UNITED STATES SENTENCING COMMISSION
* * * * *
2002 PUBLIC HEARING
DIANA E. MURPHY, Chair
RUBEN CASTILLO, Vice Chair
WILLIAM K. SESSIONS, III, Vice Chair
JOHN R. STEER, Vice Chair
STERLING JOHNSON, JR., Commissioner
JOE KENDALL, Commissioner
MICHAEL O'NEILL, Commissioner
JOHN ELWOOD, Commissioner, [ex officio]
EDWARD F. REILLY, JR., Commissioner, [ex officio]
Tuesday, February 26, 2002
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20002-8002
C O N T E N T S
DIANA E. MURPHY, Chair 4
AMENDMENT 8 [DRUG PENALTIES]
PANEL ONE - LAW ENFORCEMENT/ABA REPRESENTATIVE
Special Narcotics Prosecutor
Office of the Special Narcotics Prosecutor
for the City of New York
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
Families Against Mandatory Minimums [FAMM] 112
U.S. Program Director and Associate
General Counsel 127
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
U.S. Department of Interior
Bureau of Indian Affairs 155
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
I had suggested yesterday that the
Commissioners wait until all of the panelists had
spoken before asking questions unless there was
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
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
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
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
CHAIRPERSON MURPHY: Is that right?
MS. BRENNAN: We shared a phone for about
CHAIRPERSON MURPHY: Well, we'll see if
you have the same viewpoint today.
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
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
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
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.
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
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
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
Because when you're looking at our entire
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
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
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
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
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
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
interest to punish those who are not high level
narcotics dealers with extremely substantial
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
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
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
someone to get into treatment.
Again, I would like to thank the
Commissioners very much for the opportunity to
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
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
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
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
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
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
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
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
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
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
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
don't want to see those low level guys go away for
5, 10 years. It is simply not appropriate given
So within the confines of our various
laws, we work together to try to figure out the
most appropriate sanction, and we charge them
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
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.
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
How long, in other words, do people
MS. BRENNAN: It depends on what the
sentence is. For example--and it depends on the
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
MS. BRENNAN: No, I don't have those
statistics. I'm sorry.
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--
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
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
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
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
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
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
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
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
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
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
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
the people to whom they're selling to.
CHAIRPERSON MURPHY: Okay. You have one
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
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
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
That's not the cases I see coming out of
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
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
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
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
STATEMENT OF WILLIAM NOLAN
MR. NOLAN: Good morning, Judge Murphy,
and members of the United States Sentencing
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
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
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
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
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
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
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
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
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 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
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
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
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
The Administration, Congress and the
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
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
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
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
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
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
of crack cocaine, and that seems to be a very big
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.
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
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
MR. NOLAN: Right.
COMMISSIONER STEER: But the overwhelming
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
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
MR. NOLAN: Thank you.
CHAIRPERSON MURPHY: Professor O'Neill?
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
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
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
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?
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
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
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
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
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.
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,
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
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
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
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
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,
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
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.
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
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
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
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,
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
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
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
treatment of crack result in unwarranted and
inequitable disparities that the standard said must
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
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
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
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
But where my--Public Law 104-38, we
understand that Congress has constrained this
Commission from proposing 1-to-1. On the other
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
I would welcome any questions from the
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
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?
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
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
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
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
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
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
address the long overdue problem of the mandatory
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
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
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
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
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
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
members of Congress give to others, that would be
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
COMMISSIONER JOHNSON: I happen to agree
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
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.
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
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,
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
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
just saw it as ill advised and unsupported by the
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
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
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."
JUDGE CONABOY: And that one seemed to be
more appropriate for me today. I felt if I didn't
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
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.
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
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
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
perhaps to help in presenting it again to the
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
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
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
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
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
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
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
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
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
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
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
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
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
report back to Congress?
JUDGE CONABOY: Sure, I can try to, and I
was going to try to address that, if I could, Judge
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
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.
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
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
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
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.
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
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
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
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
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,
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
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
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
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
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
CHAIRPERSON MURPHY: Judge, I hate to
interrupt, but I think as an experienced District
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
want you to know that before you head back to
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
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
Are those the three areas that you would
advise us to really keep an eye on as we proceed on
this controversial issue?
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
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
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
JUDGE CONABOY: Yes, there were a lot of
surprises in it.
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
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
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
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?"
JUDGE CONABOY: That summarizes it better
than I could.
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.
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
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
CHAIRPERSON MURPHY: I think we all share
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
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.
CHAIRPERSON MURPHY: Judge, if you would
leave with my assistant the papers that you've
JUDGE CONABOY: Yes, I will.
CHAIRPERSON MURPHY: --I'll see that all
the Commissioners get them. Thank you very much
JUDGE CONABOY: Thank you.
CHAIRPERSON MURPHY: We'll proceed then
with the next panel, Julie Stewart and Jamie
Julie Stewart is a familiar face, a
frequent visitor to the Commission public meetings.
She's President of the Families Against Mandatory
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
MS. STEWART: Yes, thank you.
STATEMENT OF JULIE STEWART
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,
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
In 1995, when the Commission voted to
equalize crack and powder cocaine, it was in this
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
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
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
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
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
Along that line I would urge the
Commission not to change powder cocaine penalties.
Again, back in 1995 when the Commission did vote to
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
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
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
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
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
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
It's hard to explain. It's hard to
explain to a grieving mother why we support such a
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
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
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
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
CHAIRPERSON MURPHY: You've thrown down a
big challenge, plain language.
MS. STEWART: Yes, that's true. Thank
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
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
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
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
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
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
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.
We can't forget that either.
MS. STEWART: I totally agree.
COMMISSIONER SESSIONS: Can I make a
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,
MS. STEWART: Yes.
COMMISSIONER SESSIONS: --is my--
MS. STEWART: My written testimony says
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
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
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
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
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
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
Now the treaties that are relevant here
today are the international covenant on civil and
political rights, the convention against torture
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
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
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
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
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
exaggeration and a lot of hyperbole about the
problems caused by drugs in any given offender's
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
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
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
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
don't think anybody would deny the disparate
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
CHAIRPERSON MURPHY: I hate to say that
I've just gotten to know it, but the battery died
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
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
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
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
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
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
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
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
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,
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
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
Okay. Then if we can get the cultural
heritage speakers, and I believe Mr. Dance is going
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
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
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
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
for considering this urgently needed cultural
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
emphasize this important point by specific
Consequently, we recommend replacing the
language--excuse me--replacing the example in the
current draft with language set forth in my written
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
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
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.
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
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
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
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
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,
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
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
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
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
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
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
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
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."
"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
"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
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
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
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
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,
They go through a birthing process, if you
will, much the same way as a child would. From the
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
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?
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
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
rise to the level of importance of cultural
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
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.
CHAIRPERSON MURPHY: Are there any other
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
CHAIRPERSON MURPHY: We'll adjourn the
hearing and go upstairs for more work.
[Whereupon, at 12:26 p.m., the public
hearing was adjourned.]