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]
Monday, February 25, 2002
C O N T E N T S
DIANA E. MURPHY, Chair 4
PANEL ONE - MEDICAL/ACADEMIC COMMUNITY
GLEN HANSON, D.D.S.
National Institute on Drug Abuse 6
DEBORAH FRANK, M.D.
Professor of Pediatrics
Boston University School of Medicine 25
IRA J. CHASNOFF, M.D.
Children's Research Triangle 38
ALFRED BLUMSTEIN, Ph.D.
Professor of Urban Systems and Operations
Carnegie Mellon University 50
PANEL TWO - COMMUNITY REPRESENTATIVES/INTERESTED
Leadership Conference on Civil Rights 75
Senior Vice President
Office of Research, Advocacy, and Legislation
National Council of La Raza 96
C O N T E N T S [Cont'd.]
PANEL THREE - LAW ENFORCEMENT
JAMES F. JARBOE
Section Chief, Domestic Terrorism
Counterterrorism Planning Section
Federal Bureau of Investigation 112
Deputy Chief for Terrorism
Department of Justice 126
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
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
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
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
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
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
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
Today I will address my comments
principally to cocaine and the issues, the things,
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
The form of administration or the type of
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
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
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
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
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
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
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.
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
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
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
The reason are twofold. One is that
individuals who administer their drug through
intravenous means may be using contaminated needles
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
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
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
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
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.
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
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
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
CHAIRPERSON MURPHY: Yes, Professor
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
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
crack and cocaine, whether in terms of each drug's
harm to the individual substantiates that
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
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
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
DR. HANSON: It wouldn't be substantiated
if you're talking about intravenous administration.
COMMISSIONER O'NEILL: That's what I mean
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
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
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
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
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
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
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
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
DR. HANSON: The likelihood of addiction
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
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
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
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
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
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
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
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
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
cocaine-crack exposure on certain newborn outcomes
very similar to those associated with prenatal
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
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
In other words, while there are detectable
newborn effects of prenatal exposure to cocaine or
crack, they are not different from and certainly
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
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
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
Only about half of the published studies
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
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
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
DR. FRANK: There will soon be an article
coming out which actually found a five point
decrement of cocaine on 2-year-old developmental
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
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
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
Can I read my last sentence?
CHAIRPERSON MURPHY: Yes.
DR. FRANK: Okay. None of these measures
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
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.
COMMISSIONER SESSIONS: Is that the public
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.
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
DR. FRANK: Heavy alcohol, absolutely, no
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
cocaine use is the phenomenon of the so-called
"crack baby," and that's what I've been asked to
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
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
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
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
dopamine receptor system of the developing fetal
In this context, I do want to make some
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
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
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
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
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
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
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,
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
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
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
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
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
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
to the level of violence associated with, say,
heroin, cocaine, methamphetamine, marijuana, what
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
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
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
Our findings are similar whether the child
was exposed to cocaine, powder cocaine or crack
cocaine, in that it's the dopamine receptors that
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
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,
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
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
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
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
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
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
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
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
With this background then, I want to
address what I do consider one of the most
distressing aspects of the sentencing guidelines
and of the mandatory minimums, and that's this
hundred to one disparity in the guidelines and in
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
violence rather than what had been merely a
correlate and not a cause by distinguishing powder
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
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
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
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
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
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
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
COMMISSIONER STEER: I just have a quick
point of clarification.
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.
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
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
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
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
DR. BLUMSTEIN: "No longer" is a bit
stronger than I'd go along with--
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.
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
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
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
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
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
of violence, and can that be attributed to the fact
that we've--some would argue we've over-incarcerated and
that itself has had an effect upon
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
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.
COMMISSIONER O'NEILL: What about massive
growth of incarceration and drop in use and drop in
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
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.
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
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
COMMISSIONER O'NEILL: My hunch is that
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
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
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
DR. BLUMSTEIN: No--well, I take that
back. I don't know, and the arrest statistics
might, but they haven't been involved in the work
It's been taking drug arrests as the
aggregate and the demographics of those who get
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,
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
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.
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
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.
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
STATEMENT OF WADE HENDERSON
MR. HENDERSON: Thank you, Judge Murphy.
Good afternoon to the members of the Sentencing
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.
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
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
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
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
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.
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
We concluded that the criminal justice
system is beset by massive unfairness and that both
the reality and the perception of this unfairness
have disastrous consequences for minority
communities and for the criminal justice system
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
We endorse the concept of guideline
sentencing, but urge that the Federal guideline
system be improved to eliminate provisions that
contribute to disproportionate minority
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
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
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
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
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
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
We know from Federal health statistics
that minorities are no more likely to use cocaine
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
Third, with the Commission's assistance,
Congress should immediately review the interaction
of mandatory minimum drug sentencing laws and the
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
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
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
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
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
MR. HENDERSON: It failed because, of
course, it came into a politically charged
atmosphere where the war on drugs was paramount,
and both parties, Democrats and Republicans,
postured politically to avoid grappling with the
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
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
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
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
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.
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
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
Would you be willing to work with us
despite the fact that the result may not be
MR. HENDERSON: Well, certainly, Judge, we
would be willing to work with the Commission and,
in fact, would seek to do that.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
NCLR believes that this Commission can
play a critical role in reducing unnecessary and
excessive incarceration of race of Latinos in the
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
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
In our judgment, the real world tangible
harm produced by lowering the powder thresholds
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
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
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
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
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
MR. KAMASAKI: We had very modest
involvement in the 1995 debate, and frankly, most
of that was under the umbrella of the Leadership
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
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
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
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
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
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
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
further enhanced penalties on the powder
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
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.
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
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
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
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,
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
I'm going to leave any detailed discussion
of specific guidelines to the written comments that
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
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.
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
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
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
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
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
violent attacks. This type of alleged behavior is
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
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
Consider the case of Ramzi Yousef,
mastermind of the 1993 World Trade Center bombing.
He went to the Philippines and planned a number of
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
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
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
obstruct the investigation or prosecution of a
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
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
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
COMMISSIONER SESSIONS: Well, yes, but
you've got some material supporters who provided
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
system has allowances within it to account for
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.
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
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
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
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
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
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
What we would suggest is that threats,
offenses involving conveying false information as
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
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
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
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
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
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
We support the Commission's proposal to
assign those offenses to 2(m)6.1. We believe
that's the appropriate guideline for those
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
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
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
increased seriousness where there is a select agent
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
We believe that the most appropriate way
to punish those offenses is by reference to the
underlying offense that the defendant was
supporting, and this can be accomplished through
referencing Section 2339(a) to two existing
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
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
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
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
The Commission has set forth two possible
base offense levels for Section 2339 violations,
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
references for offenses involving the violation of
49 USC 6123(b) relating to the damaging or
destroying an interstate gas or hazardous liquid
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
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
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
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.
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
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
It seems to me--I don't get that from the
statutes, and I don't know any legislative history
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
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
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
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
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
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
So I'm just not sure that it is worthwhile
to make a distinction between conspiracies with
terrorism objectives and other types of
conspiracies where the same statute is at issue
because of the serious nature of the conduct
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.]