Mr. Parker, I empathize with you and your sister. I think we 

have far too many people who are drug addicted in jail. We have 

got to find a better system than what we have now because, generally, prison does not necessarily help them get over their addictions. It can in some areas where you have enlightened leadership 

and so forth, but there are a lot of areas where we do not have enlightened leadership and where it does not work. 

So I have been a proponent of trying to narrow this difference 

between crack and powder cocaine for years, and hopefully we can 

do something, Mr. Chairman, and get that changed this year. But, 

also, we need to go beyond that. We need to come up with a better 

way of handling these kids that otherwise have not had much of 

a chance, who get addicted and find some way, short of prison. In 

cases like Asa said, Mr. Hutchinson said, your sister, there are 

some other factors there that made them probably want to put her 

in jail for longer, but, still, I think we need a better system where 

we can hopefully do some things for these folks short of prison. 

That may be hoping for too much sometimes, but I have been 

thinking about this for a long time, and we are not winning this 

war on drugs at all, in my opinion, and we need a better system. 

Hopefully we can in this Judiciary Committee work during this 

coming year or so to try and come up with a better system that 

makes sense and yet would be properly supervised and managed. 

But thank you, Mr. Chairman, I appreciate it. And I am going 

to keep helping here and see what I can do to work with the Chairman and others to resolve this very, very difficult set of situations. 

Chairman DURBIN. Thank you, Senator Hatch. I know you have 

important responsibilities in the Finance Committee. If you had 

been here earlier, you would have heard me say something nice 

about you on the record. 

[Laughter.] 

Senator HATCH. Somebody tell me what he said. 

No, he is a good friend—tough as nails, but I am not exactly considered a pushover myself. 

Chairman DURBIN. Thanks a lot. 

Senator HATCH. I appreciate it. 

Chairman DURBIN. Chief Timoney, I am not going to just single 

you out, but if we could have the help of law enforcement professionals like yourself in thinking about how to respond to this and 

perhaps doing the right thing here and figuring out what else by 

way of sentencing or policy—Mr. Hutchinson as well—that we can 

change that might really help us do something effective to reduce 

drug usage, your voice and the voice of your fellow professionals 

could really make a difference in this conversation, and I hope you 

will accept that invitation if we get back to you. 

Chief TIMONEY. I will, and, Senator, thank you for the opportunity. I am also the President of PERF, and over here is our Executive Director, Chuck Wexler, who does an awful lot of work with 

the Federal Government. But as you move forward, if you need— 

I hope I am not speaking out of class, Chuck. If you need the assistance of PERF, because we represent most of the major chiefs 

across America, across the world really, that input of PERF by all 

means, call on us. 

Chairman DURBIN. We need you and I thank you. 

35 

Mr. Parker, thanks. Tell your sister we are thinking about her, 

and I hope you will share some of the things that were said today. 

And I hope it gives her some hope to carry on. Maybe at the end 

of the day there will be justice, and I would love to see her back 

with those kids as soon as possible. I think that would really be 

justice and fairness at this point. 

Mr. Hutchinson, thank you as well. 

There are a lot of statements that will be made part of the record 

here, without objection—and there is no one here to object. 

[Laughter.] 

Chairman DURBIN. Since there are no further comments from 

our panel, I would like to thank you all for being here. The record 

will remain open for a week for additional materials, and written 

questions for the witnesses may be sent your way, which I would 

appreciate timely response to. 

As we close this hearing, I urge everyone to remember Eugenia 

Jennings’ children—Radley, Radisha, Cardez—and also Judge Murphy’s plea to Congress when he sentenced Ms. Jennings to almost 

22 years in prison, and I quote, ‘‘It is an awful thing, an awful 

thing to separate a mother from her children.’’ 

This hearing is adjourned. 

[Whereupon, at 11:50 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submission for the record.] 

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