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CRACKED JUSTICE—ADDRESSING THE UNFAIRNESS 

IN COCAINE SENTENCING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 26, 2008 

Serial No. 110–134 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

BETTY SUTTON, Ohio 

LOUIE GOHMERT, Texas 

J. RANDY FORBES, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 26, 2008 

Page 

OPENING STATEMENT 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary ............................. 5 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 5 

WITNESSES 

The Honorable Charles B. Rangel, a Representative in Congress from the 

State of New York 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 7 

The Honorable Roscoe G. Bartlett, a Representative in Congress from the 

State of Maryland 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

The Honorable Reggie B. Walton, Judge, U.S. District Court for the District 

of Columbia, Washington, DC 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

The Honorable Ricardo H. Hinojosa, Chair, United States Sentencing Commission, Washington, DC 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

Ms. Gretchen Shappert, U.S. Attorney for the Western District of North 

Carolina, U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 45 

Prepared Statement ............................................................................................. 48 

Mr. Joseph I. Cassilly, State’s Attorney for Harford County and PresidentElect of the National District Attorneys Association, Bel Air, MD 

Oral Testimony ..................................................................................................... 59 

Prepared Statement ............................................................................................. 61 

Mr. Michael Short, former offender, Maryland 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 68 

Page

IV 

Mr. Michael Nachmanoff, Federal Public Defender for the Eastern District 

of Virginia, Alexandria, VA 

Oral Testimony ..................................................................................................... 69 

Prepared Statement ............................................................................................. 72 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 111 

(1) 

CRACKED JUSTICE—ADDRESSING THE 

UNFAIRNESS IN COCAINE SENTENCING 

TUESDAY, FEBRUARY 26, 2008 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:05 p.m., in room 

2237, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Scott, Nadler, Jackson Lee, 

Smith, Gohmert, and Coble. 

Staff present: Bobby Vassar, Subcommittee Chief Counsel; 

Ameer Gopalani, Majority Counsel; Rachel King, Majority Counsel; 

Mario Dispenza (Fellow), ATF Detailee; Veronica Eligan, Majority 

Professional Staff Member; Caroline Lynch, Minority Counsel; and 

Kelsey Whitlock, Minority Staff Assistant. 

Mr. SCOTT. Good afternoon. The Committee will now come to 

order. I am pleased to welcome you today to the hearing before the 

Subcommittee on Crime, Terrorism, and Homeland Security entitled ‘‘Cracked Justice—Addressing the Unfairness in Cocaine Sentencing.’’ We will be discussing legislation currently pending before 

the House, including H.R. 79, H.R. 460, H.R. 4545 and H.R. 5035. 

It appears that most Members of Congress, as well as the public, 

agree that the current disparity in crack and powder cocaine penalties is not justified and that it should be fixed. However, there 

is not yet a clear consensus on what that fix should be. Science 

shows that there is no significant pharmacological difference between the two forms of the same drug, and there is no credible evidence or history to show a justification for either the current or any 

other disparity in penalties for the two forms of cocaine. 

Method of ingesting a drug does not seem to be a justification for 

different penalties. Whether smoked, snorted or injected, penalties 

for no other drugs are based on the manner of ingestion. 

Neither violence nor any other history of use between the forms 

seems to justify the difference in penalties. The Sentencing Commission reports show that 90 percent of crack transactions do not 

involve violence, compared to 94 percent of powder transactions 

that do not. Such a small difference can easily be handled by enhancing penalties based on the violence of a particular case, whether crack or powder, rather than generally based only on the form 

of the drug. 

2 

The original basis for the penalty differentiation was neither 

science, evidence or history based, but political bidding based on 

who could be the toughest on the crack epidemic that was believed 

to be sweeping America several years ago. There is certainly no 

sound basis for a 5-year mandatory minimum sentence for the 

mere possession of five grams of crack, when you could get probation for possessing a ton of powder, because mandatory minimum 

sentences for powder only apply to distribution, not possession 

cases. 

Mandatory minimum sentences generally have been shown to be 

ineffective. Indeed, mandatory minimums have been studied extensively and have been found to distort any rational sentencing process to the point of violating common sense. It discriminates in application against minorities and wastes money, when compared to 

traditional sentencing approaches. 

While there is no real difference between crack and powder cocaine, the distinction has real consequences. More than 80 percent 

of the people convicted in Federal court for crack offenses are African Americans and are serving shockingly long sentences, while 

people who have committed more serious offenses are serving 

shorter ones. African American communities have been hit hard, 

and many people have lost confidence in our legal system. 

The U.S. Sentencing Commission has released at least four reports in the last 14 years on this subject, each time urging Congress to amend the cocaine sentencing laws. So far these exhortations have fallen on deaf ears. I am hoping that this hearing will 

be the beginning of the coming to a consensus about the best way 

to solve the problem. 

There are many bills that will be considered, and what I have 

introduced is H.R. 5035, The Fairness in Cocaine Sentencing Act 

of 2008. It is a simple bill that goes the furthest in addressing the 

problems in the current cocaine sentencing laws. 

First, it eliminates the legal distinction between crack and powder cocaine, treating them as the same drug, which they are. The 

bill also eliminates all mandatory minimum sentences for cocaine 

offenses. And lastly, it authorizes funding for state and Federal 

drug courts, which have both proven to be effective in preventing 

recidivism and saving money, when compared to longer periods of 

incarceration. 

In the late 1980’s and 1990’s, states’ court systems began to develop drug courts. Instead of locking everybody up, these courts decided to try something different. Drug offenders were placed on 

probation, with the condition that they enter into a drug treatment 

program. They were allowed to stay in their communities with 

their families, keeping their jobs and being productive members of 

society, while the drug court judges kept a close on them, offering 

them help as needed and providing sanctions when appropriate. 

Drug courts are working. Studies have repeatedly shown that 

they are not only reducing crime, but saving money, and it is imperative that these drug courts continue to operate. My bill provides continued financial support for state drug courts, and it authorizes money for Federal drug courts, where the need exists. 

Finally, my bill eliminates all mandatory minimum sentences for 

cocaine offenses, handing back the sentencing decisions to judges, 

3 

who are best equipped to determine the appropriate sentence in individual cases. Judges know how to do their jobs. We need to let 

them do it. 

Indeed, mandatory minimum sentences should be eliminated in 

all instances, as the Federal Judicial Conference has often asked 

us to do. And I can’t think of a better place to start than with the 

cocaine sentencing laws. 

I would hope that Members would join in supporting H.R. 5035 

and that today will be beginning of the end of two decades of legal 

discrimination. 

It is my pleasure now to recognize the esteemed Ranking Member of the Subcommittee, the Honorable Louie Gohmert, who represents Texas’ first congressional district. 

Mr. GOHMERT. Thank you, Chairman Scott. I want to thank you 

for scheduling this hearing on this important matter. 

Some perceive that the different treatment of cocaine and powdered cocaine has an unfair impact on African American offenders. 

On the other hand, some claim that more severe treatment of crack 

cocaine offenders is justified because of the higher rate of violence 

associated with crack cocaine trafficking. Some with no knowledge 

of the history of this disparate or distinctly treatment for crack and 

powder cocaine have even claimed that it has its roots in racial 

prejudice. However, just the opposite appears to be true. 

Over 20 years ago Congress enacted statutory mandatory minimum sentences for various illegal drugs, including a 5-year mandatory minimum sentence for trafficking five grams of crack cocaine and 500 grams of powder and a 10-year mandatory minimum 

sentence for trafficking 50 grams of crack cocaine and five kilograms of powder cocaine. 

The 100:1 ratio between crack cocaine and powder cocaine was 

enacted in response to an epidemic of violence across America associated with the trafficking of crack cocaine. Democratic leaders 

were the primary sponsors of Federal drug sentencing policies, including this dissimilar treatment of crack cocaine and powder cocaine. 

In fact, one of the Members who was on the Committee back during debate of this matter 20 years ago recalled that some Members 

of Congress were individually challenged that failure to pass the 

bill with the tougher sentences for crack would potentially be racist 

for not caring enough about African American communities to 

make the penalty for spreading such poison in their midst far 

tougher than powder cocaine. 

In 1986, 17 of 21 African American House members had co-sponsored the bill making this disparate treatment a part of the sentencing. Congressman Rangel was so effective in his advocacy for 

this bill—now being condemned by many—that at the signing ceremony, President Reagan called attention to Congressman Rangel 

as one of the ‘‘real champions in the battle to get this legislation 

through Congress.’’ 

In some ways these drug sentencing policies have had a significant impact in reducing violence in our cities, but rather than viewing criminal offenses through rational eyes, one important consideration by the Sentencing Commission is the data and studies 

4 

showing that crack cocaine is associated with violence to a greater 

degree than most other controlled substances. 

In fiscal year 2002, 23.1 percent of all Federal crack offenders 

possessed a weapon—almost double that of powder cocaine at 12.1 

percent rate. In fiscal year 2005, weapon involvement for crack cocaine offenders was 27.8 percent versus 13.6 percent for powder cocaine offenders. 

In addition, the percentage of crack defendants at criminal history category six—those offenders with long criminal records—increased to 23.5 percent in fiscal year 2005 from the 20.2 percent 

figure in fiscal year 2002. A much smaller percentage of powder cocaine defendants were involved with a weapon or weren’t at criminal history category six in both 2002 and 2005. 

The Justice Department’s views on this issue are of particular interest, since Federal prosecutors are on the frontlines, fighting the 

war against drug related violence in our communities. Attorney 

General Mukasey has raised serious and significant concerns with 

respect to the Sentencing Commission’s retroactivity decision, noting that ‘‘nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide.’’ 

I share the attorney general’s concern about the U.S. Sentencing 

Commission has reached in amendments to the Federal sentencing 

guidelines and its decision to apply those changes retroactively to 

incarcerated defendants. As a former judge and chief justice, I am 

vigilantly reluctant to legislatively overturn the past judgment of 

judges or juries, who were in the best position to consider the offense and the offender. 

I support a re-examination of Federal drug sentencing laws and 

do believe this is worth a bipartisan re-examination of these laws 

during this session. To me the role of Congress should be to set a 

range of punishment for different offenses or offenses with different 

elements, then allow the courts to set the sentence within that 

range. Such constitutional obligations should not necessarily be 

delegated, in my opinion, to a Sentencing Commission. 

I would also submit that there is another lesson to be learned 

here. Even when Members of Congress are encouraged to create 

different treatment for any matter based on a racial consideration 

of any kind, even when such encouragement is coming from members of that race, it should require heightened scrutiny. Race simply should not be a reason for a call to action for treating anyone 

or any offense differently. 

In the present case, perhaps the proper solution is to make sentence ranges the same for cocaine and crack, but add other elements that would increase the range, such as possession of a weapon during the crime or actual violence during the crime or violence 

with a deadly weapon actually used during the crime. 

With that, Mr. Chairman, we appreciate the witnesses being 

here today and look forward to their input. And I look forward to 

the continuing discussion of this issue by our Committee. Thank 

you. 

Mr. SCOTT. Thank you—if other Members have statements they 

would like to give. 

The first panel will consist of Members—— 

5 

Mr. GOHMERT. Mr. Chairman. 

Mr. SCOTT. The gentleman from Michigan? 

The gentleman from Michigan, Chairman of the full Committee, 

Mr. Conyers? 

Mr. CONYERS. I wanted to welcome the witnesses, Chairman 

Scott, a formidable array of distinguished people. I look forward to 

this important hearing. 

Is there a seat for Chairman Rangel here? Oh, yes. 

Over the past 20 years, our Nation’s laws with respect to cocaine 

sentencing have resulted in a penal system unjust, racially disparate, and arguably in violation of the Constitution’s equal protection clause. Most of us, even including the Administration, agree 

that the current system is unfair and that change is needed, but 

what change? 

Crack cocaine offenders, almost all of whom are racial minorities, 

receive sentences of up to eight times longer than those convicted 

for the same amount of cocaine in powder form. That is well understood. And so this is the first time in over a decade that Congress 

can enact much needed reform. 

And that is what makes 10 of you as important, thoughtful witnesses so important this afternoon. 

The Supreme Court has provided impetus, and various Members 

have introduced bills to reform the system, including four bills we 

will hear about today. I would like to see these reforms take shape, 

as I conclude, in three ways. 

We must dispel the myths associated with the current system. 

We must do away with all mandatory minimum sentences that 

exist in the current system. And finally, we need to offer innovative 

solutions that are proven to work. 

The Ranking Member of the Crime Subcommittee—Judge 

Gohmert—and Chairman Scott have authorized an ambitious bill, 

which would not only eliminate mandatory minimum sentences, 

but authorize money for the state courts. 

I ask unanimous consent to insert the rest of my statement in 

the record. And I thank you very much, Chairman Scott. 

Mr. SCOTT. Thank you. 

I recognize the gentleman from Texas—— 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. SCOTT [continuing]. Member of the full Committee. 

Mr. SMITH. Thank you, Mr. Chairman. 

I also want to thank the Ranking Member of the Subcommittee 

for his insightful opening statement just a couple of minutes ago. 

And my statement is not going to go the full 5 minutes, so we will 

not be late getting to the vote. 

Last May the U.S. Sentencing Commission voted to reduce crack 

cocaine sentences by an average of 16 months. As a result, next 

Monday, March 3, more than 1,500 Federal crack cocaine offenders 

will be eligible for release from prison. Over three-quarters of these 

criminals are repeat offenders, and 98 possessed firearms during 

the commission of their crimes. 

The early release of these individuals poses a significant threat 

to innocent Americans. According to the commission’s own data, 80 

percent of those eligible for release next Monday have been convicted of other crimes. Research by the commission also shows that 

6 

those with the most serious criminal records—142 offenders—will 

likely commit another crime after they are released. 

Congress and the American people also should be able to find out 

how many violent repeat offenders, who may be released early next 

week, commit additional crimes. This data is critical to understanding the impact of the commission’s reduction of crack cocaine 

sentences. 

Finally, many crack offenders eligible for release next week will 

not be able to participate in pre-release programs designed to help 

them transition back to their communities and so reduce recidivism. This is astounding, in light of the broad bipartisan support 

in the House for the Second Chance Act, which funds extensive 

new re-entry programs for offenders. 

The Department of Justice has called on Congress to enact legislation to reverse the ruling, particularly its application to violent 

repeat offenders. Congress should act before next Monday to prevent the release of numerous violent offenders into our communities. If Congress does not act, it is certain that innocent children 

and adults will unnecessarily become the victims of violent crime. 

Congress should stop that from happening or assume responsibility 

for the pain and suffering caused by these preventable crimes. 

I thank you, Mr. Chairman, and I will yield back. 

Mr. SCOTT. We have a vote scheduled. We have a couple of minutes, if—— 

Mr. Rangel, do you want to make your statement now? 

TESTIMONY OF THE HONORABLE CHARLES B. RANGEL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. RANGEL. Extremely grateful, because the facts are abundantly clear. And I am so glad that your Committee and your Subcommittee and the full Committee have seen fit to air the injustices 

that exist in our system. I am a former Federal prosecutor, and believe me, in order for a law to be respected, it has to be consistent, 

and it has to make sense. 

There is no question in my mind that those people who thought 

that people involved with possession of crack should be sentenced 

at higher thought—that it would in some way serve the community 

better. Clearly, that is not the case, and we find that to take the 

discretion in determining who goes to jail and who doesn’t go to jail 

is showing lacks of confidence in our judges. 

I can tell you that anyone who knows Federal judges will tell you 

that in many of the mandatory cases, judges have refused to convict. They just refuse to be pushed around. They refuse to give 

someone 5 years and use the excuse of reasonable doubt just because they believe the person should have gotten 1 year or should 

have gotten a reprimand or should have been punished in some 

way. But to tell them that to decide that a reasonable doubt, that 

they have to lose their common sense in judgment in terms of sending someone to jail for 5 or 10 years to me doesn’t make a lot of 

sense. 

So I introduced a bill that eliminates the mandatory and takes 

away the disparity between how cocaine is sold, whether it is crack 

or whether it is in powder. 

7 

And I am so glad, Mr. Chairman, that you have your bill, and 

Sheila Jackson Lee. 

And I only hope that once we get our common sense back that 

we take a look at the entire question of mandatory sentences. If we 

don’t trust our judges, then just put in different sets of facts, let 

a machine come out and give a sentence and get away from all of 

this having to decide what is in the best interest of justice. 

So thank you for this opportunity, and I will do whatever I can 

and go wherever I can to bring equity and fairness to the system. 

And this is really done by just being fair. 

[The prepared statement of Mr. Rangel follows:] 

PREPARED STATEMENT OF THE HONORABLE CHARLES B. RANGEL, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF NEW YORK

Good afternoon Chairman and members of the subcommittee. Thank you for inviting me to speak at a hearing of such import and consequence, one addressing the 

injustice of stringent crack cocaine sentencing. 

The drumbeat for change has never been louder: Unfair sentences for low-level 

crack cocaine offenders just have got to stop. Over the past few months, authorities 

in the other branches have gotten the message. Last year, the Supreme Court restored judicial discretion and flexibility in sentencing, and the Sentencing Commission retroactively lowered its sky-high sentencing guidelines. It is now up to my colleagues in Congress to follow suit and do away with the 20-year legacy of an unjust 

and nonsensical drug policy. My bill, H.R. 460, The Crack Cocaine Equitable Sentencing Act, would do just that, by eliminating the mandatory minimum for simple 

possession of crack or powder and reducing all other cocaine sentencing disparities 

to equal levels. 

At the time these stiff penalties were enacted, they were seen as the well-intentioned cure to a frightening epidemic. The sudden rise of this new street drug, crack 

cocaine, impelled besieged lawmakers to slap the same 5-year sentence for possessing 500 grams of powder as it did for 5 grams of crack. But instead of reducing 

drug addiction and crime, those laws have swelled our prisons, fueled a racial divide 

that jails young Black men at disproportionate rates, left a generation of children 

fatherless, and driven up the costs of a justice system focused more on harsh punishment than rehabilitation. 

No one condones the suffering inflicted on society by drug abuse and crime. But 

neither should we accept the needless devastation caused by disproportionately 

harsh drug laws. The numbers paint a grim picture: 500,000 of this country’s 2.2 

million prisoners are locked up for drug crimes, the majority on petty charges with 

no history of violence or high-level drug dealing. Caught in a cycle of poverty, crime 

and recidivism, it’s no wonder that more than half of African American, male high 

school drop-outs have spent time in jail. 

There are more effective and useful alternatives: treatment, for one, and better 

still, rescuing at-risk youth before they drop out of school and succumb to the allure 

of drugs and street life. To me, the growing incidents of dropouts, drugs, and crime 

are national security issues, threatening our ability to compete in the global economy. We cannot shortchange this, or future, generations and threaten our competitive standing in the world by allowing failing schools, sky-high dropout rates, an unskilled workforce, poverty, and hopelessness. We cannot afford to cede ground to 

countries like India and China, by allowing any of our youngsters to go astray while 

our standing in the world dwindles. 

The policy of targeting crack cocaine users and sellers has diverted law enforcement’s focus away from incarcerating drug kingpins who supply them. It seems to 

me there could be a more judicious allocation of resources at both ends of the drug 

pipeline: Choke off the flow of drugs before they reach small-time thugs on our 

streets and rehabilitate more of those who slip through the cracks. For them, the 

stigma of a prison sentence is a ticket to a career of crime. Jailing nonviolent offenders at these rates does little more than turn stupid kids who make stupid mistakes 

into expert criminals. 

The Bush administration is attempting to blunt the Sentencing Commission’s decision, relying, once more, on a politics of fear to stunt our progress. Attorney General Mukasey has suggested that the ‘‘sudden influx of criminals from federal prison 

into your communities could lead to a surge in new victims as a tragic, but predictable, result.’’ That fear is not borne out of by the facts. Most of the prisoners eligible 

8 

for sentence reductions are low-level dealers, addicts, carriers. Every individual release or reduction is subject to judicial review, the process will be staggered over 

30 years, and $1 billion in prison costs will be spared. 

The status quo in federal sentencing has proven anathema to racial justice, in effect if not intent: Blacks account for 38 percent of drug arrests and 59 percent of 

convictions, although they are only 13 percent of drug users. Excessively punitive 

mandatory minimums are fueling that racial gap, targeting minority communities 

where crack cocaine is the drug of choice. The disparity is 100-to-1—and an average 

difference of 40 months in jail time—for two drugs experts say have no significant 

differences. Well, here’s one significant difference: Over 80 percent of sentenced 

crack offenders are Black. 

Correcting uneven punishment for nearly identical offenses has nothing to do with 

clemency for crack traffickers and users. It has everything to do with equality before 

the law. The smartest approach employs good sense; the most moral approach employs compassion. The very best approach employs both 

Mr. SCOTT. Thank you very much, Mr. Rangel. 

You are a Member of the Subcommittee, so you will be coming 

back anyway. Could we accommodate Mr. Bartlett at this time? 

Thank you. 

TESTIMONY OF THE HONORABLE ROSCOE G. BARTLETT, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

MARYLAND 

Mr. BARTLETT. Thank you very much for the opportunity to share 

my views with you today concerning the 100:1 crack versus powder 

cocaine disparity. I recognize in 2002 that this ratio that had been 

adopted in haste and driven by fear was not justified by the facts. 

I thought that on its face it was clearly discriminatory and not 

something that a rational society should be supporting. 

I recognize that this disparity, which discriminated against lower 

income individuals, who more often used crack, was not justified by 

the effects of crack compared to powder cocaine, and I introduced 

a bill to address it. Since then, more evidence has accumulated to 

strengthen my conviction. I am here today to specifically welcome 

and support the position of the National District Attorneys Association that sentencing disparity should be reduced or eliminated. I 

welcome this hearing. I hope that Congress will follow the recommendations of numerous authorities and approve reducing or 

eliminating this ratio. 

This past December the U.S. Sentencing Commission unanimously voted to reduce retroactively lengthy sentences meted out 

to thousands of people convicted of crack cocaine related offenses 

over the past two decades. That same month the U.S. Supreme 

Court ruled that a Federal judge hearing a crack cocaine case may 

consider the disparity between the guidelines treatment of crack 

and powder offenses. 

I would like to note that we represent one person out of 22 in 

the world, and out of the three million prisoners in the world, we 

have 2.1 million of them. On its face that would appear to indicate 

that we are far and away the most lawless society in the world. I 

don’t think that is true, and I think that what this really mandates 

is a fresh look at our criminal justice system and why one out of 

every 150 of us is in jail. That doesn’t appear in any other major 

country in the world. 

Most of these decisions reflect a growing concern that there 

should not be a 100:1 ratio in the amounts of powder cocaine and 

9 

crack cocaine that trigger mandatory minimum sentences. We now 

have more and better information than we did in the past in order 

to assess the ratio and make adjustments. Any changes to ratio 

must be based on empirical data. 

I am a scientist and have a Ph.D. in human physiology, where 

there is substantially more evidence that we have now that a 100:1 

unequal treatment is not justified. Our laws should reflect the evidence of harm to society. If we argue the justice ratio, we would 

be clinging to fear instead of facts. 

There should be bipartisan support for the adjustment in the 

ratio. The law places great value in maintaining precedent, but 

precedent based on fear should not be protected. 

I am also an engineer. As an engineer I know that in order to 

make improvements, we should be in a constant state of re-examination. The past good faith reasons for the 100:1 disparity cannot 

be justified by the current evidence that has accumulated. Politics 

and the law must catch up to scientific evidence. 

In 2002 I introduced a bill to eliminate the disparity in sentencing between crack and powder cocaine with regard to trafficking, possession, importation and exportation of such substances 

by changing the applicable amounts for powder cocaine to those 

currently applicable for crack cocaine. 

I introduced it several times since then. Now we have even more 

substantial evidence and support for addressing disparities in the 

law regarding crack and powder cocaine than we did then. Joe 

Cassilly, state’s attorney for Harford County in my district, will address the evidence and put forth reasons that a certain myth 

should be dispelled. 

A 100:1 ratio cannot be justified by evidence. Congress should 

not support the status quo. I hope that my colleagues will not allow 

the pursuit to prevent the potential adoption of a compromise that 

would reduce the unjustified current 100:1 disparate ratio of the 

treatment of crack compared to powder cocaine. 

Thank you very much for your efforts on behalf of the Congress 

to address the goal of justice in our society. Thank you. 

[The prepared statement of Mr. Bartlett follows:] 

10 

PREPARED STATEMENT OF THE HONORABLE ROSCOE G. BARTLETT, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MARYLAND


Bartlett.eps
11 

Mr. SCOTT. Thank you very much. 

We have about 5 minutes. We have several votes, so it will be 

approximately 20 to 30 minutes before we reconvene, but we will 

reconvene as soon as we can possibly get back. 

[Recess.] 

Mr. SCOTT. The Subcommittee will come to order. We had a couple of procedural votes that we did not expect, so I apologize for 

the delay. When we recessed, we were about to hear the testimony 

from the representative of the 18th district of Texas, a Member of 

the Judiciary Committee and the sponsor of H.R. 4545, Ms. Jackson Lee. 

TESTIMONY OF THE HONORABLE SHEILA JACKSON LEE, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman and to 

the Ranking Member. Thank you for this crucial hearing and as 

well an opportunity to understand one of the parables in the bible, 

‘‘Blessed are the merciful, for they shall receive mercy.’’ 

For many in the criminal justice system, it is believed that mercy 

is not the defining aspect of criminal justice. But I offer to you a 

pictorial perspective of Lady Justice and the scales of justice. That 

pictorial depiction suggests that in fact a balance in justice is important. 

So clearly a 100:1 ratio in the disparities between crack cocaine 

sentencing is not just. It is not merciful. It is not real. And I am 

delighted to be joined by Congressman Bartlett and Congressman 

Rangel, which shows a bipartisan support in opposition to what has 

been an unjust system. 

This legacy started with Len Bias’s death in the 1980’s, an outstanding athlete. I remember the enormous amount of sympathy 

poured out for this young, bright man who had the potential of 

making millions of dollars as a Boston Celtic. Congress then moved 

to address his life and his legacy through what has now become a 

very harsh example of what and how you treat young people who 

may have gone astray of the law. 

My legislation, hopefully, will put us back on track and really 

captures the theme that refutes much of the statements that have 

been made that suggest that we are trying to let criminals out. 

That is not what this legislation intends to do. 

It intends to fix a broken system, because what is really needed 

is that this system is bogged down by low-level cases and in fact 

the Justice Department, the U.S. Attorneys offices take pride in 

how many notches in their belt they can show, how many smalltime convictions. But yet the big potatoes, the kingpins, the cartels 

are left to their own devices. 

Mr. Chairman, let me acknowledge a good friend of mine that is 

in the audience, Keith Branch from Houston, Texas, who has 

worked for years in juvenile probation and has seen first-hand the 

unbalanced scales of justice. 

And so today I hope to briefly articulate the simple premise of 

this legislation. And again, I thank you for convening the hearing 

dealing with the disparity in sentencing for possession of powder 

cocaine and the simple possession of crack cocaine. 

12 

In December 2007, I introduced H.R. 4545, the Drug Sentencing 

Reform in Cocaine Kingpin Trafficking Act of 2007, so that we may 

finally eliminate the unjust and unequal Federal crack cocaine sentencing disparity in America. The time has come to finally right the 

wrongs created with the original drug sentencing legislation that I 

have mentioned that was passed in 1986. 

I am glad that this is a companion bill to Senator Biden in the 

Senate, and the deliberations that generated this legislation really 

were premised on the question of balance and mercy. 

As a senior Member of the full Judiciary Committee and a Member of the Subcommittee on Crime, I have always viewed this as 

a crucial issue. For the last 21 years, we have allowed people who 

have committed similar crimes to serve drastically different sentences for what we now know are discredited and unsubstantiated 

differences. 

For the last 21 years, the way we have punished low-level crimes 

for crack cocaine and powder cocaine have been unjust and unequal 

and a waste of the Nation’s criminal justice resources. Why? Because the kingpins are still running amok. 

In 1986, Congress linked mandatory minimum penalties to different drug quantities, which were intended to serve as proxies for 

identifying offenders who were serious traffickers, managers of retail drug trafficking, and major traffickers, manufacturers or the 

kingpins who headed drug organizations. It did not work. 

Since 1986, the severity of punishment between those sentenced 

for crack cocaine offenses and powder cocaine offenses has been extremely disproportionate, a 100:1 ratio to be exact. This has resulted in not only an unequal and unjust criminal justice system, 

but also a prison system which is overflowing and overburdened 

with individuals who were not in actuality major drug traffickers. 

I agree with Mr. Gohmert. This should not be a racial issue. And 

if those who were experiencing the disparity were 100 percent 

Asian, 100 percent Caucasian, 100 percent Latinos, I would be just 

as outraged by this inequity. 

And I think the U.S. Sentencing Commission that recently issued 

a report unanimously and strongly urging the Congress to, one, act 

swiftly to increase the threshold quantities of crack cocaine to trigger the 5-and 10-year minimum sentences so that Federal resources are focused on major drug traffickers as intended in the 

original 1986 legislation and to repeal the mandatory minimum 

penalty sentence for simple possession, the only controlled substance for which there is a mandatory minimum for a first time offense of simple possession. 

They themselves recognize that this is not a racial issue, even 

though the burden of sentencing falls upon African Americans. It 

is a justice issue. 

Moreover, numerous reputable studies comparing the usage of 

powder and crack cocaine have shown that there is little difference 

between the two forms of the drug, which fundamentally undermines the current quantity-based sentencing disparity. 

Accordingly, this legislation is supported by the recommendations of the Sentencing Commission and also the U.S. Supreme 

Court decisions—two opinions in the 7-2 decisions in early December, restoring the broad authority of Federal district court judges 

13 

to sentence outside the sentencing guidelines range and impose 

shorter and more reasonable prison sentences for persons convicted 

of offenses involving crack cocaine. 

However, it does impact on our U.S. Department of Justice or the 

U.S. attorneys, who I believe have publicly said that the law is still 

the law, and they will still prosecute in that format. 

In the most high-profile of the cases, Kimbrough v. United States, the court held that sentencing judges could sentence crack cocaine 

defendants below the guidelines range to reflect a view that crack 

sentences have been set disproportionately high in comparison to 

cocaine sentencing—again, recognizing the disparity. 

Additionally, the U.S. Sentencing Commission has been urging 

Congress to drop its 100:1 crack-to-cocaine ratio approach, and the 

court held that judges may take into account the evolving view that 

both drugs merit equal treatment when calculating prison time. 

It is time for Congress to act. The bill that I have offered will 

eliminate the disparities in cocaine sentencing and the current 

mandatory minimum for simple possession. In addition, this bill 

will increase emphasis on certain aggravating and mitigating factors, create an offender drug treatment incentive grant program 

and increase penalties for major drug traffickers—what we were 

originally focused on doing. 

As I indicated, this bill is already filed in the Senate. Most importantly, this particular legislation will enact the measures that 

the U.S. Sentencing Commission has requested from Congress. It 

is long overdue. 

This legislation will also fundamentally change the way we punish drug traffickers. This legislation dramatically increases the 

monetary punishment for those convicted of trafficking drugs and 

at the same time creates grants for states to create incentive based 

treatment programs for low-level drug offenders. That is the way 

that we should go. 

Blatant and unjust inequality under the law must end. This bill 

will ensure that those individuals who have violated the law will 

be punished fairly relative to the punishment. We cannot allow this 

injustice to continue, and this bill does not let people out without 

guidelines. 

It is legislation that is balanced and supported by a number of 

organizations, including the Sentencing Project, the ACLU, the 

American Bar Association, the Drug Policy Alliance, and the Open 

Society Policy Center. 

I also want to ensure that this legislation does recognize the 

value of Second Chance. 

Let me conclude, Mr. Chairman, by simply saying that we have 

an enormous burden. There are thousands of individuals incarcerated under the unfairness of this system, and I believe that in 

keeping with the tenets expressed by the pictorial depiction of Lady 

Justice, we have failed, and we have not kept up with those principles. 

And therefore, this legislation allows us to do so, in addition to 

H.R. 261, which I hope we will have a hearing on, that expresses 

the desire to allow non-violent offenders to be released after serving a certain amount of time. It relates to the overcrowding of our 

jails with most of these crack cocaine defendants. 

14 

So I ask my colleagues to consider this legislation. I look forward 

to changing the legacy of Len Bias in ensuring that there is fairness in our system and as well to ensure that we provide rehabilitative measures to those who have lost their way in the usage of 

crack and focus our efforts on ensuring that king traffickers are 

put in jail, but more importantly, that we address the drug question in America with mercy. 

With that, I yield back, and I ask that my entire statement may 

be submitted into the record. 

[The prepared statement of Ms. Jackson Lee follows:] 

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDI- CIARY

Thank you, Mr. Chairman, for your leadership in convening today’s very important hearing on the disparity in sentencing for possession of powder cocaine and the 

simple possession of crack cocaine. I would also like to thank the ranking member, 

the Honorable Louie Gohmert, and welcome our panelists. I look forward to their 

testimony. 

In December 2007, I introduced H.R. 4545 ‘‘The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007’’ so that we may finally eliminate the unjust 

and unequal federal crack/cocaine sentencing disparity in America. The time has 

come, to finally right the wrongs created with the original drug sentencing legislation in 1986. 

As a senior Member of the Full Judiciary Committee and a member of the Subcommittee on Crime, I have always been an outspoken advocate for justice and 

equality in our criminal justice system. For the last 21 years, we have allowed people who have committed similar crimes to serve drastically different sentences for 

what we now know are discredited and unsubstantiated differences. For the last 21 

years, the way we have punished low-level crimes for crack cocaine and powder cocaine have been unjust and unequal. 

In 1986, Congress linked mandatory minimum penalties to different drug quantities, which were intended to serve as proxies for identifying offenders who were 

‘‘serious’’ traffickers (managers of retail drug trafficking) and ‘‘major’’ traffickers 

(manufacturers or the kingpins who headed drug organizations). 

Since 1986, the severity of punishment between those sentenced for crack cocaine 

offenses and powder cocaine offenses has been extremely disproportionate, 100 to 1 

ratio to be exact. This has resulted in not only an unequal and unjust criminal justice system, but also a prison system which is overflowing and overburdened with 

individuals who were not in actuality major drug traffickers. 

The U.S. Sentencing Commission recently issued a report that unanimously and 

strongly urged Congress to: (1) act swiftly to increase the threshold quantities of 

crack necessary to trigger the five- and ten-year mandatory minimum sentences so 

that federal resources are focused on major drug traffickers as intended in the original 1986 legislation; and (2) repeal the mandatory minimum penalty sentence for 

simple possession of crack, the only controlled substance for which there is a mandatory minimum for a first time offense of simple possession. The Sentencing Commission also unanimously rejected any effort to increase penalties for powder since 

there is no evidence to justify any such upward adjustment. 

Moreover, numerous reputable studies comparing the usage of powder and crack 

cocaine have shown that there is little difference between the two forms of the drug, 

which fundamentally undermines the current quantity-based sentencing disparity. 

I introduced H.R. 4545 ‘‘The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007’’ after the U.S. Supreme Court released two opinions in 7–2 decisions in early December 2007. These decisions restored the broad authority of federal district court judges to sentence outside the Sentencing Guidelines range and 

impose shorter and more reasonable prison sentences for persons convicted of offenses involving crack cocaine. In the most high-profile of the cases, Kimbrough v. 

United States, the Court held that sentencing judges could sentence crack cocaine 

defendants below the Guidelines range to reflect a view that crack sentences have 

been set disproportionately high in comparison to cocaine sentences. 

Additionally, the U.S. Sentencing Commission has been urging Congress to drop 

its 100–1 crack-to-cocaine ratio approach, and the Court held that judges may take 

into account the evolving view that both drugs merit equal treatment when calculating prison time. 

15 

It is time for Congress to act. H.R. 4545 will eliminate the disparities in cocaine 

sentencing and the current mandatory minimum for simple possession. In addition, 

this bill will increase emphasis on certain aggravating and mitigating factors, create 

an offender drug treatment incentive grant program and increase penalties for 

major drug traffickers. This bill complements the bill recently introduced in the Senate by Senator Biden. Most importantly, this resolution will enact the measures that 

the U.S. Sentencing Commission has requested from Congress. 

This legislation will also fundamentally change the way we punish drug traffickers. This legislation dramatically increases the monetary punishment for those 

convicted of trafficking drugs at the same time creates grants for states to create 

incentive based treatment programs for low-level drug offenders. 

H.R. 4545 amends the Controlled Substances Act and the Controlled Substances 

Import and Export Act to increase the amount of a controlled substance or mixture 

containing a cocaine base (i.e., crack cocaine) required for the imposition of mandatory minimum prison terms for crack cocaine trafficking to eliminate the sentencing 

disparity between crack and powder cocaine. 

Section 4 of H.R. eliminates the 5-year mandatory minimum prison term for first 

time possession of crack cocaine. 

Section 5 provides increase emphasis on certain aggravating and mitigating factors as a means of sentence enhancement. 

Section 6 directs the Attorney General to make grants to improve drug treatment 

to offenders in prison, jails, and juvenile facilities. H.R. 4545 authorizes $10 million 

dollars to carry out drug improvement. 

Section 7 provides grants to demonstration programs to reduce drug use among 

substance abusers. H.R. 4545 authorizes $5 million dollars for each of FY08 and 09. 

Section 8 provides emergency authority for the United States Sentencing Commission to provide amendments to take effect on the same date as the amendments 

made by this Act. 

Section 9 provides for increased penalties for major drug traffickers. 

Lastly, H.R. 4545 has a prospective effective. The amendments made by this Act 

shall apply to any offense committed on or after 180 days of enactment of H.R. 4545. 

Blatant and unjust inequality under the law must end. This bill will ensure that 

those individuals who have violated the law will be punished fairly relative to the 

punishment. We cannot allow this injustice to continue, and I urge you to support 

this timely resolution which is supported by the Open Society Policy Center, the 

Sentencing Project, the ACLU, the American Bar Association, and the Drug Policy 

Alliance. I also want to thank Senator Biden for introducing the companion to this 

legislation in the Senate earlier this year. 

I would be remiss if I did not mention H.R. 261 that I introduced early last year. 

H.R. 261, is the ‘‘Federal Prison Bureau Nonviolent Offender Relief Act of 2007’’. 

This Bill provides for the early release of non-violent offenders who have attained 

the age of at least 45 years of age, have never been convicted of a violent crime, 

have never escaped or attempted to escape from incarceration, and have not engaged in any violation, involving violent conduct, of institutional disciplinary regulations. 

H.R. 261 seeks to ensure that in affording offenders a second chance to turn 

around their lives and contribute to society, ex-offenders are not too old to take advantage of a second chance to redeem themselves. A secondary benefit of H.R. 261 

is that it would relieve some of the strain on federal, state, and local government 

budgets by reducing considerably government expenditures on warehousing prisoners. 

The number of federal inmates has grown from just over 24,000 in 1980 to 

173,739 in 2004. The cost to incarcerate these individuals has risen from $330 million to $4.6 billion since 2004. At a time when tight budgets have forced many 

states to consider the early release of hundreds of inmates to conserve tax revenue 

and when our nation’s Social Security system is in danger of being totally 

privatized, early release is a common-sense option to raise capital. 

There are more people in the prisons of America than there are residents in states 

of Alaska, North Dakota, and Wyoming combined. Over one million people have 

been warehoused for nonviolent, often petty crimes. 

The European Union, with a population of 370 million, has one-sixth the number 

of incarcerated persons as we do, and that includes violent and nonviolent offenders. 

This is one third the number of prisoners which America, a country with 70 million 

fewer people, incarcerates for nonviolent offenses. 

To be sure, both of these pieces of legislation will bring much needed reform to 

our criminal justice system. We must act with urgency and the time is now. 

Thank you, Mr. Chairman. I yield the remainder of my time. 

16 

Mr. SCOTT. Thank you. Thank you. 

Our second panel begins with Judge Reggie Walton, who assumed his position as the United States district court judge for the 

District of Columbia in 2001. He was also appointed by President 

Bush in 2004 to serve as the chairperson of the National Prison 

Rape Elimination Commission, a commission created by the United 

States Congress and tasked with the mission of identifying methods to curb the incidence of prison rape. He is also a member of 

the Federal judiciary’s criminal law committee and as of May 2007 

began a 7-year appointment with the U.S. Foreign Intelligence Surveillance Act court. 

Our second witness will be Judge Ricardo Hinojosa, who has 

served on the U.S. Sentencing Commission since 2003. He was appointed to chair that commission in 2004. Before joining the judiciary, he served as an adjunct professor at the University of Texas 

Law School and was a partner in a local law firm. 

Our third witness will be introduced by the gentleman from 

North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. I have been here, there 

and yonder, and thank you for your understanding. 

I am delighted to welcome my fellow North Carolinian, who is 

the United States attorney for the western district of North Carolina, Ms. Gretchen Shappert. 

Good to have you with us. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. Ms. Shappert is U.S. attorney for the 

western district of North Carolina, served as assistant U.S. attorney in the office for 14 years, and before that was an assistant district attorney in Mecklenburg County, North Carolina, for 2 years. 

Our next witness is Joseph Cassilly, state’s attorney for Harford 

County, Maryland, since 1982 and has been re-elected six times. 

He is active in the Maryland State Attorneys Association and president elect of the National District Attorneys Association and is on 

the board of directors of that organization. 

Our fifth witness is Michael Short, who is one of several young 

men, many of whom have been childhood friends growing up in 

suburban Maryland, who were involved in a crack cocaine conspiracy. He was sentenced to 20 years in prison for delivering a 

package containing 63 grams of crack to an undercover special 

agent. After serving 15 years in prison, President Bush commuted 

his sentence in December 2007. While incarcerated, he earned his 

associates degree in business management from Park College, 

graduating in 1995 with a 3.17 GPA. 

Our last, but not least, will be Michael Nachmanoff, the public 

defender for the eastern district of Virginia. His office has 52 employees and represents more than 2,200 defendants in Federal 

court every year in Alexandria, Richmond, Norfolk and Newport 

News. He has been with the office since it was established 6 years 

ago. He served as first assistant Federal public defender for 3 years 

and acting public defender for 2 years before formally assuming the 

job as the lead of that agency in February of 2007. He had the 

honor of auguring and winning the Kimbrough v. United States 

case in the U.S. Supreme Court, which Ms. Jackson Lee referenced. 

17 

Each of our witnesses’ written statements will be entered into 

the record in its entirety, and I ask that each witness summarize 

his or her testimony in 5 minutes or less. And to help stay within 

that time limit, we have lighting devices right here and on the 

desk. When you start with green, go to yellow with 1 minute left, 

and red when the time is up. And we would ask you to begin wrapping up. 

Judge Walton? 

TESTIMONY OF THE HONORABLE REGGIE B. WALTON, JUDGE, 

U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 

WASHINGTON, DC 

Judge WALTON. Thank you, Mr. Chairman. 

Members of the Subcommittee, it is an honor to have the opportunity to appear before you to address what I believe is one of the 

most important criminal justice issues that this country is confronting today. 

As a former prosecutor in the United States attorney’s office, who 

vigorously prosecuted cases, and as a judge who is not known as 

being lenient on criminals, I nonetheless believe that we have to 

address what I believe is a pervasive problem that is adversely impacting the credibility that many people have in our criminal justice system. 

I am proud to be a member of the Federal judiciary and proud 

to be a member of the Judicial Conference, which has taken a position in opposition to the 100:1 disparity that now exists in reference to crack cocaine. 

I seldom speak out in reference to injustices that exist within our 

system, because I basically believe in our system. I believe we have 

devised the best system that mankind has been able to devise, but 

that doesn’t mean there are not imperfections, and I believe that 

the 100:1 disparity is one of those problems that needs to be addressed. 

I, too, as Senator Biden indicated when I testified several weeks 

before him, as a member of the first Bush administration drug office, took a position in favor of some level of disparity between 

crack and powder cocaine, because, based upon the information 

provided to us at that time, it was believed that they were different 

substances and that they did in fact have a different impact as far 

as addiction rates were concerned, the impact they had on the 

fetus, and the violence related to that activity. 

We now know, however, that as far as the chemical makeup of 

powder and crack, they basically are the same substance. We know 

that, in and of themselves, the two are not different as it relates 

to the addiction qualities. We know, however, that because crack 

is smoked, it may have a greater potential addiction level, but we 

know that as far as substances are concerned, that they basically 

are the same. 

And as far as the violence is concerned, yes, there is violence related to all drugs, but I don’t think there is really significant evidence that would suggest that there is a significantly greater level 

of violence related to crack cocaine as compared to powder cocaine, 

PCP and other substances that are ravishing many of our communities. 

18 

I think the time has come to address this problem, because I 

think that in many segments of American society, it is felt that the 

system is not fair. It is not good for a system of laws when you 

have people who come at the behest of the court system to serve 

as jurors, who refuse to serve because they believe the system is 

unfair. 

It is not, I think, good for our system to have people summoned 

to come and serve as jurors, who sit on juries and refuse to convict, 

because they believe the system is unfair because of this 100:1 disparity. 

I really believe that the time has come to address this problem. 

I am proud to be, as I say, a member of the judiciary, and one of 

the things I find encouraging about our country is that historically 

when we have made mistakes—and we do make mistakes; to be 

human is to make errors—but we have to be big enough to admit 

that we have made errors, and we have to be willing to step up to 

the plate and correct those problemss. 

I have no problem putting people in prison. That is my job. And 

I think when people do crime, they should be punished. But I think 

the punishment has to be fair, and I believe the punishment has 

to be perceived to be fair. The unfortunate reality is that there are 

many people, and many of those people exist in African American 

communities who believe the system is not fair. 

I know that these laws were not enacted with racial motivation, 

but people nonetheless believe that there is a racial implication underlying what is taking place because of the disparity, and I don’t, 

again, think that is good for our system of justice. 

So in concluding, I would ask that this Subcommittee and the 

Congress as a whole seriously think about addressing this problem, 

because I think when it is addressed, it will bring confidence back 

into the system of justice that exists in America. 

Thank you. 

[The prepared statement of Judge Walton follows:] 

19 

PREPARED STATEMENT OF THE HONORABLE ROSCOE B. WALTON


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Mr. SCOTT. Thank you very much, Judge Walton. 

Judge Hinojosa? 

TESTIMONY OF THE HONORABLE RICARDO H. HINOJOSA, 

CHAIR, UNITED STATES SENTENCING COMMISSION, WASHINGTON, DC 

Judge HINOJOSA. Chairman Scott, Ranking Member and Texas 

Aggie fan Gohmert, Members of the Subcommittee, I appreciate the 

opportunity to appear before you today. 

The United States Sentencing Commission, a bipartisan body, 

has been considering cocaine sentencing issues for a number of 

years and has worked closely with Congress to address the sentencing disparity that exists between the penalties for powder and 

crack cocaine offenders. 

Although the commission took action this past year to address 

some of the disparity existing in the sentencing guideline penalties 

for crack cocaine offenses, the commission is of the opinion that 

any comprehensive solution to the problem of Federal cocaine sentencing policy requires revision of the current statutory penalties 

and therefore must be legislated by Congress. 

The commission encourages Congress to take legislative action 

on this important issue, and it views today’s hearing as an important step in that process. As you are aware, in May 2007 the commission issued its fourth report to Congress on Federal cocaine sentencing policy. My written statement for today’s hearing contains 

highlights from our 2007 report, as well as updated preliminary 

data from fiscal year 2007. 

In the interest of time, I will briefly cover some of the information that is contained in the written statement. 

In preliminary fiscal year 2007 data, we see a continuation of 

trends we have seen with respect to crack cocaine and powder cocaine offenses. The commission obtained information on 6,175 powder cocaine cases, which represent approximately 25 percent of all 

drug cases, and 5,239 crack cocaine cases, which represent approximately 21 percent of all drug trafficking cases. 

Federal crack cocaine offenders have consistently received substantially longer sentences than powder cocaine offenders. The average sentence length for crack cocaine offenders was approximately 129 months, whereas for powder cocaine offenders it was 86 

months. 

The difference in sentence lengths has increased over time. In 

1992 crack cocaine sentences were 25.3 percent longer, while in 

2007 they were 50 percent longer than powder cocaine sentences. 

African Americans continue to represent the substantial majority of 

crack cocaine offenders. Our data show that in 2007 82.2 percent 

of Federal crack cocaine offenders were African American, while in 

1992 it was 91.4 percent. 

Powder cocaine offenders are predominantly Hispanic. According 

to our 2007 data, Hispanics were 55.9 percent of powder cocaine offenders, compared to 39.8 percent in 1992; 27.5 percent were African American, compared to 27.2 percent in 1992; and White offenders comprised 15.4 percent of powder cocaine offenders, compared 

to 32.3 percent in 1992. 

32 

In its 2007 report, the commission determined the offender’s 

function in the offense by a review of the narrative of the offense 

conduct section of the pre-sentence report from a 25 percent random sample of crack and powder cocaine cases from fiscal year 

2005. 

For purposes of our report, offender function was assigned based 

on the most serious trafficking function performed by the offender 

in the offense, providing a measure of culpability based on the offender’s level of participation in the offense. 

According to this analysis, 55.5 percent of crack cocaine offenders 

were categorized as street-level dealers. The largest portion of powder cocaine offenders—33.1 percent—were categorized as couriers 

or mules. According to the commission’s analysis, only a minority 

of powder cocaine offenses and crack cocaine offenses involved the 

most egregious, aggravating conduct, such as weapons involvement, 

violence or aggravating role in the offense, although it occurs more 

frequently in crack cocaine offenses than powder cocaine offenses. 

Information contained in the 2007 report for fiscal year 2006 indicates that an adjustment under the Federal sentencing guidelines 

for aggravating role was applied in 6.6 percent of powder cocaine 

offenses, and an adjustment for aggravating role was applied in 4.3 

percent of crack cocaine offenses. 

The May 2007 report from fiscal year 2006 data indicates that 

8.2 percent of powder cocaine offenders received a guideline weapon enhancement, and 4.9 percent were convicted under Title 18, 

U.S. Code Section 924(c). By comparison, 15.9 percent of crack cocaine offenders received a guideline weapon enhancement, and 10.9 

percent were convicted under 18 U.S.C. Section 924(c). 

The commission believes there is no justification for the current 

statutory penalty scheme for powder and crack cocaine offenses. It 

is important to note that comment received in writing by the commission and at public hearings have shown that Federal cocaine 

sentencing policies that provide heightened penalties for crack cocaine offenses continue to come under almost universal criticism 

from representatives of the judiciary, criminal justice practitioners, 

academic and community interest groups. 

The commission remains committed to its recommendation in 

2002 that any statutory ratio be no more than 20:1. Specifically, 

consistent with its May 2007 report, the commission strongly and 

unanimously recommends that Congress increase the 5-year and 

10-year statutory mandatory minimum threshold quantities for 

crack cocaine offenses, repeal the mandatory minimum penalty provision for simple possession of crack cocaine, 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. 

The commission further recommends that any legislation implementing these recommendations include emergency amendment 

authority for the commission to incorporate the statutory changes 

into the Federal sentencing guidelines. 

Sentencing guidelines continue to provide Congress a more finely 

calibrated mechanism to account for variations in offender culpability and offense seriousness, and the commission remains committed to working with Congress to address the statutorily manVerDate Aug 31 2005 13:28 Nov 20, 2008 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\022608\40925.000 HJUD1 PsN: 40925
33 

dated disparity that currently exists in Federal cocaine sentencing 

policy. 

Mr. Chairman, on behalf of all of the bipartisan members who 

have served through the years on the Sentencing Commission, we 

urge you to take action, and hopefully soon, on this important 

issue. 

Thank you so much, and I appreciate the extra time that was 

given to me for my 5 minutes. And we as a bipartisan commission 

have acted in a bipartisan fashion, and we hope the same happens 

in Congress. 

[The prepared statement of Judge Hinojosa follows:] 

PREPARED STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA


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Mr. SCOTT. Thank you very much. We will see what we can do. 

I thank you and the work of the Sentencing Commission. Thank 

you very much. 

Ms. Shappert? 

TESTIMONY OF GRETCHEN SHAPPERT, U.S. ATTORNEY FOR 

THE WESTERN DISTRICT OF NORTH CAROLINA, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Ms. SHAPPERT. Thank you, Mr. Chairman. Thank you for inviting 

the Department of Justice to appear before you today and discuss 

cocaine sentencing policy. 

My name is Gretchen Shappert, and I am the United States attorney for the western district of North Carolina. I have been in 

public service most of my adult life, first as an assistant public defender and as a prosecutor. And I earlier this month completed 4.5 

weeks of trail in my own district, two of those cases involving crack 

cocaine. Indeed, much of my career in public service has been defined by the ravages of crack cocaine. 

Mr. Chairman, I spent last Friday afternoon in the assembly 

room of an African American church in south Statesville, North 

Carolina. Now, I know that most of the Committee probably has 

never heard of Statesville, but it means the world to me. It is an 

important community in the western district of North Carolina, 

and it has absolutely been ravaged by crack cocaine. 

I was there last Friday to meet with members of that community 

to discuss their efforts for drug treatment in that community, and 

when I walked into the room and sat down, one of the ministers 

slid across the table the article from Friday’s Washington post, discussing the fact that a huge number of individuals are eligible for 

release early on their Federal sentences by virtue of crack cocaine 

retroactivity. 

His question to me, Mr. Chairman, was, ‘‘And what are you going 

to do to help us?’’ And to be honest with you, I did not have a very 

good answer. 

The Department of Justice recognizes that the penalty structure 

and quantity differentials for powder and crack cocaine created by 

Congress as part of the Anti-Drug Abuse Act of 1986 are seen by 

many as empirically unsupportable and unfair because of their disproportionate impact. 

As this Subcommittee knows, since the mid-1990’s there has 

been a great deal of discussion and debate on the issue. There have 

been many proposals, but little consensus as to how this should be 

dealt with. We in the Department of Justice remain committed to 

that effort today and are here in a spirit of cooperation to continue 

working toward a viable solution. We continue to insist upon working together to get it right, not just for offenders, but also for the 

law-abiding people and victims we serve. 

When considering reforms to cocaine sentencing, we must never 

forget that honest, law-abiding citizens are directly impacted by 

what drug dealers do. Unlike the men and women who choose to 

sell drugs, those who live in these neighborhoods are terrorized by 

those who sell the drugs and must look to the criminal justice system to protect them. 

46 

Toward that end, any reform to cocaine sentencing must satisfy 

two conditions. First, any reforms should come from the Congress, 

not the United States Sentencing Commission; and second, any reforms, except in very limited circumstances, should apply only prospectively, not retroactively. 

Bringing the expertise of the Congress to this issue will give the 

American people the best opportunity for a well considered and fair 

result that takes into account not just the differential between 

crack and powder offenders, but the implications of crack and powder cocaine trafficking on the communities and the citizens we 

serve. 

In considering these options, we continue to believe that a variety of factors fully justify higher penalties for crack offenses. It has 

been said, and certainly it has been my experience, that whereas 

powder cocaine destroys an individual, crack cocaine destroys a 

community. 

I was in Charlotte as an assistant public defender when the 

crack epidemic hit in the late 1980’s, and it entirely changed the 

landscape of law enforcement. We saw an epidemic of violence, 

open-air drug markets, urban terrorism unlike anything we had experienced in the past. Sounds of gunfire in certain neighborhoods 

were not uncommon at night. Families were afraid to leave their 

homes after dark. And a number of individuals, Mr. Chairman, 

slept in their bathtubs to avoid stray gunfire. 

In some states for the communities to which I referred to earlier, 

our crack dealers are now deliberately giving away crack cocaine 

to juveniles in an effort to get them hooked on crack cocaine to create a workforce of individuals distributing crack cocaine, who are 

unlikely to be prosecuted in Federal court. 

Quite simply, crack cocaine and powder cocaine are different. 

They are different with their impact on communities. With crack 

cocaine we see open air drug markets. We see violence. We see 

gun-related crimes, intimidation, fear, aggravated criminal histories and recidivism, as well as higher and more serious rates of 

addiction. 

According to the United States Sentencing Commission report, 

powder cocaine offenders had access to, possession of or used weapons in 15.7 percent of the cases in 2005. The number of crack offenders was double, who possessed firearms. 

I would note in the findings of the commission that were referenced in the Washington Post article that appeared on Friday— 

information, incidentally, that the Department of Justice learned 

about from the Washington Post and did not have earlier—the 

point was made that only a small percentage of these offenders are 

associated with violence. 

But it is very important to see how violence is defined. That is 

defined violence only to include actual violence or the impending 

fear of violence. The Department of Justice submits that the 

heightened criminal records, that the heightened use and possession of weapons by these offenders is a better indication of prospective violence as we move forward. 

The second key point of any discussion of changes in the cocaine 

and crack penalties is that cocaine should be prospective, and not 

retroactive. I see that my time has run out, but I would simply 

47 

point out that the impact of retroactivity is going to be profound 

on our communities. 

In my district, the western district of North Carolina, approximately 536 offenders will be eligible to possibly have their sentences cut. That represents 66 percent of the caseload for 1 year 

in my district. And the process of adjudication of these cases will 

be very difficult for prosecutors simply because witnesses are no 

longer available, prosecutors have moved on, agents have retired, 

evidence has been destroyed. The prospect of having to effectively 

present this information to the court is severely limited by the passage of time. 

I will be happy to answer questions. Thank you. 

[The prepared statement of Ms. Shappert follows:] 

48 

PREPARED STATEMENT OF GRETCHEN C.F. SHAPPERT


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Mr. SCOTT. Thank you. 

Mr. Cassilly? 

TESTIMONY OF JOSEPH I. CASSILLY, STATE’S ATTORNEY FOR 

HARFORD COUNTY AND PRESIDENT-ELECT OF THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION, BEL AIR, MD 

Mr. CASSILLY. Thank you, Mr. Chairman and Members of the 

Committee. 

I am testifying on behalf of the National District Attorneys Association, representing state and local prosecutors. We have adopted 

a resolution regarding the sentencing disparity between crack and 

powder cocaine. It recognizes that adjustment is warranted, but 

just as the current disparity cannot be justified, the proposed 1:1 

realignment also lacks empirical or clinical evidence. 

There is not, in reality, a 100:1 difference in the sentences given 

to crack versus powder offenders. A DOJ report finds that for equal 

amounts of crack and powder cocaine, that penalties range from 6.3 

times greater to approximately equal to powder sentences. 

The cooperation of Federal and state prosecutors and law enforcement that has developed over the years is due in large part 

to the interplay of Federal and state laws. Maryland laws, for example, differentiate sentences between crack and powder cocaine 

offenders on a 9:1 ratio for a major dealer. 

Local prosecutors bring large quantity dealers for Federal prosecution primarily because of the discretion of Federal prosecutors 

in dealing with these cases. The result is that the majority of these 

cases are resolved by a guilty plea to a sentence below the statutory amount. 

The effect of guilty pleas is that serious violent criminals are immediately removed from our communities. Civilian witnesses do 

not appear for trial or sentencing hearings and are not as subject 

to threats and intimidation, which would happen if we were forced 

to proceed with these cases in court. 

Many criminals who could be affected by retroactive application 

of a new sentencing scheme have already received the benefits of 

lower sentences and would get a second, unjust reduction at new 

sentencing hearings. It is critical that Federal sentences remain 

stricter than state laws, if this coordinated interaction is to continue. 

There is a difference between crack versus powder cocaine on the 

user. A study entitled ‘‘Crack Cocaine and Cocaine Hydrochloride: 

Are the Differences Myth or Reality?’’ states, ‘‘The effects of cocaine 

are similar, regardless of whether it is in the form of cocaine hydrochloride or crack cocaine. However, evidence exists showing a 

greater abuse liability, greater propensity for dependence, and 

more severe consequences when cocaine is smoked, compared with 

intranasal use. The crucial variables appear to be the immediacy, 

duration and magnitude of cocaine’s effects, as well as the frequency and amount of cocaine used, rather than the form of cocaine.’’ 

The Drug Enforcement Administration predicts that a crack user 

is likely to consume between 13 to 66 grams per month, for a cost 

per user between $1,300 and $6,600. A typical powder user consumes about two grams per month, for a cost of about $200. 

60 

There is a difference in the associated crimes and the effect on 

the community caused by crack, as opposed to powder cocaine. The 

inability to legitimately generate the money needed by a crack addict leads to crimes that can produce ready cash, such as robbery, 

drug dealing and prostitution. Studies show crack cocaine use is 

more associated with this systemic violence than powder cocaine 

use. 

One study found that the most prevalent form of violence related 

to crack cocaine was aggravated assault. Another study identified 

crack as the drug most closely linked to trends in homicide cases. 

And a third study showed that weapons were involved in crack convictions more than twice as often as powder convictions. 

In one study 86.7 percent of women surveyed were not involved 

in prostitution in the year before starting crack use. Women who 

were prostitutes dramatically increased their involvement after 

starting the use of crack, with rates nearly four times higher. 

One complaint about the sentencing disparity is that it discriminates against Black crack dealers versus white powder dealers. Unfortunately, what most discriminates is the violence, degradation 

and community collapse that is associated with crack use and crack 

dealers. 

A stop snitching video in Baltimore was made by Black dealers 

to threaten Black citizens with retaliation and death for standing 

up to the dealers. A family of five was killed by a firebomb, which 

was thrown into their home at the direction of crack dealers, because the mother reported crack dealing on the street in front of 

their home. 

If there is a need to reduce the disparity between crack and powder cocaine, then perhaps the solution is to increase sentences for 

powder cocaine. We ask the Congress to make any decisions with 

regard to scientific and empirical study evidence and not simply on 

the desire to move from one extreme to the other. 

Thank you. 

[The prepared statement of Mr. Cassilly follows:] 

61 

PREPARED STATEMENT OF JOSEPH I. CASSILLY


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Mr. SCOTT. Thank you. 

Mr. Short? 

TESTIMONY OF MICHAEL SHORT, FORMER OFFENDER, 

MARYLAND 

Mr. SHORT. Thank you for having me. I want to thank Chairman 

Scot and Ranking Member Gohmert and Members of the Subcommittee for giving me this opportunity to testify today. 

My name is Michael Short, and I am here because in 1992 I was 

convicted of selling 63 grams of crack cocaine, and on November 

13th of 1992, I was sentenced to 235 months in prison. And I 

served 15 years and 8 months of that sentence. 

In prison I worked very hard. I earned my associates degree in 

business management by way of Pell grants, and when a Pell grant 

was no longer available, I continued to educate myself by the resources from my family and my friends, and I obtained a nutritionist specialist degree, core conditioning exercise certification, 

certified personal trainers license, biometric training, and I also 

completed computer courses and brick masonry. Right now I am 

currently employed as a certified personal trainer. 

And in 2001 I asked the President of the United States to grant 

me executive clemency. I asked him to recognize that I was sorry 

for my actions that I had done, and all I could do to improve my 

life, and that more time in prison would serve no further purpose. 

I am deeply gratified to tell you that President Bush granted my 

petition on December 12, 2007. 

To be clear, I know that what I did was wrong. I sold illegal 

drugs, and I deserved to be punished. But what I did and who I 

was did not justify the sentence I received. And while today I am 

telling my story, it is also the story of many men that I know in 

prison, non-violent offenders serving 10, 20 or 30 years for crack 

cocaine offenses. 

I did not need 20 years to convince me of the error in my ways, 

to punish men or to set me on a right path. My sentence was altogether too long. It was too long because of the way the law treats 

crack cocaine. Twenty years is the kind of sentence that drug kingpins should get—big-time drug dealers. But I was not a drug kingpin. I was sentenced like one, because the drug I was convicted for 

was crack cocaine. 

The law treats one gram of crack cocaine the same as 100 grams 

of powder cocaine. If I had been sentenced for the same amount of 

powder cocaine, I would have left prison roughly 7 years ago, after 

serving 9 years, which is still a very long time in prison. 

I have heard some of the comments some people in positions of 

power have made about crack cocaine prisoners—that we are violent gang members and that this is why our sentences have to be 

so much longer. I am not that person, and most of the people that 

I leave behind in prison aren’t either. 

I grew up in a warm, close, supportive family. I had all I needed, 

and though I made a terrible mistake, there was no violence in my 

crime. I was not a gang member. I was sentenced for such a long 

time because of a stereotype. 

People like me convicted of crack cocaine offenses are serving 

longer prison sentences than we would serve, were we sentenced 

67 

for powder cocaine. They keep hearing how wrong this is and cannot understand why, if so many people, including the Supreme 

Court, the Sentencing Commission and even some presidential candidates feel this way, does nothing change? 

They made us all feel that the system itself is stacked against 

us and that no one cared enough to right a wrong. My sentence 

was too long, and yet no one in the criminal justice system seemed 

to be able to do anything to shorten it. I also see a racial disparity 

there reflected. It is reflected in the system. 

While I believe that it was not intended to punish people who 

look like me more harshly, I can tell you that in prison there is a 

sense of terrible unfairness and imbalance in who goes away for 

the longest sentences. It makes a person distrustful. There was a 

lot of talk amongst prisoners about how our system is anything but 

colorblind. 

I think that your job is to be sure that punishment is adequate, 

but not excessive. As someone who has spent so much time in prison, I can tell you we are aware of every hour, every day and every 

month. It is tough. Certainly, it hurts us. There is a point beyond 

which this lesson could be learned and punishments that could be 

extracted are well past their loss. And beyond that point, it makes 

no sense to warehouse those humans. 

But even worse, I think that what it does to people who love us 

on the outside. Not a day passed that my mother did not worry 

about me getting harmed in prison. And she felt the injustice of 

this sentence very much. She was in prison just as surely as I was. 

I lost my mother during those years; in all I lost ten family members while I was away. 

I will never replace those people, and they will never know me 

as I have become. But I will tell you that I want to do all that I 

can to convince you to save other families from what mine had to 

endure. As you consider correcting this injustice of crack cocaine 

sentencing, I want you to know that if you do, it will be a tremendous gesture unto all the people who are serving unduly long sentences. 

That said, I can see no reason to do anything other than make 

crack sentences the same as those for powder cocaine, and best for 

all, get rid of mandatory minimum sentences once and for all. It 

is a terrible system that ignores the individuals and sentences 

based only on the weight of some drugs. 

Mandatory minimums forbid a judge from taking the whole person into account. Remorse, acceptance of responsibility, the influence of coercion or poverty, addiction—all of it gets swept aside in 

favor of one measure, the weight of drugs. It makes the small fry 

as liable to serve extremely hard sentences as those who actually 

deserve them. 

I received the gift of freedom when President Bush commuted my 

sentence. I cannot begin to tell you what it meant. You have that 

same power. You have a tough job of fixing this disparity. It is just 

the right thing to do. If you correct this one injustice, you will help 

correct a terrible injustice and at the same time restore some of the 

lost faith in the criminal justice system. 

Thank you. 

[The prepared statement of Mr. Short follows:] 

68 

PREPARED STATEMENT OF MICHAEL SHORT

I want to thank Chairman Scott, Ranking Member Gohmert and members of the 

Subcommittee for giving me this opportunity to testify. My name is Michael Short. 

I am here because in 1992 I was sentenced for selling crack cocaine. Before then 

I had never spent a day in prison. I came from a good home and a good family. 

I had no criminal history. I was not a violent offender. But, on November 13, 1992, 

I was sentenced to serve nearly twenty years in federal prison. I was 21 years old. 

In prison I worked hard and achieved a lot. I earned my Associates degree in 

Business Management from Park College in 1995. I also earned my Nutrition Specialist degree, Core Conditioning Exercise certification, and am certified in CPRAED. I became a certified personal trainer, completing the coursework through the 

National Federation of Professional Trainers, and last week I started my new job 

at a health club in Prince Georges County. I did everything I could to improve myself and use my time well. 

In 2001 I asked the President of the United States to grant me executive clemency. I asked him to recognize that I was sorry for my actions, that I had done all 

I could to improve my life and that more time in prison would serve no further purpose. I am deeply gratified to tell you that President Bush granted my petition on 

December 12, 2007. 

To be clear, I know what I did was wrong. I sold illegal drugs and I deserved to 

be punished. But what I did and who I was did not justify the sentence I received. 

And while today I am telling my story, it is also the story of the many men that 

I know in prison—nonviolent offenders serving ten years, twenty years or longer for 

crack cocaine offenses. 

I did not need twenty years to convince me of the error of my ways, to punish 

me or to set me on the right path. My sentence was altogether too long. It was too 

long because of the way the law treats crack cocaine. 

Twenty years is the kind of sentence that drug kingpins should get—big time 

dealers. But I was no drug kingpin. I was sentenced like one because the drug I 

was convicted for was crack cocaine. The law treats one gram of crack cocaine the 

same as 100 grams of powder cocaine. If I had been sentenced for the same amount 

of powder cocaine, I would have left prison roughly seven years ago after serving 

nine years, which is still a very long time in prison. 

I have heard some of the comments some people in positions of power have made 

about crack cocaine prisoners—that we are violent gang members and that is why 

our sentences have to be so much longer. I am not that person and most of the people I leave behind in prison aren’t either. I grew up in a warm, close, supportive 

family. I had all I needed and, though I made a terrible mistake, there was no violence in my crime. I was not a gang member. I was sentenced for such a long time 

because of a stereotype. 

People like me, convicted of crack cocaine offenses, are serving years longer in 

prison than they would serve were they sentenced for powder cocaine. They keep 

hearing how wrong this is and cannot understand why, if so many people including 

the Supreme Court, the Sentencing Commission and even some presidential candidates feel this way, does nothing change. It made us all feel that the system itself 

was stacked against us or that no one cared enough to right a wrong. My sentence 

was too long and yet no one in the criminal justice system seemed to be able to do 

anything to shorten it. 

I also see the racial disparity that is reflected in this system. While I believe that 

it was not intended to punish people who look like me more harshly, I can tell you 

that in prison there is a sense of a terrible unfairness and imbalance in who goes 

away for the longest sentences. It makes a person distrustful. There was a lot of 

talk among prisoners about how our system is anything but colorblind. 

I think your job is to be sure that punishment is adequate but not excessive. As 

someone who has spent so much time in prison, I can tell you we are aware of every 

hour, every day and every month. It is tough. Certainly it hurts us; there is a point 

beyond which the lessons that could be learned and the punishment that could be 

extracted are well past—they are lost. And beyond that point it makes no sense to 

warehouse those humans. 

But even worse, I think, is what it does to the people who love us on the outside. 

Not a day passed that my mother did not worry about me getting harmed in prison. 

And she felt the injustice of this sentence very much. She was in prison just as surely as I was. I lost my mother during those years; in all I lost ten family members 

while I was away. I will never replace those people and they will never know me 

as I have become. But I will tell you that I want to do all I can to convince you 

to save other families from what mine had to endure. 

69 

As you consider correcting the injustice of crack cocaine sentencing, I want you 

to know that if you do, it will be a tremendous gesture to all the people who are 

serving unduly long sentences. That said, I can see no reason to do anything other 

than make crack sentences the same as those for powder cocaine and best of all, 

get rid of mandatory minimum sentencing once and for all. It is a terrible system 

that ignores the individual and sentences based only on the weight of some drugs. 

Mandatory minimums forbid a judge from taking the whole person into account. Remorse, acceptance of responsibility, the influence of coercion or poverty, addiction, 

all of it gets swept aside in favor of one measure: the weight of drugs. It makes 

the small fry as liable to serve extremely harsh sentences as those who actually deserve them. 

I received the gift of freedom when President Bush commuted my sentence. I cannot begin to tell you what that meant. You have that same power. You have a tough 

job, but fixing this disparity is just the right thing to do. If you correct this one injustice you will help correct a terrible injustice and at the same time restore some 

of the lost faith in the criminal justice system. 

Thank you. 

Mr. SCOTT. Thank you very much, Mr. Short. 

Mr. Nachmanoff? 

TESTIMONY OF MICHAEL NACHMANOFF, FEDERAL PUBLIC 

DEFENDER FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA, VA 

Mr. NACHMANOFF. Mr. Chairman and Members of the Subcommittee, thank you for holding this hearing and providing me 

with the opportunity to speak on behalf of Federal and community 

defenders from around the country regarding the reform of the 

Federal cocaine sentencing laws. 

As Federal public defenders, we have represented thousands of 

individuals just like Mr. Short, who have been charged with crack 

cocaine offenses in the Federal courts. And we have seen firsthand 

the gross injustice caused by the dramatic, unjustified disparity in 

the punishment between crack cocaine and powder cocaine. 

We have seen the devastating impact that imposing draconian 

punishments in crack cases has had on our clients, their families 

and their communities. When low-level crack dealers are punished 

more harshly than wholesale suppliers of powder cocaine, a necessary ingredient to make crack, it undermines people’s confidence 

in the criminal justice system. 

When the punishments imposed in crack cases are routinely 

harsher than the punishments received by traffickers of heroine 

and PCP, it further erodes confidence in the system and undermines respect for it. And when those individuals who face unduly 

excessive sentences are overwhelmingly African American and the 

majority of those who distribute powder cocaine are predominantly 

not African American, it creates an intolerable situation that cries 

out for reform. 

The crack-powder disparity is wrong, and it must be fixed. The 

Sentencing Commission’s recent amendments to the crack cocaine 

guideline and its decision to make them retroactive represent a 

small, but significant step in addressing that problem. 

The Supreme Court’s recent recognition that judges must be permitted to take into consideration this unwarranted disparity in determining fair and appropriate sentences is another positive step, 

but it is the fundamental structure of Federal cocaine sentencing 

that is the underlying problem, and only Congress can solve it comprehensively. 

70 

In an effort to address these problems, Federal and community 

defenders support the following reforms. The crack-powder disparity should be eliminated by equalizing the penalties for crack 

and powder. 

The mandatory minimum for simple possession should be repealed. Not only is it grossly unfair and unique among drug laws 

to single out the mere possession of crack for a 5-year mandatory 

sentence, but it prevents individualized sentencing, as all mandatory minimums do, which we believe is essential to any just sentencing system. In this regard we also support providing judges 

with alternatives to incarceration for drug offenses, including the 

option of imposing probation. 

And finally, we urge the funding of pilot programs for Federal 

substance abuse courts, which would provide a needed alternative 

to the costly and wasteful incarceration of individuals, who often 

have no opportunity for meaningful drug treatment in the prison 

system. 

Now, the structure of Federal sentencing for cocaine is grossly 

unfair, and I think it is important for the Committee to consider 

some facts that have not come out at this hearing and relate directly to some of the things that have been offered by the witnesses 

who have already testified. 

With respect to the kinds of cases that are brought at the Federal level, the witness for the National District Attorneys Association has suggested that the state and Federal authorities cooperate 

well and ensure that referrals are made of large traffickers so that 

the Federal Government can address those cases, which, of course, 

was the original congressional intent when the Anti-Drug Abuse 

Act of 1986 was passed. 

That is not the case. In the Eastern District of Virginia and 

throughout the country, what we see day in and day out is smalltime, low-level drug dealers, who are brought into Federal court 

and prosecuted and are subject to the draconian penalties that the 

Federal sentencing laws authorize. 

In the State of Maryland, there were 46 crack prosecutions in 

2006. The median weight for those cases was 90 grams of crack cocaine. According to statistics, the median weight for a high-level 

trafficker is 2,962 grams—almost three kilos of crack cocaine. An 

average of 90 grams is 5 percent of what a high-level trafficker 

deals in. If the U.S. attorney’s office in Maryland is bringing only 

high-level cases, then they are certainly a different kind of case 

than what the statistics show a high-level case should be. 

A street-level dealer deals in 50 grams. That is the median 

weight for a street-level dealer. Over 35 percent of cases nationwide in 2006 involved less than 25 grams of crack cocaine—less 

than half the amount of the median weight for a street-level dealer. 

And, of course, those amounts are far in excess of the five-gram 

trigger for a 5-year mandatory sentence. 

When Congress passed these laws in 1986, they just got it completely wrong. If the idea was to target mid-level traffickers and 

high-level traffickers at a 5-year mandatory minimum and 10-year 

mandatory minimum, they got the quantities wrong. You could not 

have a lower amount of crack cocaine being distributed. 

71 

Recently in the Eastern District of Virginia, we represented an 

individual who was prosecuted in Federal court for distribution of 

.11 grams of crack cocaine—.11 grams. If it had been any less, 

there wouldn’t have been any crack cocaine there at all. And this 

case was taken from the state, and it was federalized. And that individual received a punishment of 120 months for that .11 grams 

of crack cocaine. 

With regard to the retroactivity, the witness for the Department 

of Justice has suggested that this is going to be an enormous burden on the court system. That is simply not the case. For the past 

2 months, Federal defenders, probation officers, judges have been 

working around the country to find efficient and fair ways of addressing retroactivity, and they have been remarkably successful. 

In our district, which is the largest district in the country in 

terms of the eligible cases, we have a grand total of 16 individuals 

that we filed motions on behalf of and who we hope, if the judges 

sign the orders, will be released on March 3rd—16 individuals. 

While I can appreciate the Department of Justice is concerned 

with the re-entry of these individuals into their communities, it is 

extremely important for the Committee to understand that these 

are individuals who would be coming back to their communities 

anyway. These are people who are very often at the very end of 

their sentence. 

In the Eastern District of Virginia, these 16 individuals that we 

represent had often 2, 3, 6 months left to serve. Many of them were 

in halfway houses. So these people were on their way back to their 

communities. 

Eight of the 16 had no criminal history or criminal history category of one or two. These are not dangerous people. These are not 

violent people. These are not gang members. 

The Department of Justice also emphasized the fact that they 

somehow believe the statistics don’t accurately reflect the danger 

of this population. The fact of the matter is that 94.5 percent of all 

crack cocaine offenses do not involve violence. They involve no 

deaths. They involve no bodily injury. In almost 90 percent of the 

cases, not only is there no actual violence—there is not even the 

threat of violence. Ninety percent of these cases are not violent offenses. 

The Department of Justice has suggested that because there is 

a certain percentage of weapons involvement, that that translates 

to violence and danger. Well, the fact of the matter is a weapons 

enhancement can be based on the possession of a gun by a co-conspirator in his closet. In other words, there is no reason to believe 

that these individuals, who may have even gotten a gun bump, an 

additional time on their sentence, would be dangerous or would be 

violent or even possess the gun in the first place themselves. 

I see that I am out of time, and I thank the Committee. 

[The prepared statement of Mr. Nachmanoff follows:] 

72 

PREPARED STATEMENT OF MICHAEL NACHMANOFF


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Ms. SHAPPERT. Mr. Chairman, in light of the criticism of the Department of Justice, I would respectfully ask an opportunity to respond. 

Mr. SCOTT. You will have that opportunity when we get to questions. And I will recognize myself for 5 minutes. And if you would 

like to answer, you can respond to the criticism. 

Ms. SHAPPERT. Thank you. 

With regard to the contentions of the Federal defender, let me 

tell you that the impact on the court system is profound. It is interrupting our ability to prosecute other cases that need to be prosecuted. It is requiring us to re-open cases that have been closed for 

years. 

And as I indicated, we are not on a level playing field in our duty 

to present to the courts a clear picture of an individual being considered for re-sentencing when we no longer have the witnesses, we 

no longer have the evidence, and we no longer have the facts. 

It is estimated that probably approximately 5,000 of this 20,000 

or 19,500 universe of individuals will be eligible for re-entry in the 

first 2 years. That will have a profound impact on the communities 

that are most fragile. A huge number of the individuals who have 

been prosecuted for crack cocaine offenses will be returning to the 

very communities we are working to help bring back. 

Many of these individuals will not have completed re-entry programs. They will not have completed anger management classes. 

They will not have completed the halfway house programs that are 

associated with effective re-entry. 

And I again reiterate that the definition of violence that limits 

the universe to only 5 percent of crack offenders as being violent 

seriously mischaracterizes the situation. When we know that a 

third of the individuals in this group of people who are eligible for 

retroactivity either possessed a weapon or used a weapon—— 

Mr. SCOTT. When would they be getting out without retroactivity? And how much time would they have served already? 

Ms. SHAPPERT. Well, it depends, honestly, sir, on the sentence 

that was imposed upon them. They will get out eventually. 

Mr. SCOTT. Judge Walton, how much difference did the Sentencing Commission action make on individual cases that are coming before you? Do you see a profound effect in the sentencing of 

the individuals who come before you? 

Judge WALTON. Not significantly. Most of the people would have 

been eligible fairly soon in any event. I think it was estimated by 

the Commission that you would be talking about somewhere between, on average, 24 to 27 months in reduction. 

Mr. SCOTT. Out of what kind of sentence? 

Judge WALTON. For the sentences like, in many situations, Mr. 

Short received. And I think his situation—— 

Mr. SCOTT. These people would have served 10 years. Instead of 

getting out in 12 years, they might get out in 11 years? 

Judge WALTON. Many of them—that would be the case. And Mr. 

Short’s situation is not unique. And I think it is just a waste of the 

taxpayers’ money to keep somebody like Mr. Short locked up for as 

long as he was locked up. I will be the first to tell him that he 

should have been punished significantly. And he should have been 

punished. I understand that. But to keep somebody locked up for 

97 

as long as we kept him locked up, who could have come back into 

the community and been a positive contributor to society, I think 

is a loss to the community where he comes from. 

[Applause.] 

Mr. SCOTT. If someone is going to take advantage of a retroactive 

application of the Sentencing Commission’s actions, is that automatic? Or does it have to come before a court for re-sentencing? 

Judge WALTON. It is not automatic, and I can tell you that I, and 

I believe my colleagues, feel the same way. If we have evidence indicating that someone poses a risk to the community, we will not 

grant them that reduction. I have three cases on my desk right 

now. When I get back, I am going to look at them. But the United 

States attorney has agreed that reductions are appropriate. 

And that is happening throughout country, where prosecutors 

are weighing in, and they are saying, ‘‘We think the sentence that 

the person has already served is adequate,’’ and therefore, they are 

not opposing the reduction. 

Mr. SCOTT. Now the Sentencing Commission essentially 

ascertained that the sentences that have been given in the past 

have been essentially racially discriminatory and irrational. Now, 

Ms. Shappert, why should people continue to serve such a sentence, 

particularly when, if the retroactivity is going to be applied, it has 

to be applied on an individual basis, with a judge making the decision that in this individual case, it is an appropriate thing to do? 

Ms. SHAPPERT. For two reasons. For one that Judge Walton alluded to, that if there is evidence, the court will be able to make 

an accurate determination. But as I indicated earlier, that evidence 

may no longer exist, because if the file has been closed, if the evidence has been destroyed because the case was over, the prosecutor 

will not have the ability to give a clear picture to the judge. 

The second reason is if you look at the universe just of individuals who are going to be immediately eligible for release, of that 

group, approximately 34 to 55 percent are likely to recidivate within 2 years. Because of the—— 

Mr. SCOTT. Now, wait a minute. They are going to be getting out 

shortly anyway. 

Ms. SHAPPERT. They are going to be getting out, and they are 

more likely to be recidivists. They will not have had the re-entry 

programs that would otherwise be available, and they are going to 

create a risk to the community. 

Mr. SCOTT. Judge Walton, if someone is getting out eligible for 

re-entry, would you consider whether or not they had taken advantage of transitional resources? 

Judge WALTON. Absolutely. And one of the things that we are 

going to try and do is if we have halfway house capability available, as a part of the release order, they will be ordered to serve 

a certain period of time in a halfway house before they are actually 

released into the community. 

Mr. SCOTT. My time has expired. 

The gentleman from North Carolina? 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have all of you witnesses with us today. 

Ms. Shappert, what is the department’s position with regards to 

first-time non-violent offenders, who will be eligible for release next 

98 

Monday—A. And does the department know how many of the 

roughly 1,600 offenders fall into this category? 

Ms. SHAPPERT. To answer the first part of your question, we are 

interested in a dialogue between the Congress. That is why I am 

here to deal with that issue. We respectfully submit that the legislation that would go into effect on March 3rd needs to be tolled, 

to be stopped, so that we can sort through this process, because it 

is imperative that there be a discussion of how crack offenses 

should be considered. 

As the attorney general recently stated in reviewing retroactivity, the department is receptive to scrutinizing first-time offenders, individuals with no criminal history, for retroactive treatment in a way that would be different than for those with aggravated criminal histories, lengthy sentences and guns and management enhancement roles. 

So we submit that there needs to be a dialogue and a decision 

by the Congress to refine the process. 

With regard to how many of those who will be immediately eligible are first offenders, I will have to get back with you to get you 

that statistic. 

Mr. COBLE. I would like that. I would appreciate that. 

Ms. SHAPPERT. Yes, sir. 

Mr. COBLE. Judge Walton, you testified that the Judicial Conference opposes the current 100:1 ratio. Would 20:1 ratio be appropriate? 

Judge WALTON. Mr. Coble, we have not taken a position as to 

what the disparity, if there is a disparity, should be. We feel that 

that is a legislative decision that Congress has to make, and the 

conference has not taken a position on that. 

Mr. COBLE. Thank you, sir. 

It is my understanding, Judge, that those offenders with a category six criminal history have a 50 percent likelihood to re-offend, 

and perhaps to be re-incarcerated. Is this likelihood to re-offend 

taken into account when sentencing a defendant—A. And B, will 

this also be taken into account when re-sentencing offenders under 

the commission’s ruling? 

Judge WALTON. Absolutely. What we are going to be getting from 

our probation department, if we don’t still have a probation report, 

which will reflect if there was violence associated with the offense 

for which they were before the court—we will have that information, plus we will be getting from the Bureau of Prisons the institutional adjustment of the individual. And if there is indication that 

the person has been engaged in infractions, that will be taken into 

account in deciding whether the reduction should be appropriate. 

Mr. COBLE. Thank you, sir. 

Mr. Cassilly, describe, if you will, examples that constitute category one versus category six. 

Mr. CASSILLY. What? 

Mr. COBLE. Or Ms. Shappert, if you waive. 

Mr. CASSILLY. I think Ms. Shappert would be better at this. 

Mr. COBLE. Okay. 

Ms. SHAPPERT. Category one criminal history would be somebody 

who had no criminal history points or one point. Criminal history 

99 

category six would be 13 points or more. It is a compilation of the 

different offenses that an individual has been convicted of. 

Category six offenders are typically the most aggravated category 

of offenders. They are typically the people who have numerous 

crimes on their record, such as robbery, other drug crimes, crimes 

of violence. That would typically be category six. 

Mr. COBLE. Let me give you another bite of the apple, Mr. 

Cassilly. You mentioned in your testimony the connection between 

crack use and prostitution. What would be the age range of women 

engaging in prostitution to support their drug addiction? 

Mr. CASSILLY. Basically, we are running into crack users that are 

in their early teens—I mean 14 and 15—and we are running into 

problems with women that young getting involved in prostitution. 

Mr. COBLE. Is the use of crack cocaine linked to other crimes 

generally and violent crimes specifically? 

Mr. CASSILLY. The studies have shown that it is linked to other 

crimes. Part of the issue is the nature of the use of crack. Crack 

users tend to want to re-administer because of the intensity of the 

high and the fact that they are crashing, so that they tend to first 

of all not want to go too far from their crack dealer, which is the 

effect on the community. 

The powder cocaine users tend to buy and take home or take into 

another community, whereas crack users tend to stay within the 

community where the crack is available, use in that community, 

steal or rob or prostitute within that community where their dealer 

is located so that they can go back, re-acquire. As soon as they 

have got the money, they are back to the dealer, and they are buying again. 

And that is why you see that impact where the crack dealers are 

located. That is the effect. That is the blight on the community, because the crimes that are committed in order to obtain the crack 

are committed in those communities. They don’t leave those communities to go offend somewhere else and then take the time to 

come back. And that is what we see—that the prostitution is committed close to where the dealer is located. 

Mr. COBLE. Thank you, all of you. 

And thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

The gentleman from Texas, Mr. Gohmert? 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And again, I appreciate not only your testimony, but your patience throughout this process. I know it hasn’t been easy, dealing 

with the delays and what not. 

But coming into this hearing and hearing some of the goings on 

around this hearing and even hearing what sounds like angry 

statements about this bill, I get the impression there were people 

that came in here thinking, ‘‘Gee, you know, this was a racist law 

passed in 1986. Those mean White racists that passed this should 

be tarred and feathered.’’ 

And when you go back, there is no way you are going to convince 

me that people like Charlie Rangel, Major Owens, Mickey Leland, 

Harold Ford, Sr. didn’t care deeply about the African American 

communities and individuals that would be affected. They believed. 

I believe all of those did. 

100 

Seventeen of the 21 African American House members believed 

with all their heart that getting tough and pushing this through, 

as they co-sponsored this through—and as President Reagan said, 

people like Charlie Rangel were the champion of getting this 

through—they believed that being tougher on crack cocaine was 

going to help save African Americans. I know that is what they believed. They wouldn’t have done this otherwise. 

But the problem is it has been done for 20 years. It certainly 

doesn’t appear to have saved African Americans or communities 

that have been so adversely affected before and after. And so, Ms. 

Shappert, you were talking about this, but I am still wondering 

what is going to help keep African Americans off of crack cocaine? 

The tougher sentences didn’t work. 

Ms. SHAPPERT. Well, first of all, we don’t ever prosecute based on 

race. We prosecute based on conduct. 

Mr. GOHMERT. And I would never say that you—I wasn’t alleging 

that. 

Ms. SHAPPERT. And I don’t take offense to that, but I just want 

to make that clear for the record. 

Mr. GOHMERT. Right. 

Ms. SHAPPERT. And vigilance is the price we pay for freedom. I 

will tell you in that in communities where we have weed and seed 

sites, for example, where we have gone in and partnered with the 

leadership in the community, where we bring in prosecutors and 

prosecute aggressively and then seed in community services, we 

have dramatically cut the rate of violent crime. 

When you bring down the crack usage, when you bring down the 

crack distribution, you bring down the violent crime. And I am here 

to speak on behalf of those communities that are victims of this 

kind of crime. That is why we need to be vigilant. 

The discussion needs to be what changes can we make in the law 

to assure that we are meeting our responsibilities to protect those 

communities, as well as to treat offenders fairly? 

Mr. GOHMERT. Well, if this bill is basically brought, addressed 

the distribution of crack and being tough on them, then I am not 

sure. Are you saying that this has helped cut down on crack cocaine? 

Ms. SHAPPERT. I am saying that the Department of Justice recognizes that the 1986 law has been called into question, based on 

subsequent findings, subsequent results. We are here to discuss 

that ratio. We believe that there is a difference between crack and 

powder in the consequences for communities and that this discussion must be made in the context of retroactivity and the changes 

the Sentencing Commission has proposed that should be retroactive. 

We think this needs to be an omnibus package. We think this 

dialogue needs to be extended, and we think that that discussion—— 

Mr. GOHMERT. I tell you omnibus packages, especially to do with 

criminal law, would scare me, but just in my 3 years here and a 

former judge, I look at omnibus packages, and to me they usually 

mean there is stuff in here we could never get passed any other 

way, so we will call it an omnibus and stuff the bad stuff in there. 

101 

Ms. SHAPPERT. How about wholistic? A wholistic approach, recognizing—— 

Mr. GOHMERT. Well, that sounds so much better. 

Ms. SHAPPERT. Thank you. [Laughter.] 

Seriously, we recognize that we have a rare opportunity to deal 

with this now. We are asking the Congress to toll the decision of 

the Sentencing Commission, which will go into effect March 3rd, to 

give us time for discussion and to—— 

Mr. GOHMERT. My time is about to expire, and I did want to ask 

Judge Walton. 

And thank you. 

But, Judge Walton, you were talking about sentencing. And I 

don’t know when you went on the Federal bench. I forgot. 

Judge WALTON. 2001. 

Mr. GOHMERT. Yes. But you may remember back in 1983 when 

the Sentencing Commission came into being, Federal judges were 

outraged—′′You took away my discretion!’’ And now I talk to too 

many Federal judges going, ‘‘And it is not a bad thing, because I 

don’t have any discretion. I don’t have to think.’’ 

One of the toughest things I did as a judge was having to make 

the right decision in a sentencing case. Tough to use your discretion as appropriate. But I wanted that discretion as a judge, to 

have the range and then let me make the call. And I didn’t know 

if, sitting next to the Chairman here, how you felt about the Sentencing Commission. You have got a free shot at him, if you want 

it. [Laughter.] 

Judge WALTON. He is my good friend. 

Mr. SCOTT. I want some of your 5 minutes, if you don’t mind. 

Judge WALTON. As a judge, I like to think. And I like a certain 

level of discretion. I was not one of those judges who believed that 

the Sentencing Commission was all bad. I believe that some restraint on discretion is appropriate. I think we have probably 

reached the appropriate balance at this point, because I do have a 

sentencing guideline, so I can consider those in assessing a range 

that is appropriate. 

But in appropriate cases, I can go above, if I think it is appropriate, and I can go below, if I think it is appropriate, provided I 

am not constrained by mandatory minimums. 

Mr. GOHMERT. My time has run out. The Chairman advised me 

we have got another round of questions, so I will get to give them. 

Chairman, I am going to host some of my time in a moment. 

Mr. SCOTT. Or maybe the Chairman will. [Laughter.] 

Well, let me just say for the record, nobody is accusing anybody 

back in 1986 of racially discriminatory motives. But as Judge Walton has pointed out, we know more now than we did then, and 

there is clearly a racially discriminatory impact on the continuation 

of the law such that the Sentencing Commission has pretty much 

concluded that the present laws are not only irrational, but in effect racially discriminatory. 

Now, Judge Walton, if the idea is to get people to stop using 

crack, have you seen any evidence that people are using powder 

rather than crack because of the draconian sentences on crack that 

do not apply to powder? Do people make the decision, ‘‘Well, I am 

102 

not going to use crack; I am going to use powder, because the sentences are less?′′ 

Judge WALTON. I can’t say that I have seen that. I think it is 

a matter of economics. And crack cocaine is cheaper, and therefore, 

it is more readily available because of it. 

Mr. SCOTT. But people haven’t modified their behavior based on 

the fact that you can get 5 years mandatory minimum for five 

grams of crack and 500 grams of powder are necessary to trigger 

the same mandatory minimum. You haven’t seen people make 

what would be a logical choice—use powder rather than crack. You 

haven’t seen that, have you? 

Judge WALTON. I have not. 

Mr. SCOTT. You have kind of been a little slippery on what the 

five grams of crack—you get 5 years mandatory minimum for simple possession of crack. Is that right? 

Judge WALTON. That is correct. 

Mr. SCOTT. How much powder would you have to have to trigger 

5 years mandatory minimum for simple possession only, not distribution? 

Judge HINOJOSA. There is none, because there is no mandatory 

minimum for simple possession of powder, Congressman. 

Mr. SCOTT. So if it is just possession, there is no mandatory minimum at all. 

Judge HINOJOSA. No mandatory minimum. 

Mr. SCOTT. However, for crack it is five grams. Now, I heard 

somebody allude to how much people consume in a weekend or 

week. How much? What does a user for crack—was it a day’s 

worth, a month’s worth? 

Mr. CASSILLY. Those were DEA figures based on a month’s use. 

Mr. SCOTT. So a month would be—what did you say? 

Mr. CASSILLY. They estimated, depending on the level of addiction, between 13 and 66 grams per month. 

Mr. SCOTT. And for powder? 

Mr. CASSILLY. For powder they estimated two grams per month 

for an average user. 

Mr. SCOTT. So you would have to have 250 months’ worth of powder to distribute for 5 years mandatory minimum, but less than a 

month’s worth of crack. 

Mr. CASSILLY. I agree. I think that the figure for the mandatory 

minimum under the Federal sentences is way off. In just my own 

state, it would be 10 times that amount for crack for a mandatory 

sentence to kick in. 

Mr. SCOTT. Okay. 

Judge Hinojosa, much has been said about the difference in crack 

and powder—some with violence and firearms and robbery and everything else. Can the Sentencing Commission make appropriate 

individualized enhancements based on conduct, rather than generalities, so that if somebody is dealing in crack and used a firearm, 

they would get more, or if they were violent, they would get more, 

whereas someone who—and the same with powder, if you are violent, if you have got a firearm and all of that—can you make enhancements to individualize and appropriately tailor the punishment based on individual conduct? 

103 

Judge HINOJOSA. We could, but the guidelines presently provide 

an enhancement for anybody who possesses or has relevant conduct 

with regards to a dangerous weapon, for aggravating role. This 

whole issue of criminal history—of course, it is taken into account. 

The higher the criminal history, the higher the sentence. 

In some cases you are at criminal history six because you are a 

career offender, which therefore means that in all likelihood you 

are not going to qualify for any retroactive application here. And 

all of these factors do get taken into account. They have given people higher sentences and will continue to do so under the guidelines system. 

We also have a statute that allows for the government to bring 

the charge under Title 18, Section 924(c), to make sure that somebody gets an additional sentence in addition to the drug sentence. 

The whole issue about danger to the communities—we cannot ignore the fact that all drugs are a danger to some community. The 

fact that crack, in the opinion of some, limits itself to the particular 

crack community where someone had dealt in crack or had passed 

crack to someone else is no different than the powder or the heroin 

that ends up hurting some other community, because in that community where it ends up, you are going to have the same situation 

with regards to people going into prostitution, people causing harm 

within the community with regards to stealing. 

We cannot separate the fact that there is some community that 

is affected by the use of some drug and the trafficking in some 

drug. And the fact that it affects a certain community doesn’t mean 

that we should lose sight of the fact that is there really this 100:1 

ratio that should apply just because it is not that particular community, as opposed to a community some other place from where 

the drug went through. 

And I do hope that at some time I can answer Congressman 

Gohmert’s question. 

Mr. SCOTT. Go ahead. 

Judge HINOJOSA. Can I? 

Mr. SCOTT. Yes. 

Judge HINOJOSA. You know, Congressman, I am a Longhorn, but 

I have actually been on the bench 25 years. I did 5 years of sentencing with no guidelines. That was a very difficult thing to do. 

I have done about 20 years with guidelines. That is a very difficult 

thing to do. It has not lessened the burden. What it has done—it 

has made this a fairer, more due process oriented system. 

I used to sentence people and consider the fact that they had a 

gun, the fact that I thought they had played a role in the particular 

offense, the type of drug and with regards to the amounts involved, 

whether they had used violence, whether they had prior histories. 

I didn’t have to tell them that I was doing that. 

Under the guidelines system, I still have the discretion to apply 

those enhancements, but I have an open dialogue between the government and the defense knowing that I am considering that. And 

then I have the discretion. And it is more work. I will say that, because any system that is more transparent requires more work. 

It was certainly much easier, except for it was still hard to make 

the decision, but it was much easier for me to get on the bench and 

say, ‘‘Okay. Your sentence is 5 years or probation or whatever’’ 

104 

without having to go through this open, fair discussion that the 

Sentencing Reform Act of 1984 brought into being. 

But it has made it no easier from the standpoint of having to 

make the tough decisions, but I still have the discretion to make 

the fact finding with regards to the enhancements, but it is a much 

fairer system, because I have allowed the prosecutor and the defense to address the issues that are important to them and then 

I make the decisions without just coming on the bench, as I did for 

5 years, having the difficult decision to make without as much an 

open discussion. 

Thank you. 

Mr. SCOTT. Thank you. 

Judge Gohmert? 

Mr. GOHMERT. Thank you. 

And I appreciate you alluding again to your being a Longhorn. 

I didn’t know if you were looking for sympathy for a disability or 

what. [Laughter.] 

Judge HINOJOSA. I will take anything today. But I will say that 

sentencing is hard, and you know that. It is hard under any system. And I say this not because I am the chair of the Sentencing 

Commission, but because I am in a border court, and I sentence a 

lot of people. And I find this a fair system. 

Mr. GOHMERT. Well, and then I will take the next question back 

to you. The possibility has been mentioned in trying to equalize 

sentences. What about raising the level of sentence for powder cocaine to that the same as crack, instead of going the other way? 

What are your thoughts about that? 

Judge HINOJOSA. In all the hearings that we have held through 

the years at the commission, we have had no support from anyone 

who says that the powder penalties right now are too low. It has 

been difficult for us to hear from people that powder penalties are 

too low. I know that in the spirit of compromise that might be appealing to some, but we ask you please don’t do that just for the 

sake of compromise, because increasing someone’s penalties for the 

sake of reducing some really doesn’t solve the problem. 

The crack ratio needs to be looked at individually and separately, 

and we have heard no interest in increasing the penalties for powder by lowering the amount that you get to the mandatory minimums. 

Mr. GOHMERT. Mr. Cassilly, you had alluded to that earlier that 

maybe that would be the way to go. Could you elaborate on that 

a little bit? What did you base that on? 

Mr. CASSILLY. Well, Congressman, I really think that first of all 

in terms of Federal sentencing, I agree that the whole Federal emphasis really should be more on distribution and possession with 

intent to distribute and get away from people that are in simple 

possession. 

I serve on our Drug Court Commission in the State of Maryland. 

I really think that the emphasis for people in possession—you are 

users; you are addicts—should be first and foremost for treatment 

and that the Federal emphasis should be more on going after the 

drug sellers and dealers. 

And to the extent that the Federal net is catching people that are 

in possession, then we need to look at that and move them into the 

105 

state courts, where there are probably more treatment resources, 

and focus the Federal system on the dealers. 

But then if we are going to focus on drug dealers and people who 

possess with the intent to distribute drugs, then I really think that 

there should be more of an emphasis, too, on the powder dealers 

and bringing them up to where they are treated the same way as 

crack dealers. 

Mr. GOHMERT. And Mr. Short, I appreciate your being here. You 

are a great example of someone who can overcome, and what is 

heartbreaking is to see how many do end up going to prison, 

whether it is crack or powder, and then they come up and they get 

right back into it. 

And I have had people that wanted to get out of it, but they 

ended up being drawn back to it. And I am told it is such an incredible feeling that once you have had it, you just yearn to have 

it. How long have you been clean now? 

Mr. SHORT. I wasn’t a drug user. 

Mr. GOHMERT. Oh, you weren’t. You were just distributing. 

Mr. SHORT. Yes. 

Mr. GOHMERT. I see. Well, then that would make it easier to kick 

the habit, if you didn’t have it. [Laughter.] 

But here again, I take it from your appearance here, from the 

things you say, your sincerity, that you did learn a valuable lesson 

and you are not distributing. You see the damage that has been 

done, and apparently the President understood that sincerity as 

well. 

So do any of you have a suggestion as to what point an amount 

becomes an issue of distribution, rather than an issue of possession? 

Judge HINOJOSA. I don’t think the amount matters as to when 

something is distribution. The question is what ratio should you 

use between crack and powder, because any amount that you distribute is distribution, as opposed to personal use. 

But the issue becomes when it is five grams, if it is distribution, 

should it equal 500 grams of powder to get you the same penalty? 

But any amount that is distribution is going to be distribution. 

Mr. NACHMANOFF. Ranking Member, if I might just address that 

briefly, Judge Hinojosa, of course, is correct. Any amount of distribution, whether it is the .11 grams that was the example from 

our district or whether it is kilos, is distribution. It is the act of 

giving to someone else. 

The bills that are proposed that equalize the punishments and 

allow for individualized punishment by judges can address those 

issues. Obviously, someone who is distributing .11 grams generally 

is going to be viewed as less dangerous and less harmful and needing less punishment generally than someone who is distributing 

large amounts, whether it is crack or whether it is powder. 

But what this really points to is the fundamental problem with 

the current law, which is the rigid over emphasis on quantity as 

a measure of culpability. And while quantity may be relevant to a 

judge or a court to determine how someone should be punished, the 

idea that it should be the only issue that governs the sentence and 

it should create mandatory minimums is what has been, I think, 

shown to be a failure here. 

106 

It is the ability, to borrow Ms. Shappert’s word, to have the holistic opportunity to sentence based on the entire conduct—whether 

there is violence, whether there is a gun, whether the person was 

doing this as an accommodation, for pecuniary gain—that allows a 

judge under individualized sentencing, as Congress demanded, 

when it passed the Sentencing Reform Act and passed 3553A, 

which requires judges to consider all of these factors and then to 

impose an appropriate penalty. And by eliminating mandatory 

minimums and equalizing punishment, because these substances 

are pharmacologically identical, will allow judges to be in a position 

to make those individualized determinations in a fair and appropriate way. 

Mr. SCOTT. And I think it is also the way that is inappropriate 

because of the way they calculate the weight. It is the weight in 

the entire operation, not talking about the individual’s role in that 

operation. So you can get someone with a tangential role in a big 

operation, and they are saddled with the full weight of that operation. 

Mr. NACHMANOFF. That is absolutely true. That is an issue of 

reasonable foreseeability. And we see that defendants are saddled 

with transactions that they took no part in, but because they were 

part of an organization. 

Mr. SCOTT. And because the weight is the only measure. 

Let me go to the gentlelady from Texas, and if people have other 

comments, we will allow you that in a few minutes. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. SCOTT. She has an appointment she has to run to. 

Ms. JACKSON LEE. I am sorry to have come in after the testimony 

of many of you. However, I am comfortable with my assessment, 

basically, of the perspectives that you have. And I will be quick and 

pointed. 

And, Mr. Short, let me thank you for being a real example of rehabilitation and the idea of the disparity in prosecution particularly, because you were a distributor, but I assume of a small 

amount of crack. Is that correct? 

And had you been doing it for a period of time? 

Mr. SHORT. Yes. I was only just running the drugs for like roughly 2 years. 

Ms. JACKSON LEE. Two years. 

Do you believe that rehabilitation—some intervention—in your 

life would have been constructive? 

Mr. SHORT. Yes, I do. 

Ms. JACKSON LEE. Let me ask—it is very hesitant to cross-examine the two distinguished jurists, but if I can ask quick questions 

with quick answers. 

Judge Walton, you just simply want the Federal Government to 

be fair. Do you think the series of bills that we have articulated 

today, a number of them by Members of Congress, would begin to 

address the question of equalizing the disparity? 

Judge WALTON. Any of them would address it at least to some 

degree, yes. 

Ms. JACKSON LEE. And do you believe, for example, H.R. 4545 is 

consistent with the Judicial Conference policy? Does it have some 

107 

elements in it, particularly where it says that we focus on the kingpins, the traffickers with large amounts? 

Judge WALTON. Absolutely. 

Ms. JACKSON LEE. And so if we look to, if you will, balance—not 

balance, but if we look to correct the disparity—100:1—we would 

be making an important step forward. 

Judge WALTON. I believe so. I believe that it would go a long way 

in rebuilding a sense of fairness that people have about the process, which I think is very important. 

Ms. JACKSON LEE. Let me say that I respect both of you as jurists and really supported the decisions of the Supreme Court that 

allow you discretion, but, Judge Hinojosa, even though you come as 

the chairman of the U.S. Sentencing Commission, you know and 

you heard discussions suggesting that the Supreme Court decisions 

didn’t cover that. The law still was the 100:1. 

With that in mind, the Sentencing Commission has asked the 

Congress to act. How imperative is it to equalize the system. To 

sort of go back to my comments earlier of due process and mercy, 

how important it is for the Congress to act, for the President to 

sign a reform bill? 

Judge HINOJOSA. With regards to the comments about the U.S. 

attorneys, I haven’t heard them, but maybe the Justice Department can address this. 

It is important, because for many, many years people have 

viewed this as a ratio that is not appropriate. And our hearings 

through the years have presented information to the commission 

that this is not an appropriate ratio. The commission is not here 

to endorse any particular ratio. In fact, our position has been no 

more than 20:1. 

But we are here to urge action with regards to the mandatory 

minimum ratio and emergency amendment authority to the commission to therefore quickly put this into effect with regards to the 

guidelines themselves. But it is important to address the issue, and 

we appreciate the fact that this hearing is being held, because I 

think it will be a step in the process and certainly be very helpful. 

Ms. JACKSON LEE. One of your instructions was for Congress to 

participate in the process of reform. Is that not correct? 

Judge HINOJOSA. I would hate to say that the commission is instructing Congress to do anything in particular. We would urge 

Congress to engage in the process of reform. Yes, ma’am. 

Ms. JACKSON LEE. I think it is appropriate for me to characterize 

it as an instruction, and again, I will not attribute it to you. 

Ms. Shappert, I understand your perspective is that dangerous 

persons will go out into the highways and byways of American society. But I would just simply argue or make the point that if we had 

intervened a long time ago, we might have had a pathway of rehabilitation as opposed to a pathway of incarceration. 

What you do with small-time distributors and/or users is incarcerate them in a harsh system. They become more hardened. They 

become more criminalized, and the only thing that they can do, 

when they come out after 25 years, 30 years, is to go back into the 

system of crime. 

And so I am not necessarily asking a question. I respect your 

perspective, but I think this is evidence that it has failed. The jails 

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are fuller than they have ever been. Families are destroyed, because they don’t have their loved ones, who could be breadwinners. 

Children are without fathers or mothers, and this is absolutely a 

crisis. 

I hope that we can pass the Second Chance bill that will answer 

some of your questions about the release of these individuals, but 

I think it is imperative, as U.S. attorneys and others in the criminal justice system, you see the error of your ways and you respect 

what we are trying to do—prosecute the big guys and let the little 

guys get rehabilitated. 

With that, I yield back my time. 

Ms. SHAPPERT. Respectfully, I will not acknowledge the error of 

my ways, when I don’t believe we have erred. We have attempted 

to enforce the law that the Congress gave us. We are here to 

change the law in a spirit of comity with the Congress, but in addition to considering those who are in prison, we need to look at the 

victims in the communities, who have no voice, and I am here to 

represent them. 

Ms. JACKSON LEE. And that I appreciate, and we are looking at 

the victims. And as I indicated, the scales of justice requires us to 

look at the victims who are not in jail and those who are in jail, 

and I think if we help those who have been incarcerated unfairly, 

we can decrease the number of victims who you are trying to represent. 

Ms. SHAPPERT. And there can be no mercy without justice. 

Ms. JACKSON LEE. Pardon me? 

Ms. SHAPPERT. There can be no mercy without justice. 

Ms. JACKSON LEE. There can be no more what? 

Ms. SHAPPERT. There can be no mercy, respectfully, without justice. 

Ms. JACKSON LEE. But mercy is balanced, and you are not balanced, and that is clear. And the lawyers who are representing the 

state must also be balanced. 

Ms. SHAPPERT. Yes, ma’am. 

Ms. JACKSON LEE. And we can work together, I hope, to get 

where you would like to go to ensure that there is justice and protection of society at the same time Mr. Short and those who I see 

suffering and languishing in jail because of this absolute inequity 

can have justice and mercy as well. 

And I thank you, Mr. Chairman. [Laughter.] 

Mr. SCOTT. Mr. Gohmert, do you have another question? 

Mr. GOHMERT. Yes, I did want to ask Judge Hinojosa. There are 

some reports that a number of inmates affected by retroactive application of the commission’s ruling may be higher than originally 

thought. Has there been any update to the projections since October of 2007? 

Judge HINOJOSA. Congressman Gohmert, we made it quite clear 

that our projection is based on the fact that the model that has 

been in the statutes as we see it would be followed, which would 

be the two-level reduction only and limited to that, and only in 

cases where it would make a difference. 

There has been a change in that, because since we came up with 

the number that had been sentenced and we put out that information at a particular date, there have been more people that have 

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been sentenced up to November 1st of 2007, before it came into effect. 

And there is an added number to that as potentials, but again 

I emphasize, just like Judge Walton has, eventually this is a decision that is made by judges on an individual basis. 

I get confused when I hear that witnesses are gone. These are 

people who have already been convicted. And judges have the presentencing report, as well as information since the person has been 

in custody, as well as all the other information that was available 

at the time that the court made the decision, whether it is the 

transcript or whatever the sentencing matter, but the pre-sentencing report is there. It isn’t like you are going to have another 

conviction, where you need witnesses with regards to the commissions of offenses. 

Mr. GOHMERT. Thank you. 

Judge HINOJOSA. Thank you, sir. 

Mr. GOHMERT. And gentlemen, with regard to the allegation toward Ms. Shappert, let me just remind everybody that was applauding there, you have got Justice officials, who were supposed 

to be advocates on one side in this adversary system. You have got 

good defense lawyers we have here before us. And the judges are 

the ones that are supposed to have the discretion and utilize mercy 

and justice as a balance. 

And the Justice Department—I guess if you did anything unfair, 

it would be you followed the law as given to you in 1986 by people 

who meant well and created a bad law. 

So thank you. 

Mr. SCOTT. Thank you. 

There being no further questions, we may have additional questions for you, and we would ask you to respond to those questions 

so that their answers can be made part of the record. 

Without objection, we have several letters that we would like to 

get entered into the record, along with four testimonies from 

Human Rights Watch, the ACLU, the Legal Defense Fund, and 

Families Against Mandatory Minimums. The hearing will remain 

open for 1 week for submission of additional materials. 

And without objection, this Committee stands adjourned. 

[Whereupon, at 5:23 p.m., the Subcommittee was adjourned.] 

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PREPARED STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF POLICE

Good afternoon, Mr. Chairman, Ranking Member Gohmert, and distinguished 

Members of the Subcommittee on Crime. My name is Chuck Canterbury, National 

President of the Fraternal Order of Police, the largest law enforcement labor organization in the United States, representing more than 325,000 rank-and-file police officers in every region of the country. 

The Fraternal Order of Police has been at the forefront of this debate for many 

years. In previous Congresses, the FOP has supported legislation addressing the socalled sentencing ‘‘disparity’’ between crack cocaine and powdered cocaine by raising 

the penalties for powder. This has been our position for more than a decade, and 

we stand by it. 

Our immediate concern, however, is the passage and enactment of H.R. 4842, introduced by Representative Lamar Smith of Texas, the Ranking Member on the full 

Committee. This bill would prevent the recent changes to the sentencing guidelines 

adopted by the U.S. Sentencing Commission from being applied retroactively. 

In the past two years, I have testified twice before the U.S. Sentencing Commission. In 2006, I urged them not adopt changes to the sentencing guidelines that 

would lower the penalties for crack cocaine offenses by two levels. The Commission 

had done so on two previous occasions, but fortunately those amendments were rejected by Congress on each occasion. Regrettably, this time Congress failed to act 

and the amendment lowering the penalties for crack cocaine offenses that was 

adopted went into effect on 1 November 2007. 

Later that same month, I was the only witness from a law enforcement organization to appear before the U.S. Sentencing Commission to address their plan to apply 

these new, lowered guidelines retroactively and facilitate the release of thousands 

of crack dealers. Obviously, we strongly opposed this action. 

Yet again, the views of the rank-and-file officer—the men and women who put 

their lives on the line to confront, capture, and convicted these dealers was disregarded and the Commission decided to apply the new guidelines retroactively. 

The Commission’s own data indicates that at least 19,500 crack dealers will be 

eligible for early release. It should also be noted that these sentencing reductions 

would be in addition to any other reductions the offender received, such as a reduction for cooperation with the United States or ‘‘good time’’ credit in prison. It is important that Congress recognize that these are not ‘‘low-level dealers’’ or first time 

offenders. At least 80% of them had previously been convicted of a crime, a majority 

of them have multiple prior convictions and 35% of them also possessed a firearm 

in connection with their drug dealing operation. Further, more than 15% of these 

offenders are in the highest criminal history category (VI). Clearly, these inmates 

are far more likely to reoffend. 

These are not empty statistics—but hard facts. While the new guidelines have certainly weakened the overall fight against crack-related crime, retroactive application 

of the guidelines will have an immediate and deleterious effect on public safety and 

the crime rates in our communities. Using the Commission’s own data, it is projected that at least 2,500 additional crack dealers will be released into the community either immediately or within the first year of retroactive application. Another 

5,000 could be released into the community within twenty-four months of the effective date of the retroactive application. Further, while the average reduction in sentence is approximately 27 months, some offenders—primarily those who are the 

most likely to be high-level dealers with significant criminal histories—could see 

their sentences reduced in excess of 49 months. At a time when law enforcement 

is seeing an increase in crime rates that have fallen for more than a decade, it 

seemed at variance with common sense and good public policy to release en masse 

crack dealers and drug offenders into our neighborhoods. Yet, the Commission has 

voted to do so. 

Let me give you some concrete examples as to how the retroactive application of 

these new guidelines may affect real communities and the people that live there. 

Consider the case of Leonard Brown. Mr. Brown, before his arrest, conviction, and 

sentencing, was the main drug supplier for Sandersville, Georgia, a rural community with approximately 10,000 residents. Mr. Brown, prior to being selected by a 

jury of his peers to serve a sentence that this Commission now deems to be too 

lengthy, has an impressively long criminal history, which includes crimes of violence 

and drug dealing. Yet, despite this impressive body of work, the best efforts of local 

and State law enforcement authorities were not sufficient to remove Mr. Brown 

from the community. The State judicial system had become a revolving door that 

resulted in placing violent drug dealers back in their community after an all too 

brief period of incarceration. Obviously, this frustrated local and State law enforceVerDate Aug 31 2005 13:28 Nov 20, 2008 Jkt 000000 PO 00000 Frm 00168 Fmt 6601 Sfmt 6621 H:\WORK\CRIME\022608\40925.000 HJUD1 PsN: 40925
165 

ment officers as well as the residents of Sandersville—whose safety was at risk— 

while Mr. Brown’s business was in operation. 

The Federal prosecution and sentencing of Mr. Brown, however, had a ripple effect in Sandersville. Admittedly, the actual amounts of crack cocaine possessed by 

Mr. Brown at the time of his arrest for the offenses for which he is currently incarcerated were not particularly high, but for a community the size of Sandersville, Mr. 

Brown served as a kingpin of sorts, supplying a substantial amount of drugs from 

his trailer. As befits a person of his standing, he employed minors to do the actual 

leg work, exposing them to all the risks, while he reaped the rewards. It was not 

until he was prosecuted by Federal authorities, however, that he was held to account for his crimes. His conviction, the significant sentence he received and the fact 

that he would not be eligible for parole sent a clear message that there were serious 

consequences for drug dealers if they were prosecuted by Federal authorities. It also 

sent a message to the residents of Sandersville—that the criminal justice system 

was not completely broken and that a long-time drug dealer like Mr. Brown could 

and would go to jail and stay there. 

If the changes to the sentencing guidelines were made retroactive, Mr. Brown’s 

sentence will be reduced by approximately three years, making him eligible for immediate release. This also sends a clear message—that we are not serious about getting and keeping drug dealers out of communities. The residents of Sandersville, 

Georgia, should be outraged because they know it will not take long for Mr. Brown 

to return to business. 

Let me give you another example—a drug dealer from Chattanooga, Tennessee by 

the name of Sylvester Pryor. Like Mr. Brown, his criminal history includes possession of crack for resale, possession of deadly weapons, and two assaults on a law 

enforcement officer. He was arrested on Federal charges with the aid of a confidential informant and sentenced to nine years and six months in prison. If the latest 

revisions to the U.S. sentencing guidelines are made retroactive, Mr. Pryor may be 

eligible for immediate release. 

Jesse Lee Evans was the leader of a drug ring operating in Pennington, Alabama. 

Over the course of a year and a half, he sold crack out of his house in Choctaw 

County until undercover officers executed several controlled drug buys enabling his 

arrest. Mr. Evans was classified as Criminal History Category IV and was sentenced to more than 21 years, but would be eligible for release immediately if the 

changes to the sentencing guidelines are made retroactive. 

These are but a few examples of how the retroactive application of the new rules 

will have an immediate and certainly very negative effect on communities and their 

residents. Federal prosecutions were brought to bear on these two criminals because 

the State and local systems were unable to keep them locked up. With the new 

guidelines, and certainly with applying them retroactively, we risk bringing the revolving door into the Federal system. 

I think it is important to remember the incalculable devastation wrought on our 

nation during the crack epidemic—millions of lives were damaged and families 

wrecked by this drug and many of our cities have never fully recovered. Just ask 

the people in Sandersville or Pennington how many lives were ruined by Leonard 

Brown or Jesse Lee Evans and their drug businesses. Or ask the officers that were 

attacked by Sylvester Pryor in Chattanooga. As a nation, we worked hard over the 

past fifteen years to reduce our nation’s crime rates to historic lows and this success 

was due in large part to the efforts of State and local law enforcement and a genuine commitment by the Federal government to incarcerate for longer periods of 

time these offenders who dealt in crack cocaine. While other drugs of the moment 

may have eclipsed crack in popularity and availability, the market for crack remains 

massive—with nearly one million Americans who continue their addiction to this 

terrible drug. In our view, retroactive reduction of the sentences of the criminals responsible for creating and feeding these addictions is a grievous error which will inflict great harm on many innocent Americans. For this reason, we urge the Congress to adopt H.R. 4842 and to reject the retroactive application of the new sentencing guidelines. 

I want to thank you and the Subcommittee in advance for your consideration of 

the view of the more than 325,000 members of the Fraternal Order of Police, and 

I hope that you recognize the sincerity of our position. 

I would now be pleased to answer any questions you might have. 

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