Table Of ContentCOCAINE AND FEDERAL SENTENCING POUCY
Y 4.0 89/1:104/19
Cocaine and Federal Senteiclng Poll...
HEARING
(SUBCOMMITTBEEFOREETHE
ON CRIME
OFTHE
COMMITTEE ON THE JUDICIAEY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
JUNE 29, 1995
Serial No. 19
Printed for the use ofthe Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995
ForsalebytheU.S.GovernmentPrintingOffice
SuperintendentofDocuments,CongressionalSalesOffice,Washington,DC20402
ISBN 0-16-052070-3
COCAINE AND FEDERAL SENTENCING POUCY
Y 4. J 89/1:104/19
Cocaine and Federal Sentencing Poli...
HEARING
(SUBCOMMITTBEEFOREETHE
ON CRIME
OPTHE
COMMITTEE ON THE JUDICIAEY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
JUNE 29, 1995
Serial No. 19
Printed for the use ofthe Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995
ForsalebytheU.S.GovernmentPrintingOffice
SuperintendentofDocuments,CongressionalSalesOffice,Washington,DC20402
ISBN 0-16-052070-3
COMMITTEE ON THE JUDICIARY
HENRYJ. HYDE. Illinois, Chairman
CARLOSJ. MOORHEAD,California JOHNCONYERS,JR., Michigan
F.JAMESSENSE>fBRENNER,JR., PATRICIASCHROEDER.Colorado
Wisconsin BARNEYFRANK.Massachusetts
BILLMcCOLLUM, Florida CHARLES E. SCHUMER,New York
GEORGE W.GEKAS, Pennsylvania HOWARD L. BERMAN,California
HOWARDCOBLE,NorthCarolina RICK BOUCHER,Virginia
LAMARSMITH,Texas JOHNBRYANT,Texas
STEVENSCHIFF,New Mexico JACKREED, Rhode Island
ELTONGALLEGLY,California JERROLDNADLER,NewYork
CHARLEST. CANADY, Florida ROBERTC. SCOTT.Virginia
BOBINGLIS,SouthCarolina MELVIN L.WATT.NorthCarohna
BOBGOODLATTE,Virginia XAVIERBECERRA,California
STEPHENE. BUYER, Indiana JOSE E. SERRANO.NewYork
MARTINR. HOKE,Ohio ZOE LOFGREN.California
SONNYBONO,California SHEILAJACKSONLEE.Texas
FRED HEINEMAN,NorthCarolina
EDBRYANT,Tennessee
STEVECHABOT,Ohio
MICHAELPATRICKFLANAGAN, Illinois
BOBBARR,Georgia
AlanF.Coffey.Jr..GeneralCounsel/StaffDirector
JulianEpstein.MinorityStaffDirector
Subcommittee on Crime
BILLMcCOLLUM, Florida.Chairman
STEVENSCHIFF,NewMexico CHARLES E.SCHUMER,NewYork
STEPHENE. BUYER, Indiana ROBERTC. SCOTT,Virginia
HOWARDCOBLE,NorthCarolina ZOE LOFGREN,California
FRED HEINEMAN.NorthCarolina SHEILAJACKSONLEE.Texas
EDBRYANT,Tennessee MELVIN L.WATT,NorthCart)lina
STEVECHABOT.Ohio
BOBBARR.Georgia
PaulJ. McNULTY.ChiefCounsel
GlennR.Schmitt.Counsel
DanBryant,AssistantCounsel
Tom Diaz,MinorityCounsel
(II)
CONTENTS
HEARING DATE
Page
June29, 1995 - 1
OPENINGSTATEMENT
McCollum, Hon. Bill, aRepresentativein Congress fromtheStateofFlorida,
andchairman,SubcommitteeonCrime 1
WITNESSES
Budd,Hon.WayneA.,Commissioner,U.S.SentencingCommission 33
Conaboy, Hon. Richard P., U.S. district judge for the Middle District of
Pennsylvania,andChairman,U.S.SentencingCommission 8
Cullen,Richard,formerU.S. attorney.EasternDistrictofVirginia, andmem-
ber,VirginiaCriminalSentencingCommission 79
Curry,Arthur 106
Fagan, Jeffrey, Ph.D., professorofcriminaljustice, Rutgers University, and
visitingprofessor.SchoolofPublicHealth,ColumbiaUniversity 94
Harris, Jo Ann, Assistant Attorney General, Criminal Division, Department
ofJustice 60
Kleber,HerbertD., M.D.,executive vice president and medicaldirector, Cen-
teronAddictionandSubstanceAbuse, ColumbiaUniversity 93
McDonald, Douglas C, Ph.D., senior scientist and manager, law and pubUc
policyarea,AbtAssociatesInc 83
Nelson, Tim, special agent. North Carolina State Bureau of Investigation,
andvicechairman.NorthCarolinaNarcoticEnforcementAssociation 103
Strom,Hon.Lyle,U.S.districtjudge.DistrictofNebraska 75
Tacha, Hon. Deanell Reece, U.S. circuit judge for the tenth circuit, and
Commissioner,U.S.SentencingCommission 19
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Budd,Hon.WayneA., Commissioner, U.S. SentencingCommission: Prepared
statement 38
Conaboy, Hon. Richard P., U.S. district judge for the Middle District of
Pennsylvania,andChairman,U.S.SentencingCommission
LetterdatedJuly 17, 1995,toCongressmanCharlesB.Rangel 59
LetterdatedJuly17, 1995,toCongressmanFredHeineman 59
Preparedstatement 14
Cullen,Richard,formerU.S. attorney,EasternDistrictofVirginia, andmem-
ber,VimniaCriminalSentencingCommission:Preparedstatement 81
Fagan, JelTrey, Ph.D., professor ofcriminaljustice, Rutgers University, and
visiting professor. School ofPublic Health, Columbia University: Prepared
statement 98
Harris, Jo Ann, Assistant Attorney General, Criminal Division, Department
ofJustice:Preparedstatement 63
McDonald, Douglas C, Ph.D., senior scientist and manager, law and public
policyarea,AbtAssociatesInc.:Preparedstatement 86
Mofiitt,WilliamB.,treasurer.NationalAssociationofCriminalDefense Law-
yers:Preparedstatement 114
Nelson, Tim, special agent. North Carolina State Bureau of Investigation,
andvice chairman. North Carolina NarcoticEnforcementAssociation: Pre-
paredstatement 105
(III)
IV
Page
Rangel, Hon. Charles B., a Representative in Congress from the State of
NewYork:Preparedstatement 7
Strom, Hon. Lyle, U.S. districtjudge, District ofNebraska: Prepared state-
ment 78
Stupak,Hon. Bart, aRepresentative in Congress fromtheStateofMichigan:
Preparedstatement 3
Tacha, Hon. Deanell Reece, U.S. circuit judge for the tenth circuit, and
Commissioner,U.S.SentencingConunission:Preparedstatement 22
APPENDIXES
—
Appendix 1. Statement ofHon. Maxine Waters, a Representative in Con-
gressfrom—theStateofCalifornia 147
Appendix 2. Statement of Wade Henderson, director, National Association
fortheAdv—ancementofColoredPeople,Washington Bureau 149
Appendix 3. StatementofEricaShields, corrections officer. Federal Bureau
ofPrisons— 160
Apj>endix 4. Statement ofNkechi Taifa, legislative counsel, American Civil
LibertiesUnion 162
COCAINE AND FEDERAL SENTENCING POLICY
THURSDAY, JUNE 29, 1995
House of Representatives,
Subcommittee on Crime,
Committee onthe Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in room
2226, Rayburn House Office Building, Hon. Bill McCollum (chair-
man ofthe subcommittee) presiding.
Present: Representatives Bill McCollum, Steven Schiff, Fred
Heineman, Ed Bryant ofTennessee, Steve Chabot, Robert C. Scott,
Melvin L. Watt, and SheilaJackson Lee.
Also present: Representatives John Conyers, Jr., and Charles B.
Rangel.
Staffpresent: Paul J. McNulty, chiefcounsel; Glenn R. Schmitt,
counsel; Dan Bryant, assistant counsel; Aerin D. Dunkle, research
assistant; andMartina Hone, minority counsel.
OPENING STATEMENTOF CHAIRMANMcCOLLUM
Mr. McCollum. I am going to call the Subcommittee on Crime
to order this morningand welcomeyou.
We have had a rather late night session, so I don't know how
many ofmy colleagues will be here in a prompt fashion this morn-
ing. I saw one a moment ago. To the degree that we don't have
wider participation at the moment, I apologize, but we have been
in session and just got out. We will be out for quite a while and
should be able to conduct a relatively uninterrupted hearing for
several hours this morning, so that is good.
Mr. Watt. Mr. Chairman, may I be recognized?
Mr. McCollum. Certainlyyou may be recognized.
Mr. Watt.
Mr. Watt. Mr. Chairman, some ofus have not been home since
yesterday. We are still wearing the same clothes that we had on
yesterday.
Mr. McCollum. If you would yield, I happen to be in one of
those same positions.
Mr. Watt. Then you hopefully will empathize and understand
what I am about to say and the sentiments I am about to express.
I think we would be doing this subject a disservice and ourselves
a disservice to proceed with this hearing on this important issue
under the circumstances. Either we are going to have to hold our
arms down tight or open the windows or go home. At a minimum,
I would hope that we would consider delaying this hearingfor long
(1)
enough for those ofus who need to go home and change clothes and
take a showerto be able to do that.
Mr. McCoLLUM. Mr. Watt, ifyou would yield back to me, I would
express the sentiment that I would like to be able to do the same
as you, but we have already started this hearinghalfan hour late.
We have a number of witnesses who have come some distance for
this purpose; it is not just a question of having somebody from
downtown today. We have to balance the consideration ofall peti-
tions involved.
We will be as generous as we can with the time. We will be here
for several panels today, not just one, but I believe that Members
are going to have to find ways to accommodate the schedule today
since we have a full schedule and seven ofthe nine witnesses are
from out of town. I suspect those out-of-town witnesses may have
plane schedules later. We will be givingit ourbesttoday.
We have three members of the subcommittee here besides the
chairman, and I have had several say they want to be here. I am
sure they will be here in a few minutes. The chairman may at
some point, ifhe finds an appropriate representative, take a break
during the process. I believe that we need to proceed, plus we are
under some time constraints because the Sentencing Commission
has given us its decision, and if we do not take any action their
decision will become effective.
I think we must, in light ofourhearing schedule in July, proceed
with this hearingtoday.
Mr. Watt. Perhaps I could suggest that we open the windows
and let in some fresh air.
Mr. McCoLLUM. We will have to live with each other. We are
probably far enough removed from the audience. I would like to
continue with the statement, and understanding the Members' con-
cern aboutit.
This morningwe examine the issue ofFederal sentencingpolicies
for cocaine-related offenses. To be more specific, we will consider
whether Congress should agree with proposals from the Federal
Sentencing Commission to dramatically reduce penalties for the
distribution and possession of crack cocaine in order to conform
them with penalties associated with powder cocaine.
As today's hearing will no doubt reveal, few subjects evoke
stronger opinions than this one. I am anticipating a very thorough
and productive discussion ofthis important question.
Regardless of our differing views on this matter, I think there
are two points about which we can all agree. First, the emergence
of crack cocaine in America's cities in the 1980's has had a dev-
astatingimpact.
Last week we heard dramatic testimony from the police chief,
prosecutor, and ChiefJudge in the District ofColumbia about what
crack cocaine has meant to the Nation's Capital. They warned us
in unmistakable terms not to reduce crack penalties to those of
powder offenses because ofthe extremely destructive nature ofthe
crack market. We cannot fail to take note of the severe harm
causedby this terrible driig.
The second point on which we can all agree is that the current
distinction between crack and powder cocaine offenses is not per-
fect. When Congress established these penalties in 1986 and 1988,
we attempted to set punishments that fit the crimes and that sent
the unmistakable message that drug trafficking will simply not be
tolerated. Such actions are always subject to occasional review, as
we are doinghere today.
I, for one, am certainly willing to consider alternative proposals,
but I am unwilling to send a message to crack dealers that Con-
gress is softening its stance regarding the acceptability oftheir be-
havior.
Also, let me raise a chief concern which I will focus on in this
hearing. My concern relates to the basic authority of the Sentenc-
ing Commission and the proposed changes to the guidelines it re-
cently approved in this area.
I was actively involved in the formation of the Comprehensive
Crime Control Act of1984 in which we established the Commission
and directed it to develop sentencing guidelines consistent with
Federal criminal laws. In other words, we charged the Commission
with the task of eliminating penalties for crimes that stand in
sharp contrastwith statutory minimum penalties.
Since Congress has said, and it is now Federal law, that the sale
of 50 grams of crack should be punished with not less than 10
years in prison, the Commission is responsible for setting guide-
lines for crimes involving less than 50 grams that "conform" to this
standard.
The Commission's proposal before us today would result in a case
involving, say, 49 grams, in a sentence far below the 50 grams
level. I have serious doubts that this action is consistent with the
Commission's statutory authority. That does not mean that we
might not need to revise the statutory authority, but I have ques-
tions as to whether it is consistent. I look forward to hearing from
members ofthe Commission on this issue.
Finally, I will shortly be introducing legislation along with our
colleague, Bart Stupak, which responds to the Commission's pro-
posals. Mr. Stupak has submitted a statement that, without objec-
tion, will be made part ofthe record ofthis hearing.
[The prepared statement ofMr. Stupakfollows:]
PreparedStatementofHon.BartStupak,aRepresentativeinCongress
FromtheStateofMichigan
Mr. Chairman, as a former law enforcement ofTicer, Iurge this subcommittee to
supportlegislation to preventthe UnitedStatesSentencingCommissionfromdras-
ticallyreducingthe punishment fortraffickingincrackcocaineandmoneylaunder-
ing.
OnMay 1, 1995, the Sentencing Commission submitted proposedchanges io the
federalsentencingguidelinespertainingtocrackcocaine andmoneylaundering.De-
spite evidence that crack cocaine does even greater harm than powder cocaine to
vulnerablecommunities andlowincome neighborhoods,theSentencingCommission
proposes makingthe mandatory minimum penalties currently provided forby stat-
ute forcrackcocaine equal tothose for powdercocaine. Specifically, theSentencing
Commission recommendsequalizingthe minimum penaltyforcrackcocaine andco-
cainepowderbydroppingthe minimumpenaltyforconvictionoftraffickingincrack
from 10yearsto21-27months.
venI,tatlhoengSewnittehncCionnggrCeomsmsimsasnioBinllfrMocmCollolwuemr,inwgiltlhebemisnpoinmsuorminsgenlteegnicselatfioorntrtaoffpircek--
ing in crack cocaine. Without Congressional action, the Sentencing Commission's
recommendationswillbecomelawbyNovember1, 1995.I stronglyopposetheserec-
ommendations, and that is why I, along with Congressman McCollum, will draft
andintroducelegislation.
IfCongress adopts the Sentencing Commission's recommendation to treat crack
and powdercocaine alike in regardto mandatoryminimum penalties fordrugtraf-
fmiuckmingprciosnovnictteiornms,wisllompeoteonftTieanlsleysrneosuwltsuibnjeactsetnoteanc5e-itnovo1l0v-iynegarnomarnedquaitroeraypmriinsio-n
termatall.
drIugadmeaalesrtsrboneghisnudppbaorrst.erWeofhcarviemeafriegshptoinnsgibeiflfiotryts,toepsrpoetceicatlltyheinmoresgtaercdontoomipcuatltliyn-g
disadvantaged and other threatened communities from narcotics predators. Crack
hasonlybeenaroundforadecade,butthischeap,potentandhighlyaddictive drug
hasdestroyedcountlessindividuals,families, neighborhoodsandcommunities.
The epidemichasalsodrainedpubliccoffers andoverwhelmedpublicsafety, pub-
lichealthandchildwelfareresources.Since 1980,theUnitedStateshasspentmore
than $100 biUion in the war on drugs. The crime and gang violence that accom-
panies crack addiction remains at epidemic levels. In fact, the devastating effect
causedbycracktouchesallAmericansinsomeway.
IbelievetheSentencingCommission hasignoredsomehardfactsaboutcrack co-
caine. Crack is a more dangerous and harmful substance than powdercocaine for
several reasons:crackismorepsychologicallyaddictivethan powder,because smok-
ing crack produces quicker, more intense and shorter-lasting efiiects than snorting
cocaine powder;crack canbe broken down andpackaged into smaller, more afford-
able packages for distribution to the most vulnerable members of society; crack
houses contribute heavily to the deterioration of neighborhoods and communities;
and the present crack market is associated with violent crime to a greater extent
thancocainepowder.
I am aware that current sentencingguidelines have been criticized for providing
thesamepenaltyforlargeramountsofpowdercocainethanforcrackcocaine.While
an adjustment to the current penalty structure maybe appropriate, I believe that
anysuchadjustmentshouldbemadebyincreasingthe penalties fortraffickingcon-
victionsforpowdercocaine,ratherthanreducingthepenaltiesassociatedwithcrack
cocaine.
Ialsooppose theSentencingCommission'sdecisiontoreduceminimumsentences
in money launderingcases. Theguideline recommendations are sweepingin nature
and wouldsubstantiallylowerthe penalties formanyserious moneylaunderingof-
fenses, even though Congresshas oeterminedmoneylaunderingto be a significant
offense subject to a 10- or 20-year maximum penalty. This proposal sends a dan-
gerous message that money laundering associated with drug traflicking and other
serious crimes is notviewed as the graveoffense itonce was. In fact, the penalties
for money laundering are an importanttool in combatting narcotics violations, be-
causedrugdealersusemoneylaunderingtoeffectuatetheirillegaldrugtrade.
We must realize that today's drug problems are ofepidemic proportions, and we
must actto combat this plague facingoursociety. Iurgethis subcommittee tocon-
tinue the fight against drugs by supporting legislation to prevent the Sentencing
Commission from adoptingits proposedchanges to sentencingguidelines byreduc-
ingthemandatoryminimumpenaltyforcrackcocaineandmoneylaundering.
Mr. McCoLLUM. I look forward to the testimony ofall ofour wit-
nesses today.
I would like to ask if there are any other opening statements.
Does the gentleman from Virginiahave an opening statement?
Mr. ScoTT. It is with pleasure and interestthat I am here to par-
ticipate in the hearing on cocaine and Federal sentencing policies.
I am particularly grateful for these hearings because it gives us
an opportunity to confirm suspicions some ofus have had that the
current 100-to-l disparity in sentencing for crack and powder co-
caine offenders is a gross injustice that has significant racial over-
tones.
Under the direction of the 1994 crime bill, the U.S. Sentencing
Commission studied the sentencing disparity, published its find-
ings, and, as I understand it, unanimously concluded that the 100-
to-l disparity was too great and that a majority in fact voted for
a ratio. —
Another area for us to explore, Mr. Chairman, is the use in-
stead ofjust looking at the sentences, crack and powder, is to use
the enhancements. The associations that were referred to at our
