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COCAINE 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 statement 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 (chairman 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 morning. 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' concern 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 guidelines 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 proposals. 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 cocaine. 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 dangerous 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 witnesses 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 cocaine 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