Transcript from February 25, 2002

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UNITED STATES SENTENCING COMMISSION

* * * * *

2002 PUBLIC HEARING

DIANA E. MURPHY, Chair
RUBEN CASTILLO, Vice Chair
WILLIAM K. SESSIONS, III, Vice Chair
JOHN R. STEER, Vice Chair
STERLING JOHNSON, JR., Commissioner
JOE KENDALL, Commissioner
MICHAEL O'NEILL, Commissioner
JOHN ELWOOD, Commissioner, [ex officio]
EDWARD F. REILLY, JR., Commissioner, [ex officio]

3:00 p.m.
Monday, February 25, 2002

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C O N T E N T S

       PAGE

OPENING STATEMENT:

   DIANA E. MURPHY, Chair 4

PANEL ONE - MEDICAL/ACADEMIC COMMUNITY

GLEN HANSON, D.D.S.
Acting Director
National Institute on Drug Abuse 6

DEBORAH FRANK, M.D.
Professor of Pediatrics
Boston University School of Medicine 25

IRA J. CHASNOFF, M.D.
President
Children's Research Triangle 38

ALFRED BLUMSTEIN, Ph.D.
Professor of Urban Systems and Operations
Research
Carnegie Mellon University 50

PANEL TWO - COMMUNITY REPRESENTATIVES/INTERESTED

PARTIES

WADE HENDERSON
Executive Director
Leadership Conference on Civil Rights 75

CHARLES KAMASAKI
Senior Vice President
Office of Research, Advocacy, and Legislation
National Council of La Raza 96

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C O N T E N T S [Cont'd.]

PAGE

PANEL THREE - LAW ENFORCEMENT

JAMES F. JARBOE
Section Chief, Domestic Terrorism
Counterterrorism Planning Section
Federal Bureau of Investigation 112

CATHLEEN CORKEN
Deputy Chief for Terrorism
Department of Justice 126

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P R O C E E D I N G S

   CHAIRPERSON MURPHY: I'd like to call the

public hearing to order. The Sentencing Commission

is very glad to have the assistance of some

important spokespeople here this afternoon.

   We do have a very tightly scheduled

hearing because we are in the process of gathering

information and data so that we can consider the

merits and positive changes in how crack and

cocaine offenses are sentenced.

   We've been asked to do a report to the

Senate on this, and we know that input from others

will help us in this.

   Those of you who were here last year

remember that we had a similar situation. We're

having more time this year for public hearings, but

we also have more topics that we are seeking

assistance on.

   So we have the bell that we used last

year, the timer. I apologize ahead of time to you

for it. I know that each of you have been informed

that you have 10 minutes in which to speak. So I

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have asked my assistant to have it ring at 8

minutes; then you will know that there are 2

minutes left to really collect if there's more

important than the sentence that you're in, and

then finally a second bell at 10 minutes. I

apologize for that, but it just is necessary to

move along.

   In our first panel this afternoon are

representatives from what might be called the

medical scientific academic world. We have

Dr. Glen Hanson, who's the Acting Director of the

National Institute on Drug Abuse, and Dr. Deborah

Frank, who is a Professor of Pediatrics at Boston

University School of Public Health; Dr. Ira

Chasnoff--hope that I'm doing justice there--from

the University of Illinois, College of Medicine;

and then Dr. Alfred Blumstein from Carnegie Mellon

University.

   We plan on going from my left to right or

your right to left and starting with Dr. Hanson. I

know the Commissioners are going to have questions.

I think it might be best if the questions, in

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general, are reserved until each speaker has been

able to talk.

   But if there's something that you need to

clarify when the speaker is finished, then I'd ask

the Commissioners to do at that time. But,

otherwise, I think we could do the questions and

answers better after each member has had a chance

to testify. So with that, Dr. Hanson.

STATEMENT OF GLEN HANSON, D.D.S.

   DR. HANSON: Thank you for the opportunity

to come and testify before the Sentencing

Commission. I appreciate the honor to represent

the National Institute on Drug Abuse, or NIDA, at

this session.

   NIDA supports approximately 85-percent of

the world's research on drugs of abuse, and this

research has taught us a great deal about how these

drugs are used, how they affect the brain and other

systems and how they cause short and long term

consequences.

   Today I will address my comments

principally to cocaine and the issues, the things,

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that we've discovered through the research

supported by NIDA and by other institutions.

   Then at the end, if time permits, I'll

just mention a little bit about methamphetamine and

heroin, to give you some basis for comparison.

   Use patterns of cocaine have been

monitored by surveys supported both by us,

monitoring the future, and by SAMSA, which uses the

national household survey mechanism.

   They show that currently there's about 1.2

million users of cocaine in total, and about a

fifth of those use crack cocaine. In comparison to

the middle of 1980s, this incidence of use is down

considerably; however, it has pretty much leveled

off over the past few years with some slight

declines occurring more recently.

   Cocaine comes in two basic forms, either

as a hydrochloride salt or as a neutralized or

alkalinized form, which is sometimes referred to as

free-base, and crack would fit into this latter

group.

   The form of administration or the type of

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administration depends on the form of the cocaine.

The hydrochloride salt typically can be

administered either orally, internasally or by IV

administration; whereas, the neutralized or

alkalinized form makes the drug volatilizable when

exposed to heat and then can then be smoked.

   The graphic that we placed up on the easel

gives you some sense as to the differing properties

based on the form of administration of these

different types of cocaine.

   We talk about these properties as

pharmacogenetic, and they have to do with onset.

As you can see from the graphic, the more rapid

onset are the smoked and intravenous forms of

administration; whereas, the intranasal is in

between, and the oral form is the slowest onset,

being in the neighborhood of about 30 to 40

minutes.

   The duration of action is also dependent

on the form of administration, with the intravenous

and smoking being fairly short, in a matter of 10

to 20 minutes duration of action; the longest being

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after oral, in the neighborhood of about 1 to

2 hours, and then intermediate being the nasal

form of administration, which is about 45 to 60

minutes.

   Now the potency of the drug, although the

drug itself doesn't change regardless of how it's

administered, the potency is dependent on the

concentration; that is, how high the drug gets

inside the body.

   As you can see from the graphic, that

after intravenous and smoking, you tend to get

higher levels, so that has a more potent effect;

whereas, after oral administration, the levels tend

not to be as high, so the effect is going to be

less potent, and then in between that would be your

intranasal administration.

   The immediate effects of cocaine are seen

principally on the central nervous system and the

cardiovascular system. The effects on the brain

and central nervous system includes effects such as

euphoria, individuals are energized, talkative,

somewhat alert. They experience decreased appetite

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and a decreased sense of need of sleep.

   If doses go higher, the effects can become

toxic, causing agitation, bizarre psychotic

behavior, even violent paranoia. Extreme high

doses can result in tremors which can turn into

seizures and can become lethal.

   As far as effects on the cardiovascular

system, this drug tends to cause vaso constriction,

tends to stimulate the heart so it beats more

rapidly, resulting in an elevated blood pressure.

   With high doses or toxic responses, this

can turn into arrhythmias, heart attacks, strokes.

There can be vaso spasms. Emboli can form moving--these are

basically clots that can then move into

other vital tissues causing occlusion and

interfering with blood profusion and resulting in

tissue damage.

   Pharmacologically, cocaine is also--besides being

a stimulant--is also a local

anesthetic, and this was the only FDA approved use

of the drug is as a local anesthetic to block nerve

conduction and specifically to block pain.

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   As far as long term consequences are

concerned, cocaine is highly addicting. There have

been data recently suggesting that long term

effects do occur on the brain which may comprise

its function.

   Another phenomena with cocaine over

chronic use is what we call sensitization. This

means that doses which originally didn't cause

serious sequeli, systems become sensitized or

overly sensitive to the drugs, so now the drug

could cause paranoia, psychosis and even induce

seizures because of these altered responses to the

drug.

   Other medical consequences of use of

cocaine include things such as increased chance of

contracting infectious diseases, diseases such as

HIV or AIDS, Hepatitis C and other sexually

transmitted diseases.

   The reason are twofold. One is that

individuals who administer their drug through

intravenous means may be using contaminated needles

and/or paraphernalia.

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   Another possible reason is under the

influence of this drug, individuals tend to engage

in risky sexual activity which makes them

vulnerable to the transmission of these disorders.

   Another medical consequence has to do with

the perinatal effects of this drug. Cocaine is

used in about one-percent of the women during

pregnancy. The numbers equate to approximately

45,000 women a year who take cocaine while they're

pregnant.

   The effects of cocaine are somewhat

controversial. Some of the early studies suggested

dire consequences in the offspring of women who

used cocaine during pregnancy. Some of those early

studies were not controlled well. There were other

confounding issues which were not taken into

account.

   So now the consequences appear to be less

severe than originally anticipated; however, there

are some issues that have been identified, things

such as diminished circumference of head in

offspring and perhaps effects on the development of

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attention and emotional properties and abilities.

   Another factor, another medical

consequence are individuals who consume alcohol

while using cocaine, and this represents the

majority of those who have a cocaine dependence.

They can form a metabolite called cocaethylene

which is fairly toxic, especially to the liver, so

it can result in significant liver toxicity.

   As far as the mechanism, how does this

drug work, it causes what we refer to as a blockade

of the uptake system. What this means is it

interferes with neurochemical transmitters or

messengers once they're released from their nerve

cells, particularly interfering with dopamine

systems. And these pathways are important for

pleasure as well as for emotional function. So

that's one of the reasons we tend to see users

going for the cocaine, because of its reward

properties, euphorogenic properties, as well as

inducing psychosis by interfering with that system

that has to do with emotionality.

   It also interferes with the uptake of

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another transmitter called noradrenalin which is

important in controlling cardiovascular systems,

and so that's one of the reasons it has these very

profound cardiovascular effects.

   Finally, just for comparison,

methamphetamine is also a stimulant with similar

properties to cocaine with the following caveats.

Methamphetamine tends to be longer acting than

cocaine. It tends to have more severe and

persistent psychosis than does cocaine. It's more

likely to cause long term damage to the brain than

is cocaine. And perhaps, anecdotally, it's more

difficult to treat dependence on methamphetamine

than it is cocaine.

   As far as heroin is concerned, heroin is a

very different drug. Although it has extreme

addicting potential, it tends to be more of a

depressant rather than a stimulant, and it's most

likely to cause death by respiratory depression,

which is sort of a depressant phenomena, than

through stimulation, which is what we see with

cocaine. Thank you.

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   CHAIRPERSON MURPHY: Thank you very much.

Yes, Judge Sessions?

   COMMISSIONER SESSIONS: You talk about the

importance of the way in which the drug is

administered or taken.

   DR. HANSON: Right.

   COMMISSIONER SESSIONS: Can you just

compare for me the medical differences between the

smoking of crack and the IV cocaine, powder cocaine

user? Is there any medical differences from those

two different processes?

   DR. HANSON: In both cases, regardless of

how you administer it, the issue is still cocaine

getting into the brain or affecting cardiovascular

systems.

   So the differences in responses would be

more in terms of how much cocaine can you get in

and how quickly can it get into the body. So as

you see from the graphic, both IV and smoking gives

you levels which are comparable. So the medical

consequences are going to be very similar from the

two.

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   COMMISSIONER SESSIONS: How about your

addiction, the rate of addiction, would there be

any consequence--any difference between crack and a

person who uses powder intravenously?

   DR. HANSON: You're not likely to see

significant differences.

   CHAIRPERSON MURPHY: Yes, Professor

O'Neill?

   COMMISSIONER O'NEILL: So basically, I

mean, part of the issue obviously that we're having

to deal with as policy-makers is right now we have

a differentiation in the ratio or the way in which

we punish crack cocaine from powder cocaine, and

that's one of the things that we're really looking

at.

   Ordinarily, when society chooses to punish

a drug, like it's already chosen to punish cocaine--I think

we probably all agree that cocaine is not

a good thing and people shouldn't be using--the

difficulty, I suppose, for us as policy-makers is

trying to make a determination as to whether or not

the level of punishments that are different between

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crack and cocaine, whether in terms of each drug's

harm to the individual substantiates that

difference.

   Is crack significantly more harmful to the

individual in terms of its pharmacological effects

than regular powder cocaine?

   DR. HANSON: I would say in general no;

that they would be very similar.

   COMMISSIONER O'NEILL: So really the

difference is almost the delivery system then,

right; the fact that, for example, if you snort

powder cocaine or if you put it on your tongue or

however you ingest it, that what we're really

talking about is the difference in delivery system?

   DR. HANSON: That's correct, and how much

cocaine you can get into the body and how quickly

you can get it into the body.

   COMMISSIONER O'NEILL: Now ordinarily with

other sorts of drugs--because there are a number of

drugs that can be smoked, they can be ingested

orally, they can be snorted, whatever--do we

normally think that it's useful to differentiate

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punishment on the way in which the drug is

delivered into the system?

   DR. HANSON: Well, I don't want to make a

policy statement, but in terms of the medical

consequences, as a general rule, intravenous

administration and smoking, where the drug goes

into the lungs, usually will have very similar

patterns of response.

   So I would say that those two types of

administrative systems are likely to be comparable

in terms of their addictive properties as well as

likely to be comparable in terms of their general

medical sequeli.

   COMMISSIONER O'NEILL: So then early on

the evidence that was suggested that said that

crack cocaine is somehow pharmacologically worse

than powder cocaine in terms of its effect on the

body just isn't substantiated by additional

research?

   DR. HANSON: It wouldn't be substantiated

if you're talking about intravenous administration.

   COMMISSIONER O'NEILL: That's what I mean

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--

   DR. HANSON: Right.

   COMMISSIONER O'NEILL: --given the fact

that the delivery systems are the same.

   DR. HANSON: They're very similar.

   COMMISSIONER STEER: Do we have time for

another?

   CHAIRPERSON MURPHY: Sure.

   COMMISSIONER STEER: Dr. Hanson, I'm glad

you made a few comments about heroin. I think one

of the issues that is before us, to an extent, is

whether or not powder cocaine is punished

insufficiently.

   Could you comment or overall--and I

understand they're very different drugs--as a

medical and a societal problem, compare powder

cocaine to heroin as far as seriousness?

   DR. HANSON: It's not clear to me what

comparison you want me to make.

   COMMISSIONER STEER: Do you agree that

heroin--heroin is punished more severely. Do you

agree that it is a more severe medical and societal

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problem? Is it--

   DR. HANSON: They have very different

features in terms of what it is that they're going

to do and who would be vulnerable to the effects of

those drugs.

   As I said, heroin tends to be more of a

depressant, and so individuals that use that may

have different needs, at least emotional needs or

different reasons for administering the drug versus

someone who's using cocaine.

   And both of them, when you overdose,

people die. On the one hand, they die from

seizures or heart attacks or strokes. On the other

hand, they die from respiratory collapse--they stop

breathing--and cardiovascular collapse. So it's--

   COMMISSIONER STEER: I take it addiction

would be different; that addiction would be more of

a problem for heroin and treating addiction, is

that fair?

   DR. HANSON: No, I don't think I would say

that because we have some very good ways of

treating heroin addiction, and actually, we do not

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have really good strategies for treating some of

the cocaine addiction.

   We have methodology or therapeutic

approaches, but I would say that we're probably

more successful in dealing with heroin addiction

than we are with extreme cocaine addiction.

   COMMISSIONER STEER: Interesting. Thank

you.

   CHAIRPERSON MURPHY: Mr. Elwood?

   COMMISSIONER ELWOOD: I'm going to do a

trick which I saw in Congress which is to ask two

questions and thereby to cheat.

   First of all, how do differences in

administration, particularly the sort of rapidity

of onset and how quickly it goes out of your

system--what are the effects on addictiveness and

on use patterns; that is, likelihood of bingeing?

   My second question is how common is IV use

compared to smoking, and how would you account for

any differences or what are the reasons for

differences?

   DR. HANSON: The likelihood of addiction

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forming seems to be correlated somewhat with the

rapid onset of the effect. The more rapid onset

you have, which reflects how quickly the drug gets

into the brain and exerts its effect, the more

likely it is to be addicting.

   So on that basis, one would expect--and it

turns out to be the case--that intravenous

administration and smoking are more likely to be

addicting or severely addicting than the other

forms.

   That's not to say they can't be addicting,

but those two types of administration are more

likely to create addiction over a shorter period of

time.

   As far as the numbers of people who

administer the drug intravenously versus those that

administer the drug by crack, you will see some

crossover there. It's not uncommon to have people

smoke it and also administer the drug intravenously

depending on what they have access to.

   So it's somewhat artificial to say, well,

we have this many intravenous users and we have

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this many crack users. But, in general, as I

mentioned, about a fifth of those who claim to use

cocaine in general are what we would describe as

primarily crack users. And the other question was?

   COMMISSIONER ELWOOD: Versus IV--how many

are IV users primarily?

   DR. HANSON: I would say probably about

50-60-percent of those who use cocaine have a

history of using intravenous administration.1

   Now why would you select IV over smoking

or vice versa? One of the reasons that smoking

became so popular in the '80s was the concern about

AIDS and the concern about using contaminated

needles.

   So it was thought if we smoke it and we're

getting comparable effects from it compared to what

we get when we administer it intravenously, then

why not smoke it and that way we won't expose

ourselves to the possibility of contracting AIDS or

getting HIV. So that was one of the reasons they

started smoking instead of administering it

intravenously, although we find a very high

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proportion of those who claim to be relatively pure

smokers who also are HIV positive, and that has to

do with getting involved in the risky sexual

activity plus they may be smoking intravenously

administrations on the side as well.

   COMMISSIONER CASTILLO: So do you agree

that crack is more psychologically addictive than

powder cocaine or not?

   DR. HANSON: Powder cocaine taken as--see,

that's the issue. If you're taking the powder

cocaine, putting it in saline solution and

injecting it, no. They're very similar.

   If you're taking it orally, which people

don't do in this country very much, it's not

terribly addicting. If you're snorting it or

administering it internasally, it's moderately

addicting.

   COMMISSIONER O'NEILL: So then really at

the end of the day what you're really saying is if

we were going to differentiate punishment between

crack and powder and any of the types of cocaine,

that we're probably better off doing it on a

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delivery system than we are dividing some sort of a

line between crack and powder; that that really is

an arbitrary distinction?

   DR. HANSON: That's correct. If you're

saying that's based on basic pharmacology, it is

not, but the delivery system--it would make more

sense to make a separation between oral

administration and crack cocaine rather than

intravenous and crack.

   CHAIRPERSON MURPHY: Thank you. There may

be more questions for you when we're done with the

panel. Dr. Frank?

STATEMENT OF DEBORAH FRANK, M.D.

   DR. FRANK: Judge Murphy and members of

the Commission, thank you for giving me the

opportunity to speak with you today.

   I am a principal investigator of a

National Institute on Drug Abuse project which, for

the past 10 years, has followed the developmental

and behavioral outcomes of the cohort of inner city

children with and without cocaine, crack exposure.

   I say cocaine, crack in one breath because

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there are no physiologic indicators that show to

which form of the drug the child was exposed. The

biologic thumbprints of exposure to the two

substances in utero are identical.

   My co-authors and I, as pediatricians and

researchers in inner city Boston, are on the front

lines. My gut reaction to the question about

snorting versus needles is you're still more likely

to get AIDS and other bad stuff from needles. I

say that as somebody who sits up with AIDS babies.

   So we witness the negative impact of

addictive disorders on families, children and the

community. In response to this experience, in

addition to our own research, we've conducted a

number of reviews of the published medical

psychological data regarding the effects of

prenatal cocaine-crack exposure, and the most

recent of which was published in the Journal of

American Medical Association in March of 2001, and

you've got it.

   In brief, we conclude that there are

small, but identifiable effects of prenatal

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cocaine-crack exposure on certain newborn outcomes

very similar to those associated with prenatal

tobacco exposure.

   There is less consistent evidence of long

term effects up to ages 6 years, which is the

oldest age for which published information is

available. There are no long term studies which

identify any specific effect of crack compared to

cocaine on children's development.

   Based on years of careful research, we

conclude the crack baby is a grotesque media

stereotype, not a scientific diagnosis.

   You may recall the initial predictions of

the crack baby: inevitable prematurity, multiple

birth defects, agonizing withdrawal with cat-like

cry, early death and profound long term

disabilities for survivors.

   Actual data are really quite different.

The majority of exposed infants are not born

prematurely in any case, but prenatal care--and

this is something Dr. Chasnoff actually taught us a

long time ago--decreases the risk of prematurity to

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approximately that of other infants from the same

impoverished backgrounds, even if their mothers do

not succeed in becoming fully abstinent, as long as

they well and truly engaged in pre-natal care.

   After taking into account that often co-occur with

cocaine exposure and pregnancy, such as

poverty, tobacco and alcohol use, poor nutrition

and so forth--infections--the most consistently

observed effects of prenatal cocaine-crack exposure

are small, but statistically significant decreases

in birth weight, length or head circumference.

   These deficits are similar in magnitude to

those seen after exposure to one pack a day of

cigarettes during pregnancy, a day.

   In contrast to the effects of heavy

prenatal alcohol exposure, there's no convincing

evidence that prenatal cocaine-crack exposure is

associated with any increased risk of birth

defects.

   In other words, while there are detectable

newborn effects of prenatal exposure to cocaine or

crack, they are not different from and certainly

29

not worse than the effects of far more common

exposures to legal substances.

   I would actually say that my reading of

the literature is that although these children may

have small head circumferences, that unlike the

small head circumference from alcohol, they catch

up, and that's been our clinical experience and our

research experience.

   Now what about drug withdrawal? Unlike

prenatal exposure to heroin, methadone,

barbiturates or benzodiazepines, which are drugs

like Valium or Xanax, prenatal cocaine exposure

does not cause a recognizable withdrawal syndrome

in the newborn or require prolonged hospitalization

for pharmacologic treatment.

   Some investigators have found that heavy

prenatal cocaine-crack exposure is associated with

subtle differences in newborn behavior or in

detailed research assessments. But these effects

are not usually clinically obvious.

   In other words, any experienced

pediatrician can walk into any nursery and identify

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from like across the room a baby who's withdrawing

from opiates. That's really clinically obvious.

But an infant exposed to cocaine or crack without

opiates will be clinically indistinguishable from

the other babies in that nursery.

   What about sudden infant death syndrome?

Unlike prenatal tobacco or opiate exposure--and

here I mean either heroin or methadone--prenatal

cocaine or crack exposure has not been shown to be

an independent risk factor for sudden infant

syndrome or for the increased risk of death in the

first two years of life.

   Now you may well ask if there are no such

newborns as crack babies, do exposed infants still

grow up to the "crack kids," popularly depicted as

so irreversibly damaged by their mother's drug use

as to be unlovable, uncontrollable and unteachable?

   These stereotypes evolve from distortions

of information from early studies whose methods in

some cases were so flawed as to preclude drawing

valid conclusions.

   Only about half of the published studies

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about the post-neonatal--that is after one month of

age--outcomes of prenatal cocaine or crack exposure

have been done using methods, such as making sure

the testers don't know the exposure history of the

children that they are testing, that give careful

scientists some confidence in the accuracy of their

finding.

   If you look at 18 independent samples from

15 cities and about 40 studies, only one group

specified that their subjects only use powder

cocaine, and two others described the percent of

their sample who use crack or inject or snort, but

said, just as Dr. Hanson said, that many women use

multiple forms of the drug during pregnancy.

   All the other studies which we reviewed

made no attempt to differentiate cocaine from crack

because they generate identical metabolites in a

mother's urine or hair or in an infant's urine or

hair or first stool, meconium, which is the markers

that we use to identify children with prenatal

cocaine exposure and other drug exposure.

   If you now look at do these children grow

32

up to be retarded, well replicated findings have

shown detrimental effects on IQ scores of exposure

to one to two drinks a day of alcohol in pregnancy

and about a pack or more of cigarettes.

   In contrast, the majority of studies of

prenatal cocaine-crack exposure alone do not show

negative effects on developmental test scores from

infancy to 6 years; that is, if you parcel out the

effects of other drugs, the incremental effect of

cocaine is often undetectable.

   In most samples which are comprised of

poor children, all the kids, with and without

cocaine exposure, deteriorate over time reflecting

the overriding negative effect of poverty.

   There is no evidence to suggest that

children exposed prenatally to cocaine are at any

more risk for developmental delays than children

exposed to legal substances such as alcohol and

tobacco.

   DR. FRANK: There will soon be an article

coming out which actually found a five point

decrement of cocaine on 2-year-old developmental

33

test scores, but what you will not learn from the

media--and I suggest you go read the article--is

there's also a very strong tobacco effect, and that

won't hit the headlines.

   But when you look at other aspects of

development, like motor or language development,

the most recent research suggests that the

increased muscle tone in young infants once

attributed to cocaine-crack is, in fact, a heavy

prenatal tobacco effect. There are no studies that

show motor problems after early infancy, and the

language data is basically split down the middle.

   In the behavior area, if you simply use

the same kind of measures that you use to study

cigarettes or alcohol, you don't find a cocaine

effect, and you do find tobacco and alcohol effects

on pretty simple checklists, with the threshold for

alcohol effects on one study being as low as one

drink a week in pregnancy.

   On the other hand, there are some

sophisticated psychological and physiological

laboratory experiments that have detected possible

34

effects of prenatal cocaine-crack exposure. But

the real life implications of these findings are

unknown. In fact, the attentional finding that Dr.

Hanson referred to, the children's teachers didn't

detect it; only the labs found this.

   Clearly, future research is seriously

needed because the only data we've got is up

through age 6, and many positive factors, such as

good schooling, or negative factors, such as loss

of a parent to death or incarceration, can diminish

or exacerbate the effects of biologic risks.

   So in conclusion, I want to say that there

are no data suggesting any specific adverse effect

of prenatal crack as compared to prenatal cocaine.

   The most pessimistic interpretation of

available data to date suggests that prenatal

cocaine or crack exposure may be almost detrimental

to children's later development and behavior as

prenatal tobacco or moderate prenatal alcohol

exposure, but clearly less detrimental than heavy

prenatal alcohol exposure. Many findings once

thought to show specific effects of in-utero

35

cocaine or crack are scientifically explained today

by other factors.

   From the perspective of practicing

physicians and research scientists, singling out

any one drug or users of any one drug for uniquely

punitive measures is neither rational nor effective

in reducing the biologic and social risks to

children associated with adult substance use.

   Instead, clinicians and public health

providers strive to reduce use of all potentially

toxic substances, legal and illegal, among all

members of our society.

   To enhance the wellbeing of infants and

children specifically, which is my job, we work to

provide prenatal care and, if necessary, priority

treatment for addiction to pregnant women and

parenting women and to support families with the

resources necessary for safe and stimulating

environments.

   Can I read my last sentence?

   CHAIRPERSON MURPHY: Yes.

   DR. FRANK: Okay. None of these measures

36

require believing in "crack kids" who are mythical

figments of media imagination, figments which I

hope will not influence the distinguished members

of this Commission as they construct sentencing

guidelines. Thank you.

   CHAIRPERSON MURPHY: Thank you, Doctor.

Are there any immediate questions?

   COMMISSIONER SESSIONS: Just so our record

is clear, you are a graduate of the Harvard Medical

School, and you're a Professor of Pediatrics at

Boston University?

   DR. FRANK: That's correct.

   COMMISSIONER SESSIONS: It talks here

about your background in dealing with inner city

kids, and I would assume that that's the people

affected by what we're talking about here and--

   DR. FRANK: My entire career. From 1981,

when I ended my fellowship, I've been at the same

inner city hospital.

   COMMISSIONER SESSIONS: Which is?

   DR. FRANK: It used to be called Boston

City. It's now called Boston Medical Center.

37

   COMMISSIONER SESSIONS: Is that the public

hospital?

   DR. FRANK: It was the public hospital;

then we were merged with a private hospital, but

we're still the public hospital.

   COMMISSIONER SESSIONS: Okay.

   COMMISSIONER CASTILLO: So what you're

saying now, Dr. Frank--and I appreciate all the

articles that have been submitted--is the aspect of

the "crack babies" is a myth at this point?

   DR. FRANK: Correct.

   COMMISSIONER CASTILLO: And that any use

of drugs is bad, but there certainly is no way

scientifically to differentiate either cocaine or

crack as being a particularly pernicious drug for

use during pregnancy, is that accurate?

   DR. FRANK: I would say that there's

cumulative risks, but it's very hard to sort out

the specific effects of any one drug except in the

case of the neonatal withdrawal system which is

pharmacologically very specific.

   COMMISSIONER CASTILLO: Okay, thank you.

38

   COMMISSIONER SESSIONS: I think you're

saying that there is such a thing as a "crack

baby," but it's less serious, less--

   DR. FRANK: There are children with in-utero

exposures to potential toxins, but it doesn't

have to be cocaine and crack. And the only thing

that I know that is a real syndrome is fetal

alcohol, and as Dr. Chasnoff will tell you, those

kids are also poly-exposed, certainly to tobacco

and often to other stuff as well, depending on the

part of the world they're from.

   COMMISSIONER SESSIONS: But, essentially,

your position is that alcohol creates much greater

risk to--

   DR. FRANK: Heavy alcohol, absolutely, no

argument.

   CHAIRPERSON MURPHY: Thank you, Doctor.

Then we'll turn to Dr. Chasnoff now.

      STATEMENT OF IRA J. CHASNOFF, MD.

   DR. CHASNOFF: Thank you. One of the

driving forces behind current policy that

discriminates between crack cocaine and powder

39

cocaine use is the phenomenon of the so-called

"crack baby," and that's what I've been asked to

address today.

   In 1993, I had the opportunity to testify

before this Sentencing Commission as it deliberated

sentencing guidelines for crack cocaine and powder

cocaine, and to begin this discussion today, I'd

like to quote from my testimony in 1993.

   "Our longitudinal research has shown

without any doubt that the single most important

factor affecting the life of a child is the

environment of the home in which the child is being

raised."

   When I was first asked to come back today,

my first response was, "I haven't changed my mind."

What we have to understand is that a child's

development is a dynamic process, including both

social and biological factors, that contribute to

success and failure.

   From day one, children interact with the

environment around them and seek the nurturing

support that will help them achieve their full

40

potential for health and development.

   In our program in Chicago, we see over

1000 children per year who have been exposed

prenatally to alcohol, cocaine, crack and other

drugs.

   I've been doing this work for 26 years; I

have never once met a "crack baby," and I wouldn't

know how to describe one if someone had asked me

to; the reason being I have never met a child whose

mother used only one substance, whether it be

cocaine in crack form or powder form, amphetamines,

ecstasy, alcohol, marijuana. The most common form

of drug use in this country is poly-drug use.

   Unfortunately, the areas of the brain

vital to cognitive functioning and behavioral

regulation appear to be the most vulnerable to

prenatal exposure to alcohol and other drugs.

   Fetal alcohol syndrome is the most common

cause of diagnoseable mental retardation in the

United States. Children whose mothers use illicit

drugs, such as cocaine, whether in powder or crack

cocaine form, suffer from the direct impact on the

41

dopamine receptor system of the developing fetal

brain.

   In this context, I do want to make some

important points:

   Number one, as has been noted before, the

physiology of powder cocaine and crack cocaine is

the same, and changes in the dopamine receptors in

the fetal brain would be identical whether the

mother used powder cocaine or crack cocaine;

   Number two, substance abuse is a poly-drug

phenomenon. It is impossible to differentiate the

detrimental effects of any one specific drug from

that of any other and foolhardy to try to protect

the unborn child from any one drug.

   Our prevention efforts and treatment

efforts must turn attention to substance abuse; not

specifically alcohol, powder cocaine, crack

cocaine, amphetamines or any other drug that

happens to be popular at the time;

   Number three, long term, children exposed

to maternal substances of abuse, no matter what

these substances are, may suffer a wide range of

42

mild to severe physical and behavioral problems.

   By school age, prenatally exposed children

have high rates of off task behavior,

distractibility, short attention span, impulsive

behavior and aggressive behavior; however, again,

these difficulties cannot be attributed to any one

substance, but occur in the context of poly-drug

abuse;

   Number four, it is vital that we

understand that the home environment is the

critical determinant of the child's ultimate

outcome. Children depend on their parents to guide

and nurture their development.

   However, addicted women frequently have

poor family and social support networks; thereby

increasing their vulnerability to physical and

sexual abuse. In turn, children of substance

abusing women are at greater risk for neglect and

sexual, physical and psychological harm;

   Number five, significant psychiatric

problems, such as personality disorder or

depression, are not uncommon in women who use drugs

43

or abuse alcohol. These factors, almost

invariably, hinder parenting capabilities further

and lessen the chance for a normal developmental

course for the child;

   And number six, women's attempts to seek

services for themselves and their children often

are hindered by the fragmentation that exists in

the services community. Most frequently families

are referred to a variety of providers through

categorical programs addressing a single need.

   These categorical programs most often are

established by the Federal Government, focusing on

a specific drug or a specific condition of

eligibility.

   Thus, as we turn our attention to the

question at hand, we must ask ourselves how to

develop policies and guidelines that serve the best

interests of the child.

   These best interests are not served by

automatically removing a child from its mother's

care. They are not served by meting out sentences

that are based on false assumptions that one drug

44

is worse than another.

   Every legal or illegal drug one can name

has a pharmacologic basis through which it exerts

its effects on the fetus, on the pregnancy and on

the resulting child. In the final pathway, neither

scientists, clinicians or a judge and jury will be

able to tell you what harm was done by crack

cocaine versus what harm was done by powder cocaine

or by alcohol or by any other substance you can

name.

   We have an opportunity to examine laws

that have no basis in science, but laws that allow

us to express moral outrage. These laws,

unfortunately, do not affect or change the complex

realities of substance abuse.

   We have an opportunity, instead, to view

substance abuse for the non-categorical problem

that it is and turn to unification that public

health, public law and child welfare approaches

that will serve the best interests of the children

and the families of our nation. Thank you.

   COMMISSIONER O'NEILL: So, Dr. Chasnoff,

45

you're basically agreeing with Dr. Frank that in

terms of its impact upon unborn children, there's

no difference really between crack and powder

cocaine--

   DR. CHASNOFF: I almost saved--

   COMMISSIONER O'NEILL: --that's been

measured at least.

   DR. CHASNOFF: I almost saved us all time

and just said ditto, but, yes, I do agree.

   COMMISSIONER O'NEILL: That's what I

thought.

   CHAIRPERSON MURPHY: Maybe you could say a

word about the Children's Research Triangle that's

supposed to be achieving--

   DR. CHASNOFF: The Children's Research

Triangle is an organization in Chicago. We have

three components. We have a large clinical

program, the Child Study Center. Our data last

year, we saw 1008 children, all of whom had been

prenatally exposed to various substances of abuse.

   In addition, through that clinical

program, we run research programs. We currently

46

are funded by a number of Federal and state

agencies. One of our grants is through the CDC.

We're one of five national centers conducting

research into the treatment of fetal alcohol

syndrome.

   We also conduct training and have

published extensively, mainly focusing our

attention on policy work. And currently we're

working with a number of states to develop policy

guidelines that are driven by good scientific

research.

   CHAIRPERSON MURPHY: Thank you. Then

we'll turn to Dr. Blumstein--

   COMMISSIONER REILLY: Judge--

   CHAIRPERSON MURPHY: Yes?

   COMMISSIONER REILLY: --I just wanted to

pose a question for all of the three first

panelists we've heard from about--you talked about

pharmacologic basis, but I haven't heard anyone

mention anything regarding violence associated with

one over another of these drugs, and I'd just be

interested in what comments you'd have with regard

47

to the level of violence associated with, say,

heroin, cocaine, methamphetamine, marijuana, what

have you.

   DR. HANSON: I think in terms of violence,

you're probably referring to the issue of what does

the drug affect--how does it affect--

   COMMISSIONER REILLY: Right.

   DR. HANSON: --an individual? Is it

likely to encourage violent responses.

   COMMISSIONER REILLY: You mentioned heroin

was a depressant. So I--

   DR. HANSON: Right. So you tend not to

see psychosis. You tend not to see violent

responses as a consequence of the drug itself. Now

there may be violence in the context of "I need

money to go out and get some more heroin," but it's

not the heroin itself or the pharmacology of the

heroin that's driving the violent behavior.

   Heroin is related to the opioid narcotics,

and if you've ever had a surgical procedure, you

were likely prescribed a drug that belongs to this

group of drugs. It includes things like Morphine

48

and Darvon, Percocet or Percodan. They're all part

of that same family, and they tend not to make

people violent; if anything, they tend to sedate

and cause people to relax.

   On the other hand, the psychostimulants,

such as cocaine, they can induce this state of

paranoia, and with that, there may be some violent

episodes or violent reactions or over-reaction to

what they perceive as a threatening environment.

   But whether they take it intravenously or

whether they smoke it will make no difference.

This relates to, again, the levels of the drug in

the brain and how much it interferes with the

normal brain processing, especially related to this

dopamine chemical that is used by emotional centers

within the brain. So there would be no difference

in the tendency to induce violent behavior versus

those two administration forms. Thank you.

   CHAIRPERSON MURPHY: Dr. Frank, did you

have anything you wanted to add on that?

   DR. FRANK: Well, the problem--there is

violence associated with the drug trade that is

49

non-pharmacologic, but I don't think, again, is

particularly substance specific, but it's very

damaging to children.

   In our research, we found that even the

mothers having witnessed violence was a better

predictor of a child's behavior than cocaine

exposure. And now as our kids are getting older,

we're finding a lot of symptoms in the children

related to witnessed violence as well as

experienced violence. But alcohol also is a huge

trigger of violence in the community I serve.

   CHAIRPERSON MURPHY: If you could respond

too, Dr. Chasnoff, but we've got to get to the--

   DR. CHASNOFF: Just very quickly. The

part of the brain where the dopamine receptors are

specifically affected, it's the front of the brain

called the pre-frontal cortex which is the part of

the brain that controls aggressive and irrational

behavior.

   Our findings are similar whether the child

was exposed to cocaine, powder cocaine or crack

cocaine, in that it's the dopamine receptors that

50

are at the heart of their--and we look at it not

from a perspective of violence, but the ability of

the child to regulate and control behavior.

   In fact, exposure to violence affects the

dopamine receptor system also. So we're talking

about a circle here that we have not been able to

disrupt.

   CHAIRPERSON MURPHY: Professor--

Dr. Blumstein, you are a Professor of Urban Studies

and Operations Research, and so you have somewhat

of a different perspective that you're coming from

than the first three speakers?

     STATEMENT OF ALFRED BLUMSTEIN, Ph.D.

   DR. BLUMSTEIN: Yes. The previous

speakers have spoken on the micro aspects of

biological and pharmacologic effects. I want to

talk about the system effects related to where

there's much more information relative to the issue

that Mr. Reilly raised, and that is violence.

   Let me start with just some empirical

background. We saw a significant rise in violence

in the United States beginning at about 1985,

51

reached a peak in '93, and has been coming down

since then. And the rate of violence in the U.S.

today is the lowest we've had since the late '60s.

   The rise that went on between '85 and '93

was all attributable--in terms of homicide, was all

attributable to young people--that is, under 20--using

handguns.

   To a very large degree, this was a direct

consequence of changes in drug markets at that

time, and everyone that has looked at the issue of

violence and its relationship to--I'm sorry--of

violence in relationship to drugs has found

negligible pharmacologic effect predominantly

associated with the drug markets in large part

because illegal markets don't have access to normal

civil dispute resolution mechanisms, and so their

access is to violence.

   The '80s saw the introduction of an

important new technological innovation, and that

was crack, which made cocaine and its effects

available to people who didn't have access to

powder.

52

   As with most new marketing innovations, we

saw vigorous competition in that market, and part

of the competition in that new market was

associated with violence, of some sellers dealing

with violence against their competition or violence

in relationships between drug sellers and drug

buyers.

   There were also street markets because

that new drug was being marketed rather

aggressively, and in street markets, one is very

vulnerable to robbers, and as a result, they have

to defend themselves. And that gave rise to much

more presence of handguns in the street.

   That was a period when the national policy

committed to major incarceration as the response to

the drug problem. In the Figure 1 that I have in

the testimony, you get a sense of the massive

growth by a factor of 10 in the incarceration rate

for drug offenses between 1980 and 1986, a really

major growth, to the point where drug offenders now

represent over 20-percent of state prisoners and

about 60-percent of Federal prisoners with a

53

growing presumption that that was going to deal

with the drug problem of the nation.

   One of the consequences of that massive

incarceration was the recruitment of young people

as replacements for the people who were sent to

prison and particularly associated with crack which

was associated with African American neighborhoods,

African American participants.

   We saw major growth in arrests for drugs

by adults starting in 1980. It wasn't until about

1985 that we saw the major growth in young people

getting arrested, and Figure 2 in the testimony I

submitted shows this major growth from a period

when non-whites were being arrested at a lower rate

than whites through the '70s, for juveniles;

through the early '80s at about the same rate;

starting in 1985, a rapid growth to four times by

1989; stayed at four times until '92 and then came

down.

   Here we saw a situation where young people

are recruited into the markets armed with handguns

for their self-defense and major diffusion of those

54

guns to their colleagues who weren't even in the

drug market, with a lot of indication of this

across different cities in terms of this diffusion

process.

   The early '90s saw growing recognition in

many of the drug-using crooks of the crack-using

communities about the harm and evils associated

with crack pharmacologically. And so there's good

evidence from ethnographers that the new users

simply dried up. Old users continued in the crack

market, but new users dried up; therefore, old

users could be served more readily than with these

large street markets, and so there was no longer

the comparable need for the young people.

   Fortunately, they were able to move into

the robust legitimate economy of the '90s so that

we saw this decline, and all of that contributed to

this continuing decline of violence through the

1990s.

   With this background then, I want to

address what I do consider one of the most

distressing aspects of the sentencing guidelines

55

and of the mandatory minimums, and that's this

hundred to one disparity in the guidelines and in

Federal sentencing.

   It's unfortunately seen by many observers

as blatant proof of racial discrimination in the

criminal justice system, and a concern is raised

about the legitimacy of the system under the

variety of attacks of racial disproportionality

associated with it.

   It just seems utterly reasonable that the

sentences imposed should be based on culpability in

the offense rather than the particular chemical

nature of the individual drug being used, and as my

predecessors have indicated on the panel, there's

not much difference in the chemical effect.

   We certainly recognize that there were

important violence differences in the crack markets

of the '80s, but those markets have changed rather

dramatically, and again, I think it impressive that

the Commission has decided to introduce the notion

of augmentations as a means of reflecting

individual culpability in terms of participation in

56

violence rather than what had been merely a

correlate and not a cause by distinguishing powder

from crack.

   The culpability should be associated with

the use of violence, should be associated with the

role of the individual, and it just strikes me that

the evidence that the Commission has accumulated

provides some real guidance on that important

aspect of it.

   It is clear that with violence down, with

crack markets having matured, that there may well

be differences in violence, but those could well be

attributable to the individuals and can be taken

account of in the augmentation to the sentences

under the guidelines rather than simply maintaining

a difference based on the chemical nature.

   So that we now have an aggregate low rate

of violence. Violence by young people is back down

to the level that it was in about 1985 when all of

this started up.

   I was struck in looking at the data

briefing that the Commission has put together on

57

the issue of role, and again, one would think that

the role issue is also an important consideration

in culpability; that is, those who are operating a

high level in the distribution chain should be

treated more severely than those at a lower level.

   I was struck by the fact that two-thirds

of the Federal cases involving crack are street

dealers and a much smaller number of the cocaine

folks--of the powder folks are shown to be street

dealers.

   It's also the case that about 75-percent

of the crack people who were arrested are involved

in local or neighborhood settings; whereas, about

37-percent are at local or neighborhood involving

powder cocaine. So that, again, an augmentation

associated with role becomes a very important

consideration in the sentence that should be

applied to a particular individual.

   This again suggests that it's the behavior

of the individual being sentenced and ways to

articulate the punishment associated with those

behaviors become the more salient consideration

58

rather than the particular form of the drug in

which they're involved in.

   Let me just say a few words on the issue

of mandatory minimums. I have been arguing for a

long time that legislative bodies engage in passing

mandatory minimums as an act of passion when a drug

suddenly comes on the scene or a particularly

heinous event occurs, and it's very difficult once

those mandatory minimums get enacted to ever get

the legislative body to repeal them.

   But as an act of good government in a wide

variety of areas, one should consider sunsetting

mandatory minimums because the moment of passion

will inevitably pass, and then government is stuck

with the consequences of those mandatories.

   And if they sunset them, then a review,

whether it's 3 years or 5 years later, allows them

to rethink the appropriateness or inappropriateness

of that mandatory in the larger context of the work

going on and leaves it to Sentencing Commissions,

which are the body with the principle of thinking

through an orderly deliberative process for

59

generating sentencing policy.

   DR. BLUMSTEIN: I have the sense--and we

see this in many ways--that the passions that

fueled mandatories in the '80s have largely passed.

   We're seeing President Bush's proposal for

the new budget emphasizing treatment with a

statement that the supply will respond to the

demand; what we've got to do is deal with demand.

   We're seeing Prop 36 in California. We're

seeing Arizona pursuing treatment rather than

incarceration, and we're seeing a move in this

direction in a wide number of states. So that the

political environment seems to be ready to do some

serious rethinking of how we deal with the drug

problem, particularly now that violence is down at

the low level that it's at.

   Let me urge that the Commission follow

this route of bringing augmentations to reflect the

factors that would have been concerned, that

contribute to differences between crack and powder:

factors like violence, factors like role.

   It just strikes me that once you bring

60

those factors to bear, I don't see a meaningful

difference in the punishment that should be meted

out based on the chemical process by which the

individual drug was formulated, particularly in

light of the similarity of the individual

consequences.

   It strikes me that we are in a mood for

doing lots of rethinking. There's numerology going

around of how we revised a hundred to a more

comfortable number. It just strikes me that the

approach of dropping the guidelines for--dropping

the threshold for powder is not the most helpful

way to do it, but raising it for crack--and I don't

see a reason for making an important difference.

   But I also see an argument for having

augmentation for the other kinds of actions

associated with improper behavior beyond drug

dealing in the market. Thank you very much.

   CHAIRPERSON MURPHY: Thank you. Are there

any questions?

   COMMISSIONER STEER: I just have a quick

point of clarification.

61

   CHAIRPERSON MURPHY: Mr. Steer?

   COMMISSIONER STEER: Your Figures 1 and 2,

under the category of drugs, I take it that

includes both trafficking and possession?

   DR. BLUMSTEIN: That includes trafficking

and possession, but recognizing that the folks in

prison will be there for possession charges because

they might not have been able to prove trafficking

charges. But it's rare that people have ended up

in prison simply because of possession with no

presumption of involvement in the market.

   COMMISSIONER STEER: Well, I think that's

true in the Federal system; I'm not so sure about

states. But this is about state and Federal--

   DR. BLUMSTEIN: That graph is based on

state. The paper that was drawn from also has the

Federal system, and I think they might--if it's

simple possession, they're more likely to be on

probation or more likely to be in jail; whereas,

the people who end up in the prisons are the ones

who are more likely to be involved or presumed to

have been involved in some aspect of the market.

62

   CHAIRPERSON MURPHY: I know that Judge

Sessions has a question and Professor O'Neill. So

I saw his hand first so, so we will go with

Sessions first.

   COMMISSIONER SESSIONS: Thank you. Your

testimony about violence associated with a newness

of the market in the 1980s is rarely interesting to

me. Essentially there's a shake-out period in

which the new drug is admitted into the market and

people try to figure out who's going to be in

charge of their own little areas, and as a result,

violence increases. As the maturing process

evolves, then it decreases.

   I wonder if there are other examples,

other than crack cocaine, which are analogous; in

other words, when powder became much more a

significant drug as opposed to heroin, let's say,

if you know of any other--

   DR. BLUMSTEIN: I'm not sure that I do

know of others. Some of you might.

   COMMISSIONER SESSIONS: How about

prohibition?

63

   CHAIRPERSON MURPHY: Yes.

   DR. BLUMSTEIN: Well, alcohol during

prohibition. I think what made it so aggressive

was, number one, the fact that it was really a

cheap accessible drug, accessible to large numbers

of people and took place--the marketing took place

predominantly in inner city neighborhoods where

violence was much more going on.

   Suburban neighborhoods would have gotten

those markets out of there very quickly, and so

there was just a lot going on. I think the

prohibition example is a useful one. But you see

this in lots of drug illegal markets where there's

competition.

   COMMISSIONER SESSIONS: So there was

something unique about crack, at least in the

1980s, as it was admitted into the local

communities. But if the violence associated in the

'80s no longer exists--I mean, the violence which

resulted--

   DR. BLUMSTEIN: "No longer" is a bit

stronger than I'd go along with--

64

   COMMISSIONER SESSIONS: But--yeah.

   DR. BLUMSTEIN: --but it's markedly

reduced, and I think a big part of it was the young

people that got recruited as one of the unintended

consequences of the massive incarceration of the

older folks, and the young people were far more

volatile and far more copying each other, so that

we just saw major presence of guns in those

neighborhoods that ended up getting used and the

emergence of gangs, which weren't necessarily

involved in a corporate way in the drug marketing.

   But it was very comfortable to be a gang

member if you're a drug seller because you have

buddies who are going to protect you against

somebody who tries to rip you off, either as a

buyer or as a robber.

   CHAIRPERSON MURPHY: Okay. Professor

O'Neill and then Judge Castillo.

   COMMISSIONER O'NEILL: Yes. Professor

Blumstein, let me ask you--I'll follow up

Mr. Elwood's earlier trick and ask you sort of a

two-part question, I guess.

65

   One would be if, in fact, part of what

we're doing by having penalties is shaping

preferences, we're essentially saying, "If you're

going to go and use drugs, we would prefer

essentially that you use powder cocaine as opposed

to crack cocaine," and as a virtue of that, we're

going to have crack penalized much higher.

   Is there a problem with if crack, in fact,

is sort of cheaper, easier to market, is a quicker

and faster hit as opposed to other means of

delivering cocaine except for injection, is there a

benefit to maintaining a higher penalty for crack

precisely on that basis?

   The second part of my question would be

is--

   DR. BLUMSTEIN: Could I just--

   COMMISSIONER O'NEILL: Sure, go ahead.

   DR. BLUMSTEIN: To a large degree, it's

not the user that you're targeting your punishment

at, but it's the dealer. It's not clear to me how

you're shaping use patterns by shaping your penalty

of the dealers who, to a reasonable degree, as an

66

aggregate market, are not terribly responsive to

your penalties anyway.

   They are much more a--the penalties--

   COMMISSIONER O'NEILL: Do you have

evidence for that? I mean, do you have evidence

for that they're not responsive to the--

   DR. BLUMSTEIN: The resilience of the

market in responding and recruiting young people in

particular.

   As long as there's a replacement supply

out there, the punitiveness, the deterrent effect,

those who drop out of the market, the

incapacitation effect, those who are sent to

prison, as long as there are replacements, they're

going to respond where the profits and

opportunities exist.

   COMMISSIONER O'NEILL: What about those

who argue the fact that obviously the replacements

aren't perfect and unending by virtue of the fact

that we see--as we see incarceration go up, we see

a drop or a leveling in terms of use and in terms

of violence, and can that be attributed to the fact

67

that we've--some would argue we've over-incarcerated and

that itself has had an effect upon

the markets?

   DR. BLUMSTEIN: The fundamental theory

behind the punitiveness in terms of reducing use is

that by increasing the sanction to the seller, he

will demand a higher risk premium to be paid for

selling; thereby increasing the price; thereby

reducing the demand in response.

   Between 1980 and 1990, we had this growth

of a factor of about eight in incarceration rate

for drug offenses. During that period, the price

of cocaine dropped by a factor of three to five.

   Now I'm not prepared to argue that this

was essentially a negative response to the growth

of incarceration. Some of it may have been

increased deficiency in the production or

marketing.

   But certainly you would have expected that

massive growth of incarceration to have driven the

price up to some degree, and we saw a major drop in

the price of cocaine over that period.

68

   COMMISSIONER O'NEILL: What about massive

growth of incarceration and drop in use and drop in

violence?

   DR. BLUMSTEIN: That's a correlation that

is hard to make as a causal connection. Lots of

people have looked at the 1990s with a drop in

crime and a growth of incarceration and attributed

one to the other.

   It's the case, however, that during the

1980s there was also significant growth of

incarceration, but at least during the second half

of the 1980s we also saw significant increases in

crime.

   Much of the information I've talked about

is in this edited volume called The Crime Drop in

America, part of which was undoing the factors that

contributed to the crime rise.

   There were two papers in there that tried

to attribute the effect of incarceration counting

data from the '80s and the '90s, and both of them

attributed about 25-percent of the crime drop to

the rise of incarceration.

69

   So incarceration certainly contributes;

not so much contributes to the avoidance of drug

transactions, but contributes, in large part,

through incapacitation by taking off the street

people who are otherwise violent.

   COMMISSIONER O'NEILL: So what my--

   DR. BLUMSTEIN: The drug market was driven

much more by demand structure which was growing in

the '80s with the prevalence of crack and then the

decline in the '90s with the avoidance by new

users.

   COMMISSIONER O'NEILL: What then might be

the--if I can--

   CHAIRPERSON MURPHY: --the last point--

   COMMISSIONER O'NEILL: The last point,

yes. What might then be the expected effect of

lowering then penalties for crack?

   DR. BLUMSTEIN: Of raising the threshold--let me

estimate that your proposal would be to

bring crack at roughly the comparable level of

powder.

   COMMISSIONER O'NEILL: My hunch is that

70

it's not going to have a major impact on drug

dealing, on the recruitment; that the major effect

is likely to be the aggressiveness or diminished

aggressiveness for having to go out and recruit new

people because you're still going to impose

punishment on people who, say, have a hundred grams

of cocaine or crack.

   The issue is where do you impose this

mandatory 5 year minimum sentence, and what looks

like a profound inequity because crack is dealt

with by blacks and powder is dealt with by whites

and Hispanics.

   COMMISSIONER O'NEILL: Thank you.

   CHAIRPERSON MURPHY: Judge Castillo?

   COMMISSIONER CASTILLO: Doctor, I

understand that out of our panelists, you're really

the expert on violence, and I understand your

theory of the reduction in violence.

   What I'm getting at is what you were

already addressing is the statistics that you're

relying on for the point that violence has gone

down as these markets have matured, are they our

71

statistics? Are they the statistics in that book

that you just mentioned, The Crime Drop in America,

or are there others? And can you make those

available to us?

   DR. BLUMSTEIN: Oh, sure. They're based

on the FBI's uniform crime reports, both in terms

of crimes themselves and particularly who commits

crimes, which we don't know from the crime

statistics, but, rather, from arrest statistics.

   And the arrest statistics are the ones

that indicate by age, for example, this major rise

during the 1980s and early '90s and the

corresponding decline to the point where young

people--and young people were clearly the folks

contributing to the rise because people over 30

steadily declined throughout that entire period of

the '80s and the '90s.

   COMMISSIONER CASTILLO: Do the FBI crime

statistics differentiate between powder and crack

cocaine offenses?

   DR. BLUMSTEIN: No--well, I take that

back. I don't know, and the arrest statistics

72

might, but they haven't been involved in the work

here.

   It's been taking drug arrests as the

aggregate and the demographics of those who get

arrested. Okay.

   COMMISSIONER CASTILLO: Okay, thank you.

   CHAIRPERSON MURPHY: Mr. Elwood?

   COMMISSIONER ELWOOD: I don't want to talk

about how you approach it because we've already had

some interest from the panel in sort of separately

punishing the people who are actually violent.

   But one thing that's interesting is that

even now, after the major wave of violence has

passed, crack defendants are twice as likely as

powder defendants to have a gun, and they're more

likely than even methamphetamine defendants to have

a gun, and meth is punished basically the same as a

5 gram/5 year mandatory minimum.

   Do you think that this reflects, again,

sort of a continuation that the markets are still

more violent than powder markets?

   DR. BLUMSTEIN: That may well be somewhat,

73

and I would argue that what you should do is use

the augmentation to get at the individuals who have

the guns, and if they are more prevalent in crack

markets, then that augmentation should

appropriately should be used more often with those

individuals based on who has a gun and

particularly--and I would anticipate that you're

likely to find presence of a gun more often in

crack markets because they tend to be at greater

vulnerability.

   Powder markets will more often be behind

closed doors and with other forms of security, so

that I can easily see why they would have it.

   I particularly want to augment the

guidelines sentence for those who use the gun as

well as for those who might be carrying it because

the guns are conscious acts of rational people out

there to either protect themselves or to engage in

aggressive behavior, but don't apply it to the drug

that happens to be correlated with it; apply it to

the behavior, whether that's engaging in violence

or carrying a weapon inappropriately.

74

   COMMISSIONER ELWOOD: Is that because of

an expected deterrent effect for higher penalties?

   DR. BLUMSTEIN: Potentially a deterrent

effect, but I would think the deterrent effect is

much stronger for what goes on in the street than

what the criminal justice system does.

   And if the individual is deterred by the

threat of a robber taking him off, he's more likely

to carry a gun. But the issue is one of

appropriate dessert in terms of what is an

appropriate punishment for those who generate a

greater potential for engaging in violence or who

engage in violence as part of their illegal drug

marketing activity.

   CHAIRPERSON MURPHY: Well, we could spend

several more hours probably from our point of view

in talking with those of you on this panel because

we really are in need of this kind of information.

   I think you can tell by the questions that

have been generated how much we appreciate it, and

we do have your written materials and may call upon

you again. Thank you very much.

75

   Now I'd like to invite Wade Henderson and

Charles Kamasaki to come forward.

   Mr. Henderson is the Executive Director of

the Leadership Conference on Civil Rights, and

Mr. Kamasaki is the Senior Vice President of the

Office of Research Advocacy and Legislation--it

seems like quite a big office--for the National

Council of La Raza.

   MR. KAMASAKI: Small office, big title.

   CHAIRPERSON MURPHY: Broad

responsibilities. So, Mr. Henderson, would you

begin, please.

  STATEMENT OF WADE HENDERSON

   MR. HENDERSON: Thank you, Judge Murphy.

Good afternoon to the members of the Sentencing

Commission.

   I'm Wade Henderson, the Executive Director

of the Leadership Conference on Civil Rights. I'm

pleased to appear before you on behalf of the

Leadership Conference to urge the Commission to

take an aggressive action to remedy racial

disparities in Federal drug sentencing.

76

   The Leadership Conference is the nation's

oldest and most diverse coalition of civil rights

organization. The Leadership Conference consists

of over 180 national organizations representing

persons of color, women, children, organized labor,

persons with disabilities, the elderly, gays and

lesbians and major religious groups.

   It is a privilege to represent the civil

and human rights community before the Commission,

especially in a building named for a legendary

civil rights leader and Supreme Court Justice.

   My testimony this afternoon addresses one

of the issues for comment that the Commission

recently published in the Federal Register, and

that is should the threshold quantities of crack

cocaine and powder cocaine that trigger longer

sentences under the guidelines and statutes be

revised.

   This matter is of paramount importance to

our coalition. The well known 100-to-1 crack

powder ratio in Federal law is one of the most

visible manifestations of racial disparity in the

77

criminal justice system.

   In 1995, I submitted a statement on behalf

of the NAACP to the then House Judiciary Committee

in support of a 1-to-1 ratio for crack powder

equalization.

   I refer to that testimony this afternoon

because it was complete with both medical and

economical evidence in favor of equalization and

is, of course, available to the Commission for

review.

   As you might imagine, the civil rights

community was bitterly disappointed by Congress'

rejection of the Commission's 1995 proposal to

eliminate the disparity, and we have grown

increasingly frustrated by the failure of Federal

authorities to address the subject since then.

   Recent statistics compiled by the

Commission show that the problem relates not just

to the differences between crack and powder cocaine

penalties; rather, minorities are now

disproportionally subject to harsh penalties for

both types of cocaine involvement.

78

   The issue is no longer just the ratio

between crack and powder. The issue is that

minorities are almost exclusively targeted for

Federal cocaine arrests and then find themselves in

a mechanical sentencing system that results in

unacceptably high incarceration rates.

   For this reason, I strongly urge the

Commission to adopt significant changes to the

relevant sentencing guidelines and to propose

similar changes to the corresponding statutes.

   Now in my written testimony, I explained

the civil rights context in which this issue

arises. Federal sentencing rules for crack cocaine

do not exist in a vacuum. They are part of a

pattern of inequity that threatens the credibility

of the justice system in minority communities.

   Two years ago the Leadership Conference on

Civil Rights issued a report entitled "Justice on

Trial, Racial Disparities in the American Criminal

Justice System."

   We concluded that the criminal justice

system is beset by massive unfairness and that both

79

the reality and the perception of this unfairness

have disastrous consequences for minority

communities and for the criminal justice system

itself.

   In my oral presentation, I will not repeat

the report's extensive findings. But this

Commission should be aware that we focused

significant attention on Federal sentencing.

   We urged repeal of Federal mandatory

sentencing laws which deprive Judges of too much

discretion and transfer sentencing authority to

unaccountable prosecutors.

   We endorse the concept of guideline

sentencing, but urge that the Federal guideline

system be improved to eliminate provisions that

contribute to disproportionate minority

incarceration rates.

   Specifically, we urge that the crack

powder cocaine disparity be eliminated in both

statutes and the guidelines. Few policies have

contributed more to minority cynicism about the war

on drugs.

80

   The disparate cocaine sentencing laws were

mostly enacted by Congress in 1986 in a wave of

racially tinged media hysteria. We do not contend

that Congress was motivated by racial animus in

enacting these laws, but race was a sub-text of the

congressional debate, especially in the uniquely

harsh penalties assigned to crack cocaine.

   There is no scientific or pharmacological

evidence to justify treating crack as though it

were a hundred times more dangerous than powder

cocaine. The Commission found as much in 1995, and

the updated scientific testimony before the

Commission today confirms this fact.

   Nor is there anything special about the

crack cocaine market to justify these differences.

Rates of crack use, which have never exceeded rates

of powder cocaine use, have remained stable over

the decade.

   At the same time, the number of street

crack level dealers charged in Federal court has

climbed from 48-percent to 66-percent of all crack

defendants while the number of importers, leaders

81

and supervisors has fallen.

   And the Commission's statistics show that

the crack market is less violent than it was a few

years ago. Less than half of the crack cases

involved a weapon, and only 8-percent of the cases

involved actual violence.

   So whatever anecdotes and stereotypes

caused Congress to treat crack cases so harshly in

1986 are no longer valid, if they ever were.

   Violent crack dealers should be punished

for their violence. Non-violent crack dealers

should not be punished on the false assumption that

all crack dealers are violent.

   In fiscal year 2000, 93.7-percent of those

convicted for Federal crack distribution offenses

were black or Hispanic, and only 5.6-percent were

white. That shocking figure has not changed much

over the past decade.

   But the racial make-up of the powder

cocaine defendants has shifted in the last decade.

By 2000, the percentage of white powder cocaine

defendants had dropped from 34-percent to

82

17-percent while the percentage of black powder

cocaine defendants had increased to 30-percent.

And the percent of Hispanic cocaine defendants had

increased to 51-percent. About 81-percent of

Federal powder cocaine defendants are now

minorities.

   Thus, the problem of racial disparity has

become more deeply ingrained than in the early

1990s. The unjustifiably harsh penalties for crack

offenses still fall almost exclusively on black

defendants. But now, unlike 10 years ago, the

somewhat more moderate, but still very harsh

penalties for powder cocaine offenses, fall

disproportionately on minority defendants, both

black and Hispanic as well.

   So Federal enforcement efforts against

cocaine distribution are directed almost

exclusively against minorities, 93-percent of all

crack defendants and 81-percent of all powder

defendants.

   We know from Federal health statistics

that minorities are no more likely to use cocaine

83

than whites, and the National Institute of Justice

has found that drug users typically purchase drugs

from sellers of the same race. So there is no

rational basis for these statistics and certainly

no compelling reason to justify a Government policy

that has such a disparate impact on minorities.

   Three policy imperatives emerge from these

statistics. First, the threshold quantities for

crack cocaine should be raised substantially.

While powder cocaine sentences are themselves too

harsh and mechanical, there is certainly no reason

why crack cocaine sentences should automatically be

so much higher than powder cocaine sentences.

   Second, powder cocaine sentences should

under no circumstances be raised. Now that the

defendants charged with powder cocaine offenses are

predominantly minorities as well, raising powder

sentences would make the overall racial disparity

worse.

   Third, with the Commission's assistance,

Congress should immediately review the interaction

of mandatory minimum drug sentencing laws and the

84

tactics and priorities of Federal law enforcement

agencies. In tandem, these policies result in

catastrophic rates of minority incarceration with

untold adverse consequences for minority

communities.

   In 1995, the Commission recommended to

Congress that drug statutes and sentencing

guidelines be altered to eliminate the differences

in crack and cocaine sentencing thresholds. We

were proud to support that proposal, and we regret

that Congress rejected it.

   We continue to believe that the threshold

quantities for these two drugs should be equalized.

We will continue to urge Congress to adopt that

change. But we understand that in the law

rejected, the 1995 proposal, Congress limited the

Commission's ability to propose a 1-to-1 ratio.

We, therefore, urge the Commission to adjust the

crack threshold so that it is as close to the

powder threshold as feasible, consistent with

scientific evidence, without raising the powder

threshold.

85

   If anti-drug efforts are to have any

credibility, especially in minority communities,

these penalties must be significantly revised.

Such a change in Federal law would be a significant

step toward restoring balance and racial fairness

to a criminal justice system that has increasingly

come to view incarceration as an end in itself.

   The Leadership Conference on Civil Rights

would welcome the opportunity to work with this

Commission to rationalize drug sentencing laws and

practices. Such criminal justice reforms are a

civil rights challenge that can no longer be

ignored. Thank you.

   CHAIRPERSON MURPHY: Any questions--

   COMMISSIONER CASTILLO: I thank you for

your testimony. I take it, in a very direct way,

you're saying that the unfounded sentencing

disparity between crack and powder then motivates

Federal agents to prosecute what have been

historically and continue to be historically

minorities and bring them into the Federal criminal

justice system?

86

   MR. HENDERSON: Yes, Judge, that is

certainly one of the premises behind our testimony.

I mean, we certainly believe that much of the

difficulty and the disparity in sentencing is found

at the very outset of the arrest and prosecution

determination by police and prosecutors, both in

deciding who to arrest for what circumstances, who

to charge and the nature of the sentences under

which they are charged, whether to use state and

Federal laws or whether to use--or rather, state

laws--or whether to use Federal laws as the basis

for the prosecution. That's certainly one basis

for the disparity.

   The second is, of course, found, as you've

suggested, in the wide variation in penalties

associated with crack and powder use, and certainly

the wide penalty, the heavy penalty for crack

utilization, promotes, we believe, targeted

enforcement efforts aimed at minority communities;

not for any racial animus, but, rather, because the

penalties are high, and there is a stereotypical

belief that the use of the drug in those

87

communities is having a widespread impact not only

on the quality of life there, but on violence and

the associated problems of the drug trade.

   COMMISSIONER CASTILLO: Isn't this

exacerbated by the fact that most states have

eliminated any type of penalty disparity between

crack and powder?

   MR. HENDERSON: That is correct.

   COMMISSIONER CASTILLO: What would you

think--I know, Mr. Henderson, you have a lot of

political experience. What would you think is the

best way for the Sentencing Commission to proceed

to address this?

   MR. HENDERSON: Well, I think that the

Sentencing Commission, in its 1995 recommendation,

made a sound, well reasoned judgment based on the

facts that were available to you at the time.

   COMMISSIONER CASTILLO: Nevertheless, it

failed.

   MR. HENDERSON: It failed because, of

course, it came into a politically charged

atmosphere where the war on drugs was paramount,

88

and both parties, Democrats and Republicans,

postured politically to avoid grappling with the

underlying issue.

   But today things have changed. As we've

heard from the last panel, the perception of

violence associated with the crack trade has

changed dramatically because the evidence, indeed,

bearing out that perception has changed. It simply

isn't there.

   Secondly, while there continues to be a

war on drugs obviously carried out by the

Administration with the support and blessing of

Congress, things have changed with respect to

current public emphasis, and there does seem to be

a reasoned belief that one should re-examine these

proposals de novo.

   Recently, for example, I had the privilege

of meeting with Senator Sessions to talk about the

proposal that he and Senator Hatch had prepared for

introduction--I believe it's a proposal--that

reduces the disparity down to 20-to-1.

   We believe that that disparity, even at

89

the 20-to-1 ratio, is far too high. But the fact

that Senator Sessions, a well known conservative

Republican, would adopt to-- or rather, seek to

introduce legislation to modify that disparity I

see as a tremendous opening, both substantively and

politically.

   It is akin to President Nixon going to

China, if you will, to have a conservative of

Senator Sessions' type, willing to offer and

discuss a proposal of that magnitude.

   Now the fact that it is joined by the

ranking member of the Judiciary Committee in the

Senate, Senator Orin Hatch, is an indication of

just how dramatically the attitude on these issues

has changed.

   We'd like to build on that, make the kind

of record that the Commission has chosen to do

today, focus on some of the empirical evidence with

respect to the medical and community effects of

these issues and make a case--again, a strong case,

a bipartisan case--that the current approach to

these issues is simply wrong-headed.

90

   COMMISSIONER CASTILLO: Thank you.

   CHAIRPERSON MURPHY: Judge Sessions, no

relation to Senator Sessions?

   COMMISSIONER SESSIONS: Although at one

point in my career, I did hope that I would be

called Senator Sessions at some point, but that

never happened.

   Mr. Henderson, I really appreciate the

testimony that you've given today. Can I assume

from the last part of your prepared text that you

understand that, in 1995, there was a directive

from Congress that suggested that there should be a

difference between crack and powder; that crack

should be treated more harshly, in a sense, than

powder and that we might very well be looking for a

compromise figure?

   Would you be willing to work with us

despite the fact that the result may not be

equalization?

   MR. HENDERSON: Well, certainly, Judge, we

would be willing to work with the Commission and,

in fact, would seek to do that.

91

   I go back to your first assumption that

Congress rejected the notion of equalization.

Certainly Congress rejected that proposal. I'd

like to feel, however--and I think the record

reflects--that there was very little substantive

consideration of the evidence presented by the

Commission which led to what I thought was a

revolutionary judgment on the part of this body.

   I do think that Congress, if properly

educated on the underlying medical considerations

as well as the criminal justice considerations

associated with the disparity, might be more

willing to take a fresh look at this issue;

certainly of the kind that both Senator Sessions

and Senator Hatch have talked about, but perhaps

even to move beyond that, and that would be the

premise under which we'd like to proceed.

   CHAIRPERSON MURPHY: Professor?

   COMMISSIONER O'NEILL: What sort of

efforts have you made most recently to work with

the Department of Justice on this issue? I mean,

obviously, the Department is an enormous player on

92

this.

   Recently, General Ashcroft had announced a

certain restructuring at the Department, to be more

concerned about terrorism offenses--

   MR. HENDERSON: Absolutely.

   COMMISSIONER O'NEILL: --to redirect some

of the efforts--prosecutorial efforts of the

Department. Has much of an outreach been made with

either General Ashcroft or the second in command,

Larry Thompson, or Mike Chertoff, who is head of

the Criminal Division?

   MR. HENDERSON: We have had limited

contact with General Ashcroft himself on this

issue. The matter has been addressed at the Office

of the Assistant Attorney General for Civil Rights,

Ralph Boyd, and there has been an effort to

initiate this conversation at the level of Deputy

Thompson.

   As you know, the Department is, of course,

understandably preoccupied with a number of

considerations right now associated with the

Campaign for Homeland Defense. Obviously much

93

attention is directed there.

   There has not really been, I think, a

moment, a receptive moment, to discuss these issues

in a dispassionate way. But I do think now that

proposals have been floated, certainly in the

Senate, of the kind we've discussed that that

opportunity will present itself.

   I think it is really difficult to expect

any Administration to initiate of its own volition

a change in this area of the kind that we are

talking about without first having a lead prepared

either by the Commission or by some outside group,

whether it's members of Congress or others who

would seek to break the ice.

   I think you know that politically these

issues have resulted in charges and countercharges

being made against those who would seek to advance

this kind of enlightened thinking under the premise

that they're soft on crime. And I think no

Administration wants to open itself up to that kind

of criticism on the front end. While I reject

that--I think it's short-sighted--I do think, at

94

the same time, it's somewhat understandable.

   So what I'm hoping is that with the new

proposals on the table and with a new sense, a new

spirit of openness on the part of Congress, that

the Administration will join in that spirit and

engage in that debate in a meaningful way.

   COMMISSIONER SESSIONS: Do you think that

because of that history of political stalemate that

the Sentencing Commission really has to take a

leadership role on this particular issue? Do you

think that's fundamental to any change that's going

to follow?

   MR. HENDERSON: I do, Judge. I think the

Sentencing Commission has both an obligation and,

in my view, a special moral authority to speak to

these issues unlike any other governmental body

currently on the scene.

   I think it is certainly the Commission

that is charged with the responsibility of

evaluating, of course, the efficacy of our Federal

--our criminal justice statutes.

   But I also think that the Commission has

95

the ability to draw on a number of valuable sources

of information as we've seen today with the first

panel. I think the kind of medical information

which comes into play, as well as an analysis of

the implications of these changes and the actual

enforcement of our criminal laws gives the

Commission a unique vantage point.

   And I think your voice is really deeply

respected and sought in the public debate. So I

think that the Commission has that special

responsibility, and I think people are looking to

see what ultimately you will do with these

proposals.

   CHAIRPERSON MURPHY: Judge Kendall?

   COMMISSIONER KENDALL: Do you think that

our moral authority would carry sway with the black

congressional caucus if we did something other than

equalization because we're certainly hearing that

they would be satisfied with nothing less?

   MR. HENDERSON: Well, you raise an

important question. I think that many of you--your

1995 proposal--as being a proposal which was based

96

on the scientific evidence available to you at the

time and was the proposal that was least directly

affected by external political considerations.

   The fact that you may come back with a

proposal that offers something less than a 1-to-1

equivalency suggests that you have taken into

account other political considerations that did not

affect your decision in 1995. And so some will

find it hard to embrace that recommendation,

recognizing that it may be a pragmatic decision,

but not one that is based entirely on the evidence

available to you or in principle.

   And I think there are going to be some

that will hold out for what they believe to be a

better and more principle judgment.

   CHAIRPERSON MURPHY: Little is unanimous

in life. I think you can all agree on that.

   I'd like to turn now to Mr. Kamasaki.

 STATEMENT OF CHARLES KAMASAKI

   MR. KAMASAKI: Thank you, Judge Murphy,

Vice Chairs Castillo, Sessions and Steer. On

behalf of the National Council of La Raza, the

97

nation's largest Latino civil rights institution, I

appreciate the opportunity to testify here today.

   My statement has three parts. I will

begin with a very brief overview of the National

Council of La Raza's work on criminal justice

issues.

   Second, I will highlight the disparate

impact of existing drug laws on the Latino

community and conclude with recommendations to

promote drug sentencing policies and practices that

are fair and equitable to all Americans.

   Traditionally, the National Council of

La Raza activity on criminal justice issues has

been quite modest, focused principally on

addressing egregious individual incidents and

broader patterns of law enforcement abuse,

particularly by the Immigration and Naturalization

Service.

   In recent years, however, numerous reports

from credible sources, including, I might add, the

Leadership Conference on Civil Rights, have

documented severe growing racial and ethnic

98

disparities in the criminal justice system.

   Many of these reports now include at least

some Latino data which almost uniformly

substantiate patterns of discrimination against

Hispanics at every stage of the criminal justice

system.

   In part, as a result, in August 2000, the

Executive Committee of the Board of Directors of

the National Council of La Raza authorized the

establishment of a new criminal justice policy

project charged with the task of working to reduce

disparities in the criminal justice system. It is

in this context that I appear before you today.

   The 2000 census shows that Latinos

constitute about 12.5-percent of the population of

the United States. Yet, according to the

Sentencing Commission's data, Hispanics accounted

for 43.4-percent of total drug offenders in 2000.

   Of those, 50.8-percent were convicted

for possession or trafficking of powder cocaine and

9-percent for crack cocaine.

   Contrary to popular belief, however, the

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fact that Latinos and other racial and ethnic

minorities are disproportionately disadvantaged by

sentencing policies is not because minorities

commit more drug crimes or use drugs at a higher

rate than whites.

   As Mr. Henderson noted, according to

Federal health statistics, drug use rates per

capita among minorities and white Americans are

remarkably similar.

   The evidence strongly suggests that from

the moment of arrest to the pre-trial detention

phase to the charging and plea bargaining decisions

of prosecutors, through the adjudication process,

the determination of a sentence and the

availability of drug treatment, Latinos encounter a

criminal justice system plagued with prejudice and

discrimination.

   A forthcoming NCLR analysis of Federal

crime statistics data--and those are noted in my

written statement--shows, for example, that

Hispanic and black Federal defendants are far more

likely than white defendants to be charged for drug

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offenses; that Hispanic defendants are only about

one-third as likely as non-Hispanic defendants to

be released before trial; that a prisoner's release

by standards for drug offenses, Hispanics serve

similar sentences as whites in prisons for the same

offenses despite the fact that Hispanic defendants

had far less extensive criminal histories than

their white counterparts.

   The statistics go on to show that

approximately 3 out of 100 Hispanic men in the 25

to 29-year-old age range have been sentenced to

Federal prison, three times the rate of that of

white men; and finally, that Hispanics accounted

for approximately 1 in 4 of the Federal inmate

population in 1997; and further, that Hispanic

Federal prison inmates were the least likely of any

racial and ethnic groups to receive any form of

substance abuse treatment while in prison.

   That the sobering statistics are largely

the result of irregularities in drug enforcement is

largely beyond dispute. For example, as seen in

the table cited in my written statement, nearly

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three-quarters of Latino Federal prison inmates are

incarcerated for drug offenses, by far the largest

proportion of any group.

   Moreover, as the data show, Latinos are

the least likely of any major group to be

incarcerated for violent offenses; thus, contrary

to the popular stereotype, the overwhelming

majority of incarcerated Latinos have been

convicted of relatively minor, non-violent

offenses, are first time offenders or both.

   Recent public opinion research reveals

that a large majority of the public is prepared to

support more rational sentences for these first

time offenders and little wonder. The cost of

excessive incarceration to the groups affected and

to the broader American society in terms of reduced

current economic productivity, barriers to future

employment, inhibitions on civic participation and

growing racial and ethnic societal inequalities are

extremely high.

   NCLR believes that this Commission can

play a critical role in reducing unnecessary and

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excessive incarceration of race of Latinos in the

United States.

   This Commission has requested comments

concerning sentencing of defendants convicted of

crack and powder cocaine under the sentencing

guidelines. NCLR shares the concern expressed by

numerous commentators regarding the blatant

discriminatory effect of the 100-to-1 powder crack

sentencing disparity.

   However, as Mr. Henderson noted, we would

oppose any attempt to reduce such disparities by

increasing penalties on powder cocaine users. As

the Commission's data demonstrate, Latinos are

significantly over-represented among those

convicted of powder cocaine offenses.

   Furthermore, lowering powder thresholds

would increase average sentences by at least 14

months overall and probably higher for Latinos with

the inevitable increase in overall incarceration

rates.

   In our judgment, the real world tangible

harm produced by lowering the powder thresholds

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would far outweigh the abstract, symbolic value of

reducing statutory sentencing ratios.

   Specifically, NCLR urges the Commission

to, first, substantially redress the crack powder

ratio disparity by raising the crack thresholds and

maintaining the powder thresholds.

   NCLR commends the Commission's 1995

recommendations to Congress, and while we recognize

that current law constrains the Commission from

resubmitting this recommendation, we would urge

that the ratio be equalized as much as possible by

raising to the greatest allowable extent the level

that triggers penalties for crack cocaine.

   Second, we would urge that you resist

proposals that would lower the powder thresholds.

We note that reducing the powder threshold would

have a disproportionate negative impact on the

Latino community and know further that although

this action might be perceived as reducing

sentencing inequalities, it would have the perverse

effect of substantially increasing incarceration

levels.

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   Finally, we ask that you make more widely

available alternative methods of punishment for

first time, non-violent, low level drug offenders.

   We urge the Commission to seize this

unique opportunity to simultaneously narrow drug

sentencing disparities and reduce incarceration

rates of first time, non-violent, low level

offenders.

   CHAIRPERSON MURPHY: Mr. Kamasaki, those

figures that you used when you were talking about

Hispanics that were incarcerated, were those

Federal defendants incarcerated or did they include

state and Federal?

   MR. KAMASAKI: These are Federal data.

   CHAIRPERSON MURPHY: Thank you.

   COMMISSIONER CASTILLO: I just want to

thank you for your testimony. I think it's

important for the National Council of La Raza to be

involved in criminal justice issues because there

seems to be a vacuum among Latino organizations

involved in this. So I want to thank you.

   MR. KAMASAKI: Thank you. That was the

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same observation that our Board of Directors made.

   CHAIRPERSON MURPHY: Yes, I think Judge

Castillo talked with some groups to invite them or

encourage them to come, and it wasn't an issue, I

guess, that they wanted to address at this time.

Vice Chair Steer?

   COMMISSIONER STEER: I want to thank you

for your testimony. I think it's the first time

that your organization has been represented before

the Commission. It might be the first time you've

even submitted comments. So I think we'll benefit

and hope we'll continue to have you involved in the

process.

   I just wondered as a matter of historical

involvement if your organization interacted with

those in the past Administration who were

responsible for that Administration's ultimate

recommendations to increase powder penalties

substantially?

   MR. KAMASAKI: We had very modest

involvement in the 1995 debate, and frankly, most

of that was under the umbrella of the Leadership

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Conference.

   We had several discussions with officials

in the Clinton Administration on the broad issues

of criminal justice, and I think I would agree with

Mr. Henderson's characterization that, at least at

the time, it seemed many elected officials and

appointed officials and other policy-makers of both

parties seemed, in our judgment, unduly concerned

about being accused of being soft on crime.

   I would agree with Wade--and I think the

public opinion polls would demonstrate--that to a

large extent, we think that situation is changing.

Just to give you a sense from the Latino

perspective, it is widely suggested by many that

the Latino community is a very conservative

community when it comes to crime, and I think there

is some support for that in the public opinion

research.

   We have been struck in recent years both

by some apparent shifts in the public opinion

research as well as requests from our grassroots

network of Latino organizations to get involved in

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the criminal justice system, in part because given

the high rates of incarceration, it is difficult at

this point to find very many Hispanic families who

have not been impacted one way or another by what

we believe to be rates of over-incarceration.

   So to the extent that the Latino community

is at all representative of the general public, we

think there is a clearly palpable, almost tangible

shift in public attitudes on this issue, and we

hope that would be reflected by policy-makers as

well.

   CHAIRPERSON MURPHY: You know, in the last

Congress, there was an amendment to the bankruptcy

bill that was put forward by Senator Abraham that

would have raised the number of Hispanics.

   Did you do anything in active concert in

reaction to that?

   MR. KAMASAKI: I don't think I'm familiar

with the issue, no.

   CHAIRPERSON MURPHY: Well, it was at the

end of the session, so maybe--

   COMMISSIONER STEER: Probably happened too

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rapidly, I think, for him to have had much of a

role when it was brought up on the Senate floor.

   CHAIRPERSON MURPHY: Mr. Sessions?

   COMMISSIONER SESSIONS: I guess this is a

question for both of you and that is that in our

publication, we've listed possible enhancements for

possession or use of guns and injuries in the

course of drug distribution, as example, together

with prior drug felonies.

   Naturally, that would result in increased

penalties to all defendants who fall within those

categories, and obviously disproportionately,

according to your testimony, upon people of color.

   On the other hand, it's in response to

what Congress seemed to be concerned about; that

is, violence, et cetera, and injuries within

communities. And I guess I'm interested to know

what your response is to those enhancements.

   It would increase penalties with regard to

power cocaine and crack cocaine, at least in those

very limited circumstances.

   MR. KAMASAKI: I guess I would answer that

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in three ways. As an alternative to mandatory

sentences predicated as Dr. Blumstein noted

earlier, that entire categories of people are more

likely to be violent, we certainly would prefer

some what you called enhancement, I believe what he

called augmentation, as a fairer and more rational

strategy.

   Second, however, I would raise some

cautions regarding the notion that automatically

there ought to be significant enhancements based on

prior criminal history.

   If Mr. Henderson and I are correct that at

least some portion of the disproportionate

incarceration of Latinos and African Americans is

attributable not to their behavior, but to arrests

and charging, as well as potentially sentencing,

policies, we would argue that that practice, as an

across-the-board practice, would tend to exacerbate

these inequalities further over time.

   So if you're asking if we had our

druthers, I think we would prefer, as we testified

to, a simple narrowing of the threshold without

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further enhanced penalties on the powder

sentencings.

   MR. HENDERSON: I would agree with

Mr. Kamasaki. I think that Professor Blumstein set

forth, I think, a very rational basis for providing

augmentation where appropriate for culpability

based on the role that the individual may play or

whether that individual may have been associated

with violence.

   I do think looking back too closely at

prior criminal history does not take into account

the degree to which that prior history may have

itself have been the subject of a focus or targeted

enforcement effort based on race and ethnicity.

   And for that reason, the impact that such

an augmentation could have on our communities I

think could be quite substantial.

   I certainly think it is far better to use

culpability and the nature of the specific offense

as the basis for making that decision far better

than relying on the quantity of a particular kind

of cocaine carried in this particular instance.

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   So I would support Mr. Kamasaki's remarks,

and certainly I felt Professor Blumstein laid out a

fair basis for making those judgments.

   CHAIRPERSON MURPHY: We've reached the

time when we're supposed to be concluding the

hearing, and we have another topic. We have a

terrorism panel.

   Thank you very much for coming. It's

probably hard to express how helpful it is for us

to hear your thoughts as we try to think about the

best way to proceed here.

   MR. KAMASAKI: Well, thank you very much.

We appreciate it.

   CHAIRPERSON MURPHY: Mr. Jarboe and

Ms. Corken.

   CHAIRPERSON MURPHY: Mr. Jarboe is from

the Federal Bureau of Investigation where he's the

Section Chief of Domestic Terrorism,

Counterterrorism Planning Section. You must be

busy these days.

   And Cathleen Corken from the Department of

Justice. She's the Deputy Chief for Terrorism, and

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I would just say ditto.

   As you know, the Commission did work on

terrorism last year and sent a memo to Congress

dealing with the guidelines related to terrorism

and thought we had closed the book on that subject

for a while, but obviously that wasn't the case.

And we are busy again and working in response to

the Patriot Act and so forth.

   So without more ado, let me turn to you,

Mr. Jarboe.

  STATEMENT OF JAMES F. JARBOE

   MR. JARBOE: Thank you, Judge. My name is

James Jarboe, with the Federal Bureau of

Investigation. I appreciate the Commission

allowing us to come here and testify today.

   The Federal Bureau of Investigation

welcomes the efforts of the United States

Sentencing Commission to promulgate, assign

appropriate sentencing guidelines for terrorism

offenses.

   I'm going to leave any detailed discussion

of specific guidelines to the written comments that

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the Department intends to submit. In my testimony

today, I would like to briefly address several

specific areas of importance to the Bureau and hope

to provide you with a practical law enforcement

perspective on the need for effective guidelines

that will deter and appropriately punish terrorism

offenses together with some examples of real world

investigations by the FBI in the arena of threats

and hoaxes.

   Let me begin with the threats and hoaxes.

These are threats to commit terrorist acts, and

hoaxes falsely reporting terrorist acts are serious

offenses and should be penalized accordingly.

   Terrorist threats frequently involve the

threat of death or serious physical injury to many

people. They can cause great psychological harm

and trigger significant disruption.

   Investigative agencies like the FBI are

keenly aware of the need to evaluate and respond to

such threats so as to prevent the threatened

conduct from occurring. The drain on our resources

can be significant.

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   Similarly, hoaxes and false reporting of

terrorist acts can cause great psychological harm.

As was done before September 11th, both victims and

law enforcement agencies must take reports

seriously until they are disproved.

   Moreover, the FBI and other law

enforcement agencies need to develop their

resources to investigating real threats to the

United States and its citizens. Terrorist hoaxes

undermine our ability to do so.

   Let me tell you about an actual threat

case. A disgruntled employee threatened to blow up

an oil refinery unless he was paid a specific

amount of money. The employee threatened to place

the explosives at a vulnerable place in the

refinery and talked about the possibility of mass

casualties from the explosion as well as monetary

loss to the refinery.

   The FBI was alerted and eventually

discovered a large cache of weapons and ammunition

together with technical documents on the structure

of explosive devices. Clearly this type of case

115

warrants substantial punishment.

   But even if we had not discovered the

weapons and documents, a threat of this type has to

be taken seriously by the object of the threat and

by the FBI and warrants appropriate punishment.

Resources used to verify the threat as credible or

non-credible are the same.

   As you know, the U.S.A. Patriot Act

created two new felonies relating to biological

agents. First, they acclimated a crime to possess

a biological agent of any type or in any quantity

that is not reasonably justified by a peaceful

purpose.

   Second, they acclimated a crime for people

like felons and fugitives to possess or ship select

agent which are extremely dangerous substances,

like Anthrax and botulism toxins.

   From our perspective, these felonies are

serious crimes and warrant appropriate penalties.

The entire country has experienced what can happen

when select agents, such as Anthrax, fall into the

wrong hands.

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   Any future attacks involving such agents

could be far more virulent and deadly than the

Anthrax attacks that panicked the nation last fall;

thus, it is imperative that select agents be

possessed only by those people who lawfully have

the right to possess them.

   Similarly, the FBI takes very seriously

the possession of biological agents or toxins that

is not reasonably justified by a peaceful purpose.

Absent a reasonable justification, such possession

raises serious concerns about public safety. It

too should be appropriately punished.

   We applaud the Commission's efforts to

assign appropriate guidelines to 18 USC 2339(a) and

USC 2339(b). Hereto let me share with you the

FBI's perspective on these offenses.

   With regard to Section 2339(a), our view

is that a defendant who provides material support

to a terrorist, knowing and intending that the

support to be used to commit a terrorist is no

better than the terrorist himself and should be

punished accordingly.

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   As for Section 2339(b), that statute

blocks the provision of material support to foreign

terrorist organizations that the Secretary of State

has specifically designated because of the threat

they pose to the national security of the United

States or to the security of U.S. Nationals.

   We do not need to look past September

11th to see the extraordinary harm foreign

terrorist organizations can cause the United

States. Al-Qaida is far from the only foreign

terrorist organization that has killed Americans or

that poses a threat to American interests.

   Anyone who provides such organizations

with the resources they need to operate commits a

serious offense. Furthermore, material support

that directly facilitates the recipient

organization's violence and terrorist capabilities

is particularly deserving of harsh punishment.

   In one pending case, the defendants are

charged with conspiring to provide various physical

assets, including explosives, to a designated

foreign terrorist group in order to facilitate its

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violent attacks. This type of alleged behavior is

particularly dangerous.

   Let me turn to the issue of attacks on

infrastructure. The FBI believes that attacks on

infrastructure facilities pose unique risks and

harms. Whether or not an infrastructure facility

is publicly owned, its destruction or disabling may

affect thousands or even millions of people who

rely on a facility for basic services.

   The destruction of facilities, such as

natural gas pipelines, may pose a direct threat to

public health and safety through the potential

release of toxic substances.

   Consider for example the threat case I

discussed earlier and imagine what might have

happened if the employee had actually blown up the

refinery or consider the Alaskan pipeline case in

which a defendant has been charged in connection

with the alleged plot to blow up several sections

of the Alaskan pipeline.

   The pipeline supplies one-fifth of

domestic U.S. crude production, and the defendant

119

allegedly intended to profit from the result and

disruption in oil and gas supplies.

   As these cases illustrate, attacks on

infrastructure facilities pose unique risks and

harms to the United States.

   Another issue under consideration by the

Commission is how to punish terrorist conspiracies.

In our view, the punishment for conspiracies to

commit terrorist should mirror the punishment for

the completed offenses, at least where Congress has

provided the same penalties.

   Terrorists are typically fanatical zealots

who do not voluntarily withdraw from conspiracies.

If their conspiracies are aborted before

completion, that will typically be the result of

law enforcement work or of other factors beyond the

conspirator's control. We see no reason why

factors such as these should lead to any lesser

punishment.

   Consider the case of Ramzi Yousef,

mastermind of the 1993 World Trade Center bombing.

He went to the Philippines and planned a number of

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additional terrorist attacks, including a plot to

simultaneously bomb 12 American passenger planes in

flight over the Pacific in January 1995. There

were thousands of passengers aboard these targeted

jets.

   This massive scheme was foiled when Yousef

started a fire in the kitchen of his Manila

apartment while mixing explosive chemicals. Should

it matter in sentencing someone like Yousef that an

accident foiled his plans? I don't believe it

should.

   The Commission has also requested comment

on terrorism adjustment in Section 3A-1.4. The FBI

strongly supports an appropriate adjustment for

terrorist crimes commensurate with the harm they

cause and the threat they pose, and we completely

agree with the points made by--the points that will

be made by Ms. Corken in her testimony pertaining

to this adjustment.

   Let me single out, in particular, the need

for severe punishments for persons who lied to FBI

agents, who falsified documents or otherwise

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obstruct the investigation or prosecution of a

terrorist offense.

   Offenders who engage in this type of

behavior are accomplices to terrorism and undermine

our effort to prevent and punish terrorist attacks.

They should be treated accordingly.

   Finally, turning to the issue of

supervised release, we would point out that a

lengthy term of supervised release, possibly

including life, may be appropriate in at least some

terrorist cases. As noted above, terrorists tend

to fanatical zealots, and their support for

terrorism will not necessarily dissipate in prison.

The risk of recidivism is, therefore, quite high.

Thus, it may be appropriate to impose an especially

lengthy term of supervised release in some cases.

   In conclusion, I would like to thank you

for the opportunity to testify today. I would be

happy to answer any questions.

   CHAIRPERSON MURPHY: Mr. Sessions?

   COMMISSIONER SESSIONS: You made a comment

about material supporters essentially being no

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better than the terrorists themselves. Do you mean

to suggest that all material supporters of a

terrorist act should be sentenced to the same

thing, no matter what they did?

   MR. JARBOE: Well, I think it would be

very--from my perspective as the investigator, it

would be very difficult to separate one act from

another, and where does it become immaterial with

support to a terrorist organization?

   If you're going to knowingly and actively

support a group, you know what the ultimate goal

is. As I said, we've seen through September 11th

and prior attacks what the ultimate goal is, and

that's to destroy American infrastructure and kill

U.S. citizens.

   So, therefore, again, from my perspective,

if you support a terrorist group and you do an

overt act to support a terrorist incident, I think

the punishment is equal to do actually doing the

incident.

   COMMISSIONER SESSIONS: Well, yes, but

you've got some material supporters who provided

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information about the design of buildings and how

they could be destroyed or perhaps even there's

some persons who would provide explosives to

terrorists, and then there's others who play much

more minor rules, you know; for instance, make it

possible for terrorists to have driver's licenses.

   Even though they know that they're

terrorist organizations, they may not know about

the whole scope of the terrorist's plans, but they

provided information which allowed the terrorists

to get driver's licenses.

   Are you suggesting that really the person

who provided the information for driver's licenses

should be treated the same as the person who

provided explosives to terrorists or provided

information which could result in the destruction

of buildings or direct deaths of human beings?

It's a broad brush is what I'm suggesting.

   MR. JARBOE: Right, it is a broad brush,

and not to use a euphemism, but we are sort of

splitting hairs as to what is material support and

what is not material support. I think the court

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system has allowances within it to account for

those issues.

   COMMISSIONER SESSIONS: But would you take

a position that there should not be some factors

with a guideline system which would give courts

direction on how they should weigh these specific

acts; give courts flexibility essentially to

actually assess what the material supporter did?

   MR. JARBOE: Well, certainly some

flexibility is something to be determined. I think

Ms. Corken will probably address that in her

remarks. Being from the Department of Justice,

would have better direct comments to your answer

than would I. But if you support terrorism, you're

part of a terrorist organization.

   CHAIRPERSON MURPHY: Okay. Professor?

   COMMISSIONER O'NEILL: I just have one

quick question. You mentioned the peculiar

problems involved with the supervised release of

terrorists that may not necessarily have repented

of their ways and may still pose a threat or danger

to the United States.

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   Do you think there's some benefit in

having the Sentencing Commission perhaps draft

entirely discretionary guidelines for Judges

dealing with the supervised release of folks like

this?

   MR. JARBOE: Well, again, you're walking

in sort of new territory where we haven't gone

before. If they're foreign terrorists, my vote

would be to expel them from the country as soon as

they're released so we wouldn't have that issue.

   U.S. terrorists are a little different,

though, in their mind-set. If you look at the

white supremacists, they believe just as fervently

as does Al-Qaida about their terrorist acts.

   You're dealing with folks who don't think

like you and I do. They live, they breathe

whatever their philosophy is, and they truly

believe it. This is not someone who just needs

money to go to buy--as we heard in testimony

earlier, a lot about crack cocaine and powder

cocaine. That's not the kind of criminal we're

dealing with.

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   This is a philosophical criminal. This is

a way of life criminal. I think you need to keep a

very close handle on them for an extremely long

period of time. If you give them an opening, they

will do it again.

   I think Ramzi Yousef said, "I am a

terrorist. If you let me go, I'll do it all

again."

   CHAIRPERSON MURPHY: Okay, Ms. Corken.

  STATEMENT OF CATHLEEN CORKEN

   MS. CORKEN: Thank you. Good afternoon,

and thank you for having me here today.

   You too have been busy, and we appreciate

the efforts of the Commission and your staff in

developing the proposed amendments to the terrorism

related guidelines.

   We are submitting detailed comments. I

would like today just to focus on a few of the more

significant areas for proposed amendment.

   Turning first to threats, conveying false

information and hoaxes, an issue that the

Commission has raised common to all of those

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offenses is should the offense levels for those

offenses mirror the offense levels applicable to

the underlying substantive offense.

   In our view, the guidelines should

recognize some distinction between threats,

conveying false information, hoaxes, on the one

hand, and the actual commission of a terrorist

offense on the other.

   That said, we do think that it's critical

that the guidelines recognize the seriousness of

threats, hoaxes and conveying false information in

the terrorism context. In our view, those offenses

are of a different ilk, a different nature than

similar offenses in other contexts.

   When we look at the guidelines and we see

the generic guideline applicable to threats,

2(a)6.1, that gives us some difficulty because the

base offense level in that guideline, in our view,

does not reflect the seriousness of threats in the

terrorism context.

   What we would suggest is that threats,

offenses involving conveying false information as

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well as hoaxes be referenced to 2(a)6.1, but that

there be some modification to that guideline to

account for the specific elements that make these

offenses more serious in the terrorist context.

   What we would suggest is that the

Commission consider enhancements reflective of the

heartland, of terrorist threats, and offenses

involving conveying false information and hoaxes,

and those enhancements might include an enhancement

for offenses that involve an express or implied

threat of death or serious bodily injury. That's

an element that we routinely see in these types of

offenses in the terrorism area;

   Second, an enhancement for conduct

evidencing an intent or apparent ability to commit

the offense, and that would require a modification

to a current specific offense characteristic in

2(a)6.1;

   Third, an enhancement for offenses that

involve multiple victims, which is an element that

we commonly see in the terrorist area;

   Four, an enhancement for offenses that

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result in substantial disruption of public services

or substantial expenditure of funds to respond to

the offense, again a very common element that one

sees with respect to terrorism offenses of this

kind.

   In our view, there are substantial

benefits of modifying 2(a)6.1 in the manner that we

suggest. As you know, there are acts that are

prosecuted under these statutes that may not be of

a terrorist nature.

   By designing specific offense

characteristics in the way that we suggest, it is a

means of grading between the seriousness of

different offenses.

   Finally, our final point on this issue is

that we view threats offenses conveying false

information/hoax offenses virtually

indistinguishable. We don't see that there's a

meaningful distinction in the culpability of

defendants that commit those offenses, and we

suggest that they be treated the same under the

guidelines.

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   I'd like to turn briefly to the new

offenses relating to biological agents. As you

know, the U.S.A. Patriot Act added two new offenses

involving the unlawful possession of biological

agents.

   We support the Commission's proposal to

assign those offenses to 2(m)6.1. We believe

that's the appropriate guideline for those

offenses.

   The Commission has suggested that it is

considering a base offense level of between 14 and

22 for these offenses. After considering the

matter, it's our view that 22 would be the most

appropriate base offense level for these offenses.

   We think that both of these types of

offenses are more serious than threat offenses

captured under 2(m)6.1(a)(3), where the base

offense level is 20. And the reason that we

consider these new offenses to be more serious is

that the defendants have at their disposal the

means to potentially inflict enormous--enormous

harm.

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   The possession of biological substances

that is not reasonably justified by a peaceful

purpose is threatening to society at large, and the

possession of select biological agents, such as

Anthrax, by persons that Congress has determined

aren't fit to possess them similarly pose grave

potential risks to society. In our view, the base

offense level of 22 would reflect the seriousness

of the offense conduct for these violations.

   The Commission has also asked whether

particular specific characteristics should apply to

these offenses and in particular, the one related

to select agents and then second, the specific

offense characteristic relating to the disruption

of government or business services, the expenditure

of significant funds to respond. Our view is that

both of those specific offense characteristics

should apply.

   One, with respect to the select agent

specific offense characteristic, because we're

talking about offenses involving the possession of

biological agents, you do want to account for the

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increased seriousness where there is a select agent

involved.

   And then second, where you do have

individuals possessing these materials, as I'm sure

Jim will support in his experience, if you have a

real agent, there is no question that there will be

a substantial response, a substantial expenditure

of funds. Just look at what happened on the Hill

with respect to the Anthrax incident.

   I'd like to turn briefly to the assignment

of guidelines to 18 USC 2339(a) and 2339(b). We

strongly support the assignment of appropriate

guidelines to those statutes.

   We think, though, that those offenses

should be treated separately for purposes of the

guidelines. The Section 2339(a) offenses

criminalizes the provision of material support, as

you know, which the defendant knows or intends will

be used in connection with a specific enumerated

offense.

   We believe that the most appropriate way

to punish those offenses is by reference to the

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underlying offense that the defendant was

supporting, and this can be accomplished through

referencing Section 2339(a) to two existing

guidelines.

   The aiding and abetting guideline would

apply when the defendant's conduct is akin to

aiding and abetting; that is, when the defendant

provides the material support in advance of or

during the commission of the predicate offense.

   When the Section 2339(a) defendant

provides material support subsequent to the

commission of the predicate offense; that is, in

connection with concealment of the offense or

escape from it, then the defendant is essentially

acting as an accessory after the fact, and the

appropriate guideline, in our view, would be

Section 2(x)3.1.

   In our judgment, there are reasons to

treat Section 2339(b) cases differently. Those

offenses are not tied to specific predicate

offenses, and they are based, rather, on the

dangerous nature of the recipient, a designated

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foreign terrorist organization.

   Congress has found that any material

support provided to such an entity, regardless of

the nature of that support, facilitates its

terrorist activity and regardless of whether the

material support is directly or explicitly tied to

a specific terrorist act.

   There is an existing guideline that

appears to be applicable by analogy to Section

2339(b) cases, and that would be Section

2(m)5.1(a)(1), which applies to the evasion of

national security controls under the Export

Administration Act.

   While there is an analogous guideline

arguably, in our view, it would be nevertheless

appropriate for the Commission to enact a new

guideline that is specific to 2339(b), and that

includes specific offense characteristics

appropriate to such offenses that are not found in

Section 2(m)5.1.

   The Commission has set forth two possible

base offense levels for Section 2339 violations,

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either 26 or 32. In our view, the base offense

level of 26 is adequate provided that it's coupled

with two specific offense characteristics.

   We would suggest that there be included a

specific offense characteristic where the material

support involves the provision of weapons,

explosives or lethal substances because such

materials are inherently dangerous and facilitate

the recipient organization's terrorist activity in

a direct and substantial way. And I can address

this further in the question and answer period if

you'd like, but I think it's very difficult to

determine item by item whether, by the nature of

the item, it is indispensable to the commission of

the terrorist act.

   I think it's hard to, up front, make

further distinctions beyond explosives, lethal

substances, which I think we can all say up front

directly and material contribute to the commission

of a terrorist offense.

   On infrastructure facilities, the

Commission has proposed certain guideline

136

references for offenses involving the violation of

49 USC 6123(b) relating to the damaging or

destroying an interstate gas or hazardous liquid

pipeline facility.

   As Jim mentioned--I'm sorry. Does that

mean that I should stop? Sorry. Does that mean

that I should stop because I will; I'll wrap up

very quickly?

   CHAIRPERSON MURPHY: Try to do that.

   MS. CORKEN: Okay. On infrastructure

facilities, obviously--you have my written

statement--we have some difficulty with 2(k)1.4 and

2(b)1.1, and we would just urge the Commission to

take a look at both of those guidelines in terms of

their application to infrastructure offenses.

   Conspiracies and attempts, as Jim has

already mentioned, we feel strongly that

conspiracies to commit terrorism offenses and

attempts should be treated in the same manner as

commission of the substantive offense where

Congress has so provided.

   The terrorism adjustment in Section 381.4

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should be modified along the lines that the

Commission is suggesting. We support strongly the

clarification that is suggested that the

enhancement would apply to offenses that occur

after the commission of the Federal crime of

terrorism.

   And finally, on supervised release, we

would suggest that a range be provided for offenses

that are covered by Section A-12 of the U.S.A.

Patriot Act basically and that that range be 5 to

life, noting that under 18 USC 3583(e), a court

might subsequently modify or terminate the

supervised release if appropriate.

   Thank you for the opportunity to testify.

I apologize if I went over time.

   CHAIRPERSON MURPHY: Did she already

answer your questions to your satisfaction?

   COMMISSIONER SESSIONS: Yes. I have

another one, though. Well, no, I--

   CHAIRPERSON MURPHY: She also touched on

supervised release. Michael, I don't know if you

need to ask anything more.

138

   COMMISSIONER O'NEILL: Nope. I think I'm

taken care of.

   CHAIRPERSON MURPHY: I think you're

seeing--I'll get to your job, but I think you're

seeing the effect of our concentrating intently all

day on what we were doing and--

   MS. CORKEN: Sure.

   CHAIRPERSON MURPHY: John?

   COMMISSIONER STEER: I want to take issue

a bit with your analysis on attempts and

conspiracies, but I'm not sure I'll come out

greatly differently.

   Two things. First of all, it seems to me

that the analysis of the amended statutes is to

simply say that because Congress has made a

decision that the general conspiracy statute should

not apply and a defendant should be subject

potentially to the same stat max, that that means

that the penalties should be the same across the

spectrum.

   It seems to me--I don't get that from the

statutes, and I don't know any legislative history

139

to that effect, and it seems to me a rather--a leap

to a conclusion that might be warranted for other

reasons, but not simply because of the statutory

amendment.

   As you yourself recognize, we treat some--if you

think of a spectrum, threats and hoaxes on

one end, and then somewhere in the middle your

inchoate offenses, attempts and conspiracies, and

then your completed offenses certainly more

serious.

   Ordinarily I think we would want to, it

seems to me, to provide some gradation in the

severity of punishment. But this is where I--it

seems to me that, though, when we're dealing with

terrorist offenses, maybe we should cut to the

chase a bit and don't make that distinction for

attempts and conspiracies because, as you point

out, probably they would have been completed but

for the intervention of law enforcement.

   The problem I have is that some of the

statutes for which you propose this remedy are

broad-based. They involve more than just

140

terrorism, like threatening to blow up a pipeline.

That could be done for reasons other than a

terrorist objective. That could be done just

because someone doesn't like the company, you know,

wants to cause them damage.

   So I'm wondering if maybe a limitation on

that remedy to terrorist offenses might not be

appropriate, things that are done for a terrorist

objective, rather than simply saying that all

attempts and conspiracies under these statutes are

going to be treated differently; for example, an

attempted robbery, where we do allow, in some

circumstances, a different less severe treatment.

   MS. CORKEN: I clearly haven't done a

survey of all the statutes in the conspiracy

provisions, but my guess would be that if one were

to conduct such a survey, that you would find that

statutes that have conspiracy provisions that have

the same penalty as the commission of the

substantive offense are in statutes where the

conduct is generally viewed as being more serious.

   I know with respect to terrorism offenses

141

that it is generally the case that the statutes

provide for conspiracies themselves, and it is so

that 371 does not apply because the conspiracies to

commit those acts are generally viewed as more

serious.

   I'm not sure about separating, you know,

treating conspiracies with terrorism objectives in

one manner and conspiracies that arise under the

same statutes in a different manner. Practically

speaking, I'm not sure that it's always possible to

make that kind of a distinction, and I'm not sure

that you would want to go that route.

   In the Alaskan pipeline case, it's an

extremely serious plot, but there's, I don't think,

any evidence that it is truly a terrorist plot, per

se. Nonetheless, you would want to punish a

conspiracy, I think, that has the ultimate

objective of blowing up the Alaskan pipeline pretty

severely.

   So I'm just not sure that it is worthwhile

to make a distinction between conspiracies with

terrorism objectives and other types of

142

conspiracies where the same statute is at issue

because of the serious nature of the conduct

involved.

   CHAIRPERSON MURPHY: Well, we're going to

be continuing to think about this, and our staff

has been working on developing these things too.

So this is--it's very helpful to get your input.

   We're all seeking the same ends here. So

I express our thanks to you two also and also for

having to wait until the end and be the last ones.

Thanks a lot.

   MS. CORKEN: Thank you.

   CHAIRPERSON MURPHY: We'll adjourn until

tomorrow morning at 9. Upstairs for half-an-hour

and then here at 9:30.

   [Whereupon, at 5:31 p.m., the public

hearing was adjourned, to reconvene at 9:00 a.m. on

Tuesday, February 26, 2002.]


1. The estimated percentage of cocaine users that inject varies widely depending on factors such as region of the country and population of users. From national data sets, use rates for injection cocaine vary from 2.8 percent to 17.2 percent. [1999 Household Survey on Drug Abuse; 1999 Treatment Episode Data Set (TEDS)]. Looking at regional sites the variation is even greater. A series of cross-site analyses was conducted of cocaine using drug abusers in which the rates of injection varied from 3 percent at one site to 52 percent in another site. [Compton WM, Lamb RJ, Fletcher BW. Results of the NIDA treatment demonstration grants' cocaine workgroup: characteristics of cocaine users and HIV risk behaviors. Drug and Alcohol Dependence 1995;37:1-6)]. In an HIV prevention study of cocaine abusers recruited using street outreach methods in Saint Louis, researchers found that 32 percent of the cocaine users reported injecting the cocaine in the 30 days prior to intake.

It may be important to note that this sample isnot representative of the general population but specifically targeted drug abusers who were expected to be at high risk of acquiring HIV. [Compton WM, Cottler LB, Ben-Abdallah A, Cunningham-Williams R, Spitznagel EL. The effects of psychiatric comorbidity on response to an HIV preventionintervention. Drug and Alcohol Dependence 2000;58:247-257.]