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Hearing Of The Crime And Drugs Subcommittee Of The Senate Judiciary Committee - Restoring Fairness To Federal Sentencing: Addressing The Crack-Powder Disparity


Location: Washington, DC

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SEN. DURBIN: (Sounds gavel.) This hearing will come to order. The subject of today's hearing is "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity." This is the second hearing of the Crime and Drugs Subcommittee in the 111th Congress.

And first a word about our initial hearing, which focused on the greatest organized crime threat to our country, the Mexican drug cartels. Based on what we learned at that hearing, Senator Graham and I are working on bipartisan legislation to crack down on drug cartels, which we will introduce very soon.

There's a direct connection between Mexican drug cartels and the subject of today's hearing -- our drug sentencing policy in America. We learned at our first hearing that the Mexican drug cartels supply 90 percent of the cocaine in the United States, and that our drug policy, which focuses largely on criminal sanctions instead of prevention and treatment, has failed to stem America's insatiable demand for illegal narcotics.

Cocaine, whether powder or crack, has a devastating impact on families and on our society, but we cannot address this problem through law enforcement alone. We need a comprehensive approach that cracks down on drug trafficking organizations while emphasizing prevention and treatment for addicts.

Our drug sentencing policy also is the single greatest cause of the record levels of incarceration in America. Today in the United States more than 2.3 million people are imprisoned. We have the most prisoners of any country in the world, as well as the highest per capita rate of prisoners in the world. One in 31 Americans are in prison, on parole or on probation, including one in every 11 African- Americans, and over 50 percent of federal inmates are imprisoned for drug crimes.

The United States has made great strides in the last half century in ensuring equal treatment under the law for all. When it comes to the federal criminal judicial system, however -- justice system, inequalities are growing rather than shrinking. African-Americans are incarcerated at nearly six times the rate of white Americans, while Hispanics are incarcerated almost twice as much.

Today we turn our attention to one especially troubling aspect of our failed drug policy, the so-called "crack powder disparity." It takes 100 times more powder cocaine than crack cocaine to trigger the same harsh mandatory minimum sentences. This chart here will indicate that disparity -- by chart. Under current law, mere possession of five grams of crack -- the weight of five packets of sweetener, carries the same sentence as distribution of half a kilogram of powder, or 500 packets of sweetener. That's the difference.

The crack powder disparity is one of the most significant causes of the disparity in incarceration in America, particularly the disparity between African-Americans and Caucasians. The dramatically higher penalties for crack have disproportionately affected the African-American community. 81 percent of those convicted for crack offenses in 2007 were African-American, although only about 25 percent of crack cocaine users are African-American.

The low crack threshold also diverts scarce law enforcement resources away from efforts to combat major traffickers and drug cartels. These racial disparities undermine trust in our criminal justice system and have a corrosive effect on the relationship between law enforcement and minority communities. As the U.S. Sentencing Commission has said, and I quote, "Even perceived improper racial disparity fosters disrespect for, and lack of confidence in, the criminal justice system."

This sentencing framework, created in 1986, was fueled by fears about the newest drug epidemic and based on assumptions that we now know were exaggerated or just plain false. Let me tell you, I was one of those who voted for this disparity. And if you'll look at the debate -- when I was a member of the House of Representatives, you will find leading African-Americans in the House of Representatives who were arguing for this disparity.

Crack was a new phenomenon. It was viewed as a scourge. It appeared to be something out of control that needed to be dealt with harshly and quickly, and that was the reason that many of us supported that sentencing disparity. Today, on reflection, we realize that decision was wrong.

We've learned a great deal since that vote. Vice President Biden, the previous chair of the committee, was one of the authors of the disparity himself. When he chaired a hearing of this subcommittee on the issue last year he said, quote, "Each of the myths upon which we based the disparity has since been dispelled or altered."

Some argue that the sentencing disparity is justified because crack cocaine is associated with more violence than its powder counterpart. But, the truth is that crack-related violence has decreased significantly since the 1980s, and today 94 percent of crack cocaine cases don't involve violence at all. And cases that do involve violence are subject to increased sentences anyway, including a mandatory minimum for use of a weapon in connection with drug trafficking offenses.

Sadly, both the crack trade -- and, as we are witnessing along our Southern border, the trade in cocaine powder are frequently associated with violence. But, the evidence just doesn't justify a sentencing disparity between the two forms of the same drug.

In the 110th Congress I was chair of the Human Rights Subcommittee and we focused on issues like genocide in Darfur; internet censorship in China; rape, as a weapon on war in the Democratic Republic of Congo. But Americans must also be prepared to look ourselves in the mirror and recognize that we are not above reproach. Our record high incarceration rates, and the racial disparities in our criminal justice system, are human rights issues that we must face honestly.

The first important step we should take is to completely eliminate the crack powder disparity and to adopt a one-to-one sentencing ratio for crack and powder cocaine. As the Sentencing Commission has said, revising the crack cocaine thresholds would better reduce the sentencing gap than any other single policy change, and it would dramatically improve the fairness of the federal sentencing system.

Given what we learned during the last 23 years, the sentencing disparity between crack and powder cocaine is both unjustified and unjust. During the course of these hearings this morning we are going to hear of one family that has been impacted -- a family from my state, by this sentencing disparity. It is shocking to hear what has happened to this family because of a decision which we made many years ago to create this disparity.

In closing, it's important to note that there is a bipartisan consensus that we must address the crack powder disparity. In particular, I want to acknowledge and commend the leadership of members of this committee -- Senators Hatch and Sessions, who looked at this issue carefully themselves. I look forward to working with them, as well as my ranking Republican, Senator Graham, and other members of the committee, and the Obama administration to address this important issue on a bipartisan basis. Other members of the committee will be joining us as we proceed this morning, Senator Graham included, and he will have an opening statement which will be made part of the record at this point -- in the record for this hearing.

Unless Senator Feinstein has an opening statement, I will turn to our first panel of witnesses.

SEN. DIANNE FEINSTEIN (D-CA): If I could just say one thing. I've been a co-sponsor with Senator Hatch on changing the formula to 20 to 1. My interest in coming here this morning is to try and see what the appropriate change should be. I mean, there are pros and cons -- if you go to 10 to 1, if you go to 0 to 0, whatever you go to. But, what I'm most interested, Senator -- there's no question in my mind that it needs a change -- is to exactly what?

SEN. DURBIN: Well, thank you very much, Senator Feinstein.

Now we'll turn to our first panel. Each witness will have five minutes to make an opening statement before questions, and their complete written statements will be included in the record.

As is the custom of the Judiciary committee I ask the witnesses to please stand and raise your right hand to be sworn.

(The witnesses are sworn in.)

SEN. DURBIN: Let the record reflect that the witnesses answered in the affirmative.

Our first witness, Lanny Breuer, was just sworn in last week -- seven days on the job now, as assistant attorney general for the Criminal Division at the Department of Justice, following unanimous confirmation last week. I'm appreciative that your first Congressional testimony, as head of the Criminal Division, is before this subcommittee on this issue. Your presence speaks volumes about the administration's commitment to restoring fairness to federal sentencing.

It's also a significant day because I understand Mr. Breuer is going to make an important announcement, and we look forward to hearing it. Mr. Breuer began his career as an assistant district attorney in Manhattan where prosecuted both violent and white collar criminal cases. He later joined the law firm of Covington & Burling where he has worked, with the exception of a two-year period, since 1989. From 1997 to 1999, Mr. Breuer served as special counsel to President Clinton. He received his B.A. and J.D. from Columbia University.

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

MR. BREUER: Mr. Chairman, thank you so much, Senator Feinstein. Thank you for giving the Department of Justice the opportunity to appear before you today to share our views on the important issue of the existing disparity in federal cocaine sentencing policy. The Obama administration firmly believes that our criminal and sentencing laws must be tough, predictable, fair, and not result in unwarranted racial and ethnic disparities.

Criminal and sentencing laws must provide practical, effective tools for federal, state and local law enforcement prosecutors and judges to hold criminals accountable and to deter crime. Indeed, the certainty of our sentencing structure is critical to disrupting and dismantling the threat posed by drug trafficking organizations and gangs that plague our nation's streets. It is vital in the fight against violent crime, child exploitation and sex trafficking, and it is essential to effectively punishing financial fraud.

Ensuring fairness in the criminal justice system is also especially important. Public trust and confidence are essential elements of an effective criminal justice system. Our laws and their enforcement must not only be fair, but they must also be perceived as fair. The perception of unfairness undermines governmental authority in the criminal justice process; it leads victims and witnesses of crime to think twice before cooperating with law enforcement; tempts jurors to ignore the law and facts when judging a criminal case; and draws the public into questioning the motives of governmental officials.

Changing these perceptions will strengthen law enforcement, and there is no better opportunity to address these perceptions than through a thorough examination of federal cocaine sentencing policy. Cocaine and other illegal drugs pose a serious risk to the health and safety of Americans. Drug trafficking organizations and gangs that manufacture and traffic drugs have long posed an extremely serious public health and safety threat to the United States. The administration is committed to rooting out these dangerous organizations.

In the 1980s crack cocaine was the newest form of cocaine to hit American streets. In 1986, in the midst of the exploding epidemic, Congress passed the Antidrug Abuse Act, which set the current federal penalty structure for crack and powder cocaine trafficking, punishing the crack form of cocaine far more severely than the powder cocaine.

Since that time, in four separate reports, back to 1995, the Sentencing Commission has documented in great detail all of the science of crack and powder cocaine, as well as the legislative and law enforcement response to cocaine trafficking.

I will not review all of the information here, other than to note the mounting evidence documented by the commission that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including the evidence that crack is not an inherently more addictive substance than powder cocaine.

Moreover, the sentencing commission has shown that quantity based cocaine sentencing scheme often punishes the low level crack offenders far more harshly than similarly situated powder cocaine offenders. Additionally, commission data confirmed that in 2008, 80 percent of the individual convicted of federal crack cocaine offenses were African American, while just 10 percent were white.

The impact of these losses fuels the belief across the country that federal cocaine laws are unjust. We believe that the commission's work forms the foundation for any thorough review of federal cocaine sentencing policy, and we commend the commission for all that it has done in this area.

Based in significant part on the work of the commission, a consensus has now developed that federal cocaine sentencing laws should be reassessed. Indeed, as set forth more fully in my written testimony, many have questioned whether the goals, the policy goals that Congress set out to accomplish have been achieved.

In the administration's view, based on all that we know now, as well as the need to insure fundamental fairness in our sentencing laws, a change in policy is needed. We think this change should be addressed in this Congress and that Congress' objectives should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine. The administration is of course aware that there are some who disagree. The supporters in the current cocaine penalty structure believe that the disparity is justified because it accounts for greater degree of violence and weapons involvement, associated with some crack offenses.

This administration shares these concerns about violence and guns used to commit drug offenses and other crimes associated with such offenses. Violence associated with any offense is a serious crime and must be punished. And we think that the best way to address drug related violence is to ensure that the most severe penalties and sentences are meted out to those who commit violence offenses.

However increased penalties for this conduct should generally be imposed on a case by case basis, not on a class of offenders, the majority of whom do not use any violence or possess a weapon. We support sentencing enhancements for those for example who use weapons in drug trafficking crimes.

But we cannot ignore the mounting evidence documented by the commission that the current cocaine sentencing disparity is difficult to justify. At bottom, the administration believes that the current federal cocaine sentencing structure fails to appropriate reflect the differences and similarities between crack and powder cocaine. The offenses involving each form of the drug and the goal of sentencing serious and major traffickers to significant prison sentences. We also believe that the structure's especially problematic because a growing number of citizens view it as fundamentally unfair.

Accordingly, as I mentioned a moment ago, the administration believes that Congress' goal should be to completely eliminate the disparity. Earlier this month the Attorney General asked the Deputy Attorney General to form and chair a working group to examine federal sentencing and corrections policy. I have the privilege of being the vice char of that effort. In addition to studying issues related to prisoner re-entry, department policies on charging and sentencing, and other sentencing related topics, the group will focus on formulating a new federal cocaine sentencing policy; one that aims to completely eliminate the sentencing disparity between crack and powder cocaine but also to fully account for violence, chronic offenders, weapon possession and other aggravating factors associated, in individual cases, with both crack and powder cocaine trafficking.

We look forward to working closely with Congress, Mr. Chairman, and the sentencing commission on this important policy issue and finding a workable solution.

As I stated at the outset, this administration believes that our criminal laws should be tough, smart, fair, and perceived as such by the American public. But at the same time, promote public trust and confidence in the fairness of our criminal justice system. Ultimately, we all share the goals of ensuring that the public is kept safe, reducing crime, and minimizing the wide reaching negative effects of illegal drugs.

Thank you for the opportunity to share the Administration's views, and I welcome any questions you may have.

SEN. DURBIN: Thanks Mr. Breuer. Next witness is Judge Reggie Walton, here to represent the Judicial Conference of the United States. After being nominated by President George W. Bush, Judge Walton served on the U.S. District Court for the District of Columbia since 2001. He previously was an associate judge of the Superior Court of the District of Columbia from 1981 to 1989 and from 1991 to 2001 having been appointed by Presidents Reagan, George H.W. Bush. Between 1989 and '91, Judge Walton was associate director of the Office of National Drug Control Policy and senior White House advisor for crime. From 1976 to 1981 he also served as federal prosecutor. He received his B.A. from West Virginia State College and his J.D. from American University. Judge Walton has been outspoken about the need to address crack powder disparity as well as other racial disparities in our criminal justice system.

Thank you on your leadership on this and so many issues and for journalists today. The floor is yours.

MR. WALTON: Thank you very much. Good morning, Chairman Durbin and Senator Feinstein. I'd ask that my written testimony be made a part of the record which I'd like to summarize.

SEN. DURBIN: Without objection.

MR. WALTON: It is an honor to have the opportunity to be here on behalf of the Judicial Conference of the United States to address what I believe is one of the most important issues confronting our criminal justice system today. No one can appreciate I think the agony of having to enforce a law that one believes is fundamentally unfair and disproportionately impacts individuals who look like me who appear before me all too often and we have to impose sentences that we know are unjust. And I hope that we finally have reached the point in our history that we are prepared to address this significant issue.

I, too, when I was a part of the drug office advocated in support of disparity between crack and powder because I too thought based upon the information available to us at that time that disparity at least on some level was appropriate. However, we now know as you indicated and as Mr. Breuer indicated that we were mistaken in many respects in reference to crack cocaine. And I can tell you in reference to the issue of violence that I see no greater level of violence in reference to the cases that come before me involving crack cocaine as compared to any other drug. And I think that alone is sufficient justification to address this issue.

One of the other things I do in addition to my judicial responsibilities is I chair the National Prison Rape Elimination Commission, and in that capacity I have traveled all over the country, into prisons and jails and held hearings on that issue, and the one thing that I always find very disturbing in when I go into prisons even in parts of the country where you think there are not a lot of African Americans, our jails are loaded with people who look like me. And I believe that we have to do something and we have to do something now to address this phenomenon that's affecting our country and having a devastating impact on the African American community.

The problem not only effects what happens in the federal system, but it also has a significant impact on the entire system. As a District of Columbia local judge, I experienced circumstances even though the sentencing law did not apply to cases brought in the District of Columbia court system, jurors who were unwilling to serve who knew about the disparity and said that they could just not do it because they thought the process was unfair. I know of jurors who would tell me after the fact when they refused to convict that even though they thought the evidence was overwhelming, that they were not prepared to put another young black man in prison knowing the disparity existed between crack and powder in those types of cases.

And I think it's very unfortunate America that we have a sizable portion of our population who feel that the system is unfair and feel that race underlines what is being done in reference to how we prosecute and how we sentence certain offenders. So I hope that the Congress with the support of the administration and the understanding that the judiciary also supports the effort will finally address this problem. This is not an issue that relates to the question of whether we're being lenient on crime by addressing this problem.

If that's what it was about, people who know me know I would not be here testifying, because I believe that when people engage in aberrant behavior that punishment is appropriate. But punishment has to be fair and it has to be perceived to be fair.

And we have to ensure that our citizenry are supportive of our laws, because when you think about it, it's amazing that our court system has the authority that it does within our society, because we don't have armies to enforce what we do. People go along with what we do because they believe, by and large, the process is fair. But as I say, there are many of our fellow Americans who don't believe that's true. And therefore I think it's time that we address this problem, because fundamental fairness requires that it be done.

Thank you.

SEN. DURBIN: Thank you, Judge Walton.

Judge Ricardo Hinosoja is acting chair of the U.S. Sentencing Commission. After being nominated by President Reagan, he served on the U.S. district court for the Southern District of Texas since 1983. He's also an adjunct professor at the University of Texas Law School. And prior to being appointed to the federal bench, Judge Hinosoja was a partner at the law firm of Ewers & Toothaker. Judge Hinojosa is a graduate of the University of Texas and Harvard Law School.

I want to thank the Sentencing Commission for its efforts over the last 14 years to call attention to the unintended effects of the crack cocaine sentencing disparity. Since 1995, the commission has issued several reports exhaustively documenting these effects and has consistently urged Congress to address the disparity. I hope 2009 will be the year the Congress responds to the Sentencing Commission's recommendations.

Judge Hinojosa, thank you very much for being here today, and you may proceed with your testimony.

JUDGE HINOJOSA: Chairman Durbin, Senator Feinstein, I appreciate the opportunity on behalf of the United States Sentencing Commission to discuss this morning federal cocaine sentencing policy.

As you have stated, Chairman Durbin, the commission has considered cocaine sentencing issues for many years and has worked closely with Congress to address the disparity that exists between the penalties for crack cocaine and powder cocaine offenses.

As everyone knows, in the year 2007 the commission promulgated a crack cocaine guideline amendment to address some of the disparities but was and continues to be of the view that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress. The commission once again urges Congress to take legislative action on this important issue.

In the interest of time, I will briefly cover some of the information submitted in my written statement. Of the information that was sent to the commission for the fiscal year 2008, approximately half of the cases that are drug trafficking offenses were either crack cocaine cases or powder cocaine cases. Approximately 5,913 defendants were sentenced for crack cocaine, about 24 percent of the drug trafficking cases, and 5,769 powder cocaine defendants were sentenced in fiscal year 2008, which represents about 23 percent of the drug trafficking cases.

African-Americans continue to comprise the substantial majority of federal crack cocaine offenders -- approximately 80.6 percent of the defendants sentenced in fiscal year 2008, while Hispanics comprise the majority of the powder cocaine offenders. Approximately 52.5 percent of powder cocaine offenders are Hispanic.

Federal crack cocaine offenders consistently have received longer average sentences than powder cocaine offenders. In fiscal year 2008, the average sentence for crack cocaine offenders was 115 months, compared to 91 months for powder cocaine offenders, a difference of approximately 24 months, or 26.4 percent.

Most of the difference is due to the statutory mandatory minimum penalties. In fiscal year 2008, crack cocaine and powder cocaine offenders were convicted under mandatory minimum penalties at virtually equal rates -- about 80 percent of the offenders, even though the median drug weight for powder cocaine offenders was 7,000 grams of powder compared to 52 grams for crack cocaine offenders.

In fiscal year 2008, only 14.3 percent of crack cocaine offenders, compared to 42.4 percent of powder cocaine offenders, received relief from the statutory mandatory minimum penalties pursuant to statutory and guideline safety valve provisions. This is partly attributable to differences in criminal history and weapon involvement.

In fiscal year 2008, 28.1 percent of crack cocaine offenders, compared to 16.9 percent of powder cocaine offenders, either received the guideline weapon enhancement or were convicted pursuant to Title 18, U.S. Code Section 924(c). Crack cocaine offenders generally have more extensive criminal history, and 77.8 percent of crack cocaine offenders were ineligible for the safety valve because they were in criminal history categories higher than criminal history category one, compared to 40 percent of powder cocaine offenders.

Another factor is the applicability of mitigating role adjustment, as provided by the courts in fiscal year 2008. Approximately 5.1 percent of the crack cocaine offenders received the mitigating role adjustment, as opposed to 20 percent of the powder cocaine offenders who received the mitigating role adjustment.

The sentencing disparity has been the subject of recent Supreme Court case law. In Kimbrough versus the United States, the court relied on the commission's conclusion that the disparity between the treatment of crack cocaine and powder cocaine offenses fails to meet the sentencing objectives set forth by Congress in the Sentencing Reform Act of 1984. The court held that a sentencing court may consider the disparity when determining an appropriate sentence in a crack cocaine case.

In the Spears case, the court held that under Kimbrough, a sentencing court may vary from the crack cocaine guidelines based on policy disagreements and may substitute with regards to crack and powder its own drug quantity ratio with regards to the crack cocaine guidelines.

With regards to the operation of the commission's decision to retroactively apply the 2007 guideline amendments, I would like to give some information. In the one year since the guideline amendment of 2007 was made retroactive, the commission has received approximately 19,239 sentencing reduction motions that have been acted on by the courts. Of those, approximately 70 percent, 13,408, have been granted, and the average reduction was 24 months, from approximately 140 months to 116 months.

Approximately 30 percent have been denied -- 5,831. Some of those have been denied because the defendant had not been sentenced with regards to crack cocaine. Others have been denied because the defendant was not eligible, either because of statutory mandatory minimums or a career offender or armed career offender status, and/or were denied on other reasons on the merits.

The commission's belief continues to be that there is no justification for the current statutory penalty scheme for powder cocaine and crack cocaine offenses and is of the view that any comprehensive submission requires revision of the current statutory penalties by Congress.

The commission remains committed to its 2002 recommendation that statutory drug quantity ratios should be no greater than 20 to 1, and recommends further that Congress increase the five-year and 10-year statutory mandatory minimum threshold quantities for crack cocaine offenses, repeal the mandatory minimum penalty for simple possession of crack cocaine, and reject addressing the 100-to-1 drug quantity ratio by decreasing the five-year and 10-year statutory mandatory minimum threshold quantities for powder cocaine offenses.

The commission believes that the federal sentencing guidelines continue to provide the best mechanism for achieving all of the principles of the Sentencing Reform Act of 1984 and recommends that congressional concerns about the harms associated with crack cocaine are best captured through the sentencing guideline system.

The bipartisan United States Sentencing Commission continues to offer its help, support and services to the Congress, to the executive and to the judiciary branches, as well as all others interested in the subject who are interested and continue to be interested in this important issue, and request that any congressional action include emergency amendment authority with regards to guideline amendments so that they would go into effect as soon as Congress acts.

Again, on behalf of the United States Sentencing Commission, we thank you very much for holding this hearing and we appreciate your continued interest in this very important subject.

SEN. DURBIN: Thank you very much, Judge. And before we ask questions of the panel, I'd like to invite my ranking member, Senator Graham, to make an opening statement.

SEN. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman. I'll be very brief.

I think this is a topic long overdue for discussion. When you look at your panel, you've got a very unusual group of people, politically divergent, who have the same message. I'm looking forward to listening.

SEN. DURBIN: Thank you very much.

I'd like to ask the first question of Mr. Breuer so that there is clarity on the record. I listened carefully to your testimony. I testified the administration believes Congress should completely eliminate the sentencing disparity between crack cocaine and powder cocaine. To be perfectly clear, does the administration believe that Congress should set the sentencing ratio for crack and powder at 1 to 1?

MR. BREUER: Mr. Chairman, the administration does believe that. We believe that should be part of a comprehensive approach, but that is the position of the administration.

SEN. DURBIN: There may be some disagreement among those who are on the panel here, but I'd like to go to the next question that crosses my mind. What are we to do with all the people who were sentenced over the last 23 years with this disparity of 100 to 1? What is the appropriate thing, the just and fair thing to do for those who are currently in prison?

MR. BREUER: Mr. Chairman, that's, of course, a very difficult question. And, of course, within the Department of Justice, at the attorney general's request, we are having right now a sentencing working group that is going to go and reach out to members of the commission, the judiciary, and all the stakeholders. Whether, at the end of the day, the issue of retroactivity is one that should be adopted, I'm sure will be a topic that will be discussed.

Senator, it's a very hard issue. I don't think there's an easy fix to it. I think the process is just going to have to take forth so we can figure out the best resolution there.

SEN. DURBIN: If I could ask the two other witnesses that question and add a little context to it. In December 2007, the Sentencing Commission unanimously decided to apply its reduction in crack sentences retroactively. The commission estimated that it would affect the sentences of approximately 19,500 inmates over the course of several years.

At the time, opponents of retroactivity argued that the courts would be flooded; the judiciary would be hard pressed to handle all these cases.

So, what is the verdict, I ask of the two other witnesses? Have the courts been flooded, or is the process going smoothly? Has every defendant seeking a sentence reduction received one? And, if not, why not? And are judges still able to consider the individualized factors, such as the use of a weapon, or crimes of violence, and an offender's criminal history while incarcerated, and similar aspects?

I'd like to ask Judge Walton and Judge Hinojosa to respond.

JUDGE WALTON: As you know, there was tremendous concern, when the Commission was considering the issue of retroactivity, as to whether it would overload the court process. And I have some of those concerns, but the Criminal Law committee did recommend to the Judicial Conference that we support retroactivity, and we did so.

My feeling is that the process, as far as the District of Columbia is concerned, has gone smoothly; and, based upon what I know from my colleagues throughout the country, it's gone smoothly also

Has it placed a burden on the courts? Yes, it has. But, I don't think we can let that burden impair us from doing what fundamentally has to be done to make our process fair. So, if it means my probation department; and, as individual judges, we have to work a little harder in order to address the problem, we're prepared to roll up our sleeves and do it.

SEN. DURBIN: Judge Hinojosa.

JUDGE HINOJOSA: Senator Durbin, with regard to that issue, the Commission, when it acted in amending the 2007 Guidelines -- in 2007, the Guidelines, seriously looked at the issue of retroactivity. As you know, the statute gives the Commission the opportunity, when it changes guidelines, to decrease sentences, to apply retroactively, and allow the courts to apply them retroactively if they so desire.

We held hearings. We heard from individuals from the judiciary, as well as other interested groups, as well as the Executive Branch of the government, and then decided unanimously to apply it retroactively.

We did put it off for a period of about three months. This was going to be the largest number of defendants that had ever been eligible for a sentence reduction. This gave the courts, as well as the Executive and defenders organizations an opportunity to be prepared with regard to the motions that would be filed. We also amended Section 1B 1.10 of the Guidelines with regard to the matters that could be considered by a court in determining whether to reduce a sentence.

I will indicate that it appears to have run smoothly across the country so far. We have received information, as of March of 2009, of approximately 19,239 motions, as I indicated. About 70 percent of those have been granted; 30 percent have been denied, as I stated a little while ago. About 11 percent of them have been denied because defendants filed them who did not have crack cocaine convictions. The others have been denied either because mandatory minimums apply and/or career offender status, or armed career offender status applies, as well as for other reasons on the merits.

It is totally discretionary, with regards to a sentencing judge, as to whether to grant the motion to reduce the sentence, and the Commission provided some guidance with regards to that. I will indicate that any action on the part of the Commission, with regards to retroactivity, would be guided, as it always has -- deliberative effort, certainly consultation with other branches of -- with the branches of government, as well as individuals who are interested on this issue. And we would certainly proceed to act in that way to make a decision with regard to any guideline amendment that would come as a result of any reduction that might apply.

SEN. DURBIN: Thank you.

In addition to considering the impact or burden of retroactivity, I want to share with the panel some statistics from our nation's capital. In Washington, D.C. 52 percent of federal cases involve crack cocaine -- 52 percent. That's two-and-a-half times the national average. 92.8 percent of the city's incarcerated population is African-American, and over 50 percent of young black men in the city are either incarcerated or under court supervision -- over 50 percent.

Judge Walton, you've sat on the federal bench here for eight years and presided over hundreds of cases involving crack cocaine. In your experience, what effect does the sentencing disparity between crack and powder have on the criminal justice system?

I gave as an illustration earlier that this much crack would be viewed the same as this much in powder cocaine. To put that in dollar terms, five grams of crack, now selling at $69, would market for $342, would merit the same criminal penalty as 500 grams of powdered cocaine, now selling at $73 on the street, $37,000 -- $342, $37,000, same sentencing aspect.

So, can you tell me, have you -- you've seen this up close, and we're going to hear some further testimony on this, can you tell me the burden on the current system, and the impact this has on the sentencing aspects?

JUDGE WALTON: Yes, Senator, as I indicated in my opening remarks, I know from personal experience jurors, during the voir dire process, who would come up and say that they were not willing to serve as a juror because they know about the disparity. And I think that's unfortunate when our citizenry aren't prepared to participate in our judicial process because they believe it's fundamentally unfair.

As I also indicated, we've had jurors who have said, after the fact -- who would not convict, and there was a hung jury, that the reason they would not convict because they know of the disparity and they were not prepared to contribute another young black male, who is usually is, to the system knowing the unfairness of the process.

I know, because I spend a lot of time talking to people in the community, that there are people who are unwilling to come forward and cooperate with law enforcement because, again, they believe the system is unfair.

So, I think it does have a perverted impact on the attitude that many people in our country have about the fairness of the process, and whenever that happens I think it builds disrespect for our judicial process, which obviously has an overall impact.

And, as I said, it's just not within the federal system, because when I served on the superior court, even though the federal sentencing laws did not impact what was taking place in that court, we had the same attitude being expressed by jurors and other citizens about the fairness of the process. So, it had an impact in that process, in that system also.

SEN. DURBIN: Thank you very much.

Senator Graham.

SEN. GRAHAM: Thank you.

A very good discussion. Generally speaking, do you believe that crack cocaine has been a detriment to minority communities, in terms of their health and their future, Judge?

JUDGE WALTON: Absolutely. There's no question that crack cocaine has had a devastating impact on African-American communities. I know that there are people who are afraid to even come outside of their homes because of the violence that exists.

But, I've seen violence in reference to other drugs, in addition to crack. And as I indicated earlier, I cannot say, based upon the cases I see coming before me, that at this time the level of violence is any greater as it relates to crack and other drugs.

We know a lot of our children, who are having difficulty educationally, academically, were children who were born to women who used crack during the pregnancy. So, yes, it's had a tremendous impact but it also has had a tremendous impact, because the breakdown of the African-American family has had a devastating impact on the African-American community.

And to a large degree, when you go into many of these communities, there are no men --


JUDGE WALTON: -- because so many of our young black men are locked up. And I think that is a major problem that this country has to confront.

SEN. GRAHAM: The only reason I mentioned that -- you know, when you go back and look at a law there's a reason that laws exist, and history sometimes will say that was a dumb reason. (Laughs.) We've had laws to do some things that, in hindsight, were just really racially motivated or just, you know, Neanderthal.

But, when it comes to this drug, I think I understand why people back in the '80s and the early '90s really wanted to declare war on crack cocaine in making it very difficult to be involved with its use or sale. So, I think Senator Durbin probably, during that period of time, had that motivation -- anybody that supported this original statute.

And the one thing we can say for sure is that all this enforcement and punishment you said -- has it gone up or down, throughout the communities? Has it had any impact, in terms of deterrence?

JUDGE WALTON: I don't have any statistics or empirical data I can say -- provide to you to support my position I'm going to take. But, I have come to believe, in the context of this type of crime, that certainty of punishment is more important than severity of punishment -- obviously, for repeat offenders, and for offenders involved in large trafficking organizations, or those involved --

SEN. GRAHAM: With that in mind, Judge, is a mandatory minimum -- does it have a place here for simple possession, do you think?

JUDGE WALTON: Not for simple possession. The Judicial Conference has opposed mandatory minimum.


From the administration's point of view, do you have any answer -- could you give me an answer to that question: has the use of crack cocaine gone up or down after we passed these very tough statutes?

JUDGE HINOJOSA: Senator, it's my understanding that use of drugs throughout has somewhat gone down, so not just for crack cocaine. Whether that's the result of this sentencing regime, I think, it's -- one would be hard pressed to say it's the result. But, I think, overall, what we say about crack cocaine would be true for other drugs and powder cocaine as well.

SEN. GRAHAM: I think the most revealing testimony is the fact you talk about jurors who openly understand that, you know -- they understand the consequences of one type drug versus the other, and very reluctant to find people guilty.

So I think the committee is doing a good job here to try to figure out how to create justice.

But the goal is to protect people from the scourge of this drug. Let's don't lose sight of that. And from the Sentencing Commission point of view, if you've applied -- if you did away with the simple possession standard and you went back in case files and you reviewed cases of people who are in jail based on simple possession or crack cocaine with a mandatory sentence, how many people are we talking about letting out of jail?

JUDGE HINOJOSA: Last fiscal year, 2008, I believe it was about 105 cases of simple possession, and about half of those cases were subject to mandatory minimums.

SEN. GRAHAM: So not that many people.

JUDGE HINOJOSA: It was a small number. But nevertheless, it is the only drug that carries a mandatory minimum for simple possession.

SEN. GRAHAM: So if you did away with the mandatory minimum, you're not -- it's only 105 cases that it was used in, right?

JUDGE HINOJOSA: One hundred and five cases, and about half of those, I believe, actually were subject to the mandatory minimum. Nevertheless, it is about 50-some defendants who were affected by mandatory minimum with regards to that particular drug that were not affected with regards to any other possession of any other drug.

SEN. GRAHAM: Well, here's my statement to you and the committee as a whole, and really to the country, I guess. If we change the law to do away with what appears to be an injustice, that you get so much more punishment for some type of cocaine versus the other, and it has such a disparate effect in terms of our demographics, what do we do if we change the law to do away with that harshness and make the law still punishment? What do we do to prevent the problem?

I mean, isn't that the goal? The goal is to prevent the problem. And if I thought passing a 1,000-to-1 ratio would do it, I would vote for the law. Obviously it's not, and it's creating a counter-effect and it's creating a backlash that is not what we want. We don't want the community to stop convicting people because they think it's unfair. We want people convicted that deal in this stuff and abuse it, but we also want to help them get off of it. So if you could, just in a minute or so, tell me, what do we do if we change the law to make it less punitive? How do we fix the problem?

MR. BREUER: Well, Senator, from the administration's point of view, what we would do is we would have a regime that would be more case-specific. So we would have very severe punishments for those who are deserving of severe punishments. If you're a seriously major trafficker, you're someone involved in violence, you use children, you sell to children, you sell near schools, whatever, in that case you should get, and there should be certainty to it.

And (within ?) the comprehensive approach, we would want rehabilitation, so that if you're someone who has simple possession or you're someone who has had just a small amount of cocaine or such a substance but you don't have violence, that once you're out of jail, if you go to jail, that we have some way of dealing with you since we don't have you re-entering the Bureau of Prison system.

SEN. GRAHAM: One last question. If we change the law where we change the sentencing to be more balanced and, quite frankly, fair, given powder cocaine, do you worry that we send the wrong message?

MR. BREUER: Senator, from the administration's point of view, we think today we're sending the right message. We're sending --

SEN. GRAHAM: Do you agree with that, Judge?

JUDGE WALTON: I do. I agree with everything that Mr. Breuer has indicated about how we should address this problem. And I don't think we send the wrong message. I believe that enforcement is very important to addressing this problem, but I also believe that prevention works and I also believe that treatment works. But we haven't made the investment in those arenas that I believe are necessary.

SEN. GRAHAM: Thank you.

SEN. DURBIN: Without objection, the statement by Senator Leahy will be entered into the record.

Senator Feinstein.

SEN. FEINSTEIN: Thank you very much, Mr. Chairman.

Mr. Breuer, obviously this is a very major recommendation, and it carries with it a lot of concomitant issues, not the least of which is retroactivity. And it seems to me you can't eliminate the disparity without having a program to release program from prison who are under these laws, thereby unfairly sentenced. And I think we need to know exactly what we're talking about.

Mr. Hinojosa, I was reading your written statement and the question you just answered, and I read something different from what you just responded to. On page three, powder cocaine and crack cocaine offenses together historically have accounted for nearly half of the federally sentenced drug trafficking offenses; 24,600 total drug trafficking cases in '08. There were 5,900 crack cases. That's 24 percent of all drug trafficking cases, and 5,769 powder cocaine cases. That's 23 percent of all drug trafficking cases.

So there are a lot of people in prison with this disparity. Do you want to say something on that?

JUDGE HINOJOSA: The number that I gave was those that were eligible with regards to the 2007 guideline amendment. Some of them had already served their sentences. Some of them had been obviously released. And some were not eligible for other reasons. And so the number that I gave is not everyone who had been sentenced under the crack powder ratio, but those who might be eligible with regards to the 2007 guideline amendment.

We have done no study with regards to eligibility, with regards to any others, nor have we looked into that.

SEN. FEINSTEIN: Well, what would be the eligibility of people in prison for immediate parole, assuming there was retroactivity, and the 1-to-1 standard was in place?

JUDGE HINOJOSA: That would depend on what the ratio was and what Congress actually decided the ratio should be.

SEN. FEINSTEIN: Well, I'm just saying, the administration has suggested a ratio. Supposing that were, in effect, the law, how many federal offenders would then be subject to release? Because you'd have a clamor if we changed the disparity and kept people in prison.

JUDGE HINOJOSA: And if that was the case and that was the legislation, of course we would do all the numbers with regards to whatever that might be.

SEN. FEINSTEIN: But right now we don't know how many people would be affected.

JUDGE HINOJOSA: No, but we would be glad to get that for you. And we have prepared some information with regards to the reduction possibilities, but not with regards to the numbers presently in custody that might be eligible for retroactivity if that was the way it was proceeded with.

I will say that one of the things the commission is also attempting to do and has started doing -- and this does take some time -- is to look at the recidivism rates with regards to those who have had retroactivity applied with regards to the 2007 guideline amendments.

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

JUDGE HINOJOSA: And I hope I didn't leave you with the impression, Senator, that the number I had used involved if there was a change to 1 to 1. It was simply the number with regards to the 2007 guidelines.

SEN. FEINSTEIN: I understand. Thank you. That's helpful.

Now, there are 14 states that do have crack cocaine disparities, mine being one of them. Our disparity in California is based on the actual minimum sentence, with crack defendants sentenced to three-, four-, five-year terms, and powder cocaine to two-, three-, four-year terms. And that is not, I think, as difficult to change. But again, I'd want to know what is the practical impact of this.

Let me ask you, Mr. Breuer, I'm sure that when you make this suggestion, you have analyzed the practical impact of this, both on the federal system and the fact that states are apt to follow, and what the impact would be with those states that do have disparities.

MR. BREUER: Well, Senator, what I would say with respect to that is that, of course, this is the very beginning of the process, and we have a working group where we want all the stakeholders to get involved. The issue of retroactivity, I think, will be an issue --

SEN. FEINSTEIN: The answer is you haven't looked at that?

MR. BREUER: Well, the answer is not that we haven't looked at it, but the answer is that, in speaking -- for instance, I personally, in the first week on the job, when I've spoken to those like Judge Walton and Judge Hinojosa and other judges, they've said in the past, when, for instance, the Sentencing Commission decided to have a two- level reduction, that though people thought in the beginning that it would be overwhelming, that, in fact, judges, as Judge Walton said, were able to do it and roll up their sleeves.

Whether or not, if we were to do this now, it would create an overwhelming burden, I don't think has yet been quantified. But I think it's an issue. And on the one hand will be the practicality of doing it, and as the other senators (and) you have indicated, it's the fundamental justice in doing that. Somewhere in that will be where that discussion comes out.

SEN. FEINSTEIN: Well, I'm sure you've talked with law enforcement.


SEN. FEINSTEIN: What is the law enforcement view of this?

MR. BREUER: Senator, I think, like everything, there's not unanimity. I've had the privilege -- yesterday I spoke, for instance, with Chief Bratton, the police chief in Los Angeles, who said to me -- he said, "Lanny, you should quote me as saying I fully support 1 to 1, and I fully support the administration's position." I see Chief Timoney there, and I had the pleasure of having breakfast with him about a week ago, and I think there's a lot of support for it.

I don't want to suggest there's unanimity, but I think a lot of law enforcement believes that the current status is unsatisfactory. There's probably going to be some debate whether it should be 1 to 1 or something else, but I think there are a lot of informed sources who now are very much in agreement with this position.

SEN. FEINSTEIN: What would be the administration recommendation on retroactivity?

MR. BREUER: I don't think yet, Senator, we have one. And the reason we don't have one is, in beginning this process, I think the administration believes it is essential that, in a more comprehensive way, we are able to reach out to law enforcement, to the Congress and to other stakeholders. Intuitively there's a lot about retroactivity that seems right. But I think if we were to take a firm position now, we, in fact, would disenfranchise those who we very much want to bring into the process as we all discuss, in an informed way, this issue.

SEN. FEINSTEIN: It's just -- for whatever it's worth, it's my position that any change has to have retroactive consideration because we have to know what we're doing when we do it and what the practical application of what we are doing is, not just the theoretical application because you're going to have 14 states very concerned as well. So I would very much appreciate it, Mr. Chairman, if it's agreeable with you, that the Attorney General's office really look into this and give us some recommendations of what they think this should be as part of any bill.

MR. BREUER: Senator, just to reassure you, our goal in fact for the working group is that the working group within a period of a few months, not very long, will in fact have coalesced all of these issues and we would be delighted to do exactly that.

SEN. FEINSTEIN: Thank you. That would be very helpful. Thanks very much, Mr. Chairman.

SEN. DURBIN: Thank you Senator Feinstein, I agree with you on that point.

Senator Klobuchar.

SEN. AMY KLOBUCHAR (D-MN): Thank you very much, Mr. Chairman. Thank you to all of you. As you knowm, I'm a former prosecutor and when I was listening to Senator Graham talk about going back to how this happened, this disparity in the first place, I think part of this was -- which we still see today -- the scourge of crack cocaine and what it does and very violent offenses that get committed with it. So I think it's very clear to say that we're not talking about decriminalizing this, right Mr. Breuer?

MR. BREUER: That's exactly right.

SEN. KLOBUCHAR: All right. Very good. And that we understand it's a very serious, serious problem. On the other side, I think of a judge in Minnesota named Judge Pam Alexander who was a District Court judge who was one of the first to strike down the crack cocaine disparity in Minnesota -- it went up to the Supreme Court. And in 1991, in the case of State v. Russell, the Minnesota Supreme Court struck down our disparity in our state. Pam Alexander was then nominated or her name was seriously considered for federal District Court judge and I hope she's watching this hearing today because she wasn't able to advance because of this decision that she had made.

So I'm well aware of this issue. And I think the first thing I wanted to say was that -- and ask you about -- was that there were reasons given back then for this disparity, and I'm sure some of them weren't real, but some of them were that crack could be worse, the effect it had on babies and things like that. And is that still true, the crack cocaine? Any comments on that?

MR. BREUER: Senator, based on my understanding of the commission's excellent work and its work with respect to science, there is no basis for that --

SEN. KLOBUCHAR: All right.

MR. BREUER: -- conclusion.

SEN. KLOBUCHAR: And then secondly this which the fact that sometimes crack for maybe reasons outside of the drug itself, it's involving more gun offenses, more violence, maybe those that are using this illegal drug compared to those that are using cocaine, it may have nothing to do with the drug but there was some more propensity of cases involving guns and violence with crack.

MR. BREUER: I think though the numbers have gone down, there's still some more prevalence in those who are on the streets trading crack possessing guns or using guns. And it's why the administration feels we should have a much more targeted approach.

SEN. KLOBUCHAR: So your answer to that from my law enforcement people out there who are listening to this very carefully would be that it's not like we're going to disregard the fact that guns are used with these crack crimes that you are going to use enhanced sentences or how were you going to get at that fact? Because clearly when you have guns with drug cases, it means something more.

MR. BREUER: That's exactly right, Senator. What we would propose is through the working group in making recommendations ultimately is either through enhancements or through further legislation that we ensure that those who are trafficking in crack cocaine for instance who are using guns that they get extremely severe sentences. And so we're not in any way proposing that we're going to ignore it. Through a comprehensive regime of legislation enhancements, we very much want to address that issue.

SEN. KLOBUCHAR: Okay. I think that's very important for people to know. And I do think it gets at Senator Feinstein retroactivity question to some degree which I think is going to be very difficult and that is that perhaps -- I'm just guessing this, judges -- but because of the sentences for crack that sometimes those sentences were used, weapons charges may have been dropped, even though a weapon was present, and so the retroactivity argument becomes more difficult in those cases. You may have a severely violent case or a gun case, but because the crack sentence was so long, perhaps those charges were dropped. Do you want to address that all? It's just complicates saying well because someone was put in for crack charge for this long, they should be let out when in fact maybe there were other factors there.

MR. BREUER: Senator, I think that's exactly right. I defer to the judges on the implementation but of course any issue of retroactivity will have to be case by case for the very reasons you've identified.


JUDGE HINOJOSA: Senator, I do want to make it clear that the guidelines themselves do provide some enhancements already with regards to a weapon involvement, if you're not convicted under the statute.


JUDGE HINOJOSA: They also provide enhancements for use of minors, enhancements for roles in the offense as well as some of the other matters that would be of concern to individuals, they are provided within the sentencing guideline system with regards to some of these enhancements that have been talked about with regards to certain specific characteristics of the way a defendant may be involved in a particular case.

And so some of these individuals may have already gotten the weapon enhancement under the sentencing guidelines, even though they were not convicted under the statute itself.

SEN. KLOBUCHAR: Understand. My focus here is that you may have some violent offenders that were simply convicted under this crack law. And so it just makes it much more complicated to look at the retroactivity issue.

The other thing that was raised and Senator Graham addressed was just other reasons to look at changing this disparity. And one of them is that the judges have been downgrading the sentences out of a realization of what they perceive as this unfairness as well as the fact that -- which he referred to -- juries are aware of this in many parts of the country and have reactions to this on people. And I'm very interested in mostly effectively using our laws and make sure they're targeted as Mr. Breuer pointed out at where we need them. But could you comment a little bit about that -- I think it was you Judge Hinojosa that brought up the issue of the judges departing downward.

JUDGE HINOJOSA: Well there has been some since Kimbrough and Spears --


JUDGE HINOJOSA: -- that post-Spears the departure variance rate that is not government sponsored is about 18 percent in crack cocaine cases, which is higher than it had been. It was probably 3 percent lower than that, prior to that. And so there has been an increase. That's only with 900-and-some cases that have come in since Spears that we have been able to code. We will continue to put up that information.

It is different than it has been. We have seen about five cases where judges actually decided to use their own ratio. Some have used 20:1. Some have used 1:1. And so this may lead to disparity with regards to how individual judges look at what they feel might be the ratio. And so we are coding that information and would certainly make it available.

SEN. KLOBUCHAR: Thank you. Mr. Walton, Judge Walton, do you want to comment at all on this?

JUDGE WALTON: Which particular --

SEN. KLOBUCHAR: Well, just on the judges departing downward, maybe your own feelings or changes in your feelings about this disparity on these laws over time.

JUDGE WALTON: Within our current system I do have concerns because I know within my own courthouse, there's a difference of a view of what that disparity should be. So you do have some judges going 1:1, 10:1, 20:1, and I think that's problematic because I think disparity is a problem within our system. So to the extent that there can be greater uniformity, I think that is important.

On the issue of retroactivity, I agree that is a significant issue. There are a lot of factors that have to be weighed in assessing whether it would be appropriate to do that. And one of the things I don't think I'd be saying off the reservation on behalf of the court system to say this is that if retroactivity is a reality, then I would hope that the needs of the court financially will be considered because if we needed this in our resources in order to carry it out, I would hope that they would be made available to us.

SEN. KLOBUCHAR: Okay. I can tell you that I totally understand that from seeing court cases. But again the public safety issues with making sure that any retroactive changes that are made are going to also be I think foremost in people's minds. But thank you.

JUDGE WALTON: But I think one thing that's important if you look at these statistics that Judge Hinojosa indicated with the experience of what has happened now in reference to what the commission did, there has not been a significant number of people who've been released who've come back into the system. According to the statistics, it's only about 0.6 percent of the individuals released pursuant to the action of the commission who have committed new offenses and come back into the process because of that.

SEN. KLOBUCHAR: Right. And I am a big supporter of treatment, I come from the land of, well, 10,000 treatment centers, that's what we say in Minnesota and we believe in it. My own father has gotten -- is a recovered alcoholic so I completely believe we need to look at that and drug courts as part of our laws and that there is much better ways we can handle this.

But at the same time, I want to make very clear to the public, and Mr. Breuer did that, that we are not talking about decriminalizing that, that we're going to move very carefully as we look at any talk of retroactivity and that we do understand that crack cocaine is as Senator Graham said is a scourge on our community and that we want to do everything to get people off of it and to make sure the laws are enforced and focus very much on these violent offenses and gun offenses while understanding that this disparity has not been fair and it's not seen to have been effective in how we enforce our drug laws.

So thank you very much, all of you.

SEN. DURBIN: Senator Kaufman.

SEN. EDWARD KAUFMAN (D-DE): Mr. Chairman, I want to thank you for holding this hearing. I think this'll go a long way to deal with popular misperceptions about the disparity between the crack cocaine and powder cocaine differences and I think it is a real service.

Mr. Breuer, I want to follow up on Senator Klobuchar's question. Yeah, I know about the children, but what other things have we learned since '86 that make us now -- the Department feel that it's important to remove this disparity?

MR. BREUER: Senator, where we were right of course and what we've know throughout is that crack cocaine, drugs in general such as crack cocaine and powder cocaine are in fact a scourge. And they're very bad for the community and they can be associated with violence.

But what we've learned is that if we punish based on a class as opposed to case specific or one form versus another, then in fact what we begin to do is deteriorate the public's confidence in our justice system that Judge Walton so eloquently described, and that can't be the case.

We need to protect our citizens. They need to know there is certainty of punishment, and they need to know that we are putting in jail those who should be in jail as opposed to, as Judge Walton said, young African-American men who have no business being in jail perhaps for as long as they are, based on the crime. That's a terrible injustice and I think that's the lesson we've learned.

SEN. KAUFMAN: To follow up, one of the findings of the Sentencing Commission's most recent report to the Congress said that more than one-third of all crack cocaine cases in 2006 involved fewer than 25 grams. All powder cocaine cases typically involve far larger quantities. Can you kind of talk about how that happens?

JUDGE HINOJOSA: Well, Senator, I think what has happened under the current regime is that, in essence, there is sort of a de facto process, and because the quantities are lower in some cases people are targeted because of their -- because there's a sense that perhaps they're more involved in other kinds of criminal activity.

The result, however, is it's somewhat artificial. If we had a one-to-one level, then in fact I think what we'd find is sentences throughout that would be proportional based on what they should be. Now I think what is happening is people are using their own independent judgments to try to take a system that most people think is not working and try to make it work a little better, but that's a very imperfect system.

SEN. KAUFMAN: Thank you. Now, we know, talking about doing away with the disparity, and I think there seems to be good agreement on that -- I mean, do you have any thoughts about whether we're going to raise the current powder levels or lower the certain crack levels in order to get to what we should be doing -- just your thoughts on that.

JUDGE HINOJOSA: Well, Senator, based on the commission's work and the work that we've heard about, I'm not aware of any compelling arguments at this point, none, to say that we should raise the powder cocaine penalties or raise the crack -- to raise the powder cocaine. But I must say that the working group will do what we've said it will do. It will remain open to all issues.

And so, if there are those arguments, we want to hear them and we want to assess them, but at this point I have not heard any compelling arguments there and I don't think the commission, in its work, has found any.

SEN. KAUFMAN: Okay, thank you for that. Judge Hinojosa, on the subject of violence, does your data suggest that the violence associated with crack distribution has changed at all over the years?

JUDGE HINOJOSA: The last coding project that we did with regards to violence was that there was a slight difference between crack and powder cases. It was about -- not present in about 89-point-some percent of the crack cases and not present in about 93 percent of the powder cases. And so that was a coating project with regards to 2005 cases.

The other thing that we judge it by is the weapon enhancement, which is applied in about 28.1 percent of the crack cases and 16.9 percent of the powder cases. And so, therefore, that is the information that we do have.

SEN. KAUFMAN: Great. Thank you.

Judge Walton, obviously in addition to your service as a -- long service as a trial judge you served with the Office of National Drug Control Policy. How has that experience affected your positions and your views on this issue?

JUDGE WALTON: Well, as I indicated earlier, I did advocate a disparity when I worked in the drug office because of the information we had available to us at that time. As has been indicated, a lot of that information we know was incorrect.

And so it has altered my view about the disparity, coupled with the fact of my experience that I've had with people who would come into the process, like jurors, who did not want to be a part of the process because of the disparity.

So I think, as I've indicated before, that public confidence is critical if our laws are going to be respected and followed, and I think this adversely impacts the ability to have that occur.

SEN. KAUFMAN: Great. Thank you all for your comments. And, again, Mr. Chairman, thank you for holding this hearing.

SEN. DURBIN: Thank you, Senator Kaufman. And I'd like to thank this panel for their testimony. I believe this has been long overdue and your statements are going to help us understand this issue and I hope motivate us to move forward.

Some of the little huddles that you've seen taking place here are among senators who are thinking about what's the next step. So we are consciously thinking of an active response to your suggestions today, and I thank you for motivating us and for --

JUDGE WALTON: There's one statement I could correct. I said that it was .6 percent who have been rearrested who had been released. It actually is .6 who were revoked based upon a rearrest.

SEN. DURBIN: I see. Thank you very much, Judge Walton. Thank you all.

We now invite the next panel of three distinguished witnesses to join us. And before swearing them in, while they're taking their seats, I will give you a little background on each one of them.

John Timoney is going to testify first. He is the chief of police of the Miami Police Department. He's been in that position since January of 2003. His law enforcement career began in 1967 when he joined the New York City Police Department.

After serving in a variety of leadership positions during three decades with the NYPD, Chief Timoney was, for four years, the police commissioner of Philadelphia, where he commanded a force of approximately 7,000 officers.

He is president of the Police Executive Research Forum, serves on the board of Penn Institute for Urban Research in Philadelphia University, co-chairman of the FBI South Florida Joint Terrorism Task Force. His 40 years of local law enforcement experience give him a unique perspective on these issues. I thank him for being here.

Asa Hutchinson is a familiar face here on Capitol Hill, currently practicing law at the Hutchinson Law Group, which he ad his son founded. He began his legal career as city attorney the famed Bentonville, Arkansas before he was appointed by President Reagan as U.S. attorney for the Western District of Arkansas.

He served in the U.S. House of Representatives from 1997 to 2001, appointed by President Bush as administrator of the Drug Enforcement Administration in 2001, two years later. He became the first undersecretary for Border and Transportation Security of the newly created Department of Homeland Security.

He has an undergraduate degree from Bob Jones University and a law degree from the University and a law degree from the University of Arkansas. Mr. Hutchinson, welcome.

Cedric -- is it Cedric or Cedric? (Uses different pronunciations.)

MR. PARKER: Cedric.

SEN. DURBIN: Cedric -- Cedric Parker, one of seven children born in Tampa, Florida, grew up in Alton, Illinois, home of the Redwings. Upon graduating from Southern Illinois University he joined the U.S. Army and served his country for over seven years.

Mr. Parker, after leaving the military, returned to Alton, Illinois, where he managed a residential diagnostic and treatment facility for troubled and abused adolescents. He met his wife Christy (sp), there, who is a psychotherapist in private practice. Their four children, one son and three daughters, range in age from 24 years to 11 months. That's a wide spread there, sir.

Mr. Parker, thank you for the sacrifices you made to be with us today. He's here to testify about his sister, Eugenia Jennings. And before -- I'll wait and show that a little later. We have a picture here of the family which we'd like to show when your time comes for your testimony.

If I could ask the three witnesses to stand to be sworn in, I'd appreciate it.

(The witnesses are sworn in.)

SEN. DURBIN: Let the record indicate that all the witnesses responded in the affirmative.

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

MR. TIMONEY: Thank you very much, Mr. Chairman, and good morning to the distinguished members of the committee. I want to thank you for affording me the opportunity to testify regarding reforming the federal cocaine sentencing laws, commonly referred to as the crack versus powder cocaine controversy.

As you mentioned in the introduction, I've spent the last 40 years in local law enforcement, the last six and a half as the chief of Miami; four years before that as the police commissioner of Philadelphia, and then 29 ½ years in the NYPD, beginning as a young cop in the South Bronx and working my way up through the ranks to become the youngest four-star chief in that department's history. So I come at this as a police professional.

Others this morning have testified regarding the 100-to-1 disparity, and you had very good graphics there, Senator. They've testified of the efforts of many, including the United States Sentencing Commission, to try to rectify or mitigate the disparity. To date, none of these efforts have been effective, having, for whatever reason, fallen on deaf ears. I am here today to lend my voice to the chorus pleading with Congress to right a wrong.

I have no idea of the original reasons for establishing this dichotomy that somehow crack cocaine is more powerful and therefore deserves a stiffer sentence. I don't know if they're right or wrong. I've heard the arguments on both sides.

What I can tell you, from a practitioner's perspective, is that the results or the unintended consequences -- and I don't think the consequences were ever intended in this situation, but the results have been one unmitigated disaster.

Making an artificial distinction about a particular form of the same drug is a distinction without a difference, and that's bad enough, but when the distinction results in a dramatic disparity in sentencing along racial lines, then that distinction is simply un- American and intolerable.

Furthermore, it defies logic from a law-enforcement perspective, and here's what I mean: If I arrest a guy carrying five grams of crack cocaine, that's less than a fifth of an ounce. I figure this guy is a low-level street corner dealer or maybe he just has a good amount of crack for personal consumption.

But if I arrest a guy with 500 grams of powdered cocaine, I assume -- and that's about a half a kilo -- I assume that this individual is a serious trafficker in narcotics. The notion that both of these guys are equal and deserve the same sentence is just ludicrous on the face. All right, let me take my two guys and show you how the monetary value of their illegal contraband plays out in the street.

In Miami today you can purchase five grams of crack for around $150. In New York and in Philadelphia, my prior two cities, it will cost you around $200 -- a little more expensive. In Miami today, my undercover officers, for powdered cocaine, spend between $700 and $1,000 per ounce, or around $14,000 for a half a kilo, which is 500 grams -- in New York and in Philadelphia probably $2,000 more.

The bottom line is the difference -- it's a hell of a difference. It's $150 versus $14,000. Now, if you were to present those numbers to the average 8th grader, they could figure out who is the narcotics trafficker and who isn't. It's quite simple and the answer is quite simple.

Finally, when unfair laws are passed, police officers see the impact at the local level. Citizens do notice the things you do up here in Washington, and they do play out in the street, and in this case, the people become cynical.

And I remember back in 1974 when I was a young cop in the South Bronx and President Ford issued a pardon to former President Nixon. I was amazed at how many times that issue was thrown up in our face as we made arrests on the street. We'd get the accusation, oh, Nixon gets pardoned but the poor people get arrested.

Now, I know a lot of that was just street-level nonsense and jargon, but the point was well taken, and police departments across America face a much more difficult challenge in gaining the trust of their communities if there is glaring inequities in the justice system that are allowed to persist. These inequities breed cynicism, mistrust, and should be eliminated.

Thank you, Senator, for your indulgence.

SEN. DURBIN: Thank you for your testimony.

Mr. Hutchinson, you have an opportunity now for five minutes, and we of course will enter into the record any written statement you'd like to submit. Please proceed.

MR. HUTCHINSON: Thank you, Senator. I am delighted to appear before your committee. I'm grateful for the invitation. I'm here today of course reflecting my background as a federal prosecutor in the '80s when we really commenced the strong effort against illegal drugs.

I'm reflecting my background as a member of Congress when I had oversight responsibilities from the House side on some of our law enforcement agencies, and then most significantly as a former administrator of the U.S. Drug Enforcement Administration.

And in all of those recent positions, Congress and the DEA, I've been a longtime advocate for reducing the disparity -- the sentencing disparity between crack and powder cocaine. I've advocated this position for a couple of very simple reasons.

One, the justice system should be about fairness and I do not believe that this sentencing disparity reflects the fairness that's required. And, secondly, obviously it has a disparate racial impact on our communities that undermines what we are trying to accomplish in the justice system. Today I express my support for legislation, for Congress addressing this disparity, and I believe that this is the time that this can be done.

The reasons that I am strongly advocating congressional action in this regard is that I see the impact of the disparity as undermining the confidence, credibility and cooperation that's important in our criminal justice system, but secondly -- and I think this has not been talked about enough -- is that the present disparity skews law enforcement priorities. It encourages law enforcement to pursue lengthy sentences when the offenders are not high-level dealers.

And in Arkansas, where I hail from, I wanted to cite this particular statistic: 41 percent of the drug-related federal offenses in Arkansas are crack-related -- 41 percent -- and that's compared to a national average of 20 percent. Powder-related federal offenses in Arkansas are 12 percent of all federal offenses, or drug-related offenses. That compares with 22 percent nationwide.

And so whenever -- in Arkansas the African-American population is about 16 percent but we have a higher percent of crack-related offenses as compared to the national average. And I believe that congressional sentencing priorities impact law enforcement patterns and practice to our detriment in effectively fighting the war on drugs.

Now, perhaps the easier part of this debate is to convince policymakers that we've got to do something. The more difficult aspect is to address how to do it and what's the right way to do it. And let me just offer a couple of views in that regard.

First, the issue of retroactivity has been discussed today, and I applaud Congress most recently in implementing the changes of the Sentencing Commission last fall, that you did not reverse the retroactive application. As Judge Reggie Walton, who previously testified, has said, I don't see how it's fair that someone's sentence on October 30th gets a certain sentence when someone's sentence on November 1 gets another sentence.

And so, whatever changes you make I do believe has to be applied retroactively. The most strenuous objection comes from the Department of Justice who says it takes extraordinary U.S. attorney resources in order to process these and court resources. The courts do not object, and since they've gone through the re-sentencing on many you haven't seen any mass resignations of U.S. attorneys or assistant U.S. attorneys saying they're overworked.

So the process has worked. And, most importantly, when you're dealing with an issue of fundamental fairness, adjust the resources, apply the resources, make changes where necessary to make sure that the individualized approach can be handled and they can be reviewed.

Secondly, I would suggest that in terms of adjusting the disparity, mandatory minimum sentences required of cocaine traffickers should be more clearly directed toward those that are engaged in the business of trafficking and it should not all be quantity based.

Right now you've got the sentencing disparity because it's all based upon quantity. Well, a mule who's transporting a large load of cocaine across the border is not the high-level trafficker we actually want to get. We've got to adjust our sentencing priorities to include different criteria rather than simply the quantity aspect.

Under the current formula, a dealer charged with trafficking 400 grams of powder worth approximately $40,000 could receive a shorter sentence than a user he supplied with crack valued at $500. Obviously there has to be more than quantity we have to adjust that criteria. Quantity should be one factor but it's been an unreliable ally in determining sentencing priorities and in determining law enforcement priorities.

And, finally, whatever Congress does in terms of changing the sentencing structure, give it time to work and then listen to the Sentencing Commission as they review what has been accomplished, and obviously anything we do has to be subject to adjustments down the road. Make the change and then let's evaluate the change after we give it an opportunity to work.

Thank you, Mr. Chairman, Senator Hatch, for the opportunity to be up here before the committee.

SEN. DURBIN: Thank you, and we'll have a few questions for you.

Mr. Parker, I want to give you a chance to testify. As I mentioned at the opening, Mr. Parker is here testifying on behalf of his sister, Eugenia Jennings. And before you begin I wanted to show a picture of your sister's children and ask you to tell us their names and ages, if you will, please.

MR. PARKER: Okay. To the left is Radley (ph). That's her son. He's 14. The center, Radicia Berry (ph). And to the right is Cardez. He's the one that lives with me. And that's my son front and center.

SEN. DURBIN: Thank you very much. Please proceed with your testimony.

MR. PARKER: Okay, first I want to thank you, Chairman Durbin and Senator Hatch, for giving me the opportunity to testify before you today. Of course you know my name is Cedric Parker. I'm from Alton, Illinois, and I'm here to tell you the things my sister Eugenia would say if she was here today.

The severity of the mandatory minimums and especially the sharp disparity between those for crack and powder cocaine have touched my family directly. Eugenia cannot be here because she is in federal prison for selling crack cocaine. I spoke with my sister and I learned you wanted to hear from me, and these are the things she would like you to know.

I want to say first that Eugenia does not excuse her conduct or hide behind her problems. She took immediate responsibility for her actions and I know a day doesn't go by that she's no sorry for what she has done.

Eugenia is the youngest of seven and our mother's only daughter. She was born and growing up as I was leaving Alton for college and eventually to the military. As I began to hear about all the things that were happening to my little sister, I tried repeatedly to intervene from overseas and find a safe harbor for her, but I could not.

Our mother, she was terribly challenged by illness, poverty and other problems that made it difficult to provide us a stable family and a safe environment to get help. When Eugenia was very young and our mother would leave her with the Smiths, their family friends that were in our projects, until she stopped bringing Eugenia home hardly at all. Eugenia had an unspeakable childhood. Her surrogate mother, Annie beat her and mostly brutalized her from the time she arrived.

Annie's children all abused drugs and alcohol, and when Eugenia was only seven years old, she was left for days with a prostitute who sexually assaulted her and also a teenage neighbor from the Smiths. A year later, one of her half-brothers sexually assaulted her, and when she became a teenager, her stepfather tried to rape her.

Eugenia escaped the Smith household when she was only 13. She dropped out of school and went to live with her boyfriend in a house where drugs and alcohol were the norm. She began abusing drugs and became addicted to crack by the time she was 15. She stopped using when she learned she was pregnant, but after giving birth at the age of 16, desperate for money to support her and her daughter, she began selling and using drugs.

Of course she was eventually caught. Eugenia was convicted in Illinois in 1996 for two drug sales totaling less than 2 ½ grams of crack cocaine. While in prison she sought treatment for her drug addiction, resolved -- and she has remained drug free. She studied for and completed her GED. She gave birth to her youngest son, Cardez, while she was incarcerated.

Eugenia tried to live up to her commitment, but following her release from prison in 1999 she relapsed again and began using drugs and alcohol. In June of 2000 Eugenia was arrested for trading crack cocaine on two different occasions for designer clothes. One sale involved 1.3 grams and the second, a few days later, involved 12.6 grams.

Eugenia was charged in federal court with two counts of distributing crack cocaine. She accepted her responsibility and pleaded guilty. The federal prosecutor decided to charge her a so- called career offender.

A career offender is someone who has two or more prior felony drug offences. Her two small Illinois state prior convictions were enough to treat her as a major drug kingpin, driving her sentence from the mandatory minimum of five years to a sentence of almost 22 years.

My sister was barely 23 years old and a mother of three young children when she was sentenced in January of 2001 to over two decades behind bars. Had Eugenia been sentenced for powder cocaine instead of crack cocaine, even as a career offender her sentence would have been less than half of the one she received for crack cocaine. Today she would be getting ready to come home, probably already in a halfway house. She will not be released from prison until 2019.

Eugenia has worked very hard while in prison to better herself and maintain ties with her children. They correspond regularly, and what little money she manages to earn is sent home to them for birthdays and holidays.

My sister has never been in trouble in prison and is very well regarded by staff and other prisoners. She is an avid student and a model employee. She is involved with supporting battered women and is a member of the Youth Awareness program, who speak with young people about the dangers of drugs.

After a lifetime of substance addiction, Eugenia is proudly sober. It strikes me that whatever the government had hoped to achieve by locking Eugenia up has been accomplished, and yet she still has 10 more years than someone convicted of powder cocaine.

My sister's children -- 11, 14 and 15 -- have only seen their mother once since she's been in prison. My sister is a remarkable woman of courage and principles and I would give anything not to be here today to tell you this sad story, but I hope that my words will convince you to change this terrible law.

I want to leave you not with Eugenia's words or mine, but with the words of the Honorable G. Patrick Murphy, who sentenced my sister. Here is what he told her:

"Mrs. Jennings, I am not mad at you. The fact of the matte is nobody has ever been there for you when you needed it. Never. You never had anyone who stood up for you. All the government has ever done is just kick your behind.

"When you were a child and you were being abused, the government wasn't there. When your stepfather abused you, the government wasn't there. When your stepbrother abused you, the government wasn't there. But when you had a little bit of crack, the government is there.

"It's an awful thing, an awful, awful thing, to separate a mother from her children, and the only person who had the opportunity to avoid that was you. At every turn in the road we failed you, and we didn't come to you until it was time to kick your but. That's what the government has done for Eugenia Jennings."

I am here to bring you Eugenia's message to end the sentencing gap between crack and powder cocaine. It causes racial disparities in sentencing, and Eugenia has witnessed this every day. It also results in unduly harsh sentences for the people whose only crime is selling the same drug but only in a different form.

The fact that the 13 grams of drugs that my sister sold were crack and not the powder form of cocaine surely cannot be enough to justify adding a decade to an already lengthy sentence.

Thank you for hearing me.

SEN. DURBIN: Mr. Parker, thank you. And, Mr. Hutchinson and Mr. Timoney, thank you as well. It was powerful testimony -- powerful.

Tell me about her kids. How are they viewing this and how are they doing without her for 10 years?

MR. PARKER: It was very difficult for them in the beginning, and actually for several years. They had a lot of problems in school. The boys, you know, I guess they feel abandoned so they start having troubles with pretty much dealing with women. They felt abandoned by her. And I've gotten in -- you know, I stay in contact with them. I see them every day, help them with homework.

The youngest, he lives with me so I've been raising him, and he went from Ds and Fs to honor roll now and he's enjoying life. They all are doing a little better now, but, you know, they really miss their mom. I can't replace their mom or their father. Their father is not around. So it's been very difficult for them.

SEN. DURBIN: Chief Timoney, I'm sure you're well aware of stories just like this --

MR. TIMONEY: Yes, sir.

SEN. DURBIN: -- in the course of your professional career as chief in Philadelphia now, and Miami. And I want to thank you for your testimony because it really means a lot when a law enforcement professional will step up and use the words you did. You know, to call this one unmitigated disaster, which you said, un-American, intolerable, defies logic.

So, when you hear from the Justice Department about eliminating this disparity and bringing it down to a one-to-one ratio, I'd like to know your response and reaction.

MR. TIMONEY: I actually don't think there's any other option. Any other option is a false distinction. So if you go 10-to-1. 20-to- 1 -- it's the same drug, just manufactured differently. And I think whether it's 100-to-1 or 10-to-1 you're going to have that cynicism. And fairness needs to be 1-to-1.

And, as Mr. Hutchinson pointed out, we want to get the right people, the people who are profiting, the profiteers, the traffickers, not some poor person that didn't know they bought too much or had too much on them to meet some really crazy guideline of 5 grams. This really isn't a lot.

You know, I was a young cop in the South Bronx. Just to make you all feel better regarding your votes in '86, in the early '70s, in the Rockefeller law, the same thing happened in New York, and guess what, the same results happened. People -- mules or some grandmother or housewife that was asked to hold something, and it if met the proper weight there was no judicial discretion; it had to go away.

And finally last week Governor Paterson has signed the bill revoking the Rockefeller laws. I think this Congress should do the same.

SEN. DURBIN: So you heard Senator Graham earlier and he expresses a sentiment we all feel. We want fairness and we want justice, but we want to do something smart to reduce the use of narcotics.


SEN. DURBIN: You've been on one end of this conversation --


SEN. DURBIN: -- risking your life in New York and Philadelphia and Miami and watching your men and women in uniform doing the same every day because of the scourge of drugs in America. What is the smart thing to do, assuming we get this one right --


SEN. DURBIN: -- we get this disparity fixed. But what's the smart thing for us to do so we can say to the American people, we're not going soft on drugs here --


SEN. DURBIN: -- we're going to do -- we're going to go at this in different ways, a smarter way that could be more effective. You're in the firing line --


SEN. DURBIN: -- you men and women are. What do you recommend?

MR. TIMONEY: Two things. I think, one, those that are profiting, making money, deserve go to jail. I think as far as sentencing there are lots of abrogating factors you can put into law, such as possession of a gun, violence, by a school, things of that nature.

But when it comes to what my mother would say are poor unfortunates, those that are addicted, that use it, they're sick, then I think the right option is treatment, but use the criminal justice system as a lever to force them into treatment.

I did something like that in Philadelphia. It was successful. I don't think it was continued after I left. And what we did when we would do these -- I don't want call them round-ups but you would do an operation to get sellers, but we would also get some users.

We had a drug treatment center, and with the concurrence of the DA we told them, here's your choice: You can come with us now to jail or you can go over here and register with the drug clinic, and most of the time they went over to register at the drug clinic.

Now, the problem was there wasn't enough money available, there was not enough treatment, but I think you have to do both. You need to be tough in the enforcement and from the treatment end I think you need to have a heart.

SEN. DURBIN: What do you think about the fact that so many people are in prison today for drug-related crimes, many of whom were addicts themselves and most of whom receive little or no treatment or counseling once incarcerated?

MR. TIMONEY: You know, whether it's treatment for drugs or education, you really have a captive audience -- I hate to play that pun -- and why wouldn't you use that year, two years or three years to create some good in there. So if it's drug treatment, by all means give them that, but also the education.

What we see in Miami and other cities are young men going in, late teens, early 20s, don't know much, don't have a high school education, but the one thing they learn in there is how to be better criminals when they get out. And I'm not a softie, but that's the reality that we face and it's no surprise that they come out and re- offend within three to six months, because there has been no effort -- you know, the non-sexy part of the criminal justice system is the corrections part.

Everybody wants to -- and I liked getting the resources to the cops. We're the sexy part. But the hard part is the back part, the corrections, and not enough money goes there.

SEN. DURBIN: That's your point, Mr. Hutchinson. You talked about resource allocation here and putting a lot of resources and going after the crack cocaine offender instead of going after what you think are -- and I happen to agree -- are the real sources of the problem.

And I thought you made an interesting challenge to us, and I'm going to challenge you right back, that if you don't go after it by quantity -- you've been around this as a prosecutor and at the federal policy level -- what do you think is a more effective way to go after this scourge of narcotics? How would you write the law now that you've seen this from so many different aspects?

MR. HUTCHINSON: Well, the sentencing guidelines have built in different criteria that they give credit if you're in a managerial role or you have a sentence enhancement, you know, if you're profiting, if you're financing, if you've got financial assets that you've invested as the result of the drug trade. All of these indicate that you're -- whether you're a kingpin or whether you're a mid-level dealer, it shows that you have a high level of culpability and responsibility.

Those are the type of factors that I think Congress should build into targeting our resources. And obviously you build the sentencing structure, but the law-enforcement officials are going to take that and say, this is the priority. And so that's where we ought to be investing our resources.

As I indicated, in Arkansas -- and I think this is reflected nationwide -- whether you can put somebody away for five to 10 years on a mandatory minimum for crack cocaine, well, that's rewarding law enforcement with long penalties. We want to encourage them to go beyond that to the higher-level dealers -- and I think it starts with -- if you're going to have mandatory minimums, let's not just have it quantity based but have it based upon the real roles they play in the trafficking enterprise.

SEN. DURBIN: You heard Mr. Parker's story about his sister. She doesn't sound to me like a big trafficker in drugs. The story sounds to me like a very vulnerable woman who faced addiction and a lot of bad choices and now is sentenced to 22 years in prison as a result of it. So let me ask you to respond to his story from his family's side.

MR. HUTCHINSON: Well, his point is well taken that if it had been powder cocaine, then it would have been probably half the sentence. But the fact is that if it had been powder cocaine, a federal prosecutor probably would have looked at that and said, let's defer this to state prosecution. It's not a serious enough offense even to pursue.

And, I mean, we don't know all the factors but I think that very well could have been the judgment. And if it in fact had been in state court then, I would hope they would look at this and say, this is a lady with an addiction problem. Primarily she has an addiction problem, and let's make sure that she has the treatment necessary to get over that addiction.

Now, and that's not to minimize the conduct. There is a second offender element here. There is a selling offense that's here. But clearly that -- his heart-wrenching story really cries out to Congress for the need to remedy this disparity.

SEN. DURBIN: Thank you. Senator Hatch?

SEN. HATCH: Well, I want to thank all three of you for being here. I'm in the middle of a big Finance Committee markup -- not markup but session on health care, but I've appreciated all the testimony I've heard.

Chief Timoney, I think you've added a lot here today, and nobody is going to think you're a pushover so don't worry about that. (Laughter.) And, Asa, you've been one of the more erudite people around here for years, and frankly I'm very pleased to listen to your testimony. And, Mr. Parker, I empathize with you and your sister.

I think we have far too many -- far too many people who are drug addicted in jail. We've got to find a better system than what we have now because generally prison doesn't necessarily help them get over their addictions. It can in some areas where you have enlightened leadership and so forth, but there are a lot of areas where we don't have enlightened leadership and where it doesn't work.

So I've been a proponent of trying to narrow this difference between crack and powder cocaine for years and hopefully we can do something, Mr. Chairman, and get that changed this year. But also, we need to go beyond that and we need to come up with a better way of handling these kids that otherwise haven't had much of a chance, who get addicted, and find some way, short of prison, in cases like Asa said -- Mr. Hutchinson said, your sister, there are some other factors there that made them probably want to put here in jail for longer, but still, I think we need a better system where we can hopefully do some things for these folks short of prison.

It may be -- that may be hoping for too much sometimes, but I've been thinking about this for a long time and we're not winning this war on drugs at all, in my opinion, and we need a better system, and hopefully we can, in this Judiciary Committee, work during this coming year or so to try and come up with a better system that makes sense and yet would be properly supervised and managed.

But thank you, Mr. Chairman. I appreciate it and I'm going to keep helping here and see what I can do to work with the chairman and others to resolve this very, very difficult set of situations.

SEN. DURBIN: Thank you, Senator Hatch. I know you have important responsibilities in the Finance Committee. If you'd have been here earlier you would have heard me say something nice about you on the record.


SEN. HATCH: Somebody tell me what he said, my goodness. (Laughter.) No, he's a good friend, and tough as nails but I'm not exactly considered a pushover myself. I appreciate it.

SEN. DURBIN: Thanks a lot, Senator Hatch.

Chief Timoney, I'm not going to just single you out, but if we could have the help of law enforcement professionals like yourself in thinking about how to respond to this and perhaps doing the right thing here and figuring out what else by way of sentencing or policy -- Mr. Hutchinson as well -- that we can change that might really help us do something effective to reduce drug usage.

Your voice and the voice of your fellow professionals could really make a difference in this conversation, and I hope you'll accept that invitation if we get back to you.

MR. TIMONEY: I will. And, Senator, thank you for the opportunity. I'm also the president of PERF and over here is our executive director, Chuck Wexler, who does an awful lot of work with the federal government.


MR. TIMONEY: But as you move forward, if you need -- I hope I'm not speaking out of class -- Chuck, if you need the assistance of PERF, because we represent most of the major chiefs across America, across the world greatly, that input of PERF, by all means, call on us.

SEN. DURBIN: We need you, and I thank you.

Mr. Parker, thanks. Tell your sister we're thinking about her, and I hope you'll share some of the things that were said today and hope it gives her some hope to carry on, and maybe at the end of the day there will be justice, and I'd love to see her back with those kids as soon as possible. I think that would really be justice and fairness at this point.

Mr. Hutchinson, thank you as well.

There are a lot of statements that will be made part of the record here, without objection, and there's no one here to object. (Laughter.) Since there are no further comments from our panel, I'd like to thank you all for being here. The record will remain open for a week for additional materials, and written questions for the witnesses may be sent your way, which I'd appreciate a timely response to.

As we close this hearing I urge everyone to remember Eugenia Jennings' children: Radley, Radicia, Cardez and also Judge Murphy's plea to Congress when he sentenced Ms. Jennings to almost 22 years in prison, and I quote, "It's an awful thing -- an awful thing to separate a mother from her children."

This hearing is adjourned. (Sounds gavel.)

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