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46–050 PDF 2009

S. HRG. 110–672 

FEDERAL COCAINE SENTENCING LAWS: REFORMING THE 100-TO-1 CRACK/POWDER DISPARITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME AND DRUGS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 12, 2008 

Serial No. J–110–73 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON CRIME AND DRUGS

JOSEPH R. BIDEN, JR., Delaware, Chairman 

EDWARD M. KENNEDY, Massachusetts 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

LINDSEY O. GRAHAM, South Carolina 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JEFF SESSIONS, Alabama 

TOM COBURN, Oklahoma 

TODD HINNEN, Chief Counsel 

WALT KUHN, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware ............. 1 

prepared statement .......................................................................................... 141 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 5 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 178 

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

statement .............................................................................................................. 198 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 4 

WITNESSES 

Felman, James E., Co-Chair, Committee on Sentencing, Criminal Justice 

Section, American Bar Association, Washington, D.C. ..................................... 16 

Hinojosa, Ricardo H., Chair, U.S. Sentencing Commission, Washington, D.C. .. 10 

Shappert, Gretchen C.F., U.S. Attorney, Western District of North Carolina, 

Department of Justice ......................................................................................... 7 

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

Institutes of Health, Department of Health and Human Services, Washington, D.C. ........................................................................................................... 14 

Walton, Reggie B., District Judge for the District of Columbia, and Member, 

Criminal Law Committee, Federal Judicial Conference, Washington, D.C. ... 12 

QUESTIONS AND ANSWERS 

Responses of James E. Felman to questions submitted by Senators Biden 

Leahy, Kennedy and Coburn ............................................................................... 35 

Responses of Ricardo H. Hinojosa to questions submitted by Senators Biden, 

Leahy, Kennedy, Feingold and Coburn .............................................................. 57 

Responses of Gretchen Shappert to questions submitted by Senators Biden, 

Leahy, Kennedy, Feingold and Coburn .............................................................. 74 

Responses of Nora D. Volkow, M.D. to questions submitted by Senators 

Biden, Leahy, Kennedy and Coburn ................................................................... 97 

Responses of Reggie B. Walton to questions submitted by Senators Biden, 

Leahy, Kennedy, Feingold and Coburn .............................................................. 103 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Caroline Fredrickson, Director and Jesselyn 

McCurdy, Legislative Counsel, Washington, D.C., statement and letter ........ 122 

Arboleda, Angela M., Director, Civil Rights and Criminal Justice Policy, National Council of La Raza, Washington, D.C., statement ................................. 132 

Cassilly, Joseph I., State’s Attorney, Harford County, Bel Air, Maryland and 

President-Elect, National District Attorneys Association, Alexandria, Virginia, statement and attachment ........................................................................ 143 

Families Against Mandatory Minimums (FAMM), Julie Stewart, President, 

Washington, D.C., letter ...................................................................................... 148 

Felman, James E., Co-Chair, Committee on Sentencing, Criminal Justice 

Section, American Bar Association, statement .................................................. 150 

General Board of Church and Society of The United Methodist Church, Jim 

Winkler, General Secretary, Washington, D.C., letter ...................................... 158 

Hernandez, Carmen D., President, National Association of Criminal Defense 

Lawyers, Washington, D.C., statement .............................................................. 159 

Page

IV 

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

statement .............................................................................................................. 164 

Hynes, Charles J., District Attorney, Office of the District Attorney, Kings 

County, Brooklyn, New York, letter ................................................................... 175 

Kramer, A.J., Federal Defender for the District of Columbia, Washington, 

D.C., statement .................................................................................................... 182 

Martin, John S., Jr., Attorney at Law, Martin & Obermaier, LLC, New 

York, New York, letter and attachment ............................................................. 200 

Mennonite Central Committee (MCC), Rachele Lyndaker Schlabach, Director, 

Washington Office, Washington, D.C., letter ..................................................... 205 

NAACP Legal Defense & Educational Fund, Inc., (LDF), Theodore M. Shaw, 

Director-Counsel, Washington, D.C., letter ....................................................... 206 

National Association of Criminal Defense Lawyers, Carmen D. Hernandez, 

President, Washington, D.C., letter .................................................................... 212 

Piper, Bill, Director, National Affairs, Drug Policy Alliance, Washington, D.C., 

statement and letter ............................................................................................ 213 

Religious Action Center of Reform Judaism, Rabbi David Saperstein, Director 

and Counsel, Washington, D.C., letter ............................................................... 220 

The Sentencing Project, Marc Mauer, Executive Director, Washington, D.C., 

letter ...................................................................................................................... 221 

Shappert, Gretchen C.F., U.S. Attorney, Western District of North Carolina, 

Department of Justice, statement ...................................................................... 223 

Shelton, Hilary O., Director, NAACP Washington Bureau, Washington, D.C., 

statement and letter ............................................................................................ 234 

Students for Sensible Drug Policy (SSDP), Kris Krane, Executive Director, 

Washington, D.C., letter ...................................................................................... 241 

Taifa, Nkechi, Esq., Senior Policy Analyst, Open Society Policy Center, and 

Convener, Justice Roundtable, Washington, D.C., statement .......................... 243 

Unitarian Universalist Association of Congregations, Robert C. Keithan, Director, Washington, D.C., letter .......................................................................... 256 

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

Institutes of Health, Department of Health and Human Services, Washington, D.C., statement ........................................................................................ 257 

Walton, Reggie B., District Judge for the District of Columbia, and Member, 

Criminal Law Committee, Federal Judicial Conference, Washington, D.C., 

statement .............................................................................................................. 264 

Washington Times, February 12, 2008, article ..................................................... 273 

(1) 

FEDERAL COCAINE SENTENCING LAWS: REFORMING THE 100-TO-1 CRACK/POWDER 

DISPARITY 

TUESDAY, FEBRUARY 12, 2008 

U.S. SENATE, 

SUBCOMMITTEE ON CRIME AND DRUGS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Joseph R. Biden, Jr., 

Chairman of the Subcommittee, presiding. 

Present: Senators Biden, Kennedy, Feingold, and Sessions. 

OPENING STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. 

SENATOR FROM THE STATE OF DELAWARE 

Chairman BIDEN. Good afternoon. The hearing will come to 

order. We are going to start a few minutes earlier because two of 

my colleagues who will be here and who have great interest in the 

subject will come and make an opening statement and will have to 

leave and come back. So I will get my opening statement out of the 

way. 

I say to the witnesses all, welcome. Delighted to have you here. 

We appreciate your taking the time. 

What we will do is I will make an opening statement here, and 

then, I am told Senators Kennedy and Feingold each plan on coming, and if any of my Republican colleagues do, and they have to 

go back to another Committee meeting, then I will let them make 

an opening statement, and we will turn to all of you for your statements, if that is appropriate, if you do not mind. 

So let me begin by saying thanks on behalf of the Subcommittee 

for being here, all of you. We are going to examine an issue that 

has long been the subject of vigorous debate and study: the difference in the way in which Federal law treats drug offenses involving powder cocaine versus crack cocaine. 

As you all know, under the current law, the mere possession of 

5 grams of crack, which is slightly less than the weight two sugar 

cubes, and these are about the size—you cannot see these, but 

these look about the size of little sugar cubes here—carries the 

same 5-year mandatory minimum sentence as distributing 500 

grams of powder cocaine, the amount of sugar that I just held up. 

I will make it clear: This is all sugar up here. 

[Laughter.] 

2 

Chairman BIDEN. And not sugar in the parlance of the street 

sugar. 

Many have argued that this 100-to-1 disparity is arbitrary, unnecessary, and unjust, and I agree. And I might say at the outset 

in full disclosure, I am the guy that drafted this legislation years 

ago with a guy named Daniel Patrick Moynihan, who was the Senator from New York at the time. And crack was new. It was a new 

‘‘epidemic’’ that we were facing. And we had at that time extensive 

medical testimony talking about the particularly addictive nature 

of crack versus powder cocaine. And the school of thought was that 

we had to do everything we could to dissuade the use of crack cocaine. And so I am part of the problem that I have been trying to 

solve since then, because I think the disparity is way out of line. 

The current disparity in cocaine sentencing I do not think can be 

justified on the facts we know today and the facts we operated on 

at the time we set this up. 

In 1986, crack was the newest drug on the street, and Congress 

was told that this smokeable form of cocaine was instantly addictive and that its effect on a child if smoked during pregnancy was 

far worse than that of other drugs and that it would ravage our 

inner cities. 

I remember one headline that summed it up well, and it read 

‘‘New York City Being Swamped by ‘crack’; Authorities Say They 

Are Almost Powerless to Halt Cocaine.’’ And they called it ‘‘the 

summer of crack’’ in that headline. 

In Congress, more than a dozen bills were introduced to increase 

the penalties for crack. Because we knew so little about it, the proposals were all over the map, ranging from the Reagan administration’s proposal of a 20-to-1 disparity to Senator Chiles’s proposal— 

the late Senator Chiles, late Governor Chiles—of 100-to-1. 

Senators Byrd, Dole, and I led an effort to enact the Anti-Drug 

Abuse Act of 1986 which established the current 100-to-1 disparity. 

Our intentions were good, but much of our information turned out 

not to be as good as our intentions. Each of the myths upon which 

we based the sentencing disparity has in some ways been dispelled 

or altered. We know that crack and powder cocaine are pharmacologically identical, and they are simply two forms of the same 

drug. Crack and powder cocaine cause identical psychological and 

physiological effects once they reach the brain. Both forms of cocaine are potentially addictive. 

The two drugs’ effects on a fetus are identical. The ‘‘generation 

of crack babies’’ many predicted, including me, has not come to 

pass. In fact, some research shows that the prenatal effects of alcohol exposure are ‘‘significantly more devastating to the developing 

fetus than cocaine’’—although I would point out that if you ingested the same amount of powder cocaine as crack cocaine as frequently, it would have a profound effect; 

Crack simply does not incite the type of violence that was feared. 

Gangs that deal in other types of drugs are every bit as violent as 

crack gangs. I would argue meth is even more dangerous in terms 

of the way the gangs operate. 

After 21 years of study and review, these facts have convinced 

me that the 100-to-1 disparity cannot be supported and that the 

3 

penalties for crack and powder cocaine trafficking merit similar 

treatment under the law. 

The past 21 years has also revealed that the dramatically harsher crack penalties have disproportionately impacted on inner-city 

communities, the African-African community: 82 percent of those 

convicted of crack offenses in 2006 were African-Americans. 

With many of the starting premises not as starkly viewed as 

being correct, last June I introduced the Drug Sentencing Reform 

and Cocaine Kingpin Trafficking Act, which eliminates the disparity between crack and powder cocaine offenses. Totally eliminates it. It does so without raising penalties for powder because 

there is not a shred of evidence that shows powder penalties are 

inadequate. 

My bill also eliminates the 5-year mandatory minimum sentence 

for simple possession of crack, the only mandatory minimum for 

possession of a controlled substance. 

It focuses Federal resources where we need them most—on major 

drug kingpins, not users and low-level dealers. And it provides sentencing enhancements for all drug offenses that involve a dangerous weapon or violence. 

And it provides $30 million in grants to State and local governments to fund programs that improve the availability of drug treatment for offenders in prisons, jails, juvenile facilities, and those on 

supervised release. 

I want to commend Senators Hatch and Sessions for their leadership on this issue and their respective bills to reduce the disparity. 

I hope we can work together to permanently fix this injustice, and 

I am willing, as I am sure they are, to consider one another’s proposal and see if we can work something out. 

There is a growing movement for bold action on this issue. Eight 

members of this Committee—four Republicans and four Democrats—are supporting one of the bills pending before this Committee. 

In November, the bipartisan United States Sentencing Commission sent Congress an amendment to address what it called, and 

I quote, the ‘‘urgent and compelling’’ crack/powder disparity. Congress accepted the measure, which modestly reduced crack penalties pending comprehensive congressional action. 

The report that accompanied the Sentencing Commission’s 

amendment is the fourth such report—and I have a copy of it 

here—that the Commission has issued in 12 years calling for Congress to take actions to substantially reduce the crack/power sentencing disparity. 

Editorial boards around the country have also urged Congress to 

act. The New York Times, San Francisco Chronicle, St. Petersburg 

Times, the Detroit Free Press, and Miami Herald all have endorsed 

my bill, and I am sure there are as many that have endorsed the 

bill of my colleagues who have an alternative approach. 

So I welcome debate and discussion on this issue because I am 

not convinced that any disparity in the sentencing of crack and 

powder defendants is justified given what we have come to know. 

Now I would like to turn over the floor to my distinguished colleague from Alabama, Senator Sessions. 

4 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman, and I believe we 

are now on a path to do something right about this problem. I have 

for some time believed that the crack/powder disparity cannot be 

justified. I authored legislation in the year 2000 with Senator 

Hatch, and we have just not been able to get the ball rolling. So 

I am glad you are having this hearing. It is time—I mean, it is past 

due. We need to confront this problem. 

Senator Biden, I was a Federal prosecutor when you passed the 

Sentencing Guidelines; you and Senator Thurmond and Senator 

Kennedy and others supported that. I believed then and believe 

today that it was a tremendous step forward because Federal 

judges literally could give people probation or 20 years in jail for 

the same offense, no matter how much cocaine or how little cocaine. And it created uniformity. 

But I believe, as Members of the Senate, if we are going to declare what sentences should be within narrow ranges, we ought to 

listen to what is happening out there. Let’s see what our experience teaches us. Does it teach us that the level of sentencing that 

we have done is perfect, or should it be adjusted? 

So I would just say with this aspect of the Federal Sentencing 

Guidelines, it is out of sync. It is not justified. I do not believe that 

we can justify the severity of sentences that we are receiving for 

crack cocaine. 

Now, I do remember, just like you said, Mr. Chairman, I was a 

prosecutor in the mid-1980s. Crack started arising, and people predicted it would spread. And it shocked me how fast it spread to 

rural Alabama—not just an urban area like Mobile, where I was, 

but throughout the rural areas. People were using crack, and it 

changed the—gangs did form. There was a great deal of violence, 

and we utilized that to prosecute gangs. 

I noticed it was surprising to me how many of the people that 

were convicted had charges for murder and armed robbery and 

other kinds of charges that tended to be violent gangs. 

But I think we are at a point now where this 100-to-1 disparity 

that does fall heavier on the African-American community simply 

because that is where crack is most often used has got to be fixed. 

I want to join you in this, and let’s do it this year. Let’s get it done. 

Chairman BIDEN. I hope we can. I would point out, back at the 

time we were writing this legislation, the Sentencing Commission, 

and I recall testimony from distinguished witnesses pointing out 

that in Florida, unless someone had 5 kilos of cocaine, they were 

not moved in the Federal system. There was a swamp in everything. But rather than go back and talk about what it was, I would 

like to get this expert testimony as to how they see it now. 

With your permission, Senator, before you walked in, I was 

asked—Senator Feingold as well as Senator Kennedy have a keen 

interest in this and are not going to be able to stay for the whole 

hearing. Would you mind if they made brief opening statements? 

Senator SESSIONS. No. That would be fine. I would yield. 

5 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. I thank both the Chairman and Senator Sessions very much. It is a little out of order, so I do appreciate it. 

And thank you for holding the hearing and for your strong leadership on this, Senator Biden. 

The disparity in sentencing between crack and powder cocaine offenses is a serious blemish on our system of justice. Over the past 

20 years, it has become clear that neither public health nor law enforcement considerations justify the disparity. To the contrary, its 

effects are pernicious. It diverts resources to low-level offenders 

and exacerbates overcrowding in Federal prisons, and it has a dramatically disproportionate effect on African-Americans, which undermines confidence in the Federal justice system in many communities. 

I applaud the U.S. Sentencing Commission for taking an important step to address this problem by lowering the base offense level 

for crack cocaine offenses. I wrote to the Commission in December, 

along with Senator Webb and Senator Kerry, urging the Commission to make this adjustment retroactive, and I was pleased that 

it did so. As the Commission recognized, a sentence that is unfair 

for people who are sentenced today is equally unfair for people who 

were sentenced a year or a decade ago. That is why the Commission for the past 20 years has made every reduction in drug sentencing retroactive. 

Last week, testifying before the House Judiciary Committee, Attorney General Mukasey opined that applying the adjustment 

retroactively could threaten public safety by allowing the early release of violent crack cocaine offenders. But no offender will be entitled to automatic release. A judge will examine every case individually to determine whether a reduced sentence is appropriate. The 

Attorney General expressed concern that this would be too much 

of a burden on judges, but the Judicial Conference of the United 

States supported making this adjustment retroactive. We should 

listen to the expertise of the Sentencing Commission and the Judicial Conference, and we should not undo the progress that has been 

made. 

Instead, we should focus on furthering this progress. I am a cosponsor of Chairman Biden’s bill, S. 1711, which would eliminate 

the disparity by increasing the amount of crack cocaine necessary 

to trigger the mandatory minimum sentence. It would also eliminate the 5-year mandatory minimum sentence for possession of 

crack cocaine, which is the only mandatory minimum that exists 

for simple drug possession. It would substitute more effective tools, 

such as grants for improving drug treatment for prisoners; increased monetary penalties for major drug traffickers; and revised 

guidelines, if the Sentencing Commission finds it appropriate, to 

reflect the use of a dangerous weapon or violence in drug offenses. 

I commend Senator Biden for the bill, and I am pleased to support 

it. 

For two decades, the evidence has accumulated that the current 

approach to crack cocaine offenses is wrong. On multiple occasions, 

the U.S. Sentencing Commission has urged Congress to address 

this problem. It is high time that we fulfill our responsibility as 

6 

legislators to fix this law so that we can begin to wash away the 

stain it has left on our system of justice. 

Thank you very much, Mr. Chairman. 

Senator SESSIONS. Mr. Chairman, I just briefly would say I do 

value the Sentencing Commission’s recommendations. I think we in 

Congress ought to listen to them because we define the sentences 

so narrowly that we need constant feedback on what good public 

policy is. 

Second, I do want to emphasize that we have had a significant 

reduction in drug use in America and we have broken up—and violent crime is down, and a large part of that is tough sentences. 

There is just no doubt about it. Not many people shoot people. Not 

many people sell cocaine. So focusing on those and having tough 

sentences is not bad. 

Finally, I would like to thank my former Attorney General colleagues. Senators Salazar, Pryor, and Cornyn have joined with me 

in introducing the legislation to reduce this disparity. They have all 

been prosecutors. They know the real world out there. And we have 

all concluded we need to do better and create a more legitimate 

sentencing range for these kind of offenses. 

Thank you. 

Chairman BIDEN. Thank you. 

Now let me introduce our distinguished panel of witnesses. First, 

Gretchen Shappert will testify for the Department of Justice. Ms. 

Shappert is currently a United States Attorney for the Western 

District of North Carolina, a post she was appointed to in the year 

2004. 

Next is the Honorable Ricardo Hinojosa. The judge was appointed to the Sentencing Commission by President Bush in 2003 

and has chaired it since 2004. He also serves as United States District Judge for the Southern District of Texas, and he was appointed to that post in 1983 by President Reagan. 

Testifying for the Federal Judicial Conference is the Honorable 

Reggie B. Walton, United States District Court Judge for the District of Columbia. After President Bush nominated Judge Walton 

in 2005, former Chief Justice Rehnquist appointed Judge Walton to 

the Judicial Conference’s Criminal Law Committee. Prior to his appointment to the bench, Judge Walton served as President George 

H.W. Bush’s Associate Director for the Office of National Drug 

Control Policy and as then-President Bush’s senior White House 

adviser on crime. 

And I am going to mispronounce the name. Dr. Nora Volkow 

serves as the Director of the National Institute of Drug Abuse of 

the Department of Health and Human Services and is a research 

psychiatrist and scientists. The doctor pioneered the use of brain 

imaging to investigate the toxic effects on drugs and their addictive 

properties. 

And James Felman is a Co-Chair of the Committee on Sentencing in the Criminal Justice Section of the American Bar Association and has handled several high-profile criminal appeals as an 

expert in Federal sentencing law. 

I welcome you all, and I would invite your testimony in the order 

you have been introduced. 

7 

STATEMENT OF GRETCHEN C.F. SHAPPERT, UNITED STATES 

ATTORNEY, WESTERN DISTRICT OF NORTH CAROLINA, DEPARTMENT OF JUSTICE 

Ms. SHAPPERT. Thank you, Chairman and Senator Sessions and 

members of the Subcommittee. I appreciate the opportunity to appear before you on behalf of the Department of Justice to discuss 

Federal cocaine sentencing policies. My name is Gretchen 

Shappert. I am the United States Attorney for the Western District 

of North Carolina. I have been in public service most of my professional life, both as a prosecutor and as an assistant public defender. And last week, I completed 41⁄2 consecutive weeks of trial 

in my district, two of the cases involving individuals who were distributing crack cocaine. Indeed, much of my career in public service 

has been defined by the ravages of crack cocaine. 

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 disparate impact. As this Subcommittee knows, since the mid-1990s, 

there has been a great deal of discussion and debate on the issue. 

I am here today on behalf of the Department of Justice to affirm 

our willingness to engage in discussions with this Subcommittee regarding the current statutory differential between crack and powder cocaine. 

Any discussion of the crack and powder cocaine differential must 

also address the serious public safety concerns and court administrability issues raised by the impending retroactive application of 

the Sentencing Guideline Amendments to crack cocaine offenders. 

Because Congress only has until March 3rd to address the United 

States Sentencing Commission’s decision, Attorney General 

Mukasey last week asked Congress to quickly enact legislation to 

prevent the retroactive application of the Sentencing Commission 

Amendments. Specifically, he asked Congress to ensure that serious and violent offenders remain incarcerated for the full terms of 

their sentences. In calling for action, he emphasized that ‘‘we are 

not asking this Committee to prolong the sentences of those offenders who pose the least threat to their communities, such a firsttime offenders and non-violent offenders. Instead,’’ he said, ‘‘our objective is to address the Sentencing Commission’s decision in a way 

that protects public safety and addresses the adverse judicial and 

administrative consequences that will result.’’ 

Mr. Chairman, because you asked that the Department of Justice 

address the sentencing disparity issue first, I will begin with that, 

and then turn to our deep concerns about retroactive application of 

the guidelines. 

It has been said, and I certainly believe based upon my experience, that whereas cocaine powder destroys an individual, crack cocaine destroys a community. The emergence of crack cocaine as the 

major drug of choice in several Charlotte communities in the late 

1980s dramatically transformed the landscape. We saw an insurgence of drug-related violence, open-air drug markets, and urban 

terrorism unlike anything we had experienced in the past. The 

sound of gunfire after dark was not uncommon. Families were 

8 

afraid to go out of their homes at night for fear of violence, and individuals slept in their bathtubs to avoid stray gunfire. 

I have also seen the dramatic results when Federal prosecutors, 

allied with local law enforcement and community leaders, make a 

commitment to take back neighborhoods from the gun-toting drug 

dealers who have laid claim to their communities. The successes of 

our Project Safe Neighborhoods initiatives, combined with Weed 

and Seed, have had a tremendous transforming effect on communities. 

In Shelby, North Carolina, for example, Federal prosecutors initiated prosecutions of violent crack-dealing street gangs and helped 

to slash the crime rate in that community, enabling community 

leaders to begin to deal with community problems, to build a community garden, to initiate truancy programs and sporting programs 

for young people. Traditional barriers are breaking down, and Shelby is a thriving and diverse Southern city, and this would not have 

happened but for a systematic response to the cocaine problem. 

In the jury trial I just completed last Wednesday night, the jury 

heard stories about gun-toting drug dealers kidnapping one of their 

co-conspirators and holding him for ransom. These are the sort of 

things that we have seen and associated with crack dealing. 

I know from my conversations with prosecutors across the country that our experience in North Carolina is not unique, and my 

purpose in being here is to underscore the importance of continuing 

strong initiatives to fight drug violence. 

Toward this end, we believe that any reform in cocaine sentencing must satisfy two important conditions: first, any reforms 

should come from the Congress, not the Sentencing Commission; 

second, any reforms, except in very limited circumstances, should 

apply only prospectively. 

Bringing the expertise of the Congress to this will give the American people the best chance for a well-considered and fair result 

that takes into account not just the differential between crack and 

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

What we are talking about is whether the current balance between the competing interests in drug sentencing is appropriate. 

We are trying to ascertain what change will ensure that prosecutors will have the tools to effectively combat drug dealers like those 

who have terrorized cities in North Carolina while addressing the 

concerns about the present structure’s disproportionate impact 

upon African-American offenders. This is a decision for which the 

Congress and this Subcommittee are made. Indeed, the United 

States Sentencing Commission itself recognized this fact when it 

delayed retroactive implementation of the reduced crack cocaine 

guideline until March 3rd, thereby giving this Congress a short 

window to review and consider the broader implications of policy 

choices. 

In considering options, we continue to believe that a variety of 

factors fully justify higher penalties for crack offenses. In the cases 

I have prosecuted, I have seen the greater violence associated with 

crack cocaine distribution, and the Sentencing Commission has 

shown a higher rate of recidivism, a higher rate of management enVerDate Aug 31 2005 14:46 Jan 05, 2009 Jkt 046050 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46050.TXT SJUD1 PsN: CMORC
9 

hancements, and a higher rate of related violence associated with 

crack prosecutions. 

But beyond the violence and beyond the increased recidivism, beyond the leadership enhancements, crack cocaine is, quite simply, 

different in its impact upon communities from powder cocaine. 

Crack and powder are not equal in their effects, and the law must 

recognize that differential. To treat crack and powder cocaine as 

the same would be to disregard the disproportionate impact these 

two drugs have on communities, would disregard how crack is distributed, particularly street-level drug dealers who have terrorized 

local neighborhoods. It would disregard the greater level of violence 

associated with crack. It would disregard the more rapid high and 

potential addiction associated with crack cocaine and would disregard the corrosive effects that crack cocaine has had on families, 

communities, and human dignity. 

We in the Department of Justice believe that there is a consensus that crack cocaine and powder are different in their consequences, and the law must reflect that difference. At the same 

time, we recognize that there is not a consensus as to how the law 

should codify that difference and what the penalties should be. We 

intend to work with Congress to develop that consensus. 

As I indicated, the second condition of any reforms to cocaine 

sentencing should also apply only prospectively, except in very limited circumstances. Without finality, the criminal law is deprived 

of its most significant deterrent effect. Even when the Supreme 

Court found constitutional infirmities affecting fundamental rights 

of criminal defendants, it rarely has applied those rules retroactively. For example, the Supreme Court has not made its decision 

in Booker retroactive. 

The shortcomings of retroactive application of any new rules are 

illustrated starkly in the Sentencing Commission’s recent decision 

to extend eligibility for its reduced crack penalty provisions to more 

than 20,000 crack offenders already in Federal prisons. The consequences of relitigating potential sentence reductions for 20,000- 

plus offenders is like a tsunami hitting the Federal court system. 

Proponents of retroactivity argue that we should not be concerned about the most serious and violent offenders being released 

early because a Federal judge will still have to decide whether to 

release such offenders. But that misses an important point. The 

litigation and effort to make such decisions in so many cases forces 

prosecutors, U.S. marshals, probation officers, and judges to dedicate limited resources to keep in prison defendants whose judgments have already been made final under the rules that we all 

understood, and the impact will be disproportionate. The greater 

impact will occur in those districts that have borne the greatest 

problems in the past. Fully 50 percent of the cases involving retroactivity will impact the Fourth, Fifth, and Eleventh Circuits. In my 

own district, 536 defendants are eligible for resentencing. That represents approximately two-thirds of our caseload for an entire year. 

And the litigation is likely to be far more complicated and drawn 

out than many proponents of retroactivity envisioned. 

I am informed that Federal defenders in some areas have already 

issued guidance to Federal defense counsel urging them to argue 

for complete full-blown sentencing hearings. Prosecutors are at a 

10 

serious disadvantage if this occurs. Agents have retired, witnesses 

are no longer available, files have been archived, and the original 

prosecutors have moved on. Defending the community against violent offenders is very difficult if you no longer have the evidence. 

We believe that a minimum of 1,600 offenders will be eligible for 

immediate release. Many of those prisoners eligible for release will 

not have the benefit of the prison re-entry programs we associate 

with effectively moving people back into their communities. And recidivism is a fundamental concern. We know from the Sentencing 

Commission’s findings in 2004 that the Criminal History Category 

III reflects a 34-percent likelihood of recidivating; a Criminal History Category VI reflects a 55-percent likelihood of recidivating, 

and that a large number of the individuals in this population eligible for resentencing are looking at a likelihood of recidivism. 

Mr. Chairman, the Department of Justice is open to addressing 

the differential between crack and powder cocaine as part of an effort to resolve the crack retroactivity issue. Thank you for inviting 

me to participate in this important public hearing. I will be happy 

to respond to questions. 

[The prepared statement of Ms. Shappert appears as a submission for the record.] 

Chairman BIDEN. Thank you very much. 

Judge? 

STATEMENT OF RICARDO H. HINOJOSA, CHAIR, U.S. 

SENTENCING COMMISSION, WASHINGTON, D.C. 

Judge HINOJOSA. Chairman Biden, Ranking Member Sessions, 

Senator Kennedy, I appreciate the opportunity to appear before you 

today. 

The United States Sentencing Commission 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 cocaine 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 revisions of the current statutory 

penalties and, therefore, must be legislated by Congress. The Commission continues to encourage Congress to take legislative action 

on this important issue, and it views today’s hearing as an important step in that process and thanks you for holding this hearing. 

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 

submitted in writing. 

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

trends we have seen with respect to crack cocaine and powder cocaine offenses through the years. The Commission obtained information on 6,175 powder cocaine cases, which represent approximately 25 percent of all drug-trafficking cases, and 5,239 crack coVerDate Aug 31 2005 14:46 Jan 05, 2009 Jkt 046050 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46050.TXT SJUD1 PsN: CMORC
11 

caine cases, which represent approximately 21 percent of all drugtrafficking 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-Americans, 

while in 1992 it was 91.4 percent. 

Powder cocaine offenders are now 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. 

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 Presentence Report from a 25-percent random sample of crack and powder cocaine cases for 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, 

54.4 percent of crack cocaine offenders were categorized as streetlevel 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 involve 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 from fiscal year 2006 data 

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 has shown that Federal cocaine sentencing policy, as it provides heightened penalties for crack cocaine 

offenses, continues to come under almost universal criticism from 

representatives of the judiciary, criminal justice practitioners, academics, and community interest groups. 

12 

The Commission remains committed to its recommendation in 

2002 that any statutory ratio should be no more than 20-to-1. Specifically, consistent with its May 2007 report, the Commission 

strongly and unanimously—the bipartisan United States Sentencing 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; and reject addressing the 100-to-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 mandated disparities that currently exist in Federal cocaine sentencing 

policy. 

Again, I thank you for the opportunity to testify before you 

today, and I look forward to answering any of your questions, and 

the Commission strongly thanks you for having held this hearing, 

Senator Biden. 

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

Chairman BIDEN. Thank you, Judge. 

Judge Walton? 

STATEMENT OF REGGIE B. WALTON, DISTRICT JUDGE FOR 

THE DISTRICT OF COLUMBIA, AND MEMBER, CRIMINAL LAW 

COMMITTEE, FEDERAL JUDICIAL CONFERENCE, WASHINGTON, D.C. 

Judge WALTON. Good afternoon. Thank you, Senator Biden, Senator Kennedy, and Senator Sessions. It is a pleasure and an honor 

to have the opportunity to appear here personally, but also on behalf of the Judicial Conference. 

I have thought about what I could say—I am not going to read 

my testimony; you have that—I will emphasize in the summary of 

my written testimony the perspective that I bring to this issue. As 

you know, I worked in the first Bush administration in the drug 

office and was involved in a lot of these issues at that time. As I 

thought about what I would say to you here today, I thought about, 

well, why did I go to law school? I went to law school— 

Chairman BIDEN. I ask myself that question a lot. 

[Laughter.] 

Judge WALTON. Well, I went to law school because I saw injustices that were taking place as I grew up. And, unfortunately, a lot 

of those injustices were based upon race. And I felt that if I became 

a part of the system, maybe I could do something to ensure that 

whenever somebody walked into a court of law in this country, they 

would be treated fairly and that they also would be treated equally. 

13 

As I thought about the sentencing situation as it relates to crack 

and powder, I thought about the many times when I have sat in 

judgment and had to impose sentences. And most often they were 

young African-American males whom I was sentencing. And I knew 

that if I was sentencing them for something other than crack cocaine, the sentence that I had to extract would be significantly less. 

And it hurt me to have to impose those sentences, and that is not 

because I am a light sentencer. I do not think anybody you would 

talk to would tell you that I am lenient when it comes to crime. 

But I do believe in fundamental fairness, and the Sentencing Commission—and I applaud them for what they have done—reached 

the conclusion that it is fundamentally unfair to maintain the 

present system that we have. 

I do not disagree that crack has had an impact on communities, 

but there are a lot of drugs that have an impact on communities. 

I know in this city, for example, PCP is having a significant impact 

on communities, and I also know that, yes, drugs can destroy communities and individual lives. But, also, moving so many of our 

young African-American males out of black communities is also 

having a very detrimental impact. 

One of the other things I do in addition to my regular job is I 

am Chairman of the National Prison Rape Elimination Commission, and I travel all throughout the country and go into prisons. 

And what I see in our prisons is sad. You see all of these young 

black males who are locked up, their lives destroyed; their communities, as a result of them not being there, destroyed. And that is 

not to say that we should not punish people. I believe in strong 

punishment. I believe that when people do wrong, punishment 

should be extracted. But that punishment has to be fair. And I 

know from my own personal experience, I have had jurors, potential jurors, who have told me that they would refuse to sit as a 

juror in a case involving crack cocaine because they know of the 

unfairness, and they will not be a part of an unfair system. 

And I know there are many people in the community who will 

not come forward, who will not cooperate, who will not participate 

in the process, because they see it as fundamentally unfair. I do 

not think that is good for our American system of justice for a sizable number of people to feel that our system is unfair and, therefore, do not want to be a part of it. 

I know in many of our African-American communities, yes, they 

are being harmed by drugs, but they are also being harmed by the 

perspective that the system of laws we have as it relates to crack 

cocaine is not fair. And as a result of their perspective about that 

unfairness, they have a jaded perspective about the entire criminal 

justice system, and that is something I believe it is time to address. 

As far as the retroactivity issue is concerned, I too have concerns 

about people being released who might pose a danger to the community. But one of the things that I think we have to appreciate 

is the value of judges who have the opportunity to look at cases 

and make an individual decision as to whether this particular person should or should not be released. 

If you enact legislation, what is that legislation going to say if 

we repeal the courageous decision taken by the Sentencing Commission? Is it going to say that any level of violence at any time 

14 

in a person’s history is going to preclude him or her from the benefit of what has been determined to be a fundamentally unfair law? 

Because if that is what is going to happen, are we going to say, 

well, if they were violent at the time they committed the offense, 

but they have been locked up for 15 years, and during those 15 

years they have completed educational programs, they have completed a drug program, they have been exemplary inmates but, 

nonetheless, because they have this prior history where maybe they 

carried a gun at the time they committed the offense or maybe they 

did engage in some violence 15 years ago, we are going to categorically say that across the board they cannot be released? 

On any given day in America, we have probably about 3 million 

of our fellow citizens locked up. And I do not have a problem, as 

I say, locking people up, but I think as a society we have to address 

that issue. We are expending far too much money to incarcerate 

people, and we incarcerate some people for far too long than they 

have to be incarcerated and who could otherwise be returned to the 

community and become contributing members of our society. I have 

seen individuals who have turned their lives around. And while, as 

I say, punishment is important, I think that punishment has to be 

fair. And I applaud you and your fellow Senators who have decided 

to take this issue on, and I sure hope that at some time during the 

course of this year the Senate will see fit to rectify this problem, 

which is, I think, causing many of our fellow Americans to not believe in our judicial process. 

Thank you very much. 

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

Chairman BIDEN. Thank you very much for your testimony, 

Judge. And no one has ever accused you— 

[Applause.] 

Chairman BIDEN. Please refrain from demonstrations, pro or otherwise. But I assure you, no one has ever accused you of being lenient, but they have viewed you as being fair, and I appreciate 

your straightforward testimony. 

Doctor? 

STATEMENT OF NORA D. VOLKOW, M.D., DIRECTOR, NATIONAL 

INSTITUTE ON DRUG ABUSE, NATIONAL INSTITUTES OF 

HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES, 

WASHINGTON, D.C. 

Dr. VOLKOW. Yes, good afternoon. I want to thank you, Chairman 

and members of the Subcommittee, for giving me the opportunity 

and the privilege to come and discuss with you what we have 

learned from science vis-a-vis the effects of cocaine in the brain, 

and with particular emphasis on cocaine hydrochloride (powder) 

and cocaine freebase (crack). I also want to speak to you not just 

as the Director of the National Institute on Drug Abuse but as a 

scientist, which is a discipline whose aim is to provide with knowledge that is objective and not subjected to the perception of what 

is right or wrong. 

What we have learned is that cocaine use in this country is down 

from the epidemic of the 1980s; however, it is still unacceptably 

high. Six million individuals 12 years or older have used cocaine 

15 

in the last year, and 1.6 million individuals have used cocaine 

freebase (crack). 

Why is cocaine abused? Cocaine is abused because it increases 

the concentration of the chemical dopamine in pleasure centers in 

the brain, and when dopamine goes up, that produces a high sense 

of euphoria. Cocaine does this by blocking the molecules that normally clean dopamine from our brains. So when these molecules 

are blocked, dopamine accumulates, and that is associated with a 

very intense high. And that is the way that cocaine produces its 

highly pleasurable effects, and that is also why it produces addiction. 

The effects of cocaine, regardless of whether it is smoked 

freebase (crack) or whether it is taken by the hydrochloride form, 

which you can snort or inject, are going to deliver the same identical molecule in the brain. And for the equivalent concentration, 

the level of blockade of those molecules that dopamine is identical. 

The difference relies in terms of why some situations lead to 

more intense effects than others the route of administration. The 

faster you block those molecules that dopamine, the dopamine 

transporters, the more intense the high. And the variable that determines how fast cocaine gets into the brain and blocks dopamine 

transporters is not cocaine freebase or cocaine hydrochloride, but 

the route of administration. There are certain routes of administration that will deliver that cocaine very, very rapidly into the brain. 

What are those routes of? Injection, intravenous injection, smoking. 

How do you, why do you—when you inject intravenously, you have 

to use cocaine hydrochloride. You cannot inject freebase because it 

is not going to be soluble. If you want to smoke it, you cannot 

smoke hydrochloride because it is going to and you will have no cocaine left, and that is why you have cocaine freebase. 

So the two routes of administration that produce the most intense effects are injection and smoking. And, also, those are the 

routes of administration that are associated with the highest degree of addictiveness. Indeed, early studies estimate approximately 

5 to 6 percent of individuals will become addicted to cocaine within 

2 years. Most of them go there by injection or by smoking. There 

are more smokers than injectors, and, those in treatment, we end 

up seeing more people that smoke cocaine than those that inject. 

But most of those individuals, which is important to recognize, 

started by snorting cocaine hydrochloride. So it is a trajectory of 

events that leads an individual to go from snorting into injection 

or into smoking. 

There are differences also vis-a-vis the consequences of these 

routes of administration vis-a-vis their medical complications. Cocaine can have very serious adverse effects because it 

vasoconstricts blood vessels, and so blood does not get into organs, 

and there are certain organs that do not tolerate as well—heart 

and brain. That is why you can end up with a myocardial infarct, 

even if you are in your 20s, or with a stroke from the use of cocaine. 

Cocaine also changes the electrical properties of cells, and that 

can lead to an arrhythmia or to seizures that actually can prove 

to be lethal. Both of those medical complications are much more 

frequent when you inject or when you smoke than when you snort. 

16 

There is a third complication, which is that the use of cocaine is 

associated with a higher risk of infectious diseases, such as HIV/ 

AIDS. This is more common when you inject because you can actually get contaminated material. But you can also by smoking, 

snorting, or injecting increase the likelihood of HIV because cocaine 

use, intoxication, facilitates risky sexual behaviors. 

The good news, though, is that cocaine can be prevented and 

treated, and science has shown that treatment, whether it is voluntary or mandated by the courts, is effective. Indeed, science, for 

example, monitoring the effects of treatment in the criminal justice 

system has shown that it is highly effective, not just in decreasing 

the rate of drug use but also in decreasing the rate of incarceration. 

So, in summary, I say that when people take cocaine freebase or 

they inject cocaine or they snort cocaine, the identical molecule will 

end up in the brain. The difference is going to be determined the 

route of administration. 

Also, I wanted to just make a last statement, that as we try to 

offer our knowledge and expertise together to solve this problem of 

cocaine in this country, we should not forget the importance of prevention and treatment if we are to succeed. 

Thank you very much, and I will be happy to answer any questions. 

[The prepared statement of Dr. Volkow appears as a submission 

for the record.] 

Chairman BIDEN. Thank you very much, Doctor. 

Mr. Felman? 

STATEMENT OF JAMES E. FELMAN, CO–CHAIR, COMMITTEE 

ON SENTENCING, CRIMINAL JUSTICE SECTION, AMERICAN 

BAR ASSOCIATION 

Mr. FELMAN. Chairman Biden, Ranking Member Sessions, good 

afternoon. My name is James Felman, and since 1988 I have been 

engaged in the private practice of Federal criminal defense law 

with a small firm in Tampa, Florida, and I am here today, and 

honored to be so, on behalf of the American Bar Association. We 

appreciate the opportunity to appear before the Subcommittee 

today. 

The crack/powder disparity is simply wrong, and the time to fix 

it is now. For more than a decade, the ABA has been part of a 

growing consensus that the disparity in sentences for crack and 

powder cocaine offenses is plainly unjust. This is a bipartisan issue. 

Indeed, the United States Sentencing Commission’s call for change 

has been consistent, even though it has been constituted with different members appointed by different Presidents and confirmed by 

Senates controlled by different parties. 

We applaud this Subcommittee and its leadership for conducting 

this hearing as an important step in ending once and for all this 

enduring and glaring inequity. 

Beginning in 1995, the ABA endorsed the proposal submitted to 

the Congress by the Sentencing Commission that would have 

equalized crack and powder penalties and targeted specific aggravating factors. The ABA has never wavered from the position it 

took in 1995, and neither has the Sentencing Commission. 

17 

In 1997, and again in 2002, the Sentencing Commission recommended reducing the 100-to-1 ratio and repealing the mandatory minimum for simple possession of crack. Unfortunately, the 

Sentencing Commission’s recommendations have not yet been addressed. 

The Sentencing Commission recently reduced crack penalties by 

two offense levels. This was an important measure and went as far 

as the Commission felt that it could go given its inability to alter 

congressionally established mandatory minimums. It is critical to 

understand, however, that this minus-two amendment is only the 

beginning of what must be done to address the crack/powder disparity. 

The 100-to-1 ratio enacted by the Congress in 1986 was premised 

on many assumptions, but subsequent research and extensive analysis by the Sentencing Commission and others has revealed were 

not supported by sound evidence and, in retrospect, were exaggerated or simply false. 

But although the myths which led to the 100-to-1 ratio have 

proven false, the disparate impact of this sentencing policy, particularly on the African-American community, is no myth. It is both 

real and it is growing. 

As the Sentencing Commission has noted, revising the crack cocaine threshold would do more to reduce the sentencing gap between African-Americans and Caucasians than any other single 

policy change and would dramatically improve the fairness of the 

Federal sentencing system. Enactment of S. 1711 would take that 

much needed step. 

It is important that I emphasize that the ABA not only opposes 

the crack/powder differential, but also strongly opposes the mandatory minimum sentences that are imposed for all cocaine offenses. 

Justice Kennedy, addressing the ABA in 2003, stated, ‘‘I can neither accept the necessity nor the wisdom of Federal mandatory 

minimum sentences...[i]n too many cases, mandatory minimum 

sentences are unwise or unjust.’’ 

The ABA agrees wholeheartedly with Justice Kennedy and, thus, 

strongly supports the repeal of the existing mandatory minimums, 

particularly the draconian 5-year minimum mandatory for mere 

possession of crack—the only drug, as mentioned, that triggers the 

mandatory minimum for a first offense of simple possession. 

The average length of Federal sentences has tripled since the 

adoption of mandatory minimums. The United States now imprisons its citizens more of its citizens than any other nation on the 

planet, at a rate roughly 5 to 8 times higher than the countries of 

Western Europe, and 12 times higher than Japan. Roughly onequarter of all persons imprisoned in the entire world are imprisoned here in the United States. And we know that incarceration 

does not always rehabilitate and sometimes has the opposite effect. 

For that reason, we also strongly support the appropriation of 

funds for developing effective alternatives to incarceration, such as 

drug courts, supervised treatment programs, and diversionary programs. Drug offenders are peculiarly situated to benefit from such 

programs, as their crimes are often ones of addiction. 

18 

We are encouraged to see the appropriation of such funds for 

State programs in S. 1711 and hope that this appropriation can be 

expanded to reach Federal programs as well. 

In conclusion, the ABA firmly supports passage of S. 1711 as proposed by Senator Biden and cosponsored by Senator Feingold on 

the Subcommittee, among others. We also commend the leadership 

of Senators Hatch, Kennedy, Feinstein, Specter, and Sessions for 

their introduction of alternative bills to address the crack/powder 

disparity. We hope that decisive and rapid action will be possible. 

On behalf of the American Bar Association, thank you for considering our views on an issue of such consequence for achieving justice in Federal sentencing. 

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

for the record.] 

Chairman BIDEN. Thank you very much. We will do 10-minute 

rounds, since there is only three of us. If Senator Kennedy comes 

back and has to leave, I will yield him my time. 

I have a lot of questions, as you might guess. Doctor, let me 

begin with you. It is the route to the brain, not the nature of 

whether it is freebase or powder cocaine, that impacts on how rapidly the dopamine is interfered with. Is that correct? It is the route, 

whether—so snorting or injecting, it has the effect on the brain 

more rapidly than snorting it. Is that correct? 

Dr. VOLKOW. That is correct. And the faster it gets, the more intense its effects. The molecule is identical. 

Chairman BIDEN. All right. Now, does that beg the question or 

answer the question as to whether or not if one were to—is there 

a higher rate of addiction—and the clinical definition of ‘‘addiction,’’ 

X number of times a week, et cetera. Is there a higher rate of addiction for those who snort cocaine versus freebase or inject cocaine? Or is it one way or another? Is it the same effect? 

Dr. VOLKOW. There is a higher rate of addiction when you inject 

or when you smoke than when you snort. 

Chairman BIDEN. That was the premise upon which we started 

this whole thing off. And, again, I have to take blame for what 

ended up being what was in law at the time back in 1986, as the 

author of this legislation. That was the testimony. 

Now, let me ask any of the other witness, is the fact that if one 

were—and the other study I remember seeing years ago, back 

when I used to chair this Committee in the 1990s, was that there 

is a correlation between HIV—a higher correlation between HIV 

and crack use than HIV and powder use because of the nature of 

how rapidly the high occurs and how quickly it diminishes so that 

people would repeat it, they would binge on crack cocaine. I remember going into Philadelphia bringing a group of policemen 

down in the south side of Philly, in South Philly, and there was a 

particular place where you could see people walking in a side door, 

a woman standing up, and then her head would be lowered, and 

she was performing a sexual act, and then 10 minutes later another—you know, she would get enough to get a hit for her. She 

would get literally paid in crack cocaine. That was how she was 

being paid by the drug dealer. And there was a lot of discussion 

about how the promiscuous sexual behavior was associated with 

19 

the frequency and the need for this hit, as the addiction occurred, 

that it did not occur as rapidly with people using powder cocaine. 

Is there any truth to any of that? 

Dr. VOLKOW. Well, again, powder cocaine can be administered by 

a route that is less addictive—snorting—or by a route that is as addictive as— 

Chairman BIDEN. I know, but isn’t the vast majority of the consumption of powder cocaine through the nostril and not through 

the veins? It is a relatively small percentage. 

Dr. VOLKOW. Correct. The people, the individual taking the cocaine, that is correct. 

Chairman BIDEN. Right. 

Dr. VOLKOW. And with respect to your question about the risk for 

HIV, the highest risk actually for probably almost any drug is injection of cocaine more than smoking of cocaine, more than injection of heroin, because exactly what you were saying. You need to 

administer the drug very frequently, every 40, 30 minutes. And so 

you are injecting constantly, and that leads many people that become addicted what is called graduation to prefer smoking over injection because of the high risk of HIV. 

Chairman BIDEN. Right. And is the high risk to HIV in that circumstance because of the needle or is it because of the promiscuous 

behavior that it promotes? 

Dr. VOLKOW. Two factors: the needle, the contamination through 

the needle is one; and the second one, intoxication with cocaine 

leads to very risky sexual behaviors, whether it is injected, smoked, 

or even snorted. 

Chairman BIDEN. OK. The next question, and the last one I have 

for you, Doctor, is—I have been a very strong supporter of drug rehabilitation programs and investing more money into drug rehab. 

You made reference that programs actually work. But let me ask 

you, is there any difference between—of those people who are subjected to—either in the prison or voluntarily move into drug rehabilitation programs associated with cocaine by whatever means it 

is administered, is there a breakdown among them based upon 

whether they get into rehab as a consequence of having been addicted to cocaine through freebasing or cocaine through snorting? 

I mean, or is there no distinction? The people who end up in treatment, is it harder or easier to treat one than the other? 

Dr. VOLKOW. To my knowledge, there is no evidence of easiness 

of treating one individual because they were using hydrochloride 

versus freebase. There are many other factors that will determine 

the prognosis, not whether they are freebasing or using the hydrochloride. 

Chairman BIDEN. Now, the allegation is made and continues to 

be made that there is a greater amount of violence associated with 

freebasing of cocaine. I assume that relates to anything from the 

way in which it is sold to the way in which it is used and the impact on the brain and what it causes in reactions of people. Another thing we hear a lot about—and there is some evidence—is 

that speed or methamphetamine, there is an excessive amount of 

violence associated with methamphetamine, consumption of methamphetamine. Is there a distinction between—I am going to talk 

about the violence, the violence side of the behavior. 

20 

I used to say to people, when I was doing this on a regular basis 

in those years—I held thousands of hours of hearings—that if I had 

to live in an apartment house where everybody was freebasing or 

in an apartment house where everybody was injecting heroin, I 

want to live where they inject heroin because I do not want to— 

the violence associated with injection of heroin and being on a high 

from heroin is significantly different than that associated with cocaine-induced paranoia or with regard to speed. 

Is it true that there is a greater degree of violence associated 

with cocaine? And if so, is there a distinction between violence that 

is induced as a consequence of powder versus crack? 

Dr. VOLKOW. Well, first you asked me is there a distinction between cocaine and methamphetamine, and I would say that methamphetamine is even a more potent drug than cocaine in terms of 

its ability to increase dopamine and also its duration of effects. And 

as a result of that, circumstances being equal, you can predict the 

one who could have potentially more adverse effects than the other. 

However, we need to consider that the consequences that we see 

socially are not just the product itself, the chemical form of the 

drug, but the nature of the environment that gives accessibility to 

that drug. So when you speak to me and ask is there more evidence, for example, of violence in environments where you have 

high levels of crack versus a rural environment where a person 

may be by themselves taking methamphetamine, I would say, well, 

in that case, what is tipping the balance is your surrounding and 

not the drug itself. 

But coming back to the chemical actions of the drug, if you inject, 

cocaine actually is going to have more aggressive—will facilitate 

aggressive behavior more than heroin. So, Senator, you chose well. 

You are much better off with heroin than cocaine vis-a-vis with aggression. 

Chairman BIDEN. Now, let me be clear: I said living in an apartment with others who use it, an apartment complex. 

Dr. VOLKOW. Yes, and in clinical models where you can take rats, 

for example, and put them together and give them cocaine or give 

them heroin, the level of aggression and attack to each other is 

much greater with cocaine than heroin. There is no reason that— 

we do not have an animal model for freebasing cocaine, so we inject 

them. And the higher the doses, if you inject them, the more active 

your animals are going to be. 

So there you have an element of doses and the environment in 

which you are giving the drugs to the animal. But there is no—I 

mean, that is why I am sort of saying when you inject or when you 

smoke, the same drug is going to end up in your body. There is no 

difference at all. The circumstances may be very different, and I 

think that is where the issues become more complicated and it is 

not just an answer about the potency of hydrochloride versus 

freebase. Because if you are asking me directly, they are identical 

molecule. The circumstances may be very different, and then that 

is what determines the outcomes. 

Chairman BIDEN. Thank you. I have a lot of questions, but I am 

going to yield—and I have questions for the rest of the panel, but 

I am going to yield to my colleague. My time is up. 

21 

Senator SESSIONS. Well, this is an important subject, Chairman 

Biden, and thank you for opening this discussion. 

Judge Walton, you know, as the lawyer in me, I tend to not utilize the word ‘‘fairness’’ too much, but I think at a fundamental 

level, there is a sense that I have, as a former Federal prosecutor 

who sent a lot of people to jail for a long time under mandatory 

sentencing, that I think we do have a fairness question for a whole 

host of reasons. And I think we have a public policy question, and 

your experience on both sides of the bench and having been in the 

drug czar’s office I think entitles you to speak to that, and I thank 

you for sharing that thought. 

Mr. Commissioner, thank you for the Sentencing Commission’s 

work. You have worked on this for quite a number of years. You 

have sent messages to the Congress. You have made your recommendations to Congress. And we just have not listened. I mean, 

I have offered the legislation for 6 years, and I remain somewhat 

baffled we have not fixed it before now. I thought earlier last 

year—we had a press conference with former Attorneys General 

that said this is the time to work on this, it was a step in the right 

direction that may lead us to action instead of talk. 

And, Ms. Shappert, I am pleased that you are someone who has 

actually prosecuted these cases, and you have seen the kind of defendants that get the biggest sentences. Would you describe that 

for us a little bit, what it is like, that you have a neighborhood in 

your district that has been taken over by a crack gang, and what 

an undercover effective Federal prosecution can do, and how the 

strong sentences are effective tools for the prosecutor to actually 

decimate a gang instead of catching just one or two? 

Ms. SHAPPERT. I would be happy to. I worked a neighborhood a 

couple years ago called Grier Heights. It is a community in Charlotte that was overrun with drug dealers, and what made this so 

disturbing is you had a lot of single parents in this neighborhood, 

you had a lot of elderly people, and they were absolutely terrorized 

by open air drug markets and crack cocaine dealers. 

We went in there with the Charlotte-Mecklenburg Police Department and ATF with a mind toward cleaning up this community, 

and what we did is we were able to identify certain traffickers, 

prosecute them, and use what you are familiar with as rolling indictments. We would do one indictment, get one group of drug dealers, take out the next group, and keep moving. 

In my district, we have historically used a root-to-branch approach, which is to say we do not want to just take the head off 

the monster, we want to take out the entire operation. So we not 

only prosecuted individuals who were open-air dealers. We went 

after their sources in New York. We went after their sources in 

West Palm Beach. We went after the violent offenders, the street 

distributors, the cookers, the whole operation. We indicted a total 

of over 70 individuals, and the average sentence was over 200 

months. 

When I started prosecuting in this neighborhood, I would go in 

there to do interviews, and when I would go into this neighborhood, 

people would come out of their apartments to shake my hand. They 

were so grateful to have their neighborhood back. When we went 

to trial, a number of the neighborhood members sat and watched 

22 

the trials with us because they were so acutely interested. And 

when we finished our prosecutions, the city of Charlotte put a police satellite station in that community so that we could reinforce 

our efforts to keep that neighborhood clean. 

It is important to emphasize that our entire motive was to take 

back this neighborhood for the people who actually live there. And 

when we talk about crack cocaine sentences, we can never lose 

sight of the community that we are trying to protect and defend. 

The trial I just finished last week up in Statesville, North Carolina, involved this community of Lenore— 

Senator SESSIONS. And you tried this yourself? 

Ms. SHAPPERT. I tried three cases, Senator. 

Senator SESSIONS. A United States Attorney actually got into the 

courtroom? 

Ms. SHAPPERT. I tried three cases in 41⁄2 weeks, picked three juries, and went back to back to back on three historical cocaine— 

Senator SESSIONS. I am impressed. 

Ms. SHAPPERT. I am still a trial lawyer, and I practice law where 

the rubber meets the road. 

So in that neighborhood, we found that there were streets that 

were so clogged with street traffic of drug dealers that people could 

not get through. We went in there again to clean up that neighborhood, to turn it over back to the community. Our motive is to ensure the safety of these communities. 

Senator SESSIONS. Right. 

Ms. SHAPPERT. And that is what we did. 

Senator SESSIONS. I just want to say that those who may too 

lightly think that we can just slash sentences across the board and 

that tough sentences do not do any good, murders fell substantially 

in the neighborhood where we had a major gang prosecution. Many 

of those that were convicted of crack offenses had previous murder 

charges against them. Some had gotten away with it, and some had 

been—so these were violent criminals that were removed from the 

community for long periods of time. I do not think that this is a— 

so I just want to make this point. As we go wrestle with what the 

appropriate sentence is, we cannot lose sight of the fact that neighborhoods can be destroyed, that children cannot go out to play, that 

the good and decent citizens there care deeply and are glad to see 

people be put away. And many come up to me and thank me for 

that from those neighborhoods. 

With regard to crack, in your experience, Ms. Shappert, are you 

aware of much cocaine powder, hydrochloride, being injected by 

needle? Or is it normally through the nasal passages? 

Ms. SHAPPERT. Well, I will tell you that when I became an assistant public defender in 1983, there was a lot of cocaine injection. 

And I can remember as an assistant public defender asking clients 

who said they were stealing just because they liked to steal to roll 

up their sleeves so I could inspect the needle marks on their arms. 

But when crack cocaine hit Charlotte in 1986–88, the whole circumstance changed. We almost never see cocaine injected anymore. 

We see it smoked. 

Senator SESSIONS. Now, we just had one of the most tragic 

events in our community of Mobile in which an individual—I suppose most people read about it—threw his four beautiful children 

23 

off the bridge to their death. And the Sunday Mobile paper—I believe it was Sunday’s paper—did some background work on him, 

and he was a crack addict. And the family agreed that it was his 

addiction to crack that put him over to that most incredibly horrible crime. 

Dr. Volkow, do you see that there is a danger from this kind of 

crack addiction for violence that we cannot deny? 

Dr. VOLKOW. Absolutely, and as mentioned before, high doses of 

cocaine can produce paranoid thinking and can result in psychosis. 

And what you are describing right now is a very unfortunate case 

of that example where people take high doses of the drug, with repeated administration they become increasingly more sensitive to 

this paranoid effect, and it can result in full-blown psychosis with 

violence. 

Senator SESSIONS. My best judgment is that crack cocaine, the 

fact that you can easily smoke it and it gives that intense high, you 

do not have to use a needle to inject, creates a greater risk than 

powder. But I cannot deny that both create a risk. 

Judge, would you just briefly tell us how many years the Commission has expressed concern about that? 

Judge HINOJOSA. It started in 1995, and on the issue of violence, 

Senator, when we wrote the 2007 report, we updated it by going 

to the 2005 sample of about 25 percent of the powder and crack 

cases, and we found that by using the definition of violence as we 

used it, meaning injury, death, and threats of injury or death involved in the occurrence or the commission of the offense, that with 

regards to powder it was in 6.2 percent of the cases and with regards to crack it was in 10.4 percent of the cases. So it is a relatively small number of both, although obviously slightly more in 

crack. 

Senator SESSIONS. Could you share this—I understand that the 

violence level, in the mid- to late 1980s, when I was prosecuting 

more than one of these gangs, more than one, apparently the numbers show that violence connected with crack cocaine is less than 

it was sometime years ago. Do you have any idea why that trend 

may be so? 

Judge HINOJOSA. I do not have a specific answer, but we see it, 

and I would suggest—I do not disagree with you that it may have 

something to do with regards to prosecutions in certain areas. This 

is based strictly on Federal prosecutions, on the people who have 

actually been sentenced. That is what the Commission data shows. 

But you are correct; you know, prosecution probably makes a difference. 

Senator SESSIONS. I would say there are a couple of reasons. One 

is that you apprehend the violent gang guys, and they go to jail for 

20 years, and they are not out there to do it again. That helps keep 

violence down. The gun prosecutions, the 924(c), carrying a firearm 

in the commission of a drug offense, carries a mandatory 5 without 

parole. Do you think, Madam U.S. Attorney, that that has caused 

fewer drug dealers to carry guns as they go about their business 

than used to be so? 

Ms. SHAPPERT. We know from the stories of people we debrief 

after they have been apprehended that they have learned to keep 

their ‘‘piece,’’ as they call their gun, separate from their drugs for 

24 

that very reason, because it has discouraged carrying guns to drugtrafficking offenses. 

I also think that the increased prosecution of drug offenses by 

the Department of Justice has targeted the same people who were 

involved in drug-related violence and has been highly effective in 

reducing the use of guns in drug crimes. 

Senator SESSIONS. Well, I would just conclude this point and say 

that it is time for us to think about this. I believe I made my suggestion, and my colleagues have, as to what we think a 20-to-1 

ratio—as the Sentencing Commission suggested be the minimum 

what they would like to see, that is where I basically am. We do 

not need to send any signal that we have gone soft on drugs, that 

we are going soft on drug gangs and criminals. But at the same 

time, our policy needs to be rational. We do not need to have the 

taxpayers pay to keep somebody in jail when it is not worth their 

money to keep them there. So it is time for Congress, I think, to 

give attention to it and let’s reach a conclusion and fix it. 

Thank you, Mr. Chairman. 

Chairman BIDEN. Thank you very much. 

Doctor, I have one last question for you. I remember years ago, 

meaning 10 years ago, maybe 15, that crack cocaine was viewed as 

a great equalizer. There was an interesting phenomenon. In the 

1980s—and do not hold me to the exact number. I do not have this 

in my staff material. This is from memory. In the 1970s and 1980s, 

there was somewhere between 2 and 3 times as many men consuming controlled substances as women. And then the argument 

was made, whether it is true or not, that when crack was introduced in the late 1980s, it became a great equalizer; that women 

who would not snort cocaine for the first time for fear of distorting 

their nostrils or would not put a needle in their arm, felt a lot more 

comfortable smoking; and that that generated a closing of the disparity from 20 or 3-to-1 men versus women to much closer to 1- 

to-1. Is there any truth to that? 

Dr. VOLKOW. To my knowledge, there is no evidence to that particular statement, indeed, and that is why I make the point, that 

most cases of addiction with freebase start with cocaine snorting. 

And that is the other issue that we need to keep in mind because 

the sense that we become uncomfortable by having only cocaine hydrochloride and that will take the problem of freebase is actually 

not justified. Why? Because once a person becomes addicted, they 

will seek a different route of administration. If there is no freebase, 

they will inject. And history has already given us that lesson. 

The other thing today, in my curiosity, I entered into Wikipedia 

to see what you all could get very easily out of the Web on crack 

cocaine, and lo and behold, you have there the recipe for producing 

cocaine freebase from cocaine hydrochloride. So let’s not kid ourselves. If someone wants to take cocaine freebase, they can cook it 

themselves just following the guidelines. 

So there is no evidence in that respect, therefore, coming back to 

your question, that it was the equalizer in the use of drugs for cocaine or for other drugs. That is not the case. Unfortunately, we 

have been seeing equalization on the rates of drug use, both for 

legal and illegal, in women and for all types of drugs. And in some, 

25 

like prescription medication, females are starting to outnumber 

males. So it was not due to crack. 

Chairman BIDEN. Thank you. 

May I ask you, Ms. Shappert, what is the Department’s position 

on the minimum mandatory portion of—forget equalizing, but the 

minimum mandatory requirement that exists for use of crack cocaine? 

Ms. SHAPPERT. I cannot give the Department’s position on minimum-mandatory. I can tell you the Department is interested in a 

dialog and a discussion with this Committee and the Congress 

about changing the ratio of cocaine and cocaine powder and addressing the sentencing disparity in light of the concerns that have 

been raised by many different members of the community. And we 

link that to the equally significant issue to us of public safety, particularly with the application of retroactivity and the 20,000 individuals who are going to be eligible for resentencing. 

Chairman BIDEN. Now, both judges—correct me if am wrong— 

said, I thought, a similar thing. But I may be mistaken. When you 

indicated that you are willing to look, the Department is willing to 

look at retroactivity as it relates to the individual case, the violence, the degree to which violence is associated with the sentence 

that was received, how do you—what is the matrix you would use? 

I think Judge Walton said if someone had been violent 15 years 

earlier, had another violent offense—maybe I am mistaken. It may 

have been you, Judge. I do not know who said it. But that someone 

may have been convicted of consuming crack cocaine, but the violent offense that he or she has on her record was unrelated to that 

particular offense. 

Are you saying that the violence has to be related to the offense 

or the violence related to the individual who is incarcerated as opposed to the specific offense relating to crack? 

Ms. SHAPPERT. I am referring to what the Attorney General said 

last week, which is that in terms of reviewing and addressing this 

problem of the 20,000 individuals who are eligible for resentencing, 

the concern of the Department of Justice is with violent offenders 

and recidivists. We are far less concerned with first offenders and 

small possession cases. And in reviewing that question and addressing it with the Congress, the dialog needs to be focused exclusively—rather, not exclusively, but significantly on the public safety question. So all of those matters need to be worked out in the 

context of protecting the community, recognizing that these were 

legitimate sentences, that we all understood that they were legitimate sentences, and retroactivity will have profound consequences 

for a lot of the communities that are the most fragile. 

Chairman BIDEN. Judge, would you respond to that, Judge Walton? 

Judge WALTON. Well, again, I think the problem becomes what 

do you say in your legislation to ensure that you are truly keeping 

locked up those who are going to actually pose a danger to the community if they are released. And I think that is very difficult to effectuate through legislation. As the situation now exists, if Congress does not take action, it will be imperative on the judges, pursuant to the direction of the Sentencing Commission, to make an 

assessment as to whether someone poses a potential danger to sociVerDate Aug 31 2005 14:46 Jan 05, 2009 Jkt 046050 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46050.TXT SJUD1 PsN: CMORC
26 

ety. And you obviously will take into account the information provided at the time they were sentenced by way of a presentence report, which will be made available to the judge if he or she does 

not currently have one. We will be receiving from the Federal Bureau of Prisons information about the individual’s institutional adjustment, and if they have infractions of a violent nature, then 

judges would factor that in. I know if I had that before me, I would 

not be inclined to grant the reduction. 

So I think looking at it from an individualized perspective ends 

up making the process fairer as compared to categorically saying 

that a certain standard set forth by legislation is going to control 

what happens to all offenders. 

Chairman BIDEN. Judge, does the Commission have a sense of— 

or the Conference as to what kind of workload this would impose 

to have to review 20,000? You do not handle 20,000 criminal cases 

a year. 

Judge WALTON. Well, that is spread throughout the entire country, and we are only talking about, as was indicated, around 1,600 

the first year. We obviously thought about that, and we obviously 

are concerned because we do have tremendous caseloads. On the 

other hand, our conclusion was that we were willing to roll up our 

sleeves and tackle this problem. 

Chairman BIDEN. I just want to make sure—I am not taking 

issue with you. Especially in the Rehnquist Court and now the 

Roberts Court, there is a great, legitimate concern about the caseload of the Federal district court judges. That is what we are talking about here, correct? 

Judge WALTON. That is correct. 

Chairman BIDEN. And so the question is that, if memory serves 

me—and, again, I have been paying more attention to the other 

Committee I chair, quite frankly, than the detail of this one for a 

while now. But if I am not mistaken, the total number of prosecutions a year in the Federal court are less than 25,000. There are 

more prosecutions in the city of Philadelphia in 1 year than there 

are in the entire Federal criminal justice system—at least there 

were several years ago. 

And so my question becomes the practical. I am trying to figure 

out, along with my colleagues, a practical way to—I happen to 

think there should be no disparity, but a practical way to figure out 

how to deal with the disparity, which everyone seems to be coming 

around there has to be some change from 100-to-1, and, second, the 

impact on retroactivity. My legislation that you have endorsed, Mr. 

Felman, does not include retroactivity, for example. And so that is 

why I ask—I just want to make it clear for the record why I am 

asking. I would hate like heck for us to get to the position where 

we have reached a consensus and then find out that the bench 

says, Whoa, whoa, whoa, we cannot handle this, we cannot do a review of 1,600 cases next year in terms of the sentencing disparity 

determining whether or not the retroactivity applies. 

And so if we go this route, we are going to need to work with 

you to make sure that we are in a position, if that is the case, if 

that is the route that is chosen, that the Judicial Conference feels 

confident that they can do this without affecting the Speedy Trial 

Act, without affecting a whole range of other caseload work that 

27 

you Federal judges have right now. That is the reason I raised the 

question. 

Judge WALTON. Well, the Judicial Conference has not taken a position on whether, if there is a legislative fix, that should be made 

retroactive. The only position we have taken is in reference to the 

two-level decrease. 

Chairman BIDEN. It would be the same effect. I mean, in other 

words, if we do nothing at all, if we remain silent and cannot give 

you consensus, then what happens is you are faced with this retroactivity, and the question is could you handle it now. Based on the 

Sentencing Commission recommendation, could you handle the 

caseload? Yes, Ms. Shappert? 

Ms. SHAPPERT. To be honest with you, I am not sure we all can. 

If you noticed, 50 percent of those cases are going to fall in three 

circuits—the Fourth, the Fifth, and the Eleventh. I look at my district. We are going to have at least 536, and that number is misleading. The Commission tells us 536 will be eligible, but the number is misleading for several reasons. 

First of all, where individuals have had Rule 35’s and had their 

sentences reduced, defendants who we thought would not be eligible for the retroactivity will be, so that increases the number. 

The other factor we are finding in my district is that marijuana 

offenders, ecstasy offenders, fraud defendants, are also filing petitions thinking that they are eligible for this, too. So we are having 

to sort through hundreds of cases to— 

Chairman BIDEN. Do you have in the Federal system many marijuana offenders? 

Ms. SHAPPERT. Yes, in fact, we do. Not as many as we do for 

crack cocaine. I recently got a life sentence for a marijuana offender, so, yes, we do prosecute marijuana— 

Chairman BIDEN. I assume that was like a shipload. 

Ms. SHAPPERT. No. It was like several tractor-trailer loads full. 

Chairman BIDEN. Good, OK. Well, I— 

Ms. SHAPPERT. The point being is that we are dealing with a lot 

of cases that had nothing to do with crack cocaine, and the files 

have been archived. This 20,000 people represents 10 percent of the 

Federal prison population. And it is fine to say that we will have 

sentencing hearings for each and every one of these individuals to 

consider two levels, but there are several factors. Files have been 

archived. Witnesses are gone. Agents have retired. We do not have 

the same resources as prosecutors. And if other circuits do what 

the Ninth Circuit has done and seek to give a full-blown sentencing 

hearing, we are not talking about simply a two-level reduction. We 

are talking about potentially much more significant reductions in 

sentences. Prosecutors have to review a file that is 5 or 7 or 10 

years old in addition to our regular caseloads. 

Judge WALTON. I hear what the Justice Department is saying, 

and I was formerly a member of the Justice Department for years. 

I do not hear judges crying out and saying we are going to be overwhelmed, therefore, we should not try and fix this fundamentally 

unfair process. I do not hear probation department officers saying 

that. My probation officers said they feel that they can address the 

issue. 

28 

So I just do not hear that coming from the judiciary that we do 

not have the resources; we are not willing to invest the time to address this problem. 

Judge HINOJOSA. Senator, I was told that this would not be a 

hearing about retroactivity, but I do want to say— 

Chairman BIDEN. Well, it is really not. I just—but it does come 

up in the context of what we are hopefully going to negotiate with 

the Justice Department. 

Judge HINOJOSA. I do want to say something on behalf of the 

Commission. I do not think anybody should be left with the impression that the Commission just jumped into something without having thought about this, and this bipartisan Commission took the 

time to conduct studies, to have public hearings, to receive public 

comment. In fact, we received over 30,000 public comments, either 

in the form of letters from the ABA and other individuals and organizations. We had public hearings. The Department of Justice was 

present, as well as was the Judicial Conference. We have heard 

from the Judicial Conference. And we looked at the factors we normally look at when we make a decision under the statutes, which 

we are supposed to do every time we reduce penalties, and that is 

how we did it. 

It was important to us that the Judicial Conference recommended and indicated that they could handle it and that they 

would be—they were supportive of this, as well as the other individuals that we heard from. And the Commission, having done 

that, then felt this was the right thing to do. We have done it in 

the past with regards to other drug reductions. It has been handled 

by the courts. And that is how the Commission made its decision. 

This was well thought out and we did look at all the possibilities. 

We also then proceeded to indicate that this is not a full rehearing 

as far as the sentencing, that this was not a full resentencing. We 

did this under our guidelines. We have the statutory authority to 

do that. We stated that. We indicated that there should be public 

safety consideration on the part of the courts. This is not automatic. Obviously, a Federal district judge will have to make this 

decision. It can be denied. And, therefore, that will happen in these 

cases. Each one of these will be looked at with regards to people 

with violence in their past. As Judge Walton indicated, these are 

individuals who have received higher sentences because their 

criminal history categories are higher. In some cases, they became 

career offenders. 

And so all of this has been thought out. Their sentences reflect 

that, and the Commission thought about this, unanimously voted 

on this. And I do not want anybody to be left with the impression 

that the Commission is not concerned about public safety and that 

we have not done what is necessary with regards to trying to protect— 

Chairman BIDEN. Judge, understand I am trying to make your 

point. I am not suggesting that it was irresponsible. But I do think 

for the public at large and the press that is here listening to this 

hearing, which has created a great deal of interest for the reason 

it has been debated for so long, and there is such a disparity that 

they understand in open public testimony what each of you think. 

We have a member of the Sentencing Commission and two Federal 

29 

judges. We have a defender, we have a scientist, and we have a 

prosecutor. And I just want to make sure that everyone understands your position from each of your expertise. 

Ms. Shappert, you want to say something? 

Ms. SHAPPERT. Yes. I deeply respect the work of the Sentencing 

Commission and, in fact, I testified on behalf of the Department in 

front of the Sentencing Commission. One thing that I do not think 

was considered by all persons—and I am sure the Honorable 

Hinojosa did consider it. But one thing that is important to remember is the Federal public defenders did not acknowledge or did not 

underscore that many of them would be seeking full-blown resentencing hearings. And I am informed that many felt that Federal 

public defenders are promoting full-blown resentencing hearings 

looking to the law of the Ninth Circuit. The Ninth Circuit has already had a decision coming out where they are making Booker retroactive for these resentencing hearings. 

Chairman BIDEN. Well, we could legislate that, could we not? 

Ms. SHAPPERT. Yes, you could. 

Chairman BIDEN. We could make that painfully clear. 

Ms. SHAPPERT. Yes, could that? 

Chairman BIDEN. Would that go a long way in resolving the Department’s concern? In other words, if it were not a full-blown 

hearing, if it were along the lines of the Sentencing Commission 

recommendations, how much difficulty—if that were codified, how 

much difficulty would the Department have with that approach? 

Ms. SHAPPERT. Well, it would certainly dramatically ease our 

workload and make things, we believe, more consistent across the 

country. It still would require that all of these defendants be eligible for resentencing hearings. We are still concerned about the violence associated with the backgrounds of some of these individuals. 

We still believe that there needs to be a retroactivity fix and that 

the Senate is the place where that needs to happen. 

Chairman BIDEN. Mr. Felman, from your perspective as a defense lawyer, how would you view this? 

Mr. FELMAN. I think it is important that we not make these decisions based on myths. I have been hearing a lot about these are 

some of the most violent people. These are, by definition, not 

crimes of violence. These are non-violent offenses. What we have 

just heard is that 90 percent of crack offenders had no hint of violence about them at all. There was no threat of violence, there was 

no actual violence—90 percent. So we are talking about 10 percent 

of the 19,000. And the 19,000 gets thrown around a lot. That is the 

number of resentencings that need to be done over the next decades, the next 20 or 30 years. There are 70,000 sentences a year 

in the Federal system, and we are talking about 1,600 that need 

to be done now. 

And let’s assume that all 1,600 are released, and I have read the 

Attorney General’s comment suggesting that we should all be in 

fear of those 1,600 people who are, by definition, convicted of a 

non-violent crime. And the statistic that is missing from that discussion is the number of people who are going to get out of prison 

this year, anyway. It is 650,000. And for the Attorney General of 

this Nation to put our people in fear over the release of 1,600 people knowing that otherwise 650,000 were going to be released is 

30 

truly disappointing. And even these people will not be released if 

a judge looks at them and says these people could be violent, that 

10 percent. They may not be released. Even if we let all these people out, we will still have locked up more people this year than 

ever before. 

And so I am in a district with the number two amount of crack 

cases; the second most district is the Middle District of Florida. 

And we are in the Eleventh Circuit, and it is my understanding 

that the Eleventh Circuit and the Fourth Circuit have both ruled 

that you are not entitled to a full resentencing. The only circuit 

that has ruled that you are is the Ninth Circuit. And so in my district, I do not hear anybody complaining. The probation officers and 

the prosecutors and the Federal defenders have been comparing 

lists. They have been working diligently. There is not a tsunami. 

They are prepared to professionally discharge their duty and to 

process these cases and to get it done. 

Thank you. 

Chairman BIDEN. Thank you for your input. 

Jeff? 

Senator SESSIONS. Well, 650,000 released is not from Federal 

prisons, right? 

Mr. FELMAN. That is correct. That is nationwide, State and Federal. 

Senator SESSIONS. Right. Well, these represent—the Federal 

prosecutions of crack dealers represent the worst, normally, and 

that is why they have gotten heavier sentences. And I do think— 

I do not know how many people will die as a result of a mass release of 25 percent of the Federal penitentiary, but some will, because a lot of these people will go back to this and get involved in 

violence and kill somebody, much less dealing drugs and maybe addicting more people in the future. 

So I just want—I heard your point of view, but I think we need 

to be realistic here. Let’s ask the Department of Justice about the 

5-year mandatory sentence for mere possession of 5 grams of crack. 

Are you willing to talk about altering that sentence? 

Ms. SHAPPERT. The Department of Justice is willing to discuss 

the disparity, and that is across the board. 

Senator SESSIONS. Well, I think that is an excessive sentence myself, and I know Congressman Rangel and others were for these 

tough sentences, and I supported them and Senator Biden did, and 

now we have gotten—the world has changed some, and it is time 

for us to look back at it and see if we can get the thing in the right 

range there. 

I would just conclude, Mr. Chairman, by saying that we have had 

a good discussion. This is a good panel. There is no free lunch here. 

If you weaken too much the sentencing, we are going to have more 

crime and a more difficult time prosecuting, because it is the fear 

of the large sentence that almost guarantees large numbers of people who are apprehended will provide the evidence necessary to 

convict the higher-ups. Isn’t that right, Ms. Shappert? 

Ms. SHAPPERT. Absolutely, Senator. 

Senator SESSIONS. Judge, you have seen that yourself, and so 

many of the people do not get the full sentence because in some 

cases I have seen almost everybody would agree to plead guilty and 

31 

confess and tell on the rest of the gang, and they all get a little 

less sentencing you would think they would have gotten otherwise. 

Judge WALTON. If I could weigh in on the discussion that was 

taking place when you were asking your questions, understand I 

am not here personally and not on behalf of the Conference suggesting that we should not vigorously prosecute people who are involved drug-trafficking activity. Clearly, individuals who are higher-ups and managers of drug organizations should be punished if 

they are convicted and punished appropriately. Clearly, individuals 

who are involved in drugs and violence should be punished appropriately. 

But what happens, as you know as a former prosecutor at the 

ground level—I just finished a case recently—some of the top individuals who had all of the information that would help the Government make a case provided cooperation. As a result of that cooperation, they will get significantly reduced sentences. The individuals, 

because of our current structure that exists regarding crack cocaine, who end up getting the greater sentences are individuals 

who are the low-level offenders who do not have any information 

to provide so they cannot cooperate with the Government because 

they have nothing to provide by way of assistance. So because of 

our sentencing structure, they get significant sentences even 

though they are not warranted as compared to the individuals who 

are higher up on the totem pole. And that is one of the big concerns 

I have about the practical impact of what our sentencing structure 

does. 

Senator SESSIONS. That can happen and does happen. I think 

most prosecutors try to not allow that to happen. But I share your 

concern. 

I think we are on the road to doing something right. I thank all 

of you for your participation. I am ready to get busy. Thank you. 

Chairman BIDEN. Well, what I would like to do—and I do not 

want to make additional work for you or keep you much longer, but 

I have a number of additional questions maybe I can submit to you 

in writing, and they do not require long answers. But I would like 

to go back to—it seems to me if we are going to—it is not sufficient 

that we merely reduce the disparity, and, again, our legislation 

equalizes it. But it seems to me part of this, when we figure into 

this this overall debate with regard to crack cocaine versus powder 

cocaine, is the mandatory minimum sentence for first-time offenders, as well as this notion of retroactivity, which we are going to 

have to face. I acknowledge this was not the purpose of the hearing, the retroactivity, but it was raised as part of what is essentially—and I appreciate it. I thank the Department for essentially 

publicly acknowledging they are prepared to negotiate an overall 

settlement of this, whatever everyone acknowledges is not merely 

a disparity but an unfair disparity. 

And so there are three pieces to it: one is whether it is 1-to-1 or 

100-to-1 or something in between; two is the minimum mandatory 

sentences for first offender drug users; and the third is how to deal 

with, if we accomplish any of that, retroactivity. And it is interesting, that chart has just been placed up, the violence involved in 

powder versus crack cocaine. The larger message of that chart, as 

I understand it, Doctor, is basically that, on average, 90 percent of 

32 

the time involving cocaine there is no violence associated with it. 

That is the sort of larger, overarching piece about this, going to 

this issue of are we going to release 25 percent of the Federal prison population back onto the street who are violent criminals who 

we are going to be putting back on the street. 

And so I hope we will do this—not privately like secret, but not 

in the hearing context, I hope we can—and I am sure that Senators 

Sessions and Hatch are prepared with me to sit down with the Department to see if we can come to some greater sense of what a 

common ground might be. It may not be. My intention is to pursue 

no disparity. But, also, I am a realist. I have been here for a long 

time. And I would rather get something good done than nothing 

done at all. So that is the context in which I raise each of these. 

One of the questions that I had—and there may be no answer 

to it, but I found interesting, and, quite frankly, I did not know— 

was that the—let me find the statistic—that back in the mid-1990s, 

the sentences for crack cocaine were 25.3 percent longer than powder; now it is 50 percent longer. 

Is there an explanation for that, Judge? I mean, is there a reason 

for that? 

Judge HINOJOSA. There are some possibilities as to what we consider may be the reasons for it. Part of it is there is a slightly higher number of people who get sentenced for crack who are subject 

to the mandatory minimums, and their criminal history category 

tends to be—the average is III as opposed to II. 

Chairman BIDEN. I see. 

Judge HINOJOSA. And so the safety valve provisions apply in 13.5 

percent in the crack cases, but in about 44.5 percent of the powder 

cases, people qualify for the safety valve provisions. And so that 

may be some reason that there is more relief for powder defendants 

because of their criminal history, which, again, shows how criminal 

history plays a part with regards to the sentences of crack defendants from the standpoint of getting them higher sentences, and, 

therefore, they would not go below the mandatory minimums. 

Chairman BIDEN. And, Doctor, I warn you and implore you, I 

plan on in the Subcommittee holding additional hearings on treatment programs and what treatment regimes we should be involved 

with. And I am going to ask you if you would be kind enough to 

come back and talk to us. One of the things that I—I was the author of the drug court legislation, and it seems to me that it is not 

fully appreciated, the value of those courts and the funding of 

them. So I just would—I give warning. I will ask you to come back 

and testify before us. 

The other thing I would like to suggest is that I may, after we 

have a discussion over the next several weeks, I hope, very well either—one, I would warn or even possibly reconvene the panel to 

debate and discuss what may or may not be something we can 

work out. In the meantime, let me turn to staff and ask if there 

is anything glaring that we should have asked that I did not. And 

I will invite my colleagues who are not able to be here, and, again, 

I would ask your bosses to submit just one or two questions if they 

want. I want to be able to get these folks back, so I do not want 

to send them off with too much homework here. But I do have 

three or four questions that I would like to ask that are more in 

33 

the weeds than we have been discussing here and I do not think 

are going to particularly enlighten this discussion. But I think we 

need them for the record if you all are willing. 

Would any of you like to make a closing comment or an observation? 

Dr. VOLKOW. Well, I want to first thank you for taking leadership on this issue and for bringing up something that has become 

one of our major initiatives, the notion of treatment on those drug 

abusers that end up in the criminal justice system, because probably it is one of the things that we can do that can change both 

criminal behavior as well as substance abuse. 

Chairman BIDEN. As you know, those six hundred and some 

thousand people being released, a number of them are walking out 

with a bus ticket and an addiction as they walk through the gate. 

As they walk through the gate to freedom, they walk through addicted. Addicted because of the availability of drugs in the prison 

system, particularly in the State system. And we are also going to 

be holding hearings on a piece of legislation that Senator Specter 

and I have on the Second Chance Act. What do we do about those 

folks? Because a significant number go from that prison gate to underneath a bridge because there is no housing, there is no employment, there is no—so we have to be taking a look at this. 

Yes, Mr. Felman? 

Mr. FELMAN. I just wanted to make sure that this statistic about 

releasing 25 percent of the Federal prison population is properly 

understood. What we are talking about is 200,000 inmates, roughly, and we are talking about releasing 20,000 of them. But we are 

not talking about releasing 20,000 of them now. We are talking 

about releasing 2,000 or less now. So we are talking about actually 

less than 1 percent of the prison population that would be released 

at any given time. 

Chairman BIDEN. I am glad you mentioned that. It is a valid 

point. 

Mr. FELMAN. So I just want to make sure that that was clear and 

to reiterate the ABA’s position that although, obviously, there are 

differing positions about what the proper ratio should be, we believe very firmly that there is no basis for a ratio other than 1-to1 because these are ultimately the same drug. There are no other 

drugs that are punished based on their mode of ingestion. To the 

extent that there is greater violence associated with crack, the way 

the guidelines should address that is to punish the people who are 

actually violent by increasing those punishments. To build in a specific offense characteristic into the base offense level would result 

in double punishment. 

All crack, we know by definition, was once powder. And so it is 

a question of where along the chain of distribution you want to 

really lower the hammer. And if we are hammering only the people 

with the crack, what you are getting is the street level dealer at 

the end of the distribution chain. And so there is not any reason— 

just because crack is or is not more addictive or is perceived to 

have these other issues, it all comes from powder. And so we believe that fairness must not only be actual, it must be perceived to 

be real, and that the African-American community might continue 

34 

to have a perception of unfairness if there is anything other than 

1-to-1 ratio. 

Judge WALTON. One other thing I want to emphasize, which is 

what Judge Hinojosa indicated, and that is that when the Sentencing Commission has taken similar action regarding other substances, they have made it retroactive. And what would the message be to minority communities who are most affected by crack if 

we change it as it relates to crack but we did not do it regarding 

other drugs. What is that saying, again, about the fairness of the 

process? 

Ms. SHAPPERT. Senator, I would also point out that the Department of Justice is always opposed to retroactivity, whether it was 

for the LSD penalties or for marijuana. 

But the more important point I would like to make is that March 

3rd the retroactivity goes into effect. We are on a very short time 

window right now because if something is not done before March 

3rd, there will be ex post facto issues that will come into play. 

So I would urge your Committee to meet with the Department 

of Justice as quickly as possible so we can start moving. 

Chairman BIDEN. That is a valid point. I agree with that, and 

we will. I must say in closing that beyond—and the point Mr. 

Felman made and you made, Judge Walton, that perception matters in terms of fairness of the criminal justice system, and that is 

one of the reasons why I went to 1-to-1. You could make, I think, 

an argument that there could be some slight difference, but as a 

practical political matter—and I mean that in the broadest sense— 

of the fair administration of justice, I think it has reached the point 

where it is perceived to be completely out of whack and viewed as 

targeted. 

I have a son who is a Federal prosecutor. As a matter of fact, 

I have a son who is the Attorney General of the State of Delaware. 

And it is interesting to hear him talk about this from the State 

level and to hear his concerns about the way in which—he was in 

the Philadelphia office, a large Federal office, and about how minimum mandatories were leveraged to do a lot of things that did not 

sit well with him. 

So there is a lot going on here, but the perception—I guess the 

only point I am trying to make is perception does matter in this 

case, and I look forward to working with the Justice Department 

and my colleagues to see if we can get something done quickly. 

And, Doctor, I look forward to having you come back to speak about 

things that are near and dear to my heart, particularly as it relates 

to prevention and treatment. 

Thank you all very, very much. We are adjourned. 

[Whereupon, at 4:21 p.m., the Committee was adjourned.] 

Questions and answers and submissions for the record follow.] 

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