Transcript from February 26, 2002

UNITED STATES SENTENCING COMMISSION

* * * * *

2002 PUBLIC HEARING

COMMISSION MEMBERS:

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]

9:39 a.m.
Tuesday, February 26, 2002

Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20002-8002

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C O N T E N T S

PAGE

OPENING STATEMENT:

   DIANA E. MURPHY, Chair 4

AMENDMENT 8 [DRUG PENALTIES]

PANEL ONE - LAW ENFORCEMENT/ABA REPRESENTATIVE

BRIDGET BRENNAN
Special Narcotics Prosecutor
Office of the Special Narcotics Prosecutor
for the City of New York

6

WILLIAM NOLAN
Chair, National Legislation Committee
Fraternal Order of Police 36

RONALD H. WEICH
Zuckerman Spaeder LLP
On Behalf of the American Bar Association 58

PANEL TWO - MEMBER OF FEDERAL JUDICIARY

RICHARD P. CONABOY
Senior District Judge
Middle District of Pennsylvania 82

PANEL THREE - COMMUNITY REPRESENTATIVES/INTERESTED

PARTIES

JULIE STEWART
President
Families Against Mandatory Minimums [FAMM] 112

JAMIE FELLNER
U.S. Program Director and Associate
General Counsel 127

   3

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

AMENDMENT 1 [CULTURAL HERITAGE]

PANEL FOUR - LAW ENFORCEMENT

PAUL M. WARNER
United States Attorney
District of Utah 144

JOHN FRYAR
Criminal Investigator
U.S. Department of Interior
Bureau of Indian Affairs 155

4

P R O C E E D I N G S

CHAIRPERSON MURPHY: I know that the

members of the first panel are all here, and this

is very important for the Commission in the course

of trying to do the best job we can in this

amendment cycle to get information and views from

outside sources, and so we're very appreciative of

the witnesses who are going to be here today.

   Because, of course, we come from all over

the country to meet and we have so much to do, we

always have limited time, and I know that you have

already been informed about the time slots.

   I hope you won't be offended, but my

assistant has a little timer, and you'll hear a

bell at 8 minutes so that you would have a chance,

if it's taking longer, to say whatever you want to

say. You would have a chance to finish up with the

punch line and so forth before the 10 minute bell

rings.

   I had suggested yesterday that the

Commissioners wait until all of the panelists had

spoken before asking questions unless there was

5

something they really needed to clarify at the

moment, but that didn't seem too attractive to

them, and so I don't know whether they will or not.

   But I think that the Commissioners have

read the statements that you've submitted, so if

you want to speak a little off the cuff, you can do

that or you can go ahead with whatever you've

prepared.

   I would just indicate your names here

before we start. The first person will be Bridget

Brennan who is a special narcotics prosecutor for

the City of New York and has worked in the past

with Commissioner Judge Sterling Johnson, and I

told her--

   COMMISSIONER JOHNSON: More than that.

She took my place.

   CHAIRPERSON MURPHY: And then we have

William Nolan, who is the Chair of the National

Legislation Committee of the Fraternal Order of

Police and Ronald--is it a soft ch?

   MR. WEICH: Pretty much. It's Weich.

   CHAIRPERSON MURPHY: Weich, Ronald Weich

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of Zuckerman Spaeder, and he is representing the

American Bar Association.

   COMMISSIONER JOHNSON: And he also worked

with Bridget Brennan.

   MR. WEICH: That's true. We started in

Trial 030 together in the District Attorney's

Office.

   CHAIRPERSON MURPHY: Is that right?

Well--

   MS. BRENNAN: We shared a phone for about

a year.

   CHAIRPERSON MURPHY: Well, we'll see if

you have the same viewpoint today.

   [Laughter.]

   CHAIRPERSON MURPHY: Okay. Ms. Brennan,

would you like to begin?

  STATEMENT OF BRIDGET BRENNAN

   MS. BRENNAN: Thank you very much. Good

morning, members of the Commission, Judge Murphy,

Judge Johnson. Thank you very much for the

opportunity to address you this morning.

   I'm Bridget Brennan, the Special Narcotics

7

Prosecutor for New York City. As you know, Judge

Sterling Johnson was head of my agency for many

years, and to this day his name is linked with the

Office of Special Narcotics.

   I'd like to thank you for inviting me to

come and share my experience in working with New

York State's narcotics laws. I was an Assistant

District Attorney in the Manhattan D.A.'s Office

for 8 years, and I have been with the Office of

Special Narcotics Prosecution for the past decade.

   During that time I've developed a

perspective and some insights on the narcotics

trade, the violence that's inevitably associated

with it, and I'd be happy to share those insights

with you.

   Although I don't have any specific

experience dealing with the Federal mandatory

minimums or with the Federal sentencing guidelines,

I know that as you're contemplating changes in the

guideline and making recommendations, particularly

with regard to crack and cocaine, you're looking to

develop a rational correlation between the

8

culpability of an individual defendant, the impact

of his crime on the community and punishment.

   What we have struggled to do with our

narcotics laws is draw those correlations

frequently by determining an appropriate weight, a

narcotics weight, which tends to be associated with

a defendant's individual role in a narcotics trade,

in a narcotics trafficking organization, and

develop that kind of correlation between the

defendant's role and his ultimate punishment.

   The role of weights is really central in

our state's narcotics laws, and it's always been

thought that the more substantial the amount of

drugs the defendant had with him, most likely the

more culpable he would be in a narcotics

organization, and there certainly is a good deal of

truth to that.

   The lowest level members of a narcotics

organization tend to be street sellers. They tend

to be probably among our most vulnerable people,

addicts, who are used, employed by the high level

dealers in the narcotics trade.

   9

   Addicts are never trusted with a

significant amount of the product as they call it,

a significant amount of narcotics, and so there is

definitely a correlation between weight and a

person's culpability in a narcotics organization.

   Now New York provides a unique perspective

on the drug trade. It's a major importation site

for cocaine and heroin. In addition, we have our

own local neighborhood gangs and neighborhood

organizations, frequently entrenched violent gangs

that reap thousands of dollars, hundreds of

thousands of dollars in profit annually.

   Today I'll speak about the New York State

laws governing the prosecution of crack and

cocaine, the impact of crack and cocaine on New

York and particularly the impact of crack

trafficking, the impact the Federal sentencing

regulations regarding crack have had on our local

prosecutions, and finally, I'll talk a little bit

about the challenges we face today.

   My office was part of a set of reforms in

New York in the 1970s when we were facing a

  10

tremendous problem with heroin, and there was

escalating violence in New York and a tremendous

problem with heroin addiction.

   There were many reforms at that time; my

agency was one of them. We were created to give a

city-wide jurisdiction over the five counties that

comprise New York City. Because narcotics

trafficking tends to be fluid, prior to the

establishment of my agency, there were

jurisdictional impediments to pursuing narcotics

investigations and, thus, my office was set up and

give city-wide jurisdiction over serious narcotics

offenses, felony narcotics offenses.

   And I think that was farsighted on the

part of the state legislature because we have

developed critical relationships with local

organizations, with Federal law enforcement

agencies and with Federal prosecutors.

   Now I know your interest is very

specifically on the penalties under Federal law for

crimes involving crack and powder cocaine. Under

New York state law, we do not treat powder cocaine

  11

and crack differently and, thus, there's no

sentencing distinction, none whatsoever.

   However, I must point out that our penal

law and sentencing structure are entirely different

from the Federal sentencing statutory scheme, and

for the most part, our sentences for narcotics

crimes are probably more substantial.

   The threshold amounts that we use--that

the state legislature determined for our highest

level felony, the A-1 felony, is 2 ounces; that is,

someone who sells 2 ounces of a narcotic drug--

narcotic drug in New York is defined as heroin or

cocaine--is facing a mandatory 15 to life sentence,

and the 2 ounces converts into 56 grams. So as you

as see, it's a very different sentencing structure

than the Federal structure.

   Now, of course, the prosecutor is allowed

to plea bargain down; however, we are statutorily

barred from offering a less than state prison

sentence for somebody who is charged with the top

narcotics offenses.

   Because when you're looking at our entire

  12

state structure, it's very different. I've

appended to my testimony a chart which outlines

some of the specific state provisions.

   We do have some specific state provisions

addressing some of the concerns that the Sentencing

Commission has already highlighted. We do have a

specific state enhancement for dealing in drugs

near to a schoolyard, within a thousand feet of a

schoolyard--excuse me--a thousand yards of a

schoolyard. We have a specific penalty for that,

and that has generally been determined to be two

city blocks.

   We also have a sentencing enhancement for

someone who uses a juvenile, someone under the age

of 16, in the narcotics trade. That converts what

would otherwise be a lower level B felony into an

A-1 conspiracy, and again someone is facing that

mandatory 15 to life sentence if convicted under

that charge.

   But just to give you some examples of the

differences. If a defendant is convicted of

selling 5 grams of cocaine or 5 grams of crack

  13

cocaine, it makes no difference under New York

state law. He still faces a minimum sentence of 1

to 3 years.

   In fact, under New York state law, a

defendant faces 1 to 3 years for selling any amount

of a narcotic drug. It's the same felony offense

even if it's less than 5 grams. However, if a

defendant is convicted of selling 56 grams of

powder cocaine or crack, he faces a mandatory 15 to

life minimum.

   Now I know one of the concerns expressed

by the Commission in its 1997 report was whether

the Federal crack sentencing guidelines affected

local prosecutions; whether, in a sense, the

Federal prosecutions would impinge on what had

traditionally been local prosecutions, the focusing

on the street gangs and whether resources would be

diluted.

   We have not found that to be the case in

New York. We have worked many cases cooperatively

with Federal prosecutors. It is neither in our

interest, I think, nor in the Federal prosecutor's

  14

interest to punish those who are not high level

narcotics dealers with extremely substantial

penalties.

   So what we have done with the Federal

prosecutors when it comes to low narcotics

organizations is try to divide up targets and see

where we can appropriately, most appropriately,

punish those defendants; whereas, as Judge Johnson

used to say, we can get the biggest bang for the

buck, those who are--

   COMMISSIONER JOHNSON: I said that?

   MS. BRENNAN: You did many times. Those

who are most culpable should face the most serious

penalties. Sometimes that's under Federal law, and

sometimes that's under state law, and we've tried

to work those prosecutions jointly.

   I think what you have to realize when

you're talking about crack organizations is that

they rely on heavy volume, and that creates a

tremendous problem for the communities that are the

sites of crack organizations. And those tend to be

our most vulnerable communities because crack is a

  15

low-priced product.

   We see people selling $3 vials, $5 vials,

$10 vials, and we have organizations that are

netting $70,000 weekly. So you can do the math and

see what kind of problems that's going to create

for communities.

   People can't get into their apartments

because they're locked out during crack deals.

There are substantial amounts of violence

associated with crack organizations, each seeking

to dominate a clientele and fighting with each

other over the clientele. So crack organizations

create unique problems for us, and we have focused

many of our efforts on them.

   I would also like to briefly mention that

an important part of our mission is alternatives

toward incarceration where we try to take those

addicts or the low level street dealers and with

facing the threat of incarceration, we try to get

them into treatment programs.

   We have found that that threat of

incarceration is a very powerful inducement for

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someone to get into treatment.

   Again, I would like to thank the

Commissioners very much for the opportunity to

testify today.

   CHAIRPERSON MURPHY: Judge Sessions?

   COMMISSIONER SESSIONS: You said that the

significance of drug quantity is that you can

determine the role that a particular defendant had

in a conspiracy based upon a quantity, and I guess

I have a number of questions which follow from

that.

   First, you have a system that uses

relevant conduct, and that is as a sentencing

factor, can you consider other instances of

criminal behavior to increase the quantity?

   MS. BRENNAN: No. There are certain

charges that we can bring which do consider

relevant conduct and certain charges that you might

consider strict liability offenses; that is, if you

sell or possess X amount of drugs, you are facing

this certain sentence.

   Now I must say that the quantity of drugs

  17

is not always an indicator of a defendant's role.

Obviously there is not a direct 1-to-1 correlation

in every case. It is some indicator, and that is

the premise on which our sentencing statute is

based--excuse me--our statutory structure is based.

   COMMISSIONER SESSIONS: All right. Well,

let me just follow up on that role. I think that

at least you're implying that if a person had 5

grams of crack, that that probably is an indication

that that is a street level dealer as opposed to a

mid-level dealer, is that fair to say?

   MS. BRENNAN: Yes, I would say that that's

probably fair to say. Five grams of crack may

translate into--I don't know--somewhere between 20

and 50 vials of crack, although, you see, you won't

find the lowest level people with that much crack

at any one time. They just wouldn't be trusted

with it.

   COMMISSIONER SESSIONS: I guess my

question is based upon your experience, when does

the threshold into mid-level dealer happen? I

assume from what you're saying is that it probably

  18

happens at the 56 gram or 2 ounces and that's why

they've focused in upon the increased penalty, and

that is that's directed at mid-level dealers, is

that--

   MS. BRENNAN: It's hard to put an exact

number on it. I look at it in terms of vials more

than in terms of specific amounts. I would say the

way the organizations would work out, somebody

wouldn't be trusted with holding the stash, as they

say, the big amount, unless they're a fairly

significant player.

   The stash might be 100 vials, 50 to 100

vials, and again, there's no consistency in the

amount of crack that's in those vials. The weight

of the vials may be half a gram. It may be less

than half a gram. It's anywhere probably between a

tenth of a gram to half a gram.

   The other thing to keep in mind is that

the powder cocaine itself, we find our low level

crack organizations will buy 2 ounces of powder;

they might even buy less than that amount of powder

and then it cooks up until probably a third more

  19

than that when they cook it up into cocaine, and

then they break it out into vials.

   So we always reach for those direct

correlations, but they're very hard to come up

with. Again, I look at it in terms of the number

of vials somebody has.

   COMMISSIONER SESSIONS: But in the Federal

system, of course, this is a relevant conduct

jurisdiction. The Judge can consider all of the

behavior that the defendant engaged in, and then if

you try, in that situation, try to determine where

that threshold is from street level to mid-level,

what you're suggesting is it's sort of difficult to

do that, is that correct?

   MS. BRENNAN: It's extremely difficult to

do that, and the other difficulty in doing that is

frequently in order to determine what the

defendant's role or conduct was within the

organization, you need inside from those within.

You need a cooperating witness.

   And frequently these organizations are so

violent that the insiders are very, very--extremely

  20

reluctant to testify, and we may have hearsay

information about someone's role within that

organization, but obtaining direct information is

extremely difficult and sometimes impossible, which

is probably why we have been reliant on the amounts

rather than actually proving up the exact role of a

defendant within an organization like this.

   You might analogize it to Al Capone who

was convicted of cheating on his taxes. We're able

to get the high level dealers for these, in a

sense, strict liability crimes; whereas, we would

have great difficulty convincing someone to testify

as to their role within an organization.

   JUDGE JOHNSON: Let me ask you this. You

say you cooperate with the Federal authorities, and

I know that many times they'll come to you and

you'll have source information you'll give to them,

and maybe you'll prosecute or maybe they will

prosecute.

   Have you ever had an instance or do you

have them frequently where the Federal authorities

will come to you with a crack situation and ask you

  21

to prosecute?

   MS. BRENNAN: Yes, we do have those

instances come up on a fairly regular basis.

Sometimes they'll make a referral over to us, and

frequently, if we are doing a joint targeting of an

organization where we pick up lower level or they

may pick up lower level dealers where they think

the penalties are more appropriate on the state

side, they'll make that referral over to us.

   COMMISSIONER CASTILLO: When you say more

appropriate, do you mean more stringent?

   MS. BRENNAN: No, lower.

   COMMISSIONER CASTILLO: Lower?

   MS. BRENNAN: Yes, lower. I mean, most of

us have--well, I don't how to put it other--the

same sense of justice that is clear that you all

share, and we don't want to see--I don't want to

see a low level dealer go away for 15 to life. I

mean, there's no point in that. It strains the

resources of the state; it's just not fair.

   Federal prosecutors, most of the ones I've

worked with, have the same feeling, and so they

  22

don't want to see those low level guys go away for

5, 10 years. It is simply not appropriate given

their conduct.

   So within the confines of our various

laws, we work together to try to figure out the

most appropriate sanction, and we charge them

accordingly.

   COMMISSIONER JOHNSON: So what you're

saying is that if you have a low level dealer and

he's doing 5 or 6 grams of crack, the Federal

authorities will bring this defendant to you, he

will be indicted and allowed to plea where he'll

get 1 to 3 years?

   MS. BRENNAN: Yes, that certainly could

happen. I mean, it happens on a--we see it happen

fairly regularly. I don't know; I can't give you a

number of times, but it's certainly not an unusual

occurrence where there will be a referral over to

us.

   CHAIRPERSON MURPHY: Professor O'Neill has

had his hand up. So if you want to just follow up

with that and then we'll go to him.

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   COMMISSIONER JOHNSON: If that person--I

don't know if you know or not--but if that person

who had the 5 or 6 grams were prosecuted in the

Federal jurisdiction, they would have a mandatory

minimum of 5 years?

   MS. BRENNAN: Again, I can't say. I

haven't worked with the Federal guidelines

specifically, so I don't know what is, in a sense,

optional on the part of the prosecutor when they

make their charging decision and what is not. So I

can't specifically respond to that.

   COMMISSIONER O'NEILL: What happens in the

back end? I mean, most states, unlike the Federal

Government, for example, have like two-thirds--after

you serve two-thirds of your sentence--I'm

not familiar with how New York handles that, but

how does New York handle it with respect to release

dates?

   How long, in other words, do people

actually serve?

   MS. BRENNAN: It depends on what the

sentence is. For example--and it depends on the

  24

particular status of a defendant. Many of our

lowest level defendants, the ones who are facing 1

to 3, you would think that would mean they must

serve a minimum of 1 year and a maximum of 3 years;

however, many of them are eligible for early

release under shock incarceration programs and a

variety of other programs which are within the

discretion of the Department of Corrections. They

make a determination as to whether the defendant is

eligible for early release.

   In addition to that, we have statutory

good time, which is a third off. We have--

   COMMISSIONER O'NEILL: A third off?

   MS. BRENNAN: A third off the bottom line,

a third off the minimum.

   COMMISSIONER O'NEILL: So do you have any

statistics as to how long, for example, looking at

the lower level, even the mid-level folks, for drug

use, how long they actually wind up serving in

prison?

   MS. BRENNAN: No, I don't have those

statistics. I'm sorry.

  25

   COMMISSIONER O'NEILL: Do you have any

sort of just anecdotal impression as to how those

folks compare with the folks in the Federal system?

   MS. BRENNAN: Again now I can only speak

for New York City.

   COMMISSIONER O'NEILL: Of course.

   MS. BRENNAN: Most typically, New York

City, a first time offender who is convicted of

selling one vial of crack, if he goes to trial,

he's facing 1 to 3. If he is eligible for shock

incarceration--and you have to be a certain age.

There are various other criteria--he will

definitely be given shock incarceration, which is a

six-month, in a sense, rehabilitation program.

   For those of our defendants who don't go

to trial, we most typically plea bargain those

cases out. Most of those cases get probation the

first time out. If they're a predicate offender,

that's when the mandatory sentencing provisions

really kick in.

   That's when no matter what, they are

facing some kind of a state sentence--

  26

   COMMISSIONER O'NEILL: But a state

sentence that may have one-third off the bottom?

   MS. BRENNAN: Yes, it will have some

amount of time off, and there are a number of other

early release programs that are wholly within the

purview of the Department of Corrections.

   COMMISSIONER O'NEILL: So basically what

you're saying is within the state system itself,

there are a number of mechanisms built in typically

to reduce what appear at the front end to be rather

long sentences, but at the back end, actually wind

up shortening the time someone actually serves?

   MS. BRENNAN: Right. Now the bulk of our

defendants are in on those low level sale cases.

For those who are facing the stiffer A-1 penalties,

those people are going to do a substantial amount

of time. There's no question about that.

   COMMISSIONER O'NEILL: But they're

unlikely to do the time that they're actually--

   MS. BRENNAN: Again, I'm not comfortable

directly answering that question. I just don't

have the regs right off the top of my head. I'm

27

sorry.

   CHAIRPERSON MURPHY: Well, the media has

indicated that Governor Pataki was, I think, going

to propose a modification of the legislation to

make the sentencing more I'm not sure quite what,

but reduced penalties or at least to take out that

mandatory life.

   I'm just struggling here not necessarily

for the specifics of it, but, you know, when a

political figure like that is making noises of this

type, does that reflect some sense that this hasn't

worked quite the way expected or it was producing

some results that weren't desired or could you

speak to that?

   MS. BRENNAN: It's hard to--certainly

Governor Pataki has proposed revisions of the laws.

The most substantial--he has proposed reducing the

top sentence for the A-1 offender to 10 to life I

believe it is, the mandatory minimum; keeping the

range the same between 10 to life and 25 to life,

but reducing that minimum sentence to 10 to life.

   The other proposals he has made apply to

28

primarily the predicate offenders and what kind of

programs they might be eligible for, and there have

been any number of proposals in recent years to

change those laws.

   I mean, clearly it reflects his view that

the sentences are probably too severe at that

level. We've had proposals to adjust the weights.

We've had any number of proposals in New York.

Over the past 4 years, there have been--the

proposals have run the gamut of trying to, you

know, more carefully correlate the punishment with

the crime itself, with the kind of conduct we're

trying to deter and punish.

   CHAIRPERSON MURPHY: Mr. Reilly?

   COMMISSIONER REILLY: Thank you. To

follow up where the Chairwoman was going, I'm

curious what--and you've touched a little bit on

it--what the reaction of the people of New York is

since it is a major import for a lot of the drugs

that come into the country.

   Do the people of New York feel the drug

laws should be changed? Do you hear a human cry

29

about the fact that they're not just, they're not

equal or is there--

   MS. BRENNAN: There have been many, many

proposals, and certainly there is a lot of talk

about it. In terms of what the people of New York

think, I can tell you when I go into the

neighborhoods where crack dealing is rampant, they

aren't saying change those drug laws and lighten

them up a little bit.

   The people who are directly affected by

the crime just want you to do something to clean up

their communities. To them, it frequently means

put the people who are dealing the drugs in jail.

And the last thing they want to see is them

arrested, then back out on their stoop the next

morning.

   So that kind of human cry doesn't come

from those communities, I would say, who are most

affected by it when they're dealing with the

reality of drug dealing in their neighborhood.

   However, there are a lot of vulnerable

people who are caught up in drug dealing. Most of

30

our street level drug dealers come from communities

where there are few economic opportunities, where

drug dealing is the best game in town, you make the

quickest money and the most money.

   The risk, of course, is state prison, and

when somebody's brother or father or close relative

or friend goes to prison, that's when the impact of

those laws hits home.

   I would say that the biggest human cry in

New York is about the 15 to life mandatory minimum

penalty for the 2 ounce sale or the 4 ounce

possession. That seems to be where--there seems to

be greatest consensus around that issue. When

you're talking about just dealing, street level

dealing, I would say the consensus diminishes.

   COMMISSIONER CASTILLO: Just to follow up

on that, do you believe that the effectiveness of

your office has been diminished by New York's

failure to distinguish between the crack and the

powder cocaine penalties?

   MS. BRENNAN: No. Our penalties for

narcotics crimes, the threshold amounts are so--they're

31

small, relatively small when you compare

them to the Federal statutes, that it really has

had no effect.

   COMMISSIONER CASTILLO: Are there

instances where you might refer a case for Federal

prosecution because you felt that a crack dealer

could face a more substantial penalty than the ones

that New York state law was presenting?

   MS. BRENNAN: It could happen. It could

happen. I can't think of any instance where we've

actually done that. Where we're more likely to do

it is if there's a firearm found.

   I mean, the high level dealers are very

rarely found with the stash as we would say, with

the product on their hands.

   COMMISSIONER CASTILLO: Right.

   MS. BRENNAN: The Feds have better laws.

They might have a better conspiracy law which would

enable them to take in the leader of the group.

They can aggregate sales; whereas, we are not able

to do that under our law.

   There are other nuances under the Federal

32

law which might enable the Federal prosecutors to

more appropriately target and punish a leader of a

group, but it tends not to be the crack

distinction.

   COMMISSIONER CASTILLO: As you sit here,

do you have any correlation between certain

indicators in a high level dealer, for example,

large amounts of money, firearms? What would you

say are the indicators of a high level drug dealer?

   MS. BRENNAN: I'm trying to think of the

ones that we've had most recently. Again, the drug

dealers, so many of them don't save their money. I

mean, we'll find a big collection of boots or fancy

cars or gold jewelry at the end of the day. But, I

mean, it tends to be their role within the

organization. How many people are they

supervising?

   And if you're talking about who deserves

the harshest punishment, of course it's the one who

employ the greatest amount of violence, both

towards their own workers, to protect their turf,

to protect their clientele, and frequently against

33

the people to whom they're selling to.

   CHAIRPERSON MURPHY: Okay. You have one

more question.

   COMMISSIONER SESSIONS: Just as a premise

to the question, a large percentage of people who

are charged with crack in the Federal system are

first time offenders, and if you take all of the

relevant conduct, all of the things that they've

engaged in, if it arrives at 5 grams--we'll take 5

grams as an example--in the Federal system, they

face a 5 year sentence, they do 85-percent of that

sentence. So they do approximately 4-and-a-half

years in Federal prison.

   Now compare that to what happens in New

York state. A first time offender at 5 grams

ordinarily, if they plea bargain, would get

probation or if they don't--

   MS. BRENNAN: In New York City.

   COMMISSIONER SESSIONS: In New York City.

Or if they don't, they'd be receiving a 1 to 3 year

sentence, but they would be serving a lot less than

that. I mean, that's a wide disparity of treatment

34

based upon whether you're in the state system or in

the Federal system.

   I guess from a social policy perspective,

does that concern you at all or does it impact the

way your office functions, knowing full well that

there's this significant disparity in the way a

person is treated at that low level based upon

where they're prosecuted?

   MS. BRENNAN: Well, I think we have

attempted to address that disparity when we've

worked with the Federal prosecutors. But, again,

confining my comments to New York City, my

experience with the Federal prosecutors there, I

haven't seen them targeting those kinds of low

level offenders.

   The crack organizations that they target

tend to be violent entrenched gangs. We do a lot

of undercover--as we say, undercover buy and bust

cases, where an undercover will walk up and buy a

crack vial from somebody; turn around and charge

them.

   That's not the cases I see coming out of

35

the Eastern District of New York or the Southern

District of New York. Now again, I'm no expert on

Federal prosecutions, so I don't know whether that

is, in fact, the case. It's just not what I see.

   I've never worked with them on those kinds

of cases, and those aren't the referrals we get.

So my guess is that they use their prosecutorial

discretion to target those people who are more

appropriately punished by serving that kind of

time.

   COMMISSIONER JOHNSON: But if you have a

conspiracy and they do target a large organization

and caught up into this net are some of the people

that you have been referring to, first time, they

will still be subjected to the harsh penalties of

the Federal crack laws, right?

   MS. BRENNAN: Well, again, not being an

expert on the Federal laws, I can't directly

comment on that. But what we try to do in our

office is assure that the result, the penalty that

somebody is facing is appropriate to their crime.

   And I wouldn't want to see a low level

36

guy--I mean, a real low level street seller who's

the hand-to-hand guy in an operation doing 5 years.

It would not be something that I would be

comfortable with.

   COMMISSIONER SESSIONS: That, you would

think, would be unfair?

   MS. BRENNAN: Yes. If the hand-to-hand

guy is selling one vial is facing a mandatory 5

year minimum, I wouldn't be comfortable with that.

   CHAIRPERSON MURPHY: Obviously there's a

lot of interest in your experience, but I'm

concerned about making sure that we can hear from

everybody else too.

   MS. BRENNAN: Sure. Thank you very much.

   CHAIRPERSON MURPHY: I'm sure they would

continue if they could.

   MS. BRENNAN: Thank you.

   CHAIRPERSON MURPHY: Okay, Mr. Nolan,

we're interested in what you have to say to us this

morning too.

   STATEMENT OF WILLIAM NOLAN

   MR. NOLAN: Good morning, Judge Murphy,

37

and members of the United States Sentencing

Commission.

   My name is Bill Nolan, and I'm currently

the Chairman of the National Legislative Committee

of the Fraternal Order of Police. I'm here today

on behalf of our National President, Steve Young,

and representing our 300,000 members throughout the

country to offer the views of the FOP on several

issues related to the sentences for crack and

powder cocaine offenses under the sentencing

guidelines.

   Let me just say at the outset, I believe

this is the first time that the Fraternal Order of

Police has had the opportunity to appear before

this Commission, and we greatly appreciate your

invitation to do so today.

   In addition to serving the FOP on the

national level, I am also the current President of

Local Lodge 7 in Chicago, Illinois. Like many

major metropolitan areas across the nation, our

city witnessed an explosion in cocaine-related drug

use and violence during the 1980s, especially due

38

to the emergence of crack cocaine.

   During this time, Congress recognized the

need to counter these rising trends with passage of

sweeping new laws, establishing mandatory minimum

penalties for persons convicted of offenses

involving a given amount of a variety of controlled

substances.

   Measures such as the Anti-Drug Abuse Acts

of 1986 and 1988 gave us in the law enforcement

community the tools we needed to appropriately

punish those often violent offenders.

   Despite the progress we've made, the

problem of both powder and crack cocaine have not

vanished from our streets, and we, in Chicago, are

still coping with this as well as the use of other

illicit drugs.

   In 1999, for example, the arrestee drug

abuse monitoring program reported over 41-percent

of adult males in our city tested positive for

cocaine at the time of their arrest, posing a

dangerous situation for the brave men and women of

my department.

39

   It is for this reason and many others that

I recognize the urgent need to maintain the tough

standards set forth in current law for the

sentencing of those convicted of cocaine-related

offenses.

   The Commission has asked our organization

to testify regarding the issues for comment

following proposed Amendment No. 8 to the

sentencing guidelines; specifically on several

occasions regarding the sentencing of the

defendants convicted of cocaine-related offenses.

   Let me begin by telling you that the

Fraternal Order of Police does not oppose

addressing the disparate penalties associated with

crack and powder cocaine or a cross drug type. We

are, however, greatly concerned with the manner in

which any such changes are put into effect.

   The current penalty structure for crack

and powder cocaine offenses is based primarily on

the quantity of the drug in the possession of the

defendant at the time of his arrest. This priority

given to the quantity of illegal drugs in

40

determining a defendant's role in the offense and a

final sentence for the offender is as important

today as it was in the 1980s.

   That being said, is there a need for

penalties that are tougher for crack than for

powder cocaine offenses or for one type of drug

over another? Several sources would support such a

conclusion.

   In a report to Congress in 1997, a prior

Commission recognized that some drugs have more

attendant harms than others and that those who

traffic in more dangerous drugs ought to be

sentenced more severely than those who traffic in

less dangerous drugs.

   There's also evidence to support the fact

that crack cocaine does greater harm to both the

user and to the wellbeing of the communities across

the nation.

   The Commission's findings in the 1997

report also stated that crack cocaine is more often

associated with systemic crime, is more widely

available on the street, is particularly accessible

41

to the most vulnerable members of our society,

produces more intense effects than snorting powder

cocaine, and that Federal sentencing policy must

reflect the greater dangers associated with crack.

   As a former police officer in one of

America's largest cities, one who has witnessed

first-hand the devastating impact that crack has

had on my community, I agree completely with this

assessment, and I believe that anyone who has ever

talked to the families who are forced to live

locked inside their own homes for fear of the crack

dealers who rule their streets would also agree

with this statement.

   There are other factors which should also

go into the sentencing of those convicted of crack

powder cocaine offenses. We applaud the Commission

for working to include additional aggravating

factors within the guidelines.

   However, these and other enhancements

should continue to be in addition to a minimum

sentence that is based first and foremost on the

quantity of the controlled substance as provided

42

for under the current law.

   We also appreciate the Commission's

concern regarding the 100-to-1 drug quantity ratio

for crack cocaine and powder cocaine offenses.

   We further understand that some are

concerned with the disparate impact of this ratio,

particularly those who have expressed concern about

its impact on minority communities.

   Regardless of whether or not these

concerns are well-founded, the appropriate response

is not to decrease the penalties for engaging in

one type of illicit behavior over another. Meeting

in the middle or toughening the sentencing for

powder while weakening those for crack is also not

a feasible solution.

   While it would definitely affect the lower

drug quantity ratio, any measure that decreases

penalties for crack offenders would harm the

overall effort to keep drugs off the street and

violence out of our communities.

   That is why the Fraternal Order of Police

supports increasing the penalties for offenses

43

involving powder cocaine through a reduction in the

quantity necessary to trigger the 5 to 10 mandatory

minimum sentence. This would decrease the gap

between the two similar offenses, address the

concerns of those who question the current ratio

and would provide law enforcement with the tools

they need to further restrict the possession, use

and sale of powder cocaine.

   The dangers associated with crack and

powder cocaine have not completely disappeared

since the current tough sentences for these crimes

were enacted. Although our nation has seen an

across-the-board reduction in crime rates in recent

years, it is still true that illegal drugs have a

devastating impact on society as a whole.

   It is also clear that the Federal

Government, which has available resources and

policies in place to effectively investigate,

apprehend and punish drug offenders must continue

to take the lead in providing harsh penalties for

drug-related offenses.

   The Administration, Congress and the

44

Commission must continue to send the message to

drug dealers and traffickers that the Federal

Government will fiercely protect the most

vulnerable members of our society and will severely

punish those who seek to exploit them.

   The question of appropriate sentences for

crack and powder cocaine offenses have received a

great deal of attention in recent years from a

variety of sources. Unfortunately, there has been

too much demography and too little rational

deliberation on this issue.

   That is why we believe that today's

hearing is an important step in the right

direction. Our organization looks forward to the

continuing discussion on the appropriate penalty

levels for drug related offenses and welcomes the

opportunity to participate in an ongoing dialogue

with the Commission and others interested in this

issue.

   Again, on behalf of the membership of the

Fraternal Order of Police, let me thank you again

for the opportunity to appear here today. Thank

45

you.

   COMMISSIONER JOHNSON: As I understand it,

you're saying that they should keep the 100-to-1

ratio, but raise the penalty for powder cocaine, is

that the position of the organization?

   MR. NOLAN: That is correct, yes.

   COMMISSIONER JOHNSON: Now when they set

out the penalty for crack cocaine in the '80s,

there were several reasons why the Congress said

that this would be appropriate. If these reasons

no longer exist--and there is some evidence that it

no longer exists--do you think that that is the

appropriate thing to do at this particular time, to

keep those penalties?

   MR. NOLAN: Well, we have been dealing

with narcotics for years, cocaine and heroin and

all that. When the crack cocaine came on the scene

many years ago, it seemed to change; it became more

violent.

   In a lot of the areas, the users and the

sellers of crack cocaine are more violent people

than the drug dealers that we've normally been

46

dealing with over the past several years. So there

is something with the crack cocaine that does tend

to have more violence--

   COMMISSIONER JOHNSON: But there is

statistics and evidence to show that the violence

associated with the crack cocaine no longer exists

or no longer exists to the extent it did in 1985,

1986. Do you still think that there should be a

100-to-1 ratio?

   MR. NOLAN: Well, we believe that the

ratios in the powder cocaine, if it was dropped a

little bit, it may help some of the arguments that

we've had that some of the other communities are

being assessed more--maybe more stricter than

others. So maybe that is a reason. We're not

sure; we don't have all the reasons.

   But we do like to see some of the

sentencing guidelines take effect that would help

the people out there in the street now, the men and

women that are working out there. We seem to have

more violence against police officers on people

that are using crack cocaine or under the influence

47

of crack cocaine, and that seems to be a very big

problem.

   COMMISSIONER JOHNSON: Now what the

Commission is looking at and thinking about is

enhancing penalties for violence against police

officers, possession of guns.

   Would that help the Fraternal Order of

Police or the people that think--

   MR. NOLAN: Sure, absolutely.

   COMMISSIONER JOHNSON: And you still think

there should be a 100-to-1 ratio?

   MR. NOLAN: In some instances, we believe

that. I don't have all the statistics to be able

to bring that out right now, but just in our

overall view from interviewing our members and

talking to them and getting their feelings on it.

   CHAIRPERSON MURPHY: Commissioner Steer

has a question and then Professor O'Neill.

   COMMISSIONER STEER: Mr. Nolan, I want to

thank you and your organization for participating

in this process. I think it is the first time, and

we hope it certainly won't be the last.

48

   I'm trying to understand sort of the

organizational and political basis for your views.

First of all, do you have Federal law enforcement

members or is it--

   MR. NOLAN: Oh, yes, we have Federal

officers--well, in Chicago, each lodge is

different, but we do have Federal officers and

Federal lodges throughout the country.

   COMMISSIONER STEER: According to what

we've learned, only some 16 of the states

distinguish at all between crack and powder in

their penalty structure, and only one has a 100-to-1 ratio,

and we're not sure that it quite mimics

the Federal penalty ratio in all respects.

   Federally we sort of deal with the tip of

the iceberg. In a given year, probably the Federal

Government prosecutes, convicts and sentences less

than 10-percent of all the drug traffic and

offenders, probably something closer to 6-percent.

The rest are dealt with at the state level.

   So looking at it from that standpoint and

if there is a basis for--is it your position that

49

the penalties once set by Federal Government can

never be adjusted downward; that they can only be

adjusted upward, is that--

   MR. NOLAN: No. I think the current

statutes and the penalty structure do what they're

intended to do, and that's to keep the drug

offenders out of the communities. And I think that

the so-called low level who traffics in the smaller

quantities of either powder or crack is no less a

danger than those participating in large amounts.

So you do have that problem.

   COMMISSIONER STEER: But even the states--like New

York is considered to be one of the

toughest with its so-called--some people refer to

it as the Rockefeller era, the drug laws--and we've

just heard testimony that even they don't treat

small time crack dealers as harshly as do the

Federal penalty structure.

   In fact, there may be a state out there

that does--

   MR. NOLAN: Right.

   COMMISSIONER STEER: But the overwhelming

50

evidence seems to be that it is not--it is the

crack structure that is too harsh. I think there

are some who, like your own organization, that say

that powder penalties may be too lenient, but we

haven't heard a whole lot of testimony to that

effect.

   So, again, it seems to me that maybe where

a change is needed, first of all, is in the

penalties for crack, wouldn't you think?

   MR. NOLAN: Despite the fact a lot of

these individuals represent the bottom line of the

drug distribution doesn't necessarily translate

into decreased behavior and all that, and so there

just seems to be that correlation between the crack

user as opposed to the marijuana smoker, the heroin

user and people like that.

   So we see there is a need to do something

for the crack period.

   COMMISSIONER STEER: Well, thank you for

your perspective.

   MR. NOLAN: Thank you.

   CHAIRPERSON MURPHY: Professor O'Neill?

51

   COMMISSIONER O'NEILL: Just a brief couple

of questions. It's my understanding from your

testimony--and correct me if I'm wrong--that part

of the reason that you think that it's important to

maintain this differentiation between the treatment

of crack and powder is sort of twofold.

   One concern is that the drug itself is

worse on the individual, and the other is that

there's a lot more violence associated with crack

cocaine than there is powder cocaine, is that a

fair--

   MR. NOLAN: That's a fair statement.

   COMMISSIONER O'NEILL: That's fair. If

you knew that studies that had been updated since

the 1980s and 1970s, when some of these original

studies were looked at, that it's not a matter of

the nature of the drug itself, but rather drug

delivery systems that make the difference between

whether somebody uses crack as far as its harm on

the individual and whether someone uses powder and

its harm on the individual, that distinction really

doesn't make sense anymore based upon more recent

52

scientific and pharmacological evidence, then

probably what you'd still say is that it's

important to main this distinction because of the

harm that's involved, the violence that's involved;

that crack is a more violent drug, is that a fair

thing to say?

   MR. NOLAN: Yes.

   COMMISSIONER O'NEILL: Let me ask you

this. In D.C., we had a problem a number of years

ago with the Jamaican Posse. These guys almost

exclusively distributed marijuana, but out of all

the various drug organizations in D.C., they were

probably the most violent organization in D.C.

   Do you think it's better to decide to base

our penalties, a heightened penalty, on the nature

of the drug itself, i.e. being marijuana, or is it

better to base it on the violence that's associated

with the drug?

   MR. NOLAN: Probably the violence I would

say because that's a big problem that we're having.

In Chicago, for example, it is so predominant that

we have some areas where 10, 11 and 12-year-old

53

kids are making more money than somebody that has

gone to college and had several degrees and working

on LaSalle Street. They can make upwards of $200-$300 a day

just by being lookouts.

   COMMISSIONER O'NEILL: So do you think

that we're probably better off, rather than

differentiating between, say, Tennessee marijuana

and Jamaican marijuana, that we're better off

differentiating on whether or not there's violence

associated with the distribution of that particular

drug? Is that probably a better way to do it?

   MR. NOLAN: Yes, I would say it probably

is. Excuse me. Yes.

   COMMISSIONER CASTILLO: Mr. Nolan, it's

always good to see a fellow Chicagoan, and I'm well

aware of all the work you do, and I know that

you've gone to too many hospitals and too many

funeral homes with regard to your members.

   But let me ask you this. Nationally we're

seeing a decrease in violence. Are you saying, in

Chicago, you haven't seen a decrease in violence

with regard to crack dealing?

54

   MR. NOLAN: Unfortunately, in Chicago last

year, we became number one. It's a title we didn't

like. It was the number one in homicides. But a

lot of those homicides had to do with drug-related

gangs. Between domestic violence and the drugs, if

we could have eliminated both of them, we would

have probably been the lowest in homicides. But

that's where it comes in.

   We have had too many young kids killed in

Chicago, innocent kids, standing out front of the

same funeral homes of other members of their

community that were killed in drug activities, and

this is the thing that we're trying to stop in the

Chicago area.

   It is a problem. There is an awful lot of

violence. Years ago, the police would be able to

stop somebody or holler, "Stop. Police," and they

stop. Today they turn around and they come out

with every type of weapon imaginable.

   And it's to protect their turf, it's to

protect their incomes that they have, and they

don't care about who they involve in this because

55

we have these young kids, as I've said, and they're

out there making the money so that the bigger cogs

in the wheel can get away because these kids are

out there just as lookouts. But to give a 10-year-old kid a

hundred dollars at the end of the day,

that's something that's very hard to turn down.

   COMMISSIONER CASTILLO: Has this been

specifically tracked to crack cocaine?

   MR. NOLAN: Well, it's narcotics in

general. It's not only crack; it's all narcotics.

   COMMISSIONER CASTILLO: Thank you.

   CHAIRPERSON MURPHY: Are there any other

questions for Mr. Nolan? Mr. Elwood, since he

hasn't had a chance, and then we'll get to you

again, Judge--

   COMMISSIONER ELWOOD: Well, we heard from

Commissioner Steer that only 16 states

differentiate between crack and powder, but it's my

understanding that a lot of local enforcement

effectively distinguishes by sort of importing

Federal standards by asking the Feds to come in and

help them on local enforcement efforts. I don't

56

know if this is the case in Chicago.

   MR. NOLAN: Yes, we do.

   COMMISSIONER ELWOOD: But I understand

that in a lot of places they have the Feds come in

to help them break up local violent gangs; in part,

using these stricter Federal sentences for crack

and for drugs generally.

   In your opinion, will it harm local

enforcement efforts to break up violent gangs if

Federal sentences or if the triggers are increased?

   MR. NOLAN: No, I don't think so. No.

   COMMISSIONER ELWOOD: You're saying if the

penalties for crack are decreased, that is not

going to harm your efforts to break up gangs?

   MR. NOLAN: Oh, if it's decreased? Yes, I

think it would. I think what we have to do is let

the drug dealers out there know that if you're

going to deal in drugs, if you want to take the

chance and deal in one vial of crack or a couple

kilos of heroin, you're going to go to the

penitentiary, and that's the message that we have

to send to them.

57

   CHAIRPERSON MURPHY: Okay. Judge Johnson?

   COMMISSIONER JOHNSON: We have spoken to a

lot of people, law enforcement, treatment

officials, corrections, legislators, and the

consensus that we have had was that there should be

a change in this disparate sentencing structure,

100-to-1.

   As I recall, when they were formulating

these laws, one party said that "There's a lot

of violence associated; we have to be tough on

this crack situation. We're going to make it

50-to-1. "

   And the other party, whether it's

Republican or Democrat or Democrat or Republican

say, "We're not going to be outdone. We're going

to make it 100-to-1." So, therefore, we have this

100-to-1 situation.

   We, in the Commission, have been very,

very concerned, and we feel that maybe we have to

do something about this situation. If something is

done, there's a bill before Congress now, and it's

a 20-to-1 ratio. If it had to be changed, what do

  58

you think would be a fair ratio?

   MR. NOLAN: I really couldn't say, Judge.

I really don't know what the fair ratio would be.

I'm really not that much involved in the day-to-day

arrest and prosecution of narcotics offenders, and

I would leave that up to the State's Attorney and

the U.S. Attorneys to determine what they feel is

best.

   CHAIRPERSON MURPHY: Okay. I just want to

remind the Commissioners that we've spent an hour

on the first two witnesses, and we've got four sets

here this morning and plus you know about the rest

of the agenda.

   I'm sorry to remind, but anyway, with that

nice introduction, Mr. Weich.

  STATEMENT OF RONALD H. WEICH

   MR. WEICH: Good morning, Judge Murphy,

and members of the Commission. My name is Ronald

Weich. I'm a partner in the law firm of Zuckerman

Spaeder, and I appreciate the opportunity to offer

comments on behalf of the American Bar Association.

   I'm appearing today on behalf of the ABA,

59

but I also bring several other relevant

professional perspectives to the hearing. I began

my career as an Assistant D.A. in Manhattan. I

then served for 2 years as counsel to this

Commission, and then I worked on Capitol Hill for

several years and was chief counsel to Senator

Kennedy at the time that the Congress considered

the Commission's 1995 proposal on cocaine

sentences.

   Now in private practice I serve as an

advisor to several organizations interested in

sentencing laws, including the Leadership

Conference on Civil Rights, whose Executive

Director we heard from yesterday.

   Having disclosed all of that, I want to

emphasize that I'm speaking strictly on behalf of

the ABA today.

   The principal source of the ABA's views on

proposed Amendment 8, which is the amendment we've

been asked to focus on, is the ABA standards for

Criminal Justice Sentencing Chapter, the Third

Edition, which was published in 1994.

60

   My written testimony explains at some

length why the current system for sentencing

Federal drug offenders substantially deviates from

these standards. We recognize that many of the

criticisms of the Federal system in my testimony

are more properly directed to Congress because

Congress has control over the statutes, and the

statutes are so much at the root of the problem

here.

   But I want to take a few minutes of my

time to discuss these big picture concerns because

they put into perspective the ABA's views on

Amendment 8 and because structural problems in

Federal sentencing are, of course, a concern to

this Commission, and I think it's important to step

back from the tree sometimes and not just look at

this particular quantity or that ratio or this

specific offense characteristic and instead look at

the whole system.

   I think it has to be said that the tangled

morass by which Federal defendants, Federal drug

defendants in particular, are sentenced today is

61

deeply, deeply flawed.

   MR. WEICH: Amendment 8 is, on balance, a

step in the right direction, and the Commission

should implement a portion of that amendment and

also raise the threshold quantity for crack

cocaine.

   But even if the Commission moves forward

with those proposals, there's so much more that

needs to be done to make Federal sentencing less

complex, less arbitrary and more rational.

   The standards, the ABA standards, endorse

a flexible guideline system, one in which an expert

body develops general rules to govern the ordinary

cases, but in which Judges are free to depart in

cases that are different than the norm.

   And the standards acknowledge the tension

between individualized sentencing on the one hand

and standardized sentencing and advocate a system

that--it's a balanced system that guides judicial

discretion without eliminating it.

   The current Federal system deviates from

that model in at least six ways. First of all,

62

Congress continues to rely on mandatory minimum

sentences. This is contrary to three decades of

ABA policy. The mandatory minimums are

inconsistent with the guideline system. They

undermine this Commission's work.

   This Commission reported to Congress 10

years ago that mandatory minimums cause unwarranted

racial disparity. It's long past time for Congress

to abandon that sentencing system and put its eggs

in the basket of Federal sentencing guidelines.

   Secondly, both the laws and the guidelines

are overly complex, rigid and mechanistic. On the

back of my written testimony, I appended 21 USC

844, the possession statute, which is very rarely

used, but it illustrates, I think, the complexity

and the arbitrary nature, the layered nature.

   Each Congress comes along and has a new

drug that it wants to say it's really tough about,

and so there's a new mandatory minimum, a new

graduated system of penalties, and you find that

the drug trafficking statutes, which are widely

used, are even more dense and layered, but I didn't

63

append them because they take up 15 pages of the

last compilation. And I think that the Commission

and the Congress need to address this complexity

because it's driving practitioners, prosecutors,

defense attorneys and Judges crazy, and I know that

members of the Commission share that frustration.

   Third, Federal drug sentences are

determined to an unreasonable degree by a single

factor, drug quantity, and here, of course,

proposed Amendment 8 is going to take a step away

from that reliance.

   Fourth, Federal drug sentencing is not a

product of empirical scientific evidence. The 1986

determination by Congress to set these ratios was

devoid of any scientific considerations.

   The Commission did undertake a very

empirical, thorough scientific analysis in 1995.

Congress, unfortunately, rejected that proposal,

and frankly, you just need to go back--and you have

a stronger record now in light of the testimony

yesterday and I think even some of the testimony so

far today--to go back to them and say, "The current

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system is unfair and needs to be revised."

   Fifth, there's widespread that Federal

drug sentences are more severe than necessary to

achieve societal purposes for which they are

authorized which is a provision both of 18 USC 3553

and the ABA standards.

   I don't know if you're aware that Bureau

of Prisons Director, Cathy Hawke Sawyer, testified

before Congress that "Seventy-some percent of our

female population are low level, non-violent

offenders. The fact that they even have to come

into prison is a question mark for me. I think it

has been an unintended consequence of the

sentencing guidelines and the mandatory minimums."

   In an extraordinary letter from Judge

Martin, John Martin in New York, and 26 of his

colleagues, judicial colleagues, all former United

States Attorneys, Judge Martin and his colleagues

complained that crack cocaine sentences are unjust

and do not serve society's interest.

   Sixth, mandatory sentencing laws and the

guidelines exacerbated by the indefensibly harsh

65

treatment of crack result in unwarranted and

inequitable disparities that the standard said must

be avoided.

   In 1995, the Commission said that.

Virtually every member of the House and Senate

Judiciary Committee acknowledged it. The Attorney

General of the United States said as much. But

here we are 7 years later and it seems as though

these rules, these laws are impervious to change.

It's time for the Commission and Congress to act,

and we strongly urge you to do so.

   Proposed Amendment 8 would generally bring

Federal drug sentencing closer to the principles

embodied in the standards. The ABA has no

institutional position on many aspects of the

amendment, but in broad strokes, we support the

Commission's efforts to reduce the dominant role of

quantity in Federal drug sentencing and permit

Judges to take greater account of the relative

culpability of different defendants. I think both

Mr. Nolan and Ms. Brennan endorse that basic

concept.

66

   Drug quantity is an unsatisfying ultimate

sentencing factor because it's variable that's

subject to manipulation by law enforcement

officers, it's a poor proxy for culpability in

conspiracy cases and under the relevant conduct

guidelines as Judge Sessions pointed out.

   The Commission's proposal to restrain the

sentence of defendants who qualify for a mitigating

role is a sensible effort to restore

proportionality to the guidelines, and there's no

reason, we think, to limit the scope of that

provision to defendants who qualify for only some

mitigating role adjustments. It should for anybody

who qualifies for a mitigating role.

   You also propose enhancements for violence

and other circumstances of the offense. That makes

sense, of course, if you also substantially

increase the threshold quantities for crack

cocaine. As we've discussed today, the current

threshold levels have been defended on the grounds

that the crack market is inherently more violent,

but the Commission's own statistics show that that

67

has changed to some extent.

   If you're going to add the violence

enhancements to the guidelines, you should take it

out of the base offense level so as not to double

count.

   On the other hand, we have practical

concerns about the proposals to incorporate in the

drug guideline the criminal history factors. It's

in Chapter 4. It adds unnecessary complexity to

put those factors as specific offense

characteristics in Chapter 2.

   Turning to the question of crack cocaine,

we endorsed your 1995 proposal to equalize crack

and powder. We relied on your empirical analysis.

We are aware of no empirical evidence that's

developed since then to call in to question your

conclusions. Indeed, there's substantial evidence

that things have made that position more

defensible.

   But where my--Public Law 104-38, we

understand that Congress has constrained this

Commission from proposing 1-to-1. On the other

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hand, Congress explicitly said, "Change the ratio.

Everybody knows that it's wrong."

   A fair reading is that the Commission

should return to Congress with a ratio between the

discredited 100-to-1 and the rejected 1-to-1, and

we urge the Commission to raise the crack penalties

to achieve a ratio as close as possible to the

previous 1-to-1 proposal.

   We strongly urge that you not increase

penalties for powder cocaine. It's completely

unjustified by the empirical evidence. If you

lower the threshold, you bring more low level

defendants into the reach of the mandatory minimums

or the guidelines and then the mandatory minimums

by extension, and as Judge Martin and his

colleagues wrote, "The penalties for powder cocaine

should not be increased. The disparity should be

remedied only by raising the amount of crack

cocaine that would trigger the application of the

mandatory minimum."

   I would welcome any questions from the

Commission.

69

   CHAIRPERSON MURPHY: Judge Sessions?

   COMMISSIONER SESSIONS: All right. You've

talked about the Commission's responsibility to

act, and you are certainly in a perfect position to

answer this query. You were affiliated with the

Sentencing Commission as legal counsel for a period

of time. You also were on Senator Kennedy's staff

in 1995 when that piece of legislation was passed

by Congress.

   The Commission's responsibility to act,

there is some question about whether we should act

by way of making a recommendation to change

mandatory minimums or--and I will say on the record

that this is my view and my belief, a view of many

here--that we have the responsibility to change the

guidelines to be fair to those persons who are in

this system of justice.

   My question is if we take on that

responsibility to change the guidelines, does that

offend in any way the spirit of the legislation

that was passed by Congress in 1995 or does it, in

fact, follow that directive?

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   MR. WEICH: First of all, Judge Sessions,

I hope there's no question about the Commission's

legal authority to propose guideline amendments.

   Public Law 104-38 asks for the

Commission's recommendations, but in no way limited

the organic authority of the Commission under

28 USC 994 to amend the guidelines. So there's a

legal matter. You can move forward with guideline

amendments.

   I think it's preferable for you to do so

for the following reason. I think--

   COMMISSIONER JOHNSON: --say to "do so,"

does that mean which one?

   MR. WEICH: I'm sorry, Judge.

   COMMISSIONER JOHNSON: Recommend or--

   MR. WEICH: I think it's preferable to

propose amendments. As you know, when the

Commission sends up its guideline amendments on May

1st of each year, they lay before Congress for 6

months before becoming law in November.

   So even when you amend the guidelines, it

is, in effect, a recommendation, a proposal to the

71

Commission. I think you should take that step of

formally sending amendments to the Congress, and if

the Congress doesn't act, they would become

effective on November 1st.

   I think that's important for several

reasons. First of all, we're 7 years past the

Commission's 1995 report which demonstrated so

conclusively that these sentences are unfair,

unjust and, indeed, racially discriminatory.

   We're 15 years since they were enacted.

So we've had 15 years of injustice. The Congress

is, in my view, ready to consider this matter

today. We have the bill introduced by Senators

Sessions and Hatch.

   We have lots of statements by members of

Congress to indicate that it's time--I'm familiar,

for example, with the letter from Chairman Leahy

and Ranking Member Hatch to the Commission asking

the Commission to take up this matter.

   Our conversations with congressional

staffers suggest the Congress is wanting to address

this matter. If the Commission proposes guideline

72

amendments and at the same time recommends changes

in the mandatory minimums, you frame the issue for

congressional resolution by November 1st of this

year, by the end of the congressional session, and

I think that's appropriate.

   I think that you will give Congress the

necessary impetus to act this year as I think they

actually want to.

   CHAIRPERSON MURPHY: Mr. Steer?

   COMMISSIONER STEER: Let me follow up on

that issue since I take the other side and draw you

out a little bit more about that.

   Let's suppose that Congress did not see

fit to change the statute, but allowed the

guideline amendments to go into effect. Now our

data show that one effect of that would be--let me

just pick a--I have to give you a figure. I have

to pick a hypothetical number that we might change

the crack number too.

   Let's say we made the threshold 50 grams

for the 5 year mandatory minimum. The effect of

that would basically be that whereas now mandatory

73

minimums trump the guidelines 10-percent of the

time. If the Commission made that change in the

guidelines and Congress did not act to change the

mandatories, the mandatories would trump the

guidelines in one out of three cases.

   How can you square that result with ABA

standards that call for eliminated, unwarranted

disparities? The Commission has just, of its own

accord, manufactured a disparity that will exist

solely depending on how the offense is prosecuted,

not based on its characteristics at all? So that's

one part of my question.

   Then I want to come back to the political

aspect of it and ask you about--

   MR. WEICH: Commissioner, it's obviously

not desirable for that disparity to be there.

You're quite right that that is contrary to our

standards.

   I think that it is more likely that we

will see a global resolution of this issue if the

Commission proposes the changes to the sentencing

guidelines and, in effect, spurs the Congress to

74

address the long overdue problem of the mandatory

minimums.

   Indeed, this may be an occasion for

addressing the applicability of mandatory minimums

generally. Nobody thinks we're going to repeal

them this year, but I think that there are a number

of proposals floating around in the Senate

especially to limit the reach of the mandatory

minimum.

   So I think that you're more likely to

achieve the result that everybody wants, which is

to solve this intractable problem once and for all

in the mandatories and in the guidelines if the

Commission tees up this issue for congressional

resolution.

   But if Congress chooses not to change the

mandatory minimums, it could, of course, alter,

modify or block the Commission's recommendation if

it did that. If it did so under those

circumstances, it would not, in my view, duplicate

the 1995 situation where, in effect, Congress was

rebuking the Commission. Instead, it would

75

Congress saying, "We need more time to work on

this, so we're going to hold up your guideline

changes while we work on the mandatories."

   Finally, if it works out that the changes

in the mandatories--in the guidelines go into

effect before the mandatories are changed, while

that's not desirable from a theoretical

perspective, it's not unprecedented.

   The marijuana guidelines and the LSD

guidelines both are, in effect, decoupled from the

statutes. And again, I think that is just more of

an incentive for Congress to finally rationalize

these absurd rules.

   COMMISSIONER STEER: You are an

experienced insider with respect to Congress, and I

value your perspective on that. But it is a

calculated risk, is it not?

   Recalling the 1995 situation, my

recollection of it is that there was a great deal

of animosity in the Congress that the Commission

had taken the action that it did and forced the

issue and put the Congress in the position of

76

having to vote on an issue in order to stop

something from happening before the Congress

apparently was willing to act, and that was not in

an election year.

   Now times have changed, but this is an

election year, and I think the consequences long

term, if that were to happen again, could be very

deleterious for the whole guideline system.

   Congress might, for example, decide that

"Enough of this. The Commission has done it once

too often, and we're going to stop this process of

amending the guidelines without congressional

action" and just change the statute so that instead

of the Commission being able to force it by sending

up an amendment, that the Commission can change the

guidelines only when Congress affirmatively acts,

as is the case in some state systems.

   MR. WEICH: Well, I was working on the

Senate Judiciary Committee staff at the time that

the proposal came up. I think there was a serious

problem at that time with consultation.

   I think that members of Congress were

77

surprised; not as much by the fact that the

Commission was making proposals in this area

because people knew that it was under

consideration, but the substance of the

recommendation took a lot of us, including me and

Senator Kennedy, by surprise.

   And I know that this Commission is not

repeating that mistake. I'm aware that there's

extensive consultation now. I think you need to

work closely with the Chairman of the two judiciary

committees, the ranking members, other interested

members like Senator Sessions; make them aware that

this is what you intend to do; solicit their views,

as I know you have.

   I mean, I could imagine if you received

personal assurances from the two chairmen and the

ranking members that this is an issue that the

Congress is going to address this year and that the

Commission's recommendations would somehow be more

favorably viewed if not in the form of guideline

amendments, you know. If the assurances were

airtight and not the assurances that I've seen some

78

members of Congress give to others, that would be

one situation.

   But I don't hear that, frankly. I hear

Senator Sessions saying that he wants to address

this subject once and for all. I've heard him say

he wants to offer his bill as a floor amendment

just to get some consideration of this.

   I know that Senator Leahy and Senator

Hatch are anxious to have the Judiciary Committee

consider this matter. So I really think you would

be facilitating the debate and the discussion that

they want to have if you were to put this forward.

   I'm as concerned as you are, Commissioner,

about the reputation of the Commission. The

Commission has done much to restore its luster on

Capitol Hill. That should not be squandered. But

its reputation is not an end in itself.

   Having done much to restore the

Commission's standing in this field with Congress,

you now, I submit, need to lead in this important

area.

   COMMISSIONER JOHNSON: I happen to agree

79

with you, and I stand in the camp of those who

should think we should have an amendment as opposed

to a recommendation, and although Congress'

consideration--I don't think that's the end-all

because we on the Commission have taken an oath,

and we have to do what we think is right.

   If Congress feels that what we have done

is not wrong, let them do what they have to do, but

we have to do what we have to do.

   CHAIRPERSON MURPHY: Are there any other

questions for Mr. Weich?

   COMMISSIONER ELWOOD: Yes.

   CHAIRPERSON MURPHY: Mr. Elwood.

   COMMISSIONER ELWOOD: Now one of the

strong emphasis of your testimony was the empirical

nature of it, but you acted as though the

Commission hadn't said anything about the

guidelines since 1995 which just isn't the case.

   Now in 1995, the Commission voted 4-3 to

equalize, even after recognizing in its statement

that crack cocaine was more dangerous than powder

cocaine.

80

   Now, admittedly, more recently people seem

to take a dimmer view of things that are decided by

one vote, particularly by the Judicial Branch, but

that's an entirely different matter.

   [Laughter.]

   COMMISSIONER ELWOOD: In 1997, the

Commission said unanimously that it should be moved

to something more like a 5-to-1 ratio with the

trigger moved for crack to between 25 and 75 grams

and for powder, to 125 to 375.

   Given that that is a more recent empirical

assessment, what is your view of the 1997

recommendation?

   MR. WEICH: Well, Commissioner, I reject

the idea that it was empirical. Empirical is this.

This is the 1995 report from the Commission which I

think is unassailable in its reliance on science,

on economics--

   COMMISSIONER JOHNSON: This being? For

the record, what are you--

   MR. WEICH: I'm sorry. I'm holding up the

Commission's Special Report to Congress, Cocaine in

81

Federal Sentencing Policy, from February 1995.

   I've looked at the 1997 document that the

Commission forwarded to Congress. It's

approximately 20 pages. It contains no empirical

evidence, and I think what it reflects, frankly, is

that that Commission--and I say this with respect

for former Chairman Conaboy, who is here today--I

think that Commission was cowed by the reception

that the 1995 proposal received in Congress, and I

think the Commission overreacted.

   There is certainly nothing in that 20-page

document which explains why the Commission chose to

increase penalties for powder cocaine. It's simply

an assertion that the--and, of course, all it says

is that Congress might consider it, and it proposes

ranges, and I think there was some negotiation with

the Justice Department and members of Congress to

try and arrive at a political solution to it.

   But I just don't think in terms of the

science, that you can compare the 1995 report with

that 1997 document. I banished the 1997 document

to a footnote in my testimony because, frankly, I

82

just saw it as ill advised and unsupported by the

evidence.

   CHAIRPERSON MURPHY: Okay. Well, we

really appreciate your coming here to speak, and I

think you can tell the interest that your testimony

has produced on the part of the Commission. Thank

you very much.

   And with that, we'll call forward Judge

Conaboy. This is a very good introduction to Judge

Conaboy's testimony. Judge Conaboy. Judge

Conaboy, welcome to the other side of the table

here.

   We know that you worked very hard on the

issue that we're focusing on today, and we're

looking forward to what you can help us with.

STATEMENT OF RICHARD P. CONABOY

   JUDGE CONABOY: Well, as I said before,

Madam Chairman, it's, I think, relatively easier to

be on this side, and as I sit here today in the

back of the room, I'm reminded of Yogi Berra's old

saying about de-ja vu all over again, and it seems

as though that almost could have turned the hearing

83

around aimed in the other direction, and we're

still hearing much the same arguments. I guess

that's because we're talking about human conduct

that doesn't change.

   I'm also reminded of a recent comment of

Yogi Berra's. Well, I heard it recently. It was

an old comment of his. When somebody asked him why

he continued to go to funerals, and he said, "Well,

if I don't go to theirs, they won't come to mine."

   [Laughter.]

   JUDGE CONABOY: And that one seemed to be

more appropriate for me today. I felt if I didn't

come here--

   [Laughter.]

   JUDGE CONABOY: If I don't come down here

to help you, maybe you won't help me. So I have a

couple of comments to make today. It was somewhat

short notice for me. I expected that maybe this

hearing might be later in March, and I had talked

to some of your staff members and had tried to make

more preparation to come here today and giving you

some benefit of history and comments from a

84

sentencing Judge.

   And certainly I don't come here to try to

tell anybody at all what you should do because it's

obvious that you have a very difficult job. But I

did prepare a few remarks, and I did go back to the

1995 report, and I excerpted from that what I

thought was a fair summary of what that report said

to the Senate.

   I also excerpted a number of the remarks

that I made when I presented it to the Senate on

behalf of the Sentencing Commission at the time,

and I'll make those available to all of you. You

might want to just look at those because I think

there was some significant misunderstanding--and

the reasons for that are many-fold--as to exactly

what was done in that report and at that time.

   I also have prepared a listing of some of

the things that we on the Commission back in 1994

and 1995 did that I perhaps think maybe were errors

of judgment and errors of procedure, errors of

naivete I think in large measure. And I'd be glad

to talk to you a little bit about those.

85

   But I will take just a minute or two to

mention some of the formal remarks that I tried to

prepare for today. I was reading these a minute

before and I want to change them a little bit.

   I said I came here to Washington before

you today not as a protagonist for any particular

cause or any action of this Commission. Indeed, I

come here more out of empathy for your positions as

members of the Sentencing Commission. I'm going to

change that now to say I come out of sympathy for

your positions.

   You have been especially designated and

appointed to perform one of the most difficult of

all human tasks, passing judgment on the comment of

others, and you're entitled, I think, to serve with

great pride and to have--and you, indeed, do you

have, I think, the highest respect from all the

members of society who rely on you to guide them in

this most difficult area.

   So I come here today specifically to

salute your dedication, and I welcome this chance

to do that. And I hope that you will find in the

86

work and in the suggestions that you make the

necessary support in other areas of the system to

establish and to maintain what we all hope is a

fair and a just sentencing process in the Federal

Court system in this nation.

   So in the context of today's hearing, and

hopefully without imposing on your time, I would

presume to accomplish just two things. One is to

bring you perhaps a brief history of the prior

Commission's actions on that exquisitely important

issue of crack and powder cocaine sentencing that

you've been hearing so much about this morning and

secondly, to submit a brief commentary on your

present suggestions and the proposed amendments

that you have put out for comment.

   I talk about the history or I will if you

wish me to and submit that not with any intention

at all of influencing your own deep and important

consideration of this most troubling area of

sentencing. But, rather, I would hope, if I can,

to help you to flush out past actions on this issue

for your own knowledge and your own review and

87

perhaps to help in presenting it again to the

Congress.

   On the second issue, I submitted some

commentary on some of your suggested changes in the

context of what I look at as a continuing effort to

sustain and hopefully to reinvigorate a deep sense

of responsibility in every Federal Judge to impose

a just and a proper sentence in every criminal

case.

   After this commentary, I'll happily engage

in discussions with you or take some questions if

you have them and if you wish me to respond to any

of them.

   Federal Judges, as all of you know, are

called upon to preside over many types of cases

that are often complex and many times very

difficult. But no duty is tougher or no duty is

more demanding than sentencing.

   I've been a Judge now almost 40 years, and

I can tell you in talking to other Judges who have

served that long and longer, they say to me and say

to others over and over again, "No duty we have is

88

tougher than sentencing."

   As an individual Judge and one who has

worked with many others, I've always supported the

concept that it is necessary to have some

guidelines to be used by sentencing Judges in

trying to determine a proper sentence in a given

case.

   I think it's absolutely necessary to have

some type of guidelines, and I served on the days

when there were none and can tell you it was a task

that gave us great concern, and we were never sure

that we were trying or ending up doing the right

thing.

   No direction at all, as you know, can--and

it did lead to many problems, and it lead sometimes

to great disparity in sentences when we were

without direction or guidelines at all.

   But like all legislation, like any laws or

any guidance that comes out of governmental units

like your own, we have to continue to try to

balance the precious rights of freedom and

individual action with the need for some type of

89

centralized direction.

   Our nation, as all of you know I'm sure--and we're

reading much more about this lately,

thank heavens, and I hope we'll hear more about it

in the teaching of history in our schools--that our

nation is the longest existing republic in the

history of the world. No other republic ever

lasted even half as long as our nation, and there

has to be some reason for that.

   Many writers and historians attribute that

success to the great foresight and the intelligence

of our founding fathers and their meticulous

attention and their efforts to maintain individual

and state freedom in tandem with the concept of a

centralized form of government, but they knew that

both had to exist.

   They knew that a centralized government

was not the answer to everything, and they knew

that centralized regulation of human freedom could

not long exist because it never did before in the

history of man.

   And the more centralized power became, the

90

more certain the republic was going to reach its

demise, and that's what history has taught us. And

so we have to try, I think, to emulate that concept

that was so important to the founding fathers of

this nation.

   JUDGE CONABOY: I say to you this

continuing success in this kind of endeavor has to

be maintained in large measure by people like

yourselves, people who are willing to give your

time and your talent and your thoughts to making

our government work well, and that's what you

should be all about.

   Few I think would dispute in this day and

age that a sentencing guideline system is

necessary, and few I think would dispute the fact

that it can work well. But the concept of an ideal

guideline sentencing system is nebulous at best and

almost impossible to reach.

   In our Federal system, as all of the

originators agree, and you see this in all the

writings in the beginnings of this systems, all the

originators of this system agreed that continued

91

attention and continued change were going to be

necessary to make it work better.

   So we shouldn't be afraid. We shouldn't

shy away from the concept of changing the system,

especially when we learn that it needs change and

it can be made to work even better.

   That's where your devotion and that's

where your determination to do the right thing--

your determination to do the right thing--becomes a

solemn obligation and at the same it, it's very,

very imposing and very difficult.

   Like all of the citizens of this great

nation, I commend your efforts on the proposed

amendments that you now have put out in such areas

as terrorism, career offenders and your recognition

that in some areas establishing values, like where

there's a cultural value, is a difficult thing, but

should be faced, and your attention to victims'

rights, along with many of the other items that are

in your proposed amendments are deserving of great

support and great consideration.

   But I especially today come here to

92

commend you for addressing again this drug

sentencing problem and especially the crack and

powder cocaine problems. And your suggestions, I

also want to commend very strongly your suggestions

of endorsing a broader area of potential

alternatives to imprisonment.

   Those are two items that I think cry out

for attention, and I'm happy to see that you are

responding to that cry and to that request by

everyone for attention to those two areas.

   I don't know of anyone who disagrees with

the need to change the disparate sentencing

requirements between crack and powder cocaine, and

I think it was a good thing today that you heard

from someone like Mr. Nolan as well as others who

talked about this and tells us of the problems that

are on the street and that the police face in these

areas.

   But even in those areas, they know and we

all know that disparate sentencing requirements are

not good and do not serve the sentencing process

well.

93

   The arguments that favor change in the

disparate system and change between crack and

powder cocaine are too abundant for me to try to

even summarize for you. You've heard lots of that

this morning, and I won't even try to go into them.

   But your determination, I think, that the

time has come for a change is courageous and is

unassailable. The time has come.

   CHAIRPERSON MURPHY: Judge Conaboy, could

I ask a question at this moment?

   JUDGE CONABOY: Sure.

   CHAIRPERSON MURPHY: You heard Mr.

Elwood's question about the 1997 report of the

Commission back to Congress, and I know a number of

other people in Washington refer to that report.

And it does have a number of options that are

reported back as possibilities, but there are

ranges in that, and that was your Commission and

now it's our turn to be looking at this, but we

respect the history of it.

   I wonder could you tell us a little about

what process was used to come up with that '97

94

report back to Congress?

   JUDGE CONABOY: Sure, I can try to, and I

was going to try to address that, if I could, Judge

Murphy.

   CHAIRPERSON MURPHY: I apologize then.

   JUDGE CONABOY: No, not at all, because

most of that is more important than any of these

other general comments that I would make.

   I was interested in listening to the

discussions, as you might know, about the

difference between recommendations and proposed

amendments. I don't think anybody ever heard of

that before 1995 because there's nothing that I

know of in the statutory framework that makes up

the Commission that tells us we should be making

recommendations.

   They do tell us--they do tell you, rather,

that you have a very serious obligation to make

amendments, suggested amendments, by the 1st of May

every year so that the Congress can then consider

them and determine by the 1st of November whether

they want them to go into law.

95

   Now it may be that it's a good thing, and

I have no objection at all to the difference or to

the concept of making recommendations and

amendments. And I think maybe that's part of what

happened in the past; that perhaps we didn't work

as closely with some people as maybe we should have

in that area.

   But after our proposal was rejected

essentially and we began to realize that there was

some feeling that even if there was to be a change

in the ratio, that abolishing it was not acceptable

to a majority in Congress, what I did on the

Commission, for better or worse, is I called

together both sides of the people who served on the

Commission; those who, in my judgment, kind of

represented one extreme and those who represented

the other.

   I said, "We've learned apparently that

abolishing the ratio is not going to work, and the

Congress is now saying to us in return, `Give us

some other suggestions.'" So I asked those people,

since they represented the extremes to sit down and

96

try to work out a variety of other possibilities

that could be done in the way of ratios.

   And they did and put some extensive work

in on that, and my recollection is that that work

of those people made up the recommendations that

were then submitted in 1997 that provided some

potential ranges in the ratios rather than

abolishing them.

   CHAIRPERSON MURPHY: So would the

underlying work or material have been what was

referred to by Mr. Weich in that 1995 report--and

as I understand what you've just said, then you

went back and tried to come back with some other

options for Congress, but you didn't gather more

information or do more studies?

   JUDGE CONABOY: No, we did not, not to my

knowledge, because we felt the--I was going to tell

you a little bit--and maybe it's a good time to

move to that now--about how we worked on the first

1994 recommendation, and this not a commentary at

all on how anybody voted or why we voted one way or

the other, but just some of the background.

97

   First of all, that study was here when we,

in the 1994 Commission, arrived. It had already

been completed, and on my desk when I arrived up

here, upstairs, was this big book that was some 200

pages long, a total study of this problem. And we

were told that by the end of that year, we had to

send recommendations and amendments to Congress

consistent with the report.

   So that frightened us naturally, and one

of the first things I did was ask for an extension

of that time, could they let us make it towards the

end of February because we needed more time to

study it. And they did agree to that.

   But we did really have very little time to

review the entire thing as thoroughly as if we had

done it ourselves. We did, in fact--and I have to

go back and commend the people who served with me--go over

it almost line by line, but it was really

working on other people's work.

   And again, the recommendations were

essentially based on studies done by others and at

a different time than under the direction of that

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particular Commission.

   So in 1994 then, when the recommendations

were made, we were in an era, perhaps without maybe

realizing it, although I don't think that's fair,

but it was an era of being tough on crime. And

even though we were led to believe that those in

other parts of the government were ready to agree

to abolish that ratio or at least dramatically

change it, perhaps we didn't give enough thought to

the political parts of that recommendation.

   We made what I would like to refer to as

more of a judicious decision. One that we looked

at the facts and we made the study and we made a

decision as to what we thought was right, both on

the majority and the minority votes.

   But perhaps if we had it to do over again

--and I think perhaps you've been involved in this

--we might have decided that the recommendation,

the report that we made was perhaps too ambitious

because here's what we were faced with.

   We were faced with the statute that we

found out and came to realize that many people in

99

Congress felt they had worked on a long time and

come up with the right answer, and we were asking

them to agree that it was wrong and to completely

change what they did. And that's not easy for any

human being to do.

   So I suppose it might follow that we would

say that we needed to do more work in communication

and extensive work with the Congress, and it was

following some of that happening that we did, in

fact, try to bolster the area of the Sentencing

Commission staff that has to do with relations with

Congress and try to instill in all of our work a

bigger effort to relate more to Congress and to ask

them to relate with us.

   Many times when I went over myself and

visited with many, many Senators and many

Congressmen, I found that there was either, a, a

misunderstanding of what we did as a Commission or

really a total lack of knowledge of what our

obligations were as a Commission.

   Now it was nobody's fault. It was a

fairly new endeavor, and I don't think--and this to

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me is maybe one of the most important things. I

don't think that everybody understood when that

report went over to Congress in 1994 that we were

saying much more than just abolish the ratio.

   I have excerpted from the report a whole

list of items of aggravating factors and mitigating

factors that we said the Commission felt had to be

done in order to make this sentencing process work

right because there are differences sometimes in

the conduct of parties who commit what seem to be

similar crimes.

   So we wanted to add enhancements for

possession or use of a dangerous weapon, murder of

a victim in the course of a crime, death or serious

bodily injury, drive-by shootings, involvements of

juveniles or street gangs, sales of drugs to

juveniles or pregnant women, drug crimes in

protected locations and significant prior records.

   We were recommending changes in the

guidelines, but what we were saying to the Congress

and what I think you're saying, what I think is the

important thing, that to make the guideline system,

101

which they initiated, to make it work well, you

cannot start out at the wrong base level.

   If you start out at a base level that's

unfair or unjust, you're going to get an unjust

result. So if you start out equally and you allow

the probation officers and the people who

investigate the case and the sentencing Judge to

enhance or to mitigate the conduct with all these

directions that the Commission would give, that's

the way the guideline system is supposed to work.

   The guideline system, as all of you know,

and every report that any Commission has made,

cannot work properly in tandem with mandatory

minimums. As some of you have just said and some

of the other witnesses or people testifying here

today have commented that there's an inherent

conflict in those two concepts.

   I think the guideline system is great.

I'm one of those people who believes our Federal

system is a little too complicated, but I think you

can work at that. And I think you're trying your

best to work at that, and I think this crack and

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cocaine and drug sentencing area is one of the most

important ones that you can attack because there is

probably the most disparate results in that area of

any other part of the sentence.

   What I did, by the way, in this area, I

asked our Probation Office and I asked our public

defenders and I asked our United States Attorney's

Office to give me some information and their

comment on it.

   The U.S. Attorney's Office sent me back a

letter--and by the way, I had to compress their

time that I gave them for doing this, and they did

try to get something back to me last week even

though I was out of the office for a few days.

   The U.S. Attorney's Office says they were

somehow constrained by the Department of Justice to

speak with one voice, and they didn't want to

comment specifically.

   The Probation Office made a suggestion of

a 2-to-1 ratio that they thought would be more

important than the present 1-to-1 that they say

would recognize some inherent differences in the

103

powder and in the crack areas.

   The Public Defender's Office pretty well

mimicked some of the commentaries that were made

here by a prior witness, Mr. Weich, and I won't

repeat those because you've heard all of those

things so often.

   But the important thing is to decide what

change has to be made. That's the tough job you

had. And just let me comment briefly, if you will,

and I know you're compressed for time.

   The other matter that I think is so

important--and that's the expansion of alternatives

to incarceration. I think change in that area,

perhaps expanding the zones as you suggest, I think

that's so basically important again, and I think it

would go a long way, not so much to expand judicial

discretion. I don't even like that term. I've

come to dislike it completely because it raises

hackles in areas where they don't belong.

   I think what it would do much more

importantly, it would renew and rekindle judicial

responsibility and judicial obligation at the time

104

for sentencing. I think Judges should pain over

every sentence, and I think they should work very

hard and very close with all those who are

involved, the prosecutor, the defense counsel, the

probation office, to impose a just and a fair

sentence and to be sure that the sentence fits

within the concepts of the guidelines of

aggravating and mitigating circumstances.

   In this area, by the way, I think it's

very fair and very important to require that Judges

put on the record the reasons that they impose a

sentence. And it's interesting to note in

Pennsylvania, where they have long had a guidelines

system, as you know, that allows for mitigating and

aggravating circumstances, but in a decision just

last week, the Supreme Court of Pennsylvania has

once again reasserted the necessity for the Judge,

the sentencing Judge, to put on the record the

reasons why he or she goes up or down from a

suggested sentence.

   CHAIRPERSON MURPHY: Judge, I hate to

interrupt, but I think as an experienced District

105

Judge and as a former Chair, you understand. We're

almost at the point where the hearing was supposed

to be concluded, and we haven't reached the half

point of the people that are going to testify.

   So I wonder if I could see if there are

any other questions that Commissioners have, if you

don't mind, because--

   JUDGE CONABOY: You can cut me off at any

time because when I get in this area, I'm inclined

to say a lot because I think it's so important.

   CHAIRPERSON MURPHY: Well, you've got a

lot to say. It's just that--

   JUDGE CONABOY: --concern about your time,

so I'll be happy--

   COMMISSIONER CASTILLO: Judge Conaboy, we

don't want to cut you off, and I really appreciate

you coming here. I want to tell you, Judge to

Judge, Sentencing Commissioner to Sentencing

Commissioner, we all owe much to those who came

before us, and a lot of whatever it is that we've

accomplished in these two years are due to your

efforts and the fine staff that you left us, and I

106

want you to know that before you head back to

Pennsylvania.

   JUDGE CONABOY: Thank you.

   COMMISSIONER CASTILLO: You started out by

mentioned Yogi Berra and funerals and I hope you

don't come back to our political funeral, but I

really believe that this is an important issue and

that we have an obligation, as I think the majority

of this Commission does, to act.

   I know it's hard to go over what might

have been, errors or as the old saying goes,

"Hindsight is always the best sight, 20/20." It

seems to me three key things arise from the 1995

report.

   One was the closeness of the vote at the

Commission, the 4 to 3 vote. The second thing was

the reaction of the Department of Justice, and then

the third thing being your relationship with

Congress.

   Are those the three areas that you would

advise us to really keep an eye on as we proceed on

this controversial issue?

107

   JUDGE CONABOY: Absolutely. As I went

around the country when I was Chairman to talk to

people who imposed sentences, I tried to make a

point that I think is important to them; that

sentencing is no longer confined to just the

Judges. Many other parts of the Government have a

say, a very important say in sentencing anymore,

and we have to be aware of that.

   And we have to cooperate with the

legislature and with the prosecutors, with the

defense, to make sure we all are on the same page,

at least trying to be. So I think those are three

important things.

   The split on the Commission I think

represented, probably more than anything else, the

reality of what you are talking about here today;

that perhaps you can't just eliminate the ratio, at

least the first time you try.

   We maybe gave them too much to chew on

over in Congress. Congress doesn't act fast. That

was one of my frustrations here. As a Judge,

you're used to looking at facts, deciding and go on

108

to the next case. Congress takes things under

consideration, looks at them year in and year out,

and I think this is a good example; that they're

now coming back saying, "Help us with this." And

so I think your three points are very important.

   COMMISSIONER CASTILLO: Was the reaction

of the Department of Justice something that

surprised you?

   JUDGE CONABOY: Yes, there were a lot of

surprises in it.

   [Laughter.]

   JUDGE CONABOY: I was personally led to

believe, and I don't blame anybody for this. I

have no ill feelings towards anyone about my

services as the Chairman of the Commission.

   I have to be candid, and I'd be less than

honest to say--I would be less than honest if I

said I wasn't surprised at a lot of things that

happened.

   I was led to believe that Congress was

ready, and the other phases of Government, to

abolish that ratio. I may have been naive about

109

it. I may have been anxious about it and maybe too

imbued with listening to my own reasoning, but

whatever it was, I was very shocked at the

reaction.

   The day I went over to the hearing was one

of the major shocks of my life. One of my 48

grandchildren, by the way, was there with me, one

of my oldest ones, and he said to me when we got

outside, he said, "Papa, I don't think you're used

to being talked to like that, are you?"

   [Laughter.]

   JUDGE CONABOY: That summarizes it better

than I could.

   [Laughter.]

   CHAIRPERSON MURPHY: Well, does anybody

have a further question? Professor O'Neill.

   COMMISSIONER O'NEILL: I'd just like to

say, Judge Conaboy, that back when this--sort of

when the Commission had made its decision back in

1995 and all this was going on, I was actually, at

that time, as you'll recall--

   JUDGE CONABOY: Yes.

110

   COMMISSIONER O'NEILL: --a staffer. I

worked as a general counsel for the Senate

Judiciary Committee for Senator Hatch.

   JUDGE CONABOY: You're one of the first I

met.

   COMMISSIONER O'NEILL: That's right, and I

just have to say that, boy, it's a heck of a lot

easier being on that side of this whole question

than it is on being on this side. And I've come to

appreciate to a much greater degree not only the

political complexity with which you had to approach

that decision, but just with the fact that the

Committee or the Commission at that time was truly

interested in doing what it thought was

appropriate, what it thought was right and what it

at least had been led to believe was the right time

to do it.

   So I'd just like to thank you both for

your testimony today and for the good work that you

performed for the Commission in the past.

   JUDGE CONABOY: Thank you very much, and I

appreciate that.

111

   CHAIRPERSON MURPHY: I think we all share

that.

   JUDGE CONABOY: Well, it's nice to be with

you, and you have my constant prayers and my

constant thought, and I still hear lots of

complaints about guidelines and guideline systems,

but I think those of you who give your time and

effort and every day to make it better deserve a

great deal of our thanks.

   I think the Judges out in the field now

are working harder to try to make the system work

better.

   COMMISSIONER O'NEILL: I certainly hope

you brought your 48th grandchild along today to see

how you were treated by the--

   JUDGE CONABOY: I should have done that.

He's a law student now, by the way, here at

Catholic University, and I was afraid to ask him

over for fear of what would happen.

   [Laughter.]

   CHAIRPERSON MURPHY: Judge, if you would

leave with my assistant the papers that you've

112

brought--

   JUDGE CONABOY: Yes, I will.

   CHAIRPERSON MURPHY: --I'll see that all

the Commissioners get them. Thank you very much

for coming.

   JUDGE CONABOY: Thank you.

   [Applause.]

   CHAIRPERSON MURPHY: We'll proceed then

with the next panel, Julie Stewart and Jamie

Fellner.

   Julie Stewart is a familiar face, a

frequent visitor to the Commission public meetings.

She's President of the Families Against Mandatory

Minimums.

   And then Jamie Fellner is also a well

known figure at the Sentencing Commission. She's

the United States Program Director and Associate

General Counsel for Human Rights Watch.

   So, Ms. Stewart, do you want to start us

out?

   MS. STEWART: Yes, thank you.

   STATEMENT OF JULIE STEWART

113

   MS. STEWART: Well, good morning, Judge

Murphy and Commissioners. Thank you for inviting

me to testify today. I believe this is the first

time in the 10 years that I've testified here that

I've actually been invited and haven't just hoisted

myself on you.

   But I am happy to be here to represent the

25,000 members of FAMM, many of whom are crack

defendants or who have family members who are in

prison for crack cocaine.

   As many of you are aware, I have appeared

here every year for the past 10 years to urge you

to amend the sentencing guidelines in ways that I

had said increased judicial discretion, but after

Judge Conaboy's testimony, I will say increase

judicial obligation while providing appropriate

penalties that fit the offense and the offender.

   Each time I testify I try to bring

something to the Commission that you have not or

will not hear from any of the other experts who

testify before you, and that's a very tough thing

to do at the end of two days' worth of testimony,

114

which has been, I believe, very informative and

helpful for you.

   So sometimes I have been referred to as

the conscience of the Committee, and perhaps that's

what I bring today as every other time. I'm not a

doctor; I'm not a lawyer; I'm not a law enforcement

person; I am the sister of a former prisoner; and I

have run an organization for the past 12 years that

has heard from family members of people serving

time for drug offenses; and I bring that unique

perspective to this forum today.

   I'm very impressed with what you are

trying to accomplish. Crack cocaine penalties are

unconscionable, and I believe this Commission knows

that. You've stated so in your issues for comment,

and the 1995 Commission's report also said that.

   But to be honest with you, I'm very

worried about how strongly politics will influence

the decision that you must make or that you plan to

make.

   In 1995, when the Commission voted to

equalize crack and powder cocaine, it was in this

115

very room, and I was here, and I remember

afterwards stepping outside and going, "Well, that

was a very brave moral vote, but I don't know how

it's going to play in Congress." And I think a lot

of us shared that concern.

   I'm not naive about the need for the

Commission to--I mean, you must pay attention to

what Congress is wanting to do. You must be in

line with them, and you clearly are. But I am

worried about to what degree politics will

influence your decisions in the areas of what the

crack penalty should be, whether to raise powder

cocaine penalties and whether to submit a

recommendation or an amendment to Congress.

   As previous speakers have said, equalizing

crack is not even an option today given the

congressional directives to you. So now the

question is how do you decide what the penalties

should be.

   As FAMM totally opposes weight-based

sentencing as I'm sure most of you know, but if

weight is the primary factor, if it must be the

116

primary factor for now in establishing sentencing,

we feel that there has to be some sort of

justifiable process, some organizing principle by

which to determine what that sentence should be,

what that weight should be.

   And I know that that's exactly what you're

attempting to do; you're not going to pick a number

out of the blue, which I see happens in Congress

all the time, to create a fairer ratio. They just

choose a new number without a lot of foundation to

that figure.

   So what we have been thinking about and I

have been talking about widely for the last year or

so to civil rights groups all over the country as

well as our own membership is to try to focus on

who the mid-level dealers are and who the high

level dealers are, and I know that's something that

you addressed in your earlier comments, Judge

Sessions, to Bridget Brennan.

   And it's difficult to determine that I

realize, but the Commission has 15 years' worth of

data to extract from what quantities represent mid-level

117

dealers, what quantities represent high level

dealers. Your pretty blue briefing slides show the

numbers for '95 and for 2000.

   I think that both of those--just those

two years that are cited in those charts show the

numbers that are significantly larger than the

5 and 50 grams that are used today to currently

trigger the 5 and 10 year penalties.

   So I really urge the Commission to do the

analysis that would somehow help identify what

quantity constitutes a mid-level dealer and what

quantity constitutes a high level dealer because I

think that those are terms--that's a principled way

to establish a new quantity for crack that I could

take back to our membership and say, "This makes

sense. This is what they've done with all the

other drugs. They've tried to achieve the

quantities that represent mid-level and high level

dealers."

   Along that line I would urge the

Commission not to change powder cocaine penalties.

Again, back in 1995 when the Commission did vote to

118

equalize the two drugs, Commissioner Tacha, Deanell

Tacha, wrote a very excellent dissent in which she

recommended ratios of 5-to-1, 10-to-1 or 20-to-1,

and provided really very reasonable explanations

for each of those ratios.

   But she did not propose raising powder

cocaine penalties; no one did. And it's

fascinating to me that 7 years ago that wasn't even

on the table, and today that seems to be a very

viable option both at the Commission level and in

Congress and a discouraging one.

   I would refer again to Ron Weich's

comments about the 27 Federal Judges who wrote the

letter to Congress in '97 urging not to raise

powder cocaine penalties.

   MS. STEWART: Powder cocaine penalties are

not a problem. I believe the majority of this

Commission recognizes that. Instead of lowering a

ratio, it would merely lead to the incarceration of

greater numbers of largely minority defendants as

you heard yesterday.

   Also, it's been pointed out to me that--both by

119

Senator Sessions' staff as well as the even

Commission staff--that raising powder penalties a

little would only affect 27-percent of the powder

defendants coming into the system, into the Federal

system.

   But I interpret that as basically one in

four powder defendants would be getting a higher

sentence. It's hard for me to hear that without

thinking to myself, well, let's ask prisoner Marty

Sachs if he would rather be out in time to see his

son Bar Mitzvah'd or if he'd rather miss it.

   I mean, a year or 14 months, which is

about the difference in the sentence of the powder

cocaine penalties, would make a difference in the

sentence, and it would put people behind bars for

an extra year or so. So I urge you not to raise

powder cocaine penalties.

   Regarding the issue of whether or not the

Commission send a recommendation or an amendment to

Congress, I strongly urge that you send an

amendment. I know that you need to be sensitive,

and I saw what happened in the aftermath of 1995

120

when the crack cocaine amendment was sent forward.

   But I think that this Commission has done

a very good job of repairing relationships with

Congress. I believe that it is a very different

climate today. I think there's much more awareness

of crack cocaine penalties and the injustice of

them.

   I mean, in 1995, it was difficult for me

to get some of the civil rights communities to even

understand this issue. Today everybody understands

that crack penalties are too stiff, and I think

that there is a very genuine interest in Congress

to address these issues and to try to do something

this year even or within the next couple of years.

   I would sort of underscore that by saying,

as you all know, that LSD and marijuana have been

dealing from the guidelines, and there has been no

fallout from that. LSD was dealing when Judge

Wilkens was the Chair and marijuana, of course,

when Judge Conaboy was the Chair.

   I assume--and this came up in an earlier

question--but that the mandatory minimum sentence

121

must trump in each of those drug cases in almost

every case. The mandatory minimum for LSD must be

tougher than the--I mean, would be trumping the

guideline in every case and pretty much the same

for marijuana growers.

   There's certainly no legal bar to the

coupling the amendments as has already been stated,

and if Congress didn't like that concept, they

would have stopped it back in '93 or '95.

   Plus, I would just say from, again my

perspective as a FAMM person who talks to family

members all the time, I speak to parents whose

children are serving 24-and-a-half years in Federal

prison for crack cocaine all the time, and I'll say

to them, "Well, you understand that 10 years of

that is the mandatory minimum sentence, and the 14

years on top of that is really under the

guidelines," and then they turn to me and they say,

"Well, why does FAMM support the sentencing

guidelines again?"

   It's hard to explain. It's hard to

explain to a grieving mother why we support such a

122

harsh system. Of course, what I try to tell them

is it's the lesser of the evils and that sentencing

guidelines do allow some judicial discretion and

allow culpability to be taken into account. But

when the sentences are driven so high by the

guideline, it's very hard to explain that this is

fair.

   Finally, I think I just want to say that--and I

really feel it in this room today, and I'm

sorry I wasn't able to be here yesterday--but I

really know you're trying to come up with a

recommendation or an amendment that reassures the

public that you have fulfilled your mandate in a

very rational and justifiable way, and I applaud

you for that because I was asked by the chief

counsel of a senior Senator recently, "If the

Sentencing Commission comes up with a

recommendation for crack cocaine, will FAMM and the

civil rights community support it?"

   And I really had to pause because I said

to them, "The Ecstacy proposals that were put forth

last year did not garner my support," and the

123

process was very flawed, and I believe that you

recognize that and made many changes to address

that. And I definitely don't want to feel like

that about the crack proposal, and at this point I

don't.

   I feel like you're putting a lot of effort

into it, but I think that that's a $60,000

question, will the civil rights communities and

will FAMM and some of the sentence reform groups

respect the decision that you come to, and I think

that we all will if there is a truly justifiable

basis at the end of the day, if you can explain to

us in plain language how you came to the decision

that you came to.

   I will just close by saying that the

guideline and the process you use must be of

unassailable quality so that all Americans can

trust the penalty you chose was a product of

informed judgment and not just political

expedience.

   CHAIRPERSON MURPHY: You've thrown down a

big challenge, plain language.

124

   MS. STEWART: Yes, that's true. Thank

you.

   CHAIRPERSON MURPHY: Are there any

questions at this point?

   MS. STEWART: Come on, I have a bet.

Somebody has to ask me a question. Okay.

   COMMISSIONER SESSIONS: I'll ask a

question.

   CHAIRPERSON MURPHY: Okay. I think what's

happening is that the realities of the time and the

fact that we're going to be shortly--

   MS. STEWART: I understand.

   CHAIRPERSON MURPHY: --advisory group and

we have a lot of agenda items is--

   MS. STEWART: Besides, I don't tend to

present things that require a question. As I said,

I'm the conscience of the Commission.

   CHAIRPERSON MURPHY: Okay, Judge Sessions.

   COMMISSIONER SESSIONS: I mean, I do have

a question. You've seen in the publication that we

are considering a number of enhancements, and those

enhancements for weapons, for injuries to persons

125

during the course of drug transactions, prior

felonies, drug felonies or perhaps even violent

felonies, would be applied, and that would

necessarily increase penalties.

   And what is your reaction to that, knowing

full well that in addition to increasing penalties,

it also shifts, in a philosophical way, the penalty

structure away from drug quantities to other

factors?

   MS. STEWART: Philosophically I like it.

I'm not particularly happy with the specifics of

those enhancements and certainly not on top of

current drug sentences at the levels that they're

at.

   But, yes, I like the idea of focusing on

culpability of the defendant rather than weight of

the drug to determine culpability.

   COMMISSIONER O'NEILL: I mean, I think

that that's important because we talked about--and

you made sort of the offhand remark about being the

conscience of the Commission.

   And it is important that we look at the

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absolute fairness of sentences. But it's also the

case we have to think about the communities and the

individuals who are victimized by these crimes as

well.

   I mean, obviously there are people who--there are

many grieving parents and many grieving

families and many grieving communities who not just

have people who are in prison for a long time, but

whose sons and daughters have been victimized

because somebody chose to sell them drugs as well.

   So we have to make sure that we consider

those folks as well. We can't remove the victims

from the equation as well.

   It's true ultimately what we're seeking to

do, obviously, is to come up with fair sentences

given the conduct that's been committed. But we

shouldn't also at the same time forget about the

fact that, well, let's face it; it's drug selling.

This is not appropriate conduct. This has

destroyed communities and destroyed many people's

lives, and there's certainly people whose lives and

whose careers have been damaged by these things.

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We can't forget that either.

   MS. STEWART: I totally agree.

   COMMISSIONER SESSIONS: Can I make a

guess?

   MS. STEWART: Please.

   COMMISSIONER SESSIONS: That what you're

suggesting to us, although you're doing this in an

implicit way, is that we should use the delineation

of mid-level dealer, between a mid-level and a

street level dealer as what seems to be appropriate

for the 5 year threshold. Is that--

   MS. STEWART: Yes.

   COMMISSIONER SESSIONS: You didn't say so,

but that--

   MS. STEWART: Yes.

   COMMISSIONER SESSIONS: --is my--

   MS. STEWART: My written testimony says

so, yes.

   CHAIRPERSON MURPHY: Thank you very much,

and we'll turn now to Ms. Fellner.

   STATEMENT OF JAMIE FELLNER

   MS. FELLNER: First, I want to say how

128

grateful Human Rights Watch is to be here. We have

communicated with the Commission in other years,

and we have followed very closely the sentencing

policies both at a Federal level as well as in many

states, concerned with the extent to which those

policies comply with the United States' human

rights obligation.

   I want to apologize, however, that I don't

have a written statement prepared because of the

short notice and that I was traveling. I will get

it in as quickly as possible, and I can expand on

my remarks then.

   I would like to have some questions, so I

will make this short. Like Julie, I'm going to try

and avoid saying things you already know.

   The data that the Commission has collected

and the staff has put together I think of itself

tells such a powerful story that it's hard for you,

I would think, to ignore that, and almost our work

now is on top of that, and I won't repeat the data.

   I just want to make some points. The

bottom of line of where we come out, Human Rights

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Watch, is that you need to lower the sentences for

low level crack offenses; that you need to reduce

the disparities in the sentencing of crack and

powder offenses; and that you should be urging

Congress to eliminate mandatory minimums.

   Now Human Rights Watch is an independent

and non-partisan organization with the mandate of

promoting respect for internationally recognized

human rights. I suspect it's probably--nobody is

going to contradict me when I say that respect for

human rights has not been foremost certainly in

Congress' mind when it enacted the drug laws that

established the mandatory minimums, and it's been

somewhat missing from the debate over the impact of

drug sentences.

   And I personally, as a U.S. citizen,

happen to believe that the opponents of the current

structure when they talk about that drug sentences

aren't deterred, that low level offenders are

primarily sent and all the adverse consequences

have the better of the argument; that the facts

support them.

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   But I want to restrict my comments here to

the human rights argument. Now as you know, the

Government's use of penal sanctions is subject to

important human rights constraints.

   Since World War II, the international

community, including the United States, has

repeatedly and consistently affirmed the right of

all people to humane and just treatment at the

hands of their governments.

   Now a primary goal of the universal

declaration of human rights and subsequent

international treaties has been to define rights

protecting the individual citizen against the

coercive and penal power of the state.

   And of course, sentences, the decision

whether or not someone should go to prison or to

alternative, is the most drastic penal exercise of

penal power by the state short of capital

punishment.

   Now the treaties that are relevant here

today are the international covenant on civil and

political rights, the convention against torture

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and other cruel, inhuman or degrading treatment or

punishment, and the convention on the elimination

of all forms of racial discrimination.

   Under the supremacy clause of the U.S.

Constitution, these treaties are part of the law of

the land, and you, as public officials, are bound

to give effect to them, even though the treaties

are not self-executing, meaning that nobody can go

to court and sue for violation of the rights

affirmed by those treaties.

   In our judgment, the current crack cocaine

Federal sentencing structure violates two of the

key human rights principles contained implicitly in

those treaties: proportionality and non-discrimination.

   Now the international human rights

underpinning for the proportionality arises from

respect for the inherent dignity of each

individual, the prohibition on inhuman or degrading

punishment and the right to liberty. In my written

comments, I'll expand on that.

   When we look at proportionality in drug

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sentences, we need to keep in mind three things.

The principle of proportionality requires that

punishment not exceed the gravity of the offender,

the individual offender specific conduct, and that

it reflects the individual offender's personal

responsibility and culpability.

   Second, the principle of proportionality

is violated if punishment exceeds that which is

deserved by that individual based on his or her

particular conduct.

   Punishment must reflect the individual

defendant, not the conduct of others with whom he's

not connected in a common enterprise.

   And third, the sentence for a particular

drug offender should not incorporate penalties for

other crimes or other conduct that the offender, in

fact, did not commit.

   Applying those notions to drug sentences

under the Federal system, what do we see? One, we

believe sentences for low level crack offenders are

disproportionately harsh. You know, the United

States is so addicted to prison over the last 20

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years as a remedy for almost any social ill.

Sentences are given out like cough medicine almost.

   And I don't mean to be glib, but if you

look from Europe perspective, it's astonishing the

difference in sentences and the harshness with U.S.

sentences compared to for similar conduct in

Europe.

   Now somebody might say, "Well, yes, and in

Indonesia, you could get your head cut off for the

same offenses." But I don't think we want to look

over there. I'd prefer to look to countries with

long traditions of respect for human rights and

systems of justice similar to ours to say, well,

how do they treat these offenses, and I will give

you some data on that.

   Now prison is an extremely serious

punishment and should be reserved for the most

serious offenders. So if we look at the gravity of

the criminal conduct, we have to look at the harm

caused or threatened by that act.

   And I will walk through this again more in

my written remarks, but I think there's been an

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exaggeration and a lot of hyperbole about the

problems caused by drugs in any given offender's

conduct.

   I think we need to remember not just that

many individuals have been hurt, but many

individuals, in fact, consume drugs and they don't

have their lives destroyed. And we cannot say that

any individual seller of drugs at a retail level--and my

comments are really focused at the lowest

level--has harmed someone the same as we can say

that if somebody murders someone, obviously they've

injured that person's right to life. If somebody

takes something, they've injured that right to

property.

   But any given drug transaction does not

necessarily cause a serious injury. What we have

is the social injury from thousands and thousands

and thousands of repetitions of that conduct. But

we would posit that it is not proportionate to

impose a sentence on any given individual based on

the cumulative conduct of many thousands of other

people.

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   And it's not done, by the way, in any

other system. If you look, for example, at

environmental harms or other harms where any

specific harm is small, but cumulatively can add up

to very serious impact, you don't see sentences

that are the same kind of sentence that you would

get for rape or assault or murder which takes the

other principle of violence.

   Now we know that the distribution of crack

has been historically accompanied by a lot of

violence as markets are being established, and your

report in '95 lays that out very well. It's not

inherent in the drug. It's been systemic violence.

   I would argue that while it is appropriate

for the Commission to be concerned about violence

and certainly Congress should be concerned about

violence and laws on the use of violence and

possession of illegal weapons should be

substantially changed, it is not proportionate to

incorporate into any individual drug offender's

sentence penalties that actually reflect concerns

about violence that that individual offender may

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not have engaged in. In fact, the Commission's own

statistics indicate that most of your low level

offenders have not, in fact, engaged in violence.

   Let me turn quickly to discrimination. No

discussion of the crack powder cocaine sentencing

structure can avoid the issue of race. I would

argue that race--concerns about impact on minority

communities has certainly influenced the

determination of those sentences.

   A certain indifference, oddly enough, to

the impact of those sentences on minority

communities has contributed to their perpetuation.

So I think we certainly have--and I would disagree

with those court decisions which say intent has not

played a role.

   But what's interesting from your

perspective should be under international human

rights treaties is that intent is irrelevant or can

be irrelevant. Human rights non-discrimination

principles are violated when you have an

unjustified disparate impact on a basis of race.

And your statistics show unquestionably--and I

137

don't think anybody would deny the disparate

impact.

   So the question is are those warranted?

Does it make sense? Are they justified? And I

think, again, whatever the merits or arguments

would have been in 1986, they do not apply now.

The findings of your 1995 report fully have been

validated by more and more data over the years.

   Concern for the impact of drugs on

minority communities, concern for those people who

don't want drug dealers on their stoops, who don't

want their children hustled, who want to be free of

the scrimmage of drugs can be met by many social

policies. You don't need to use penal sanctions

and harsh prison sentences as a way of dealing with

those broader social problems.

   I'll stop now because my time is up. You

know, I thought it was someone's cell phone. I

thought, gee, why don't they have that cell phone

turned off.

   CHAIRPERSON MURPHY: I hate to say that

I've just gotten to know it, but the battery died

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in it.

   [Laughter.]

   CHAIRPERSON MURPHY: But because of the

lateness of the hour, I would have to try to

replicate the noise.

   MS. FELLNER: Does that mean my time is up

or not? I'd love to take some questions. Again, I

apologize for not having anything in writing.

   CHAIRPERSON MURPHY: You're the first one

that's brought up the treaties. That's

interesting.

   MS. FELLNER: Yes. Well, the

international human rights treaties tend to get

overlooked. But as I say, they are part of the law

of the land, and they are part of your obligation

as public officials.

   CHAIRPERSON MURPHY: Any questions? Judge

Sessions.

   COMMISSIONER SESSIONS: I guess I want to

say I'm sensitive to your organization and

supportive of your organization, and I also just

spent time speaking with Judges in England about

139

the system.

   But I do want to say that I disagree in a

real fundamental way with your concept which I

think you were suggesting, and that is that drug

offenses are almost victimless in nature.

   I guess I'd invite you to come to a

courtroom in Vermont, and even though you can't

necessarily say that the drugs relate to this

particular person, to this particular harm, the

human misery that is caused by drug distribution is

extensive.

   MS. FELLNER: You know, I'm well aware

that the notion of victimless and victim has become

very polemic, so everybody shies away from it. But

in so doing, I think we have distorted some

fundamental notions of responsibility and

proportionality in sentencing.

   If somebody chooses to buy drugs and that

life is, therefore, harmed, that is a very

different kind--and someone sells them, it's a

voluntary transaction, even though cumulatively

that transaction can have a lot of adverse social

140

consequences which I don't think anybody denies.

   But when you judge what is a proportionate

sentence for that specific transaction, I think it

is very difficult to equate it in any reasonable

way with assault, which nobody would say would be a

voluntary transaction; with murder or with rape.

   You know, you were talking earlier about

the--and the sentences that are being given under

the Federal guidelines are extremely severe

sentences. Five years is a long sentence.

   So I don't want to get in the polemic of

victimless or not victimless. I'm saying when you

think that is proportionate, the low level dealer

may or may not have caused any of that kind of

harm.

   Mid-level and high level, I think serious

punishments are entirely proportionate, and I think

your effort to try and identify through the proxy

of quantity or through--I would prefer to see

through role, you know, identifying other ways of

getting that role, but if it has to be through the

proxy of quantity, so be it--an effort to put

141

serious penalties where they should lie, which is

with the high and mid-level dealers.

   One other comment. You were talking

earlier about the--when Ms. Brennan was talking

about the New York drug laws, which we have written

about, and I will send you copies of our report on

the New York drug laws--a lot of the concern about

them has been precisely because of low level

offenders are being swept up in prison terms, many

of them addicted, and not the high terms, but just

even two, three, four years, which, again, is a

serious sentence.

   We tend to think, oh, two years, three

years, four years, and we almost forget prison is a

terrible place to put anybody, and as someone who

does a lot of work in prisons, I mean, it's a

terrible place to send someone.

   You should only do it as a last resort.

The principle of parsimony should apply here. If

there are alternatives to incarceration to which

you can send, for example, addicted low level

offenders, you certainly should be exploring those,

142

and I welcome the beginning discussion now of using

alternatives to incarceration.

   CHAIRPERSON MURPHY: We are looking at

that. I'm sorry to interrupt. It's just that--

   MS. FELLNER: Time's up.

   CHAIRPERSON MURPHY: Right, and we have

one more topic away from drugs that's going to be

covered. So you have the disadvantage of being at

the end--the last speaker the way it's worked out.

   I know you said that you were going to

submit something further in writing.

   MS. FELLNER: Yes, I will send it in

writing.

   CHAIRPERSON MURPHY: So we will all get

that, and we certainly will attend to it, and we

appreciate very much your coming here.

   MS. FELLNER: All right.

   CHAIRPERSON MURPHY: It's really helpful

for us to get these different perspectives. A

tough area.

   Okay. Then if we can get the cultural

heritage speakers, and I believe Mr. Dance is going

143

to sit at the table too.

   If you could perhaps sort of raise your

hand as I introduce you so I know who is who. Paul

Warner, who is the United States Attorney from

Utah, and I know that you're also the new Chair of

the Attorney General's Advisory Council. You might

well have been or in the future talk on these drug

issues.

   We did try to get people from the

government for this hearing, but apparently people

aren't ready yet. So we'll hear from those

perspectives next month.

   John Fryar, who is a criminal investigator

in the U.S. Department of the Interior, the Bureau

of Indian Affairs, and we're very glad to have him

here with the kinds of practical experience you've

had in this. And there are other things we're

looking at in our agenda right now in developing a

Native American Advisory Group that it would be

nice to talk about too, but we won't have time.

   Then Mr. Wayne Dance, who is Chief of the

Appellate Section of the U.S. Attorney's Office in

144

Utah, and I'm not sure why we have the Appellate

Branch here. We haven't done anything bad yet I

don't think. But thank you very much.

   Mr. Warner, we'll turn to you.

  STATEMENT OF PAUL M. WARNER

   MR. WARNER: Thank you. Honorable Judge

Murphy and distinguished Commissioners, thank you

for giving me the opportunity and privilege of

appearing before the Commission today to testify

concerning the proposed cultural heritage

guideline.

   I respectfully request that my full

written statement be incorporated as part of the

record of this hearing. My testimony today is

taken from the full statement.

   I'd like to say at the outset that the

adoption of this guideline is not only necessary

and appropriate, but, indeed, is long overdue. The

cultural heritage guideline will, in my opinion,

prove to be one of the most important of all the

sentencing guidelines for the long term benefit of

our nation. Consequently, I commend the Commission

145

for considering this urgently needed cultural

heritage guideline.

   Before addressing the specifics of the

proposed guideline and recommending several

additional revisions to improve its effectiveness,

some background may be helpful.

   The United States Attorney's Office for

the District of Utah is uniquely qualified to

address the proposed cultural heritage guideline.

During the past decade, the District of Utah has

led the nation in the enforcement of the

Archaeological Resources Protection Act, commonly

called ARPA, whose noble purpose is "to secure for

the present and future benefit of the American

people the protection of archaeological resources

and sites which are on public lands and Indian

lands."

   During this 10-year period, 38 defendants

in Utah were convicted of ARPA offenses, which

included 32 ARPA felony convictions. My office has

successfully prosecuted the largest case under the

ARPA statute. In another case, we obtained the

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longest ARPA prison sentence for a notorious looter

of archaeological resources.

   Last year the Society for American

Archaeology presented its public service award to

Assistant U.S. Wayne Dane from my District of Utah

for his exemplary ARPA prosecution record and his

nation-wide training efforts.

   I am pleased to have Mr. Dance accompany

me here today, and I want to acknowledge all of his

outstanding work on ARPA cases and particularly his

efforts on the new proposed guideline.

   Based on our experience in prosecuting

ARPA cases, and particularly in dealing with the

sentencing issues, we and our colleagues in the

Justice Department throughout the nation became

convinced that the current sentencing guidelines

were wholly inadequate for ARPA as well as other

cultural heritage resource offenses.

   These crimes cause devastating and

irreparable harm to the nation's cultural heritage;

yet, there is no specific treatment of them in the

sentencing guidelines.

147

   Consequently, in December of 2000, I wrote

a letter to the Commission, then through

Commissioner ex officio Larry Kirkpatrick, pointing

out this serious problem and strongly urging the

Commission to adopt a specific guideline for

archaeological resources and other cultural

heritage resources.

   We are gratified that our letter was the

genesis of the cultural heritage guideline now

under consideration by the Commission. I commend

the staff of the Commission for their dedicated and

sustained efforts in drafting and revising the

proposed guideline to bring it to its present

excellent form.

   In particular, I'd like to extend my

praise and gratitude to Deputy General Counsel

Paula Desio for her outstanding efforts for more

than a year furthering this worthy effort.

   The proposed cultural heritage guideline

was published for comment in the Federal Register

last November and effectively addresses the

multitude of deficiencies in the current sentencing

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guideline concerning cultural heritage resources.

   As a result of extensive public comment

and suggested revisions, including those from my

office, the Department of Justice, the Commission

staff has prepared a revised draft of the guideline

for your consideration.

   We appreciate the staff's responsiveness

to the public comment. The proposed guideline,

with this latest revision, greatly strengthens the

sentencing guidelines for cultural heritage crimes.

   I offer only comments to inform the

Commission of additional revisions which will add

to the guideline's effectiveness. First, I want to

emphasize that the provision addressing the valuing

of the cultural heritage resource is the heart of

this guideline because it measures the degree of

harm associated with the cultural heritage offense.

   In United States v. Shumway, an ARPA case

prosecuted by AUSA Dance, the 10th Circuit upheld

the use of archaeological value, plus cost of

restoration and repair, as the appropriate method

"to gauge the severity of a particular ARPA

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offense."

   It is essential to an effective cultural

heritage guideline that the Shumway value

methodology be explicitly required for

archaeological resource offenses.

   The latest draft guideline before the

Commission, a revision of the published draft,

accomplishes this important requirement by what is

termed "the special rule for archaeological

resources."

   The published draft also met this

essential requirement by equating the value of an

archaeological resource with its archaeological

value or commercial value, whichever is greater.

   I strongly encourage the Commission in

deciding upon the language of the value

determination provision to maintain the requirement

that archaeological value be utilized in

determining the value of archaeological resources.

   MR. WARNER: The value determination

provision of the guideline has a serious flaw

concerning the valuing of cultural heritage

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resources which are not archaeological resources by

statutory and guideline definition.

   For these resources, the draft guideline

provides for a value determination based only on

commercial value plus cost of restoration and

repair where applicable. For some types of

cultural heritage resources which are not

archaeological resources, commercial value may well

be an adequate means of gauging the severity of the

offense.

   An example would be an object of cultural

heritage which, by statutory and guideline

definition, must have a threshold commercial value;

however, there are various types of cultural

heritage resources covered by this guideline for

which commercial value is simply not applicable or

difficult to ascertain or wholly inadequate to

fully assess the harm caused by the offense.

   Although troubling to contemplate, we must

recognize that offenses may occur involving our

national monuments and memorials, historic

properties and resources, Native American cultural

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items and other resources covered by this guideline

which will not be fully and appropriately valued

for sentencing purpose by simply using commercial

value plus cost and restoration and repair in some

cases.

   How can a meaningful commercial value be

placed on a national monument, for example, which

is covered by this guideline and yet is not an

archaeological resource and valued as such simply

because it is less than a hundred years of age?

   If the U.S.S. Arizona memorial were

vandalized, who would daresay that the mere cost of

restoration and repair for removing the graffiti

would fully gauge the severity of the offense?

   This serious problem can be addressed in

one of two ways. First, distinguished

archaeologists have submitted public comment to the

Commission expressing their expert opinion that

many cultural heritage resources which are not

archaeological resources under the guideline since

they are less than a hundred years old nevertheless

could be appropriately valued by the archaeological

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value method in the same manner as archaeological

resources. We recommend that the value provision

be revised accordingly.

   If the Commission elects not to revise the

value provision in this manner, the commentary

should specifically urge an upward departure to

correct the inaccuracy of assessing value solely on

commercial value and cost of restoration and repair

for any cultural heritage resource which does not

meet the definition of an archaeological resource

where the commercial value of that resource is

inappropriate or difficult to ascertain or

inadequate to fully assess the harm caused by the

offense.

   My third point is that the upward

departure provision which is essential to the

overall effectiveness of the cultural heritage

guideline needs some revision. Because this

cultural heritage guideline may, on occasion, apply

to cultural heritage resources which have profound

uniqueness and significance to our nation's history

and culture, the upward departure provision should

153

emphasize this important point by specific

reference.

   Consequently, we recommend replacing the

language--excuse me--replacing the example in the

current draft with language set forth in my written

testimony.

   My fourth and final point concerns the

sentencing enhancements for commercial advantage or

private financial gain and a pattern of misconduct

involving cultural heritage resources.

Unfortunately, the proposed guideline sets forth

these two valid and appropriate aggravating factors

as alternative enhancements.

   Consequently, although each enhancement

appropriately addresses an aggravating factor

deserving separate sentencing consideration and

both could factually apply to an individual

defendant, the guideline as currently drafted

limits the sentencing court to applying one of the

two appropriate enhancements.

   For example, a commercial looter with a

history of such misconduct should be subject to

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both enhancements on the basis of these distinct

aggravating factors. Such an offender should not

get a pass on one of the enhancements.

   Accordingly, we recommend that these two

enhancements be made independent of one another so

that both can be applied in an appropriate case.

   In conclusion, I repeat what I stated in

my December 7th, 2000, letter to the Commission.

Amending the sentencing guidelines to fully address

the irreparable harm caused by ARPA offenses and

other heritage resource crimes will truly manifest

to the present and future benefit of the American

people as Congress intended.

   Few undertakings by the Sentencing

Commission could be of greater significance to our

nation. Thank you for this opportunity to address

the Commission on such a vital matter as the

proposed cultural heritage guideline. I'll be

happy to respond to questions or--

   CHAIRPERSON MURPHY: What I'd like to do

because of the time and also because of the

identity of the next speaker in terms of who you

155

represent, I'd like to have your testimony first

and then we'll open it for questions. So, Mr.

Fryar, you can proceed.

    STATEMENT OF JOHN FRYAR

   MR. FRYAR: Good morning, members of the

Commission. My name is John Fryar. I'm an

enrolled tribal member from the Pueblo of Acoma in

New Mexico. I'm also a criminal investigator with

the Bureau of Indian Affairs.

   I first became involved--aware of these

types of crimes, the Archaeological Resource

Protection Act or ARPA, and the Native American

Graves Protection Act and Repatriation Act, NAGPA,

approximately 15 years ago while working with the

U.S. Forest Service in New Mexico.

   I worked for the Forest Service for a

little over 15 years, the last five of that as a

uniformed law enforcement officer. In the early

1990s, I transferred to the Bureau of Land

Management as a special agent and was assigned to

what was then the Four Corners ARPA Task Force

based out of Santa Fe, New Mexico.

156

   We were primarily an undercover unit

working ARPA and NAGPA crimes in the Four Corner

states, and we were very successful at prosecuting

some of these crimes that were committed during

that period of time.

   After the task force was disbanded, I was

able to transfer to the Bureau of Indian Affairs in

1995 and have become the only criminal investigator

within the Bureau of Indian Affairs, and with the

Department of Interior at this present time, the

only criminal investigator working these crimes

nationally.

   I travel all around the country helping

tribes with these types of crimes and presenting

classes to them. And I've seen firsthand the

devastation and the anger and frustration that

individual tribal members are experiencing as well

as tribal entities.

   ARPA is over 20 years old now. The NAGPA

crime is over 10 years old now. There has been a

variety of newspaper articles, magazine articles.

We've had television programs, such as National

157

Geographic and Nightline had segments talking about

the looting and plundering of archaeological

resources and ceremonial items from public lands

and Indian reservations.

   With that, we have seen a marked decline

in what I call the mom and pop type violators, the

people out for Sunday picnics; the casual Boy

Scouts causing damage if you will; and the casual

hiker type damage.

   But what we are seeing are what I call the

professional looter, the people who go out of their

way not to get caught. They are aware of the laws.

They are very proud people, if you will, in the

types of crimes that they commit.

   They will educate themselves about the

resources in their area, what types of grave goods,

what types of artifacts can be found at the sites

that they're looking at. They go out of their way

to do that.

   They have even taken college courses in

archaeology and anthropology. We have seen them

volunteer with land management agencies. And this

158

only seems to foster their "braggability," if you

will, to other looters.

   They become very good at what they do, and

they do document their crimes. They will take

photographs, they will take videos, which adds more

and more to their bragging rights.

   A lot of these professional type looters

work pretty much the same way. A lot of them will

use the cover of darkness to mask their activities.

We have seen the professional type looter use

inclement weather because they know that law

enforcement officers traditionally, in these rural

type areas, are not in the back country during

those periods of time.

   We have seen and heard looters on the

Indian reservations, for instance, get to know what

the ritual schedules are, what the ceremonial

schedules are, because they know about the manpower

that's there.

   Most of the time if there's a ceremony,

they pull in all the law enforcement officers and

the tribal rangers to help with the ceremonies,

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leaving the back countries open. These are the

times that these people are out there.

   A lot of times they will park a mile or so

away, hike in to a site so that they're not

associated with it, their vehicles are not

associated with this. They've become very good at

camouflaging, both clothing and vehicles, that type

of thing. They operate in a manner that they can

elude law enforcement.

   These professional looters, not only are

the bragging rights what they're after, but they're

also there for the monetary value of these

ceremonial items, the cultural items and the

artifacts and human remains from these sites.

   If human remains are really hidden, a big

area right now too on the Internet and on the black

market. Numerous times here in the past few weeks

we have encountered these type of things for sale.

   I want to give you one example of a

professional looter, if you will. I first met a

person by the name of Rodney Tidwell in 1992. A

tribal member from the Zuni Pueblo in New Mexico

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had turned himself in because he got to where he

couldn't sleep at night because of the types of

crimes he was committing.

   He was stealing cultural patrimonial items

from his own people and selling them to this man

from Pason, Arizona. We went over there, we talked

with the person, and he agreed to cooperate with

us.

   A phone call was placed to Rodney Tidwell

that night, and an item was put up for sale. He

came over; he met the tribal member at 4:00 in the

morning. This tribal member was a sheepherder by

trade, didn't make much money, but he also had an

alcohol problem, which is a lot of what these

professional looters do is seek out these type of

people, people with alcohol and drug abuse type

problems in their history.

   I watched the sale go down at 4:00 in the

morning of that night in a room that had dirt

floors, no insulation in the walls and bare wires

holding a light bulb.

   I watched this man browbeat this tribal

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member down in price and, in fact, tell him, "I

want more, but I want them fully dressed," which

means all of the parts to the item, feathers, the

whole works.

   At the same time this went down in Zuni,

we had a search warrant team in place in Pason,

Arizona, and the search warrant was executed on his

house there, which led us into more looters and

into an expanded network.

   During the course of this investigation,

the tribal member was also prosecuted in tribal

court and actually spent a year at what we call

hard labor, where he was taken out on a daily basis

and chopped wood with an ax, and the wood was

donated to the elders of the Pueblo.

   But before the Federal trial, which he was

also indicted in and was going to stand trial as

well, he did not make it; he passed away. As a

result of that, we dropped seven of the nine

charges we had on Mr. Tidwell.

   That case started in 1992. He was finally

sentenced in 1995, October of '95, with a NAGPA

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count and a conspiracy. At this time, I had

already transferred to the Bureau of Indian Affairs

and had started an undercover operation in Arizona

that was working on some of the reservations trying

to curtail some of this.

   In April of 1996, less than six months

after he was sentenced, I was introduced to Rodney

Tidwell through an informer and began another year-and-a-

half of operation on him, where I was buying

the same type of items that he had just been

prosecuted for.

   During this period of time, he taught me

how not to get caught by tribal officials or other

police officers, what to do if I was caught and how

to watch for body wires just like what he called in

drug stings. These are the type of people that I

was dealing with.

   In the trial of the second case that I was

working, he was convicted on 20 felony counts. We

executed search warrants where I could track him by

paper, other cases where he had been convicted of

ARPA in Arizona in the '80s. He had citations from

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the White Mountain Apache tribe in Arizona and the

National Forest Service for digging in Indian

ruins. But it continued.

   The 20 felony counts that he was convicted

on netted him--even after that history of almost 30

years--a total of 33 months in jail. That's with

enhancements for tampering with witnesses and this

type of thing.

   These are very serious crimes when it

comes to Native American people, and I am always,

always touched by some of the attitude of these

professional type looters.

   And I do want to--I realize I'm out of

time, but I do want to close with a poem that was

taken from one of the scrapbooks from one of these

looters. They are very proud of what they do, and

they keep everything.

   This poem is called "Diggings," and it was

written in 1991 about Rodney Tidwell.

   "An Indian walks softly, holds his head up

high, the world has treated him badly, yet he seems

too proud to cry."

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   "He remembers his Indian ancestry which he

desperately wishes to save, returns to talk with

his grandfather chief, but there's a ghoul in his

grave."

   "His grandfather's legs are thrown on the

ground, his head lies there in a sack, and some man

stands from his pelvic bone, stealing big beads

from his back."

   It's not the mom and pops that we're

having problems with out there with these type of

crimes; it's these professional looters who are out

for the money and the bragging rights.

   I appreciate your time and patience with

us today. Thank you.

   CHAIRPERSON MURPHY: Okay. It goes to you

and then--

   COMMISSIONER CASTILLO: I want to thank

all three of you for the work that you're doing in

this area, and I will say, Mr. Warner, that in the

years that I've been here nobody has made the type

of focused recommendations that you've made to a

guideline. And I, for one, will push to make sure

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some of your suggestions are fully adopted. So I

just want you to know that. Thank you--

   MR. WARNER: Thank you very much.

   COMMISSIONER O'NEILL: The only question

that I would ask is--and again, I also thank you

for your willingness to appear before the

Commission today and to provide this very

thoughtful testimony--is that in either of your

experiences, have you been involved in a case in

which you believe that the value that was assigned

probably overstated the culpability of the

individual being prosecuted?

   MR. FRYAR: Not at all, from my

perspective.

   MR. WARNER: The simple answer is no. I

say simple answer, I was just looking to Wayne as

we tried to quickly think of all of the cases we've

seen. In almost every instance, it's been a battle

to try and get an appropriate value assessed.

   CHAIRPERSON MURPHY: On that question, I'd

like to just follow up with--maybe both of you

could respond because when we first started to talk

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about this, some of the Commissioners were

thinking, well, maybe the value of restoring the

item, but I take it from especially some of the

specific things that you're talking about, Mr.

Fryar, that the idea isn't to restore something

necessarily just the way it was.

   I'm not talking about the archaeological

things now, but it could be 99 years old, but to be

able to preserve it. Would you talk about how we

should value something like that?

   MR. FRYAR: The value of a cultural

patrimonial or ceremonial item, for instance, is--by using

commercial value doesn't even start

to really express the true value of that item.

   There's spiritual value that's involved

there. There's a humanistic value. One way I

might be able to characterize and put it a little

bit more in focus, some of these cultural

patrimonial items, to the tribes, are living,

breathing entities.

   They go through a birthing process, if you

will, much the same way as a child would. From the

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time that you start gathering materials, it starts

that birthing process. There's a whole series of

ceremonials and doings, if you will, that take this

through the process. It goes through like a

gestation period to such a time where it actually

takes this life, and there's caretakers who will

ceremonial feed this item and caretake for this

item.

   If you lose that, it's just like losing a

child. I have heard different defense attorneys

talk about these things as art. "Well, why can't

they go just make another one and do their thing?"

Well, it doesn't work that way.

   If you lose a child, just because you have

another one doesn't make it the same. It's the

same principle in some of these cultural

patrimonial items. They are living, breathing

entities, and even if you do make another one, it

is never going to be the exact same as it was.

   Those are some of the issues that I see

out there on a regular basis.

   CHAIRPERSON MURPHY: Mr. Steer?

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   COMMISSIONER STEER: I have one question

for each of you, for Mr. Warner and maybe assisted

by Mr. Dance. I wonder if you've had an

opportunity to sort of model the revised guideline

draft against some of the cases that you've dealt

with and just if you would comment on whether you

think we're getting closer into the right ballpark

as far as where the sentences should be?

   MR. WARNER: I'm going to let Wayne

respond to that. I have to tell you that how

committed we were to coming, leaving Salt Lake City

the day after the Olympics--

   CHAIRPERSON MURPHY: With thousands of

others trying to get on those planes.

   MR. WARNER: Yes. We fought our way

through some substantial crowds to get here, and I

think Wayne ought to have an opportunity to say

something. So I'll let him address that.

   MR. DANCE: I've not gone back to

recompute specifically what sentences may have

been. Instead, our focus has been on what are the

most important factors in a sentencing for a

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cultural heritage crime.

   From the very beginning, with our December

2000 letter and the work that I've done with the

staff and others since then, we have continued to

focus on those most important factors.

   Even with the latest revised version, as

you see in our testimony, that we have again tried

to fine tune it so that it will be as complete and

comprehensive to make the sentencing appropriate in

these types of cases.

   COMMISSIONER STEER: For Mr. Fryar, as a

result of your comments and those of some others

who reviewed an earlier draft, I think staff have

presented us with a revised draft that provides an

enhancement for items of cultural patrimony over

and above the offense level otherwise.

   But what about sacred objects that are

used in religious ceremonies? As I understand it,

they have a definition in the law. Should they be

treated the same as items of cultural patrimony or

are they a lower valued category of items that,

while they are cultural heritage resources, don't

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rise to the level of importance of cultural

patrimony items?

   MR. FRYAR: In my personal opinion, sacred

items should be covered also. But the difference

that I see in some sacred objects, if you will,

items of cultural patrimony cover most of those

sacred objects anyway; that is, most of those items

belong to the tribe themselves or a tribal entity.

They're not owned by one individual.

   The difference in some of that, though, is

there are certain sacred objects that are

personally owned by an individual, and all tribes

are different. There's item that, for my

reservation--Kachina dolls, for instance. From

where I'm from, it is very adamant--you do not sell

these, you do not give these away, that type of

issue.

   Whereas, some of the other tribes, their

Kachina dolls aren't held as near or as high as

they are on our reservation, for instance. So

that's some of the differences that we run in to

when we talk about sacred objects.

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   CHAIRPERSON MURPHY: Are there any other

questions?

   [No response.]

   CHAIRPERSON MURPHY: I think I'd say that

the Commission--many of us feel that this is one of

the most important things that we're working on

this year, and we did work on it last year too, but

we were going to have a hearing, we knew we were

going to have a hearing in South Dakota on how the

Federal guidelines affect those Native Americans

who are sentenced for what would, in other

circumstances, be state crimes.

   And we also asked for testimony on

cultural heritage, but the people there had so much

to say on these other guidelines issues, that they

just said--well, other than that cultural heritage

is important; they didn't really go into it. So

it's very helpful for us to get your input. Thank

you very much.

   MR. WARNER: Thank you. We appreciate the

opportunity.

   CHAIRPERSON MURPHY: We'll adjourn the

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hearing and go upstairs for more work.

   [Whereupon, at 12:26 p.m., the public

hearing was adjourned.]