PUBLIC HEARING AGENDA
Tuesday, March 19, 2002
Washington, DC

Public Hearing Transcript

Panel One

William D. McColl
Director of National Affairs
Drug Policy Alliance 4

Laura Murphy
Director, National Office
American Civil Liberties Union 12

Panel Two

Irwin Schwartz
President, National Association of Criminal Defense Lawyers 33

Jon Sands
Assistant Federal Public Defender for the District of Arizona 25

A.J. Kramer
Federal Public Defender for the District of Columbia 26

Panel Three

Larry D. Thompson
Deputy Attorney General
Department of Justice 58

Panel Four

Judge Sim Lake (via teleconference)
Chair, Subcommittee on Sentencing Guidelines, U.S. Judicial Conference Committee on Criminal Law 99

 

 

UNITED STATES SENTENCING COMMISSION
2001 PUBLIC HEARING
9:40 a.m
Monday, March 19, 2001
Judicial Conference Center
One Columbus Circle, N.E.
South Lobby
Washington, D.C.

COMMISSION MEMBERS:

 

DIANA E. MURPHY, Chair

RUBEN CASTILLO, Vice Chair

WILLIAM K. SESSIONS, III, Vice Chair

JOHN R. STEER, Vice Chair

STERLING JOHNSON, JR., Commissioner

JOE KENDALL, Commissioner

MICHAEL E. O'NEILL, Commissioner

MICHAEL J. GAINES, Commissioner [ex officio]

MICHAEL E. HOROWITZ, Commissioner [ex officio]

C O N T E N T S

OPENING STATEMENT:
DIANA E. MURPHY, Chair

STATEMENTS:
ROBERT S. MUELLER, III
Acting Deputy Attorney General, U.S. Department of Justice

CHARLES O. ROSSOTTI
Commissioner, U.S. Internal Revenue Service

PANEL ONE - MISCELLANEOUS:

JOHN MALONE
Assistant Director of Firearms, Explosives & Arson, Bureau of Alcohol, Tobacco & Firearms

A.J. KRAMER, ESQ.
Federal Public Defender for the District of Columbia, Federal Public & Community Defenders

JON SANDS, ESQ.
Assistant Federal Public Defender for the District of Arizona Federal Public & Community Defenders

BRIAN MAAS, ESQ.
New York Council of Defense Lawyers

PANEL TWO - MDMA/ECSTASY:

EDWARD A. MALLETT
President, National Association of Criminal Defense Lawyers

DAVID E. NICHOLS, PH.D.
National Association of Criminal Defense Lawyers

CHARLES S. GROB, M.D.
National Association of Criminal Defense Lawyers

JULIE STEWART
President, Families Against Mandatory Minimums

PANEL THREE - MDMA/ECSTASY:

WILLIAM D. McCOLL
Director of Legislative Affairs, The Lindesmith Center-Drug Policy Foundation

JULIE HOLLAND, M.D.
The Lindesmith Center-Drug Policy Foundation

RICHARD GLEN BOIRE, ESQ.
Executive Director, The Center for Cognitive Liberty & Ethics

RICK DOBLIN, PH.D.
President, Multidisciplinary Association for Psychedelic Studies

PROCEEDINGS

CHAIRPERSON MURPHY: I'd like to call the public hearing to order. We're a little bit late because we had an earlier meeting. And we're very glad to have you here.

As you all know, we have a process by which we gather response, information, proposals, from the public--all of those people who have any kind of interest in our work and in sentencing. And many of you represent groups that are specifically mentioned in the sentencing reformat.

We study the proposals and the commentary and the reactions that we get in writing very carefully. But the tradition also has been to give an opportunity every year at a public hearing for people really to highlight a point or two that they would choose from what they have already submitted in writing. And this is the opportunity we have today.

All of you have important things to say to us. And unfortunately, because we want to hear from everybody, we have time limits. And we have a little timer--I'm not sure how audible it will be--that will go off one minute before your time is up. And I hope you won't be offended by this. It's not as loud a gong as the Senate uses when I testify. And so when you hear the little buzzer, it will mean that you've got one more minute to really make sure you get the last important things said.

So with that, I'd like to recognize from the Department of Justice Robert Mueller, who is the Acting Deputy Attorney General; and Mary Lee Warren, also from the Department.

And at the table are also people from the Internal Revenue Service: The Commissioner, Charles Rossotti; and Mark Matthews, who is his chief of the criminal investigations unit there.

So first, we will hear from the Department of Justice, Mr. Mueller.

STATEMENT OF ROBERT S. MUELLER, III
ACTING DEPUTY ATTORNEY GENERAL
DEPARTMENT OF JUSTICE

MR. MUELLER: Thank you, Your Honor. And as you indicated at the outset, the sentencing guidelines are incredibly important, and they are, quite obviously, very important to the Department of Justice. And I appreciate the opportunity you give us to testify today on these guidelines.

I wrote you last month indicating that the Department has serious concerns over the proposed amendments, especially in the areas of white collar crime, money laundering, and immigration.

Let me start with, if I could, our concerns relating to white collar crime. Simply stated, the Department believes that sentences in white collar crime cases are often far too lenient, and need to be increased, not decreased. Accordingly, the Department strongly supports the Commission's efforts to change the law's tables to increase sentences for mid- and high-level white collar crimes.

Unfortunately, the Commission is also considering various amendments that would significantly expand the number of white collar defendants who are eligible for probationary sentences. The Department is opposed to proposed amendments that would have the effect of reducing the sentences for this privileged group of defendants. And I am confident that Congress would share our view.

In particular, the Department firmly believes that the proposals to expand Sentences "B" and "C" of the Sentencing Table and to allow for flexibility options in white collar cases are unwarranted, and would have a severe adverse impact on white collar prosecutions. For example, under the expanded zones and flexibility options, a stock broker who stole up to $500,000 from investors would be eligible for probation under certain circumstances.

Commissioner Rossotti, who is here with me, will discuss the devastating impact this change would have on tax prosecutions. I've reviewed his testimony, and we completely agree with it.

I understand some might argue that these changes would only give the sentencing judge discretion to impose probation. But my experience as a law prosecutor and a United States attorney has been that if white collar defendants are eligible for probation, quite often they will receive probation.

At a time when vigorous white collar crime prosecution is needed, these flexibility options and changes to the sentencing zones send entirely the wrong message. After all, many white collar defendants have generally benefitted from society, have strong educational backgrounds, and are often successful professionals. When these individuals break the law, they should not be excused from serving a prison sentence simply because they did not commit crimes of violence.

The public has a right to expect that people with privileged backgrounds who commit crimes will not be exempt from the full force of the law and will not be treated with inappropriate leniency. Accordingly, the Department opposes these amendments.

The Department is also extremely concerned about many of the proposed changes to the money laundering guidelines. It is an important issue to the Justice Department, the Treasury Department, and Congress, all of whom have spent much time over the last few years on this issue.

Unfortunately, some of the changes being proposed would lower sentences for even the most serious forms of money laundering. This the Department would oppose.

As an initial matter, I want to make clear that the Department agrees with the Commission that prosecutors should not be using the threat of money laundering charges, which carry with them much more serious guidelines, in order to induce guilty pleas in lower-level fraud cases. Accordingly, we have been supportive of the Commission's efforts to reduce the impact of the money laundering guidelines for that category of first-party money launderers.

However, the Commission's proposed amendment not only makes those appropriate changes, but also results in lower sentences for some first-party and third-party drug money launderers. This we believe to be inappropriate, and the Department will oppose any proposal that will reduce penalties for individuals who launder drug proceeds. And again, I believe that Congress will share these views.

Let me briefly mention my concerns about the immigration amendment. And again, as I did in my letter, I would urge the Commission to delay consideration of this amendment until next year. We appreciate the Commission's concern that the present guideline does not measure the seriousness of the underlying aggravated felony in illegal reentry cases. And we agree that some distinction may be appropriate; although we also agree with Congress that the penalty for any illegal re-entrant should be substantial.

The pending amendment attempts to distinguish between aggravated felonies by considering the defendant's time served. As a practical matter, this is extremely problematic, and will result in significant delay in disposing of illegal reentry cases while prosecutors, defense lawyers, probation officers, and even judges all attempt to determine what portion of a sentence the defendant actually served.

We believe that it would be more appropriate, and easier to implement, if the guideline distinguished between aggravated felons based on the character of the underlying offense, rather than on the sentence served or imposed. And we are certainly willing to work with the Commission over the next several months to fashion such a guideline. But we do oppose the amendment as it presently reads.

I'm going to comment briefly on the Commission's proposed amendments dealing with Ecstasy and an extension of the safety valve. As we previously advised the Commission, the Department strongly supports the proposed amendment increasing the penalties for Ecstasy.

Ecstasy is a Schedule I controlled substance that has a high potential for abuse. It causes widespread actual abuse, and has no acceptable medical use. The target population consists of teenagers and young adults. And the drug is quickly becoming one of the most abused drugs in the United States. Medical evidence demonstrates the serious dangers it poses to users, including the death of brain cells. The damage this drug can produce is significant, and long term.

We now have an opportunity to stop the growing problem before it becomes an epidemic. And the proposal put forth by the Commission would very much help that effort, and we urge its adoption.

With regard to the extension of the safety valve, the Department opposes any such expansion. The safety valve exemption from mandatory minimum sentences was enacted to provide relief for persons who received high sentences but who were identified by Congress as the least culpable group of such offenders. The guidelines therefore reduce an otherwise severe sentence in recognition of the safety valve criteria.

By contrast, a low-level drug dealer whose relevant conduct results in an offense level below 26 is subject to a sentence of less than five years, even before consideration of mitigating factors that can reduce the sentence further, factors such as acceptance of responsibility, and role in the offense. We believe the proposed two-level reduction is simply not needed for this offender.

And one final point I would like to make concerns the proposed amendment relating to nuclear, biological, and chemical weapons. The amendment the Commission has proposed fills a gap by addressing several relatively new statutes concerning biological and chemical weapons, for which there has been no sentencing guideline in the past. It is an excellent amendment, and we urge the Commission to adopt it.

In concluding, thank you for the opportunity to express our views. We at the Department look forward to a continued working relationship with the Commission in the years ahead to ensure, first, that the guidelines are just and fair and, secondly, that the sentences proposed by the guidelines are commensurate with the crimes committed.

Again, thank you very much for allowing me the opportunity to speak this morning.

CHAIRPERSON MURPHY: If I could ask the first question, we are also, of course, committed to just and fair sentencing. As I heard you mention today, I think it was immigration that you specifically mentioned you wanted us to hold off on this year. We did receive the letter earlier indicating that you would like us to hold off action at that time on the sentencing tables on the money laundering and on immigration.

The situation that we are in, you know, looking at the amount of work that we put in--for example, on money laundering, we've been working on that for two years--we would very much like to complete that this year. That's why I was listening to whether it was immigration that you mentioned orally right now, about holding off on.

MR. MUELLER: Well, as you can see, we've got some concerns about the money laundering--

CHAIRPERSON MURPHY: Yes.

MR. MUELLER: --and the white collar crime guidelines. And we want to work with you on those, but we have some substantial concerns.

CHAIRPERSON MURPHY: I understand that.

MR. MUELLER: Not only with what we would expect to discuss with the Commission, but also with the anticipated reaction on the Hill. And consequently, my letter suggests that we put over those three areas which we think we can work with you on. But to the extent that we have a disagreement, we would like more time to work on it.

We are, myself included--The new Administration is coming in. I know you've done a lot of work. We want to work with you and certainly make use of that work. But it also takes time to discuss it within the Administration and to make certain that everybody is onboard, so that we can be supportive to the guidelines as they go out.

So my letter suggests that we put those three controversial areas over so that we could have additional opportunity to work with you. On the other hand, we stated our views on the white collar crime amendments and the money laundering amendments. On the immigration amendments, we feel that perhaps one more year would be beneficial.

COMMISSIONER SESSIONS: I would like to ask you about the flexibility, the response to the flexibility options, and also the expansion of zones "B" and "C."

What's interesting is the criminal defense bar has also been critical of the flexibility option because, essentially, it would restrict judges, or it would be likely to restrict judges, in downward departures. And this Commission is obviously concerned about the frequency of downward departures.

And one logical way of trying to resolve the frequency of departures from the guidelines--and I think the Justice Department is concerned about that, as well--is to, within the guidelines, provide some structured discretion to give judges, particularly with first-time offenders, with persons who are in criminal history category a "1," some level of discretion. So that the impact would be that judges would depart less frequently than they do in the past; which I think is consistent, it seems to me, with the Justice Department's view.

Now, I guess I'm asking for a general response, I guess perhaps, to that statement--which should have been a question, but it's a statement. But what's your response?

MR. MUELLER: I think--a prosecutor in San Francisco, I will say.

COMMISSIONER SESSIONS: Yes, and that reminds me of being a lawyer. Well, that was a cross-examination question, and I was obviously leading--and most unfortunate.

But what is your response to structured discretion reducing departure levels?

MR. MUELLER: Well, I think that we would like to reduce discretion. At least where I am a prosecutor, I would like to limit the discretion.

The problem with the flexibility here, as I see it, is that it will be taken advantage of by judges who give a break to white collar criminals. And that is the essential problem that I see with what the guidelines--or what the proposals are.

And I mean, I have many experiences where a judge will look at a particular defendant, as we stated in the testimony, and look at him as a decent background, went to college and all, and all of a sudden say, "Well, why should this person spend time in jail?" And if you give that judge more flexibility, that person will not spend time in jail. And I think that's wrong.

COMMISSIONER SESSIONS: But that, of course, is inconsistent with what we've been told about the way judges react to white collar crime. And that is, generally we've been told by judges that people feel that the penalties for white collar crime are not severe enough. That's sort of inconsistent.

But also, in regard to zones "B" and "C," and the flexibility option if applied to, let's say, drug offenses, would you have a stronger objection to that? For instance, giving a judge discretion to go upward or downward, based upon aggravating or mitigating circumstances, in first-offense drug-related cases?

MR. MUELLER: I think you're getting beyond the territory that I am intimately familiar with.

COMMISSIONER SESSIONS: All right. I'm sorry. I didn't--

MR. MUELLER: No, no, no. I apologize for not being--But I wouldn't want to get a little bit ahead of myself in terms of my understanding of the work that you have done. I've tried to brief myself on it, but I am not as briefed on the details as perhaps I should be. And I wouldn't want to get out on a limb.

COMMISSIONER SESSIONS: That's beyond the scope, and I appreciate that.

CHAIRPERSON MURPHY: Maybe there's time for one other question. Judge Castillo?

COMMISSIONER CASTILLO: Just one question. On the immigration offenses, everyone who has looked at this--and we've talked to judges at the border--your own probation officers, assistant United States attorneys, feel that it's a very unfair situation.

You, in the form of the Department of Justice, want to focus now on the character of the underlying offense. Don't you think that that is going to be problematic and induce a lot of fact-finding hearings right at the point where the system, the criminal justice system, really doesn't have the resources to take up that type of time and focus on that; as opposed to a "bright line" test that would focus on either the sentence imposed or the time served?

MR. MUELLER: I think it's a balancing. There may well be some fact-finding, depending on how you differentiate between the aggravating factors. On the other hand, as a prosecutor, as a judge, trying to determine the time a person actually spent in jail is exceptionally difficult quite often.

The records that you have to get are not generally readily available. I think if that concern could be alleviated--in other words, if there was some fast or quick way to determine exactly if it is the time that a person actually served--then we'd be much less concerned about it.

I think on balance we're saying look at the character of the offense, as opposed to trying to determine exactly how many days a particular person spent in jail. But that's the type of thing that I think we'd be willing to work with you on, to try to find something that makes some sense.

CHAIRPERSON MURPHY: I know that Judge Kendall has a question, too. Obviously, all of these areas are very complicated, and we're going to have to spend more time looking at our respective positions than we can here in this forum. But Judge Kendall I know has got something he wants to ask.

COMMISSIONER KENDALL: I promise you, I just have a few questions to try to maybe work something out here with regard to the concerns about immigration. I'm not going to try to change your mind about anything.

First of all, if I'm hearing what you just said, if there is no delay and the time served can be determined, you're saying that would be a long way towards solving the concerns?

MR. MUELLER: Yes, I think that is our problem.

COMMISSIONER KENDALL: Okay. Well, let me--

MR. MUELLER: People are let out, go to halfway houses. They're let out, don't serve their full sentence, in a number of circumstances. So that's the concern.

COMMISSIONER KENDALL: Well, first of all, the Commission did a recent analysis, and just went in the back room and got at random 225 pre-sentence reports. And on 70 percent of them, without anyone having asked, the time served was on the report.

And the reason for that is 4(A)1.1(d), 4(A)1.1(e), requires that in order to give enhancements where a person is sentenced when they're under a criminal justice sentence--and I forget what the other one is--but anyway, that information is required to have the time served there. That's 70 percent of the time.

And when it's not there, another 30 percent--I don't know that we've looked at this, but more than likely it's not there because there's no aspect of recency. I've talked to a number of not chief probation officers, but actual pre-sentence writers, probation officers, and I'm told uniformly by the ones I've talked to that it's not that big a deal. So I really think we might could work that out.

I really think that's a false--Not a false issue, but people are worked up about that, and it's not really as big a deal as it's--

MR. MUELLER: Well, I don't want to be inordinately worked up.

[Laughter]

MR. MUELLER: If that is an issue that we can have some satisfaction on, I think we can come to--

COMMISSIONER KENDALL: Well, I'm not just talking about you. But if that's the objection, I wanted to just suggest that that might be something that--and I've talked to Michael--but that we could work out.

The other thing, are you aware--Because it talks about "a proposal," singular. Are you aware there are two options out there; one option, that has been published for comment and specifically enumerates serious felonies, that does deal with the character of the underlying offense? There are two proposals out.

MR. MUELLER: Okay, I was aware of the one that related to the time served, and was not fully aware of the second proposal out there.

COMMISSIONER KENDALL: That's option two. Option one, if that's what the Commission decided to do, and the information was readily available--Am I hearing that a lot of these concerns would not be there?

MR. MUELLER: I think it's worthy of a discussion. And Michael is very reasonable.

CHAIRPERSON MURPHY: Yes, but we need--

COMMISSIONER KENDALL: I've never noticed that he's been particularly worked up.

[Laughter]

CHAIRPERSON MURPHY: We need you to be onboard, too.

Well, I know that we have a lot of things that we could talk about, but we have a lot of other people we need to hear from. So thank you very much. We really appreciate your time.

MR. MUELLER: Thank you for the opportunity. It is of critical importance to the Department of Justice, the sentencing guidelines. And we intend to spend substantial time addressing them, through Michael and also with you all.

CHAIRPERSON MURPHY: During our lifetime as Commissioners, we've had a very good relationship through our ex officio member and with the Department. And we hope that that will continue.

MR. MUELLER: I expect it to, and hope so, also.

CHAIRPERSON MURPHY: Good.

Commissioner Rossotti.

STATEMENT OF CHARLES O. ROSSOTTI
COMMISSIONER, INTERNAL REVENUE SERVICE;
ACCOMPANIED BY MARK MATTHEWS
CHIEF, CRIMINAL INVESTIGATIONS,
INTERNAL REVENUE SERVICE

IRS COMMISSIONER ROSSOTTI: Thank you very much, Madam Chairman. And I appreciate the opportunity to testify.

I wrote to you last week about my deep concern over the enactment of any amendments that would lessen the likelihood that convicted tax offenders will be incarcerated. We think this would undermine our efforts to achieve voluntary compliance with the tax laws.

The tax enforcement program represents what is perhaps the most extreme example of general deterrence. We have to communicate our deterrence message to over 200 million Americans. That is, warning both individuals who may be tempted to cheat, but also assuring the vast majority of taxpayers who do file accurate returns that by doing the right thing, they are not going to be victimized by others who might willfully and deliberately decide not to pay their fair share.

To send this message and to retain our voluntary compliance rate, we rely on a very small number of criminal prosecutions, tax prosecutions, each year. And we think it is critical that we maximize the impact of these few cases, in order to achieve this overall deterrence goal.

We need to remember that the tax law imposes one of the few universal, affirmative obligations of citizenship that most Americans have; that is to say, an affirmative obligation every year to file an accurate return, and pay your taxes.

The Commission since its beginning has recognized the special deterrence challenge of tax enforcement, and has taken steps on several occasions to increase the likelihood of incarceration in tax cases.

But right now, the tax system--the voluntary tax system is at a critical point. We are in the midst of the most fundamental restructuring of the way the tax administration process works, and of the IRS itself, since 1952. These changes were mandated by the Restructuring and Reform Act of 1998.

Coincident with this, and in part caused by it, we have experienced a long-term decline, and most recently a very accelerated decline, in audit coverage. We believe that through actions of our own we can stem that decline; in other words, stop it from going down further. But the audit coverage will still be a very small fraction of taxpayers filing their returns. In Fiscal 2000, for example, the overall audit coverage of all individuals was one out of 200.

And unfortunately, during this same time of change at the IRS, our society has been inundated with a message that: Now is the time to cheat on your taxes. And we're going to show you just some very recent examples from two prominent magazines.

Last month, Forbes magazine ran this cover story, "How To Cheat on Your Taxes." And this month, Money magazine--And there have been several TV and other stories running off of these magazine stories. But the Money magazine story carries an article with polling data that shows a growing number of Americans believe it is acceptable to cheat on your taxes.

And the broadcast journalists, from morning till night, have been widely reporting on tax fraud that may be undetected and unpunished. And as a matter of fact, the IRS tax compliance program was recently featured in "The Fleecing of America" segment on one of our news stories. And we take this very seriously. Taxpayers are being bombarded with this message concerning successfully cheating on their taxes.

At the same time, the so-called "tax gap," which is the difference between what would be collected if everyone paid, and what is actually collected, has now exceeded $200 billion a year. And if you figure that out, that works out to $1,600 for every taxpayer who files a return.

So there is no question now--I want to be clear about this--that it is our responsibility at the IRS to improve this tax compliance picture and to deal with these problems. And we are undertaking many massive efforts to improve our enforcement program, both on the civil side and the criminal side.

So we're not here asking this Commission to fix our problems for us. What we are here for is to ask that you not make our problem worse and damage our efforts. We believe that any relaxation of guidelines that would apply to tax cases--and specifically, the likelihood of incarceration in tax cases--would be an extremely unwise thing to do at this point in time.

As it stands right now, we have to demonstrate a tax loss in excess of $40,000 in order to achieve a sentence of incarceration, according to the existing guidelines. That translates into evading taxes on over $100,000 of income.

In essence, what that means is that, as it is now, only a relatively small fraction of the public earns enough income for them to face a realistic possibility of incarceration for tax fraud, even if they failed completely to report accurately.

The amendments being considered, and particularly the expansion of the zones on the sentencing table, would mean that less than 1 percent of the American public would be likely to be incarcerated for tax crimes, even if they cheated to the full extent of their liability.

We think that if the Commission enacts these amendments, it essentially completes the circle of the threat to our tax compliance system. The message is: Not only are you unlikely to be audited; but even if you deliberately cheat and are caught, you still won't go to jail. We think that our country and our tax system cannot tolerate this message.

Now, despite some previous attempts which we are aware of by the Commission to increase the percentage of tax defendants who receive a sentence of incarceration, the number of convicted tax offenders who are sentenced to a straight prison sentence has only increased modestly since 1993. From what we understand, only one-third of tax offenders receive straight imprisonment, and another 13 percent receive a combination of imprisonment and community confinement.

And now, this is true despite the fact that we have intentionally targeted our investigations very much towards the upper income ranges. And this is something that we've been doing despite the fact that we still have to recognize that we don't want to give anyone a free ride. We need to investigate to some degree deliberate tax fraud across all income classes, because we don't want to send a signal that there is any safe level of cheating.

So the proposed amendments changing the zones on the sentencing table would have a much more substantial effect on sentences going in the opposite direction; significantly expanding the number of tax offenders who are eligible, or where the guidelines make them eligible, for probation or home detention.

And I certainly can appreciate the desire of many federal judges for more sentencing discretion. But the Commission's own statistical evidence confirms the view stated by the first sentencing Commissioners in the original background commentary to the tax guideline; namely, that sentences in tax cases tend toward probation, and needed to be increased. That was the observation at that time.

Now, according to the Commission's 1999 sentencing data, tax offenders receive sentences or imprisonment, or imprisonment plus community confinement, at half the rate of all offenders: about 46 percent in tax cases, as compared with 83 percent in other cases.

Moreover, 78 percent of tax offenders are sentenced at the low end of the sentencing range. And in instances where downward departures are granted in tax cases, the judges depart in the majority of cases to a sentence that does not include incarceration.

There seems to be a sign in those cases that the judges not only believe that the guidelines' prison sentence is too long, but that incarceration at all is inappropriate.

Any change, even a modest change, given the distribution of incomes in this country, will seriously aggravate the circumstances. And we believe that it would overshadow, or impair to some degree, all of the IRS' efforts to improve the effectiveness of our criminal compliance program, and also of previous Commission efforts to ensure some increases in tax deterrence.

One additional detail which I have not had time to address: The proposal that would group all tax offenses also works to eliminate any incremental punishment for tax evasion. And accordingly, we would be opposed to that, as well.

So I think, just in conclusion, we think that at this moment in time we are faced with a situation with respect to our tax system where all the trend lines, unfortunately, are going in the wrong direction. I think one of the more disturbing aspects in the Money magazine poll was that the youngest of our taxpayers show the greatest willingness to cheat.

Historically, most Americans have viewed complying with their tax obligations as part of their civic duty, and that's why our tax system works. If we lose that tradition and our voluntary tax compliance culture is eroded, the American economy and our whole way of doing business in America with respect to taxes will, I believe, suffer immense and irreparable harm.

So we ask your cooperation in at least keeping it the same, so that we don't send a signal in the wrong direction. Thank you.

CHAIRPERSON MURPHY: I think those are impressive visual aides. I hadn't seen the covers.

[Laughter]

CHAIRPERSON MURPHY: Does anyone have a question? Commissioner O'Neill?

COMMISSIONER O'NEILL: Yes. Since the adoption of the guidelines, obviously--or apparently--more people are actually being incarcerated for failure to pay taxes, I would assume. Is that right?

IRS COMMISSIONER ROSSOTTI: Well, Mark here is the head of our criminal investigation. He's got that. He tells me, very slightly.

MR. MATTHEWS: I mean, I'd like to submit that more formally to you. But as I was looking back at those original amendments, the Commissioners said approximately half of tax defendants received probation. That's approximately where we are today.

Now, it is true that we saw some modest impact from the 1993 set of amendments that increased the tax table slightly. But there's been certainly in the entire period of the guidelines, I think, less than a 10-percent adjustment to the rates of imprisonment and incarceration. But I'll get you that more formally.

COMMISSIONER O'NEILL: Because I was curious, just in terms of using incarceration as an actual deterrent, and how effective, and whether or not you have any data in terms of the effect of incarceration as a deterrent for people evading paying their taxes; or whether, in fact, the fact of prosecution and the fairly aggressive fine structures that you have provide a sufficient deterrent.

MR. MATTHEWS: Well, we've long struggled to try to find proof of the impact of criminal prosecutions. And there's certainly polling data that shows that people say that they are aware of that.

I look, frankly, at my own personal instincts and my personal conversations with people out there. And I think if you watch our culture, if you watch the references to IRS on situation comedies, if you look at us on police shows, if you think about your conversations at parties, that awkward laughter sometimes about the references to IRS, I believe--and you see it on the situation comedies--is a reference to the criminal side of the house.

Not to say that the civil enforcement doesn't have a tremendous role; but my gut instinct--and maybe it's because I'm a long-time federal criminal investigator--but I believe that our common sense tells us that the criminal possibilities, and particularly that likelihood of even a short exposure in prison, is a strong deterrent.

COMMISSIONER O'NEILL: But have you been able to demonstrate that?

MR. MATTHEWS: We could probably pull together some polling data, but I think nothing more than that.

IRS COMMISSIONER ROSSOTTI: I think that, you know, one of the problems with a voluntary system is, it's very hard to prove what would happen if something changed. Because you only have experience with one thing.

COMMISSIONER O'NEILL: Well, that's why I was asking about the guidelines.

IRS COMMISSIONER ROSSOTTI: Yes.

COMMISSIONER O'NEILL: Because the guidelines obviously effected some sort of a change. I didn't realize that the rates of incarceration didn't increase significantly after they were adopted.

IRS COMMISSIONER ROSSOTTI: I think that the point that I would leave you with is, I don't know how much risk you want to take with the tax system. I mean, it's possible--We've seen a very substantial decline in enforcement activities of all kinds. We see a relatively few number of criminal cases.

We could continue to go down this route, and find out how far down we could go simply making it an audit lottery and making it possible for people to take their chances with the tax system. I think, in the interest of wisdom, that we would be best to go very cautiously any further down this route.

MR. MATTHEWS: And one more add-on sort of evidence; just that there is some anecdotal evidence. In the early '90s, we had a series of very high-profile excise tax evasion cases in the State of Pennsylvania. Not to offend anybody in Pennsylvania, but that's where they happened to be grouped.

The State of Pennsylvania was suffering losses in their state taxes, as well. After a year of our prosecutions, Pennsylvania state excise tax revenues went up over a billion dollars. Now, there are obvious "chicken-egg" issues in there, but we'd like to believe we had a big impact on that.

CHAIRPERSON MURPHY: Thank you very much. And here again, we could go on at greater length, but we aren't able to in this forum. So thank you very much for coming.

IRS COMMISSIONER ROSSOTTI: Thank you.

CHAIRPERSON MURPHY: We will take the next panel now, if you could please come forward.

Did they tell you what chairs to sit in?

MR. MALONE: No.

CHAIRPERSON MURPHY: Okay, well, maybe you could make sure that we know who you are, then. John Malone, the Assistant Director of ATF? Okay.

And A.J. Kramer, Federal Public Defender for the District of Columbia? Okay.

And Jon Sands, we well know.

And then, you are Brian Maas, right? Yes.

Well, we're very happy to have you here, and in the order of the agenda, the sheet that I have in front, we start with you, Mr. Malone.

A PANEL CONSISTING OF:
JOHN MALONE, ASSISTANT DIRECTOR
BUREAU OF ALCOHOL, TOBACCO & FIREARMS;
A.J. KRAMER, ESQ., FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF COLUMBIA,
FEDERAL PUBLIC & COMMUNITY DEFENDERS;
JON SANDS, ESQ., ASST. FEDERAL PUBLIC
DEFENDER FOR THE DISTRICT OF ARIZONA,
FEDERAL PUBLIC & COMMUNITY DEFENDERS;
and BRIAN MAAS, ESQ., NEW YORK COUNCIL
OF DEFENSE LAWYERS

MR. MALONE: Thank you, Madam Chairman, other distinguished members of the panel.

My name is John Malone, and I am the Assistant Director of the Firearms, Explosives, and Arson Directorate at ATF bureau headquarters here in Washington, D.C.

I want to thank you for giving me the opportunity to speak today about a proposal to amend the United States Sentencing Guideline 2(K)2.1 to increase the number of levels added to offenses involving a certain number of firearms trafficked.

The reason I appreciate having the chance to speak about this issue is because increasing the sentences for offenses involving a large number of firearms is a critical part of ATF's effort to combat firearms trafficking and violence in our communities.

As you are aware, the guidelines for firearms violations currently provide for a one- to six-level increase of the base offense level if the crime involved three or more firearms. For example, if a crime involved three to four firearms, one level is added; if a crime involved five to seven firearms, two levels are added. This incremental one-level increase continues up to crimes involving 50 or more firearms, where six levels are added.

Unfortunately, the current guidelines reach their peak at 50 firearms. Therefore, if a person is sentenced for trafficking 50 firearms, he or she receives a six-level increase. If a person is sentenced for trafficking 250 firearms, he or she would receive the same six-level increase. There is little incentive for a trafficker to cease his or her activities once the 50-firearm threshold has been met.

Accordingly, it is not surprising that statistics prepared by the Department of Justice demonstrate that defendants sentenced under 2(K)2.1 in cases involving 50 or more firearms frequently receive low sentences.

For example, in 1997, 4.9 percent of the defendants who were convicted in cases involving 50 or more firearms received less than one year imprisonment, and 10 percent received no prison sentence at all. Similarly, in 1998, 3.8 percent of defendants who were convicted in cases involving 50 or more firearms received less than one year imprisonment, and 24.4 percent received no imprisonment. In 1999, 4.9 percent received less than one year imprisonment, and 9.8 percent received no imprisonment.

These low sentences do not reflect the seriousness of trafficking in a large number of firearms and the threat that it poses to public safety. The sentences also do not serve as a deterrent against trafficking in a large number of firearms. In addition, many traffickers are able to continue trafficking firearms after a short time in jail.

The Commission has put forward two options for amending Guideline 2(K)2.1. It is my understanding that option two will be spoken to at this meeting. Option two would restructure the present format for adding levels based on the number of firearms involved by increases in two-level increments, rather than one-level increments.

This would result in two levels being added for offenses involving three to seven guns, four levels added for offenses involving eight to 24 firearms, and six levels added for offenses involving 25 to 99 firearms. It would also lift the 50-firearm cap, so that eight levels would be added for offenses involving 100 to 199 firearms, and ten levels would be added for offenses involving 200 or more firearms.

Both of these options would address the problems with the present guidelines which I have discussed. However, we prefer option two for several reasons. First, it would provide higher sentences in certain cases involving less than 50 firearms. For example, someone being sentenced for a crime involving four firearms would get levels added to his or her base offense.

Second, option two would provide higher sentences in all cases involving 100 or more firearms. For example, someone trafficking 150 firearms--

CHAIRPERSON MURPHY: You know, we're running out of time.

MR. MALONE: Okay.

CHAIRPERSON MURPHY: So if you could just sort of give a summary closing for option two.

MR. MALONE: In summary, ATF feels that because of the extreme amount of firearms trafficking that is ongoing in the United States today, that the Commission--it would benefit not only our communities, but the Bureau and the Department of the Treasury, for an enhancement upward involving option two.

The cases that ATF presently involves greatly increase the amount of trafficking. It has been determined that many of the cases that we look at in trafficking involve 200 or more firearms. As a former special agent in charge of the San Francisco field division, where Mr. Mueller is presently the U.S. Attorney, a case we had last year involved over 600 firearms.

So the significance of this issue, not only here before the Commission but in our communities, would great please not only ATF, but the Department. Madam Chairman, thank you very much.

CHAIRPERSON MURPHY: Thank you very much, Mr. Malone.

And Mr. Kramer, you're going to also talk about firearms, I believe.

MR. KRAMER: Yes. Thank you, Your Honor. I'm here to speak in support of proposed amendments 16 and 17. And I want to talk just about the parts of them that deal with the person that had at least a prior felony conviction, or two prior felony convictions; and the timing of that, whether that means at the time the person committed the offense, or whether that means at the time of sentencing.

A circuit split has developed. Although the plain language would seem to be "had at least two felony convictions," or "had at least one felony conviction"--would seem to refer to the time of the offense, a majority of circuit courts have interpreted it to mean at the time of sentencing, because of application notes in 2(K)2.1 and 2(K)1.3.

So they've actually said that even if the felony conviction occurs and the conduct occurs after the commission of the federal firearms offense, the person is counted as having this prior conviction.

The rationale for the increase in the offense level for people having these prior convictions is that people with a prior felony conviction of crime of violence or controlled substance offenses are more dangerous, or have been determined to be more dangerous, than someone with a different kind of conviction or without that conviction at all.

If that's the rationale, it should refer to the time of the commission of the federal firearms offense, not to the time of sentencing when a period of years may have elapsed, or however long has elapsed, and the person obtained the subsequent conviction which the circuits have said counts.

That's, of course, taking into account the criminal history; but should not be taken into account as to whether the person at the time of the offense would have been more dangerous at that time.

So we support the proposed amendments to relate it back to the time of the offense and resolve the circuit split in that area.

CHAIRPERSON MURPHY: Thank you.

Mr. Sands, you're going to talk about immigration and safety valve, I think?

MR. SANDS: Yes, Judge. I appreciate the opportunity to be in front of the Commission. I wish I had more time and more sentences, but I applaud the Commission in advocating less time and fewer sentences--at least in this situation.

[Laughter]

CHAIRPERSON MURPHY: That was good.

MR. SANDS: I wish to address the immigration issue, which is one that I know the Commission has been aware of, that's been a problem, that's been at the forefront of many of the seminars that the Commissioners have been at that the probation officers have held and that even the U.S. Attorneys go to.

The problem is the unfairness of the sentence that is reflected in the high rate of departure and the sheer injustice of someone coming back to be with his family. It may be illegal to come back; it is not evil.

In the present situation, a person who comes back with a criminal history of two or three faces a sentence which is approximately the same as if he or she had taken $80 million in fraud. It is completely out of whack.

And for this reason, the amendment that the Commission has tries to address this in a graduated approach. It is an approach that is structured of discretion. It is an approach that is easy to effectuate. As Commissioner Kendall pointed out, the PSRs have this information about length of sentences in the report now because of criminal history. In addition, because these are illegal aliens, most of them are deported after their sentences, and so you have the INS taking them back.

So it is an easy way of looking at the underlying sentence and then having an appropriate sentence. By doing the amendment that the Commission has put forth, you bring back justice into the system; you have a graduated approach which judges and probation officers, U.S. attorneys, and defense counsel can work with; you have ranges that judges can sentence within; and you have carved out a number of cases--for serious bodily injury, for serious drug offenses--which the graduated approach does not apply to. And that addresses DOJ's concerns, too.

We are willing to work with DOJ, too, but we think that the Commission's amendment is an approach that's valid, and one that should be passed.

The second issue I wish to turn to deals with the safety valve, and that is to increase the flexibility of the safety valve. And that would be Amendment 9, that would remove the floor of Level 26. The safety valve at this point is only for a small group of defendants, which is someone who is criminal history category one, no violent past, no guns, and has given truthful information as to sentencing. This is a group that should in the judge's discretion get the break of a two-level adjustment. And that would be, once again, in the discretion of the judge.

And finally, this also works hand in hand with Amendment 14, which is the increase of zones "B" and "C," which once again gives the judge a structured discretion that he or she can use to fashion an appropriate sentence.

These are federal judges who have been on the bench and have seen a wide range of defendants. And they will give an appropriate sentence--with the help of federal public defenders, of course. Thank you.

COMMISSIONER SESSIONS: That was good, too.

[Laughter]

COMMISSIONER KENDALL: I'd like to ask one question.

CHAIRPERSON MURPHY: We're going to have questions after the panel.

COMMISSIONER KENDALL: Oh, I'm sorry.

CHAIRPERSON MURPHY: Yes. You'll have a chance.

COMMISSIONER KENDALL: Okay.

CHAIRPERSON MURPHY: Okay. Mr. Maas?

MR. MAAS: Thank you, Judge Murphy. I am appearing here today as a representative of the New York Council of Defense Lawyers, an organization comprised of approximately 200 attorneys whose principal area of practice is the defense of criminal cases in federal court.

Our members include many former assistant United States attorneys, such as myself, including former chiefs of the criminal divisions in both the Southern District of New York and the Eastern District of New York. Our membership also includes current members of the federal defenders offices in both districts.

Our organization was formed approximately 15 years ago, and has actively sought a voice over that time in the development of policies and practices that affect our clients. Operating through its many committees, the NYCDL interacts regularly and constructively with the judges and prosecutors in the districts in which we practice on a wide range of criminal justice issues.

One of the areas of primary concern to our organization is the evolution of the sentencing guidelines. To that end, the NYCDL has for the past ten years maintained a sentencing guidelines committee comprising approximately ten members, of which I am currently the chairperson. This committee has, among other things, generally submitted written comments on proposed amendments and appeared before the Commission to testify about issues of particular importance to our members and clients.

The economic crime package and the related amendments currently before the Commission present issues of such importance. Although the package of proposed amendments also includes significant amendments relating to the sentencing of defendants convicted of non-economic crimes--and we address those in our written comments--the bulk of our submission was focused on the economic crime package. And my testimony this morning shall maintain that focus.

As to the economic crime package, we believe that several of the specific proposals are beneficial, both in terms of providing clarification of ambiguous concepts and in terms of promoting uniformity in the application of the guidelines.

Thus, we support the consolidation of the theft and fraud guidelines with a base offense level of six. The distinction between the crimes covered by the separate guidelines is frequently artificial, and the true distinction between theft crimes and fraud crimes can be addressed through enhancements and reductions. Therefore, we urge the Commission to adopt part "A" of the package.

We also believe that regardless of whether the theft and fraud guidelines are consolidated, it is desirable to provide a single definition of "loss" for all economic crimes. However, in doing so, we urge the Commission to avoid a one-size-fits-all rigidity, and to avoid definitions that include sufficiently vague terms which would result in undesirable subjectivity.

With respect to the former concern, the proposal to measure loss either at the time of sentencing or at the time when the offense was detected seems to ignore the differences between certain theft offenses and fraud offenses, and the different variations of fraud offenses.

Although we support the time of sentencing as the fairer of the two proposals for fraud cases, we recognize that this approach may not be appropriate for some theft cases where the more appropriate time for measurement may be the time of the offense. Given the subjectivity of fixing the time of detection, as evidenced by the complexity of option two in this regard, it is probably the least desirable or relevant of these three options.

As to our concern over unnecessarily vague terminology, we are quite concerned about both options for the definition of "actual loss." The notions of "reasonable foreseeability" in option one, and "harm that will result" in option two, create opportunities for subjective judgments of consequential damages that we believe should be avoided.

We believe that so long as the sentencing of economic crimes is dependent primarily on the fraud table, the loss being measured should be the direct loss actually suffered by the victim, and other factors should be addressed through the use of upward or downward departures.

Once the system becomes involved in determining the level of reasonable foreseeability or intent, or ascertaining future harm, an unacceptable level of speculation we believe has been added to the sentencing process.

As to the other nuances of the definitions included in part "C," we have addressed them in our written submission. Instead, I would like to address the remainder of my comments to explaining our opposition to all three options to revise the fraud tables.

On one level, our opposition is probably predictable. Each of the proposed tables increases the offense level for all economic crimes with losses greater than either 40,000 for options one and three, or 120,000 for option two, and would have a correspondingly negative effect on our clients.

However, our opposition also derives from our belief that the harsher tables are trying to address a problem that does not exist. Economic crime defendants are not receiving the sentences they are receiving because the tables are too lenient. If that were the case, judges would utilize the upper end of the range more often, or would be availing themselves of the opportunity to depart upward.

Instead, defendants are receiving the sentences they are getting because defense lawyers and prosecutors in the courts are fashioning dispositions or are bringing charges that utilize the full scope of the guidelines to create an offense level acceptable to the sentencing courts.

We do not believe there is evidence that the sentences being imposed for economic crimes are too lenient. And we ask the Commission to resist the temptation merely to tinker with the tables in order to increase sentences.

Although the creation of two-level increases, and therefore fewer categories, responds in some small part to criticism of the tables as micro-managing the sentencing process, the incremental changes set out in these three options seem only intended to increase sentences without allowing the sentencing judge to exercise the sort of discretion favored by those who support substantially reducing the number of categories.

Finally, with respect to the money laundering amendment, we believe it is a long overdue change that will rationalize both the charging and sentencing process. In this way, the proposed change will go a long way to changing an area of practice where the guidelines' tail we believe wags the criminal law dog.

With respect to the expansion of zones "B" and "C," we urge the Commission to accept those. Many defendants whose offenses currently fall at levels 11 and 12 are receiving prison terms of a few months because of the requirement for zone "C" that at least half the sentence be served in prison--

CHAIRPERSON MURPHY: Okay, Mr. Maas, your time really is--

MR. MAAS: I know, Your Honor. One more sentence?

CHAIRPERSON MURPHY: All right.

MR. MAAS: I feel like I'm in court.

These terms are just long enough to cost defendants jobs and to deprive families of support, without being long enough to satisfy any truly valid sentencing purpose. There is no evidence that short sentences have any general deterrent effect. And these defendants are often first offenders, for whom house arrest and probation would be appropriate. Thank you.

CHAIRPERSON MURPHY: Thank you.

And Judge Kendall, I know you have a question.

COMMISSIONER KENDALL: Well, it's not totally like court. In court, you even get to interrupt during the talk.

CHAIRPERSON MURPHY: Well, see, that's because you are the majesty all by yourself. You don't have to sit on a court of appeals, like I do, where you can't do--

COMMISSIONER KENDALL: Well, I was primarily talking about courts of appeals, in my life experience. But anyway--

[Laughter]

COMMISSIONER KENDALL: --let me ask Mr. Sands a question. You are in Arizona, so it's no mystery; that has a large percentage of immigration cases, I'm sure.

MR. SANDS: Yes, Judge.

COMMISSIONER KENDALL: And do you have a so-called "fast track" system in place to process those cases?

MR. SANDS: Yes.

COMMISSIONER KENDALL: Let me ask, is that in all divisions in Arizona?

MR. SANDS: Yes.

COMMISSIONER KENDALL: Okay. And can you explain to us how that system works in Arizona?

MR. SANDS: I thought I was going to be cross-examined, but you gave me an open-ended question.

COMMISSIONER KENDALL: Don't get carried away, though.

MR. SANDS: No, no.

[Laughter]

COMMISSIONER KENDALL: Or Judge Murphy will be on both of us.

MR. SANDS: What happens is, in Phoenix and in Tucson, if you accept the Government's standard deal--which is, plead guilty, no further departures-- a defendant gets three levels off for acceptance of responsibility, four levels off for reinstatement of deportation, for a total of seven levels, which has the effect--

COMMISSIONER KENDALL: Where does that four levels come from?

MR. SANDS: That is a 5(K)2.0 departure for saving the Government time in not going through a deportation hearing afterwards. So what they do is, they agree to reinstatement of deportation.

This deal has to be accepted prior to any preliminary hearing, or prior to indictment. So it is a front-loaded deal. It usually has to be accepted within two to three days.

COMMISSIONER KENDALL: Solely calculated to move the freight.

MR. SANDS: Excuse me, Judge?

COMMISSIONER KENDALL: Calculated to move the freight.

MR. SANDS: Yes.

COMMISSIONER KENDALL: Okay. And is that reduced to writing? Is it a written policy of the U.S. Attorney's Office in Arizona?

MR. SANDS: It is written in the plea agreements that we get. So it's a written plea agreement.

COMMISSIONER KENDALL: Do you believe that process demonstrates fidelity to the guidelines as a sentencing regime?

MR. SANDS: Hmmm--I have a Fifth Amendment right.

[Laughter]

CHAIRPERSON MURPHY: You aren't under oath.

COMMISSIONER KENDALL: Well, because, you see, you could take a--

MR. KRAMER: "Of course it does," is the simple answer.

MR. SANDS: Well, the problem with the system is that everyone believes the sentences are much too high.

COMMISSIONER KENDALL: I understand that.

MR. SANDS: And so there are creative ways of getting a departure. Now, with this departure, defense counsel is not allowed to seek other departures, such as over-representation of criminal history or cultural assimilation or things like that. So this is sort of a package deal.

COMMISSIONER KENDALL: Is it an 11(E)1(c) agreement that winks and nods at the guidelines, in essence?

MR. SANDS: It is an 11(E)1(c), and the goal of the plea agreement is to effectuate the goals of the guidelines, which is fair and just sentencing.

COMMISSIONER KENDALL: But the problem I have with that--and this is one of the things we're wrestling with--is that if you were in Dallas, where I am, or in Chicago, or in Minneapolis, or in Brooklyn, you wouldn't have the guidelines applied in quite the same way. In fact, the same Mexican in those four places would not get that benefit.

But you're saying this is throughout Arizona?

CHAIRPERSON MURPHY: I'd just like to say we're behind.

MR. SANDS: Sure.

COMMISSIONER KENDALL: Okay.

CHAIRPERSON MURPHY: And I know that our ex officio member has a question, Judge Castillo has a question and--

COMMISSIONER KENDALL: I'm sorry. Go ahead, then.

COMMISSIONER SESSIONS: I did, but I'm waiving it, in light of your concern.

COMMISSIONER KENDALL: No, I'm done. That's fine.

CHAIRPERSON MURPHY: Okay. Mr. Horowitz?

COMMISSIONER HOROWITZ: Let me just ask Mr. Sands just a couple of follow-ups on that.

You have two to three days to decide whether to accept that, in essence?

MR. SANDS: Yes, sir.

COMMISSIONER HOROWITZ: And how do you determine that in fact your client committed an aggravated felony, as opposed to a non-aggravated felony, in those two to three days, representing your client?

MR. SANDS: We get a pre-trial report that clues us in. The Government gives us, hopefully, the prior deportation that contains what the prior conviction is. And we conduct investigation. If there is a question, sometimes we can move to continue it. But it is a very fast-track system.

COMMISSIONER HOROWITZ: And when you say you take steps to investigate, do you just run a rap sheet, or do you get your information--How would you go about--

MR. SANDS: My investigator goes down to the county courthouse and pulls the priors.

COMMISSIONER HOROWITZ: Okay. And the proposal on the table would focus on time served.

MR. SANDS: Yes.

COMMISSIONER HOROWITZ: How would you propose, as the representative of the client, to go and determine before entering into a plea agreement what in fact the time served was for your client?

MR. SANDS: Usually, it's very clear from the INS deportation that he has served a sentence of, let's say, 14 months and then was released and deported by INS. And so it's something that we can easily deal with. And if the amendment is passed, then there may not be a need for this fast-track approach. So we would have more time.

COMMISSIONER HOROWITZ: I think that's one of the issues on the table. And the concern, I know, of the southwest border U.S. attorneys is the time issue, as to how long it would take for all parties before entering the plea.

MR. SANDS: Well, what our plea agreement says is that we could be sentenced right now anywhere from 50 to 125 months, if we go to trial. But if we accept a deal, then the sentence cannot be longer than 24 in criminal history one, to 51, which is in criminal history six.

COMMISSIONER HOROWITZ: You peg it at an offense level?

MR. SANDS: Yes. So it's 17, so it's all the way across.

CHAIRPERSON MURPHY: Thank you.

Okay, Judge Castillo?

COMMISSIONER CASTILLO: Mr. Sands, one, I want to take three seconds to at least thank you for your yearly submission that we look forward to reading and we take very seriously.

Now, on the immigration standpoint, one of the things you just mentioned, if this proposal is passed, these fast-track deals might not be available. Do you think less people then are going to be pleading guilty?

MR. SANDS: No.

COMMISSIONER CASTILLO: Do you think that could be the effect?

MR. SANDS: No.

COMMISSIONER CASTILLO: Because I think the Department is concerned about that. Did you hear Mr. Mueller come in here and say that what we should do is to focus instead on the character of the crime charge? What are your feelings about that?

MR. SANDS: That is what has landed us in this approach to start with; that everyone thought they knew what an aggravated felony was back in '91, and it's just been expanded.

A drug offense is not a drug offense is not a drug offense. There's a difference between a CCE and a possession of marijuana. Both are treated as aggravated felonies. Both are drug offenses. This approach here tries to graduate that. Using what a label of an offense is, is not as good an indicator as the actual sentence.

COMMISSIONER CASTILLO: Okay. And what if we went--instead of focusing on time served, we went back to focusing on the actual sentence imposed? Still using the graduated scheme, but focusing on the sentence imposed instead of time served.

MR. SANDS: You have an indeterminate state in which a person might get a five-year sentence and he serves 12 months, and then you may get a determinate state in which a person gets 13 months. They are roughly the same, but because the person got five years, even though he only served a year, or six months, then he would be treated much differently.

So looking at the sentence actually served is a way of saying, "This is what the court or the sentencing system actually felt." And then you've carved out the exceptions for serious drug offenses, serious bodily harm, and guns, in this amendment. The defendants want to plead guilty. They want to do their time, and go home.

COMMISSIONER CASTILLO: Thank you.

CHAIRPERSON MURPHY: Thank you very much, all of you, for coming and helping us in this cycle.

[Whereupon, the panel was excused.]

CHAIRPERSON MURPHY: The remainder of the hearing is devoted to MDMA and Ecstasy. There has been a tremendous amount--Of all of the topics that we have had on our agenda since we were installed in office, we've gotten the most feedback on this topic.

And so we have two panels on Ecstasy. If you could come up, the first panel, and seat yourselves, so we can get going, please?

Okay. And here again, Edward Mallett, the President of the National Association of Criminal Defense Lawyers--That's you?

MR. MALLETT: Yes, Your Honor, Edward Mallett. Thank you very much.

CHAIRPERSON MURPHY: Oh, I'm sorry, I mispronounced it. "Mall-ETT."

MR. MALLETT: Yes, ma'am. If there was an "E" on the end, it would be easier to pronounce--

CHAIRPERSON MURPHY: I'm just trying to think about it.

MR. MALLETT: --[inaudible] my short life.

CHAIRPERSON MURPHY: And then, also from your group is Dr. Nichols. That's you?

And then we have also Dr. Grob. Yes.

Julie Stewart, the President of Families Against Mandatory Minimums, we know. Yes. Okay. Mr. Mallett.

A PANEL CONSISTING OF:

EDWARD A. MALLETT, PRESIDENT,
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS [NACDL];
DAVID E. NICHOLS, PH.D., NACDL;
CHARLES S. GROB, M.D., NACDL;
FAMILIES AGAINST MANDATORY MINIMUMS

MR. MALLETT: Thank you, Madam Chairman. I thank the Commission for this opportunity to appear.

The National Association of Criminal Defense Lawyers has in its mission statement the issue of ensuring justice and due process for those accused of crime. And in the interest of ensuring justice, we are interested in fair and rational federal criminal laws and punishments.

I listened carefully to the Department of Justice representative this morning. He used the expression "Congress will agree" on more than one occasion. And I heard members of the Commission make reference to wanting the Justice Department onboard.

I think it is also good for the American people to be onboard. And I am grateful that the Commission holds open hearings and shares publicly the information on which it makes these most crucial decisions.

In a sense, the Commission sits in consideration of raising MDMA guidelines today in a kind of a time warp, a kind of change in time brought on by the fact that your directive from Congress to raise the penalties was based on information last summer and in the fall; whereas Congress, the new Congress, with a new Presidency, is living in the present.

For example, in the Washington Post last week, March 15th, there was talk about the recent critically acclaimed movie "Traffic," nominated for picture of the year Academy Award, the awards being given next Sunday night. "Traffic," it is written in the Washington Post, depicts the national crusade against drugs as a well-intentioned flop that squanders billions on efforts to destruct supplies, while doing little to curb demand through programs such as drug treatment and education. It is a message apparently that has not gone unheeded on Capitol Hill.

Then, Senate Judiciary Committee's Orrin Hatch is quoted talking about how the movie changed his point of view, indicating there needed to be some increased investment, according to the quotation given, tipping him on the need to step up funding for treatment and prevention.

Going on to the end of the article, there is talk about last year's funding of $1.3 billion for armed forces in Colombia, ending with an interview with Senator Paul Wellstone, who is quoted as saying, "I do think there has been some shift." His amendment to take $225 million of that money and put it in treatment was rejected, 89-to-11. Senator Wellstone says that now, "I think that amendment would be a close vote."

So times have changed. And yet, we are here with a Congressional direction to raise the punishment, as the Justice Department representative said, to stop the problem. I observe: As we have stopped cocaine, heroin, marijuana, and methamphetamine, through increasing punishments, extending way back to my college graduation year some 30 years ago.

So this Commission quite properly set about doing its own research. And in doing its research, the Commission took into consideration the statements that the DEA made to Congress, about how this drug is sent to the United States--a poison imported here--because organized crime figures from Russia go to Israel and join into criminal syndicates, who then buy MDMA in Amsterdam and Belgium, and send couriers with it to the United States.

Clearly, we need to punish the wrongdoers. And this Commission then took a look at who is punished for MDMA violations. By your own records in your own report, MDMA law violators go to all-night dance parties, called "raves." And I think it's this phenomenon--this people dancing and staying up all night, some of them getting themselves into the hospital--that has driven this tremendous public interest. I'm a parent. It is a source of concern.

CHAIRPERSON MURPHY: You've got one minute.

MR. MALLETT: The people in prison over this are American young people, first offenders, who are non-violent. Drugs [sic] are not involved. They are generally cooperative. They are not involved in non-drug crime. They don't spread Hepatitis or AIDS through needles. And they are, therefore, characteristically different than the intravenous drug-using population and most of the population that abuses methamphetamine and crack.

I would like you to look very carefully at the report we filed from the Federation of American Scientists, in which the mathematics are done: The arithmetic is done comparing dosage units. You know, in Schedules II and III and LSD, you look at dosage units. But here, you only look at weight.

And if you adopt the proposal currently on the table then, according to the Federation of American Scientists in the materials we have submitted, or they have submitted through us, the message you will be sending is: It's better to use heroin and cocaine than to use MDMA. I would urge you to not send that message.

CHAIRPERSON MURPHY: Thank you.

Dr. Nichols.

DR. NICHOLS: Thank you. I'm a professor of medicinal chemistry and molecular pharmacology at Purdue University. And my laboratory did the earliest studies that showed how MDMA worked in the brain, back in 1982. My comments are related to the studies carried out in my laboratory, as well as my reading of the literature on MDMA research for about the last 20 years.

I believe that the penalties for MDMA are already more severe than is warranted by the present evidence, and urge the Commission to increase the penalties only by the least amount necessary to satisfy the Congressional directive.

The Commission may be attempting to develop sentencing guidelines based upon the consideration of the relative dangers of MDMA compared with, specifically, methamphetamine, cocaine, and heroin. I do not believe that these particular comparisons are appropriate.

I see three major concerns with MDMA. First is its acute toxicity; that is, what is the immediate health risk to the user? Considering the numbers of emergency room mentions, medical examiner reports, or by any other measure, the acute toxicity of MDMA is far lower and the drug is more benign than methamphetamine, cocaine, or heroin.

Second, we must be concerned about the possibility of addiction. In my opinion, that is one of the very greatest dangers of any drug of abuse: that repeated usage will lead to a state of chronic dependence that may ultimately destroy the life and productivity of the user. MDMA is typically not taken on a daily basis; nor is there apparently any compulsion or craving to do so. The effects of MDMA that make it so pleasurable disappear after two or three days of continuous use.

With regard to the ability of MDMA to produce dependence, it falls far below what is possible with methamphetamine, cocaine, or heroin. Laboratory rats and monkeys can be trained to self-administer these latter three drugs. And this paradigm is a good model of addictive potential in humans. Published research reports show that drug-naive animals cannot be trained to self-administer MDMA.

Methamphetamine, cocaine, and heroin, when used chronically, can readily lead to addiction and drug dependence. Once addiction occurs, the user is forced to find avenues to raise money to buy more and more drug, which leads to much of the crime associated with addictive drugs. The cycle of addiction and crime destroys people's lives.

The low addiction potential of MDMA is, in my opinion, a very strong feature that sets it completely apart from these other drugs, and that sets a level of MDMA danger to the user far below that that you see with methamphetamine, cocaine, or heroin.

And the third concern about MDMA is the possibility of brain damage. There have been many studies of the effects of high doses of MDMA on brain cells in both rats and monkeys. The Commission has been told that MDMA kills brain cells. That statement is incorrect.

I shall use an analogy between a brain cell and a tree. In this analogy, the roots of the tree correspond to the brain cell itself, and the branches of the tree correspond to the fiber connections, called "axons," that go out from the brain cells in various directions.

Killing a brain cell would be analogous to killing the roots of the tree, and thus permanently destroying it. What MDMA does is more like trimming back the branches of the tree.

In laboratory animals, large doses of MDMA are known to cause the degeneration of brain serotonin axons. Depending on the dose of MDMA given, these axons, like the branches of the tree, can resprout and grow back. Animals given large doses of MDMA to produce this effect show behavior that is essentially identical to untreated animals.

Recent brain imaging studies of subjects who had used a variety of different drugs of abuse, and who had also used Ecstasy--which may or may not have always been MDMA--showed that there was an apparent significant loss of serotonin axons. The subjects had used Ecstasy an average of 200 times, and had taken multiple doses on most occasions. These subjects represent very extreme Ecstasy abuse.

Because we do not have brain scans of these subjects prior to their drug usage, we cannot be certain that the reported decreases actually resulted from MDMA. Nevertheless, even if one assumes that the apparent loss of brain serotonin axons is due only to MDMA, attempts to measure neurological effects have failed to reveal large differences from control subjects.

The significance of brain axon degeneration and its consequences is very controversial. Does it occur in the casual user who experiments with MDMA a few times? My own opinion is that it doesn't; or that if it does occur to a small extent, the axons regenerate and regrow.

Does it occur in heavy users who take the drug hundreds of times in multiple doses on each occasion? My opinion is that it probably does; but there is no present evidence, even in this population, that this use has led to loss of ordinary brain function, or has in any way compromised the quality of their lives, or that any subtle changes are irreversible.

In subjects who had abused alcohol, cocaine, methamphetamine, or heroin, hundreds of times and at multiple doses on each occasion, one would expect to see a high prevalence of addiction and dysfunctional lifestyle that is typically not seen in populations using MDMA.

MDMA did not just appear in the past few years. The more toxic MDA has been available since about 1967, and MDMA made its first appearance in the United States in about 1979, with increasing use through the mid-1980s.

What we see today is a repeat of the widespread popularity of MDMA in 1983 through 1986. As a result, there are many hundreds of thousands of former MDMA users who are now probably in their 30s, 40s, and on up. And there are no studies to suggest that a cohort of this population suffers from any unusual neurological condition. If a neurological problem of a significant magnitude did exist, there should by now be large enough numbers of sufferers that it seems that it ought to have been detected.

None of my remarks are meant to imply that MDMA is a safe drug. But on the comparisons of acute toxicity and the ability to produce dependence, there is no similarity between MDMA and methamphetamine, cocaine, or heroin. MDMA is clearly very much less dangerous. Thank you.

CHAIRPERSON MURPHY: Thank you, Doctor.

And Dr. Grob?

DR. GROB: It is a privilege to speak today before the U.S. Sentencing Commission on the issue of MDMA.

I have been a child and adolescent psychiatrist for almost 20 years, and am currently the director of a large clinical program and training program in child and adolescent psychiatry at the Harvard-UCLA Medical Center. I am also a professor of psychiatry at the UCLA School of Medicine.

I have studied and written articles on the phenomenon of substance use and misuse among young people, and have serious concerns about the dangers that adolescents and young adults are exposed to. I have learned over time that young people respond best to hearing the truth, but that they do not respond well when they are barraged with information they do not trust to be the truth.

In this era of high-stakes drug war politics, the dialogue has too often been dominated by misinformation and exaggeration, which has led to greater degrees of risk taking by young people. Unfortunately, this has particularly been the case with the phenomenon of Ecstasy use, which is often, but not always, the drug MDMA.

I have studied and written on the issue of MDMA for over a decade, and was the first investigator to receive FDA approval to conduct a prospective research evaluation of adult subjects administered MDMA.

Since I have only been provided with a very short time to speak, I am pleased that my recently published article in the journal "Addiction Research" has been provided to the Commission. In this article, I examine in significant detail the issues which I am only able to touch upon briefly this morning. I hope the members of the Commission take the time to examine my argument on the case of MDMA.

Primarily, I am very concerned that the Commission has been provided scientific information, particularly about neuropsychiatric effects, which suffers from serious bias and inaccuracies. The Commission has been presented with a scenario that today's young MDMA users, of which there are millions, will be inflicted in 20 or 30 years with devastating degrees of neurologic damage. This is a gross exaggeration and misreading of the available data; as the case for so-called MDMA neurotoxicity is seriously flawed.

Unfortunately, the NIDA-funded research record on MDMA is an egregious example of the politicization of science, which not only clouds our understanding of the effects of MDMA, but also undermines the credibility and integrity of the scientific process.

Much of the NIDA-promoted MDMA research record which has been presented to the Commission suffers from serious flaws in methodologic design, questionable manipulation of data, and misleading and deceptive reporting in the professional literature and to the media. I will briefly mention several pertinent issues; though keep in mind that a more detailed analysis is provided in my article.

It is important to note that the phenomenon and implications of MDMA neurotoxicity are far more controversial within the psychiatric and neuroscience communities than you have been told. Indeed, prominent neurotoxicologists, including James O'Callahan of the U.S. CDC, have presented data demonstrating that some of the classic laboratory markers of neurotoxicity do not occur with MDMA.

Furthermore, it is important to note that in laboratory models it has proved virtually impossible to demonstrate any long-term adverse behavioral sequelae in animals injected with repeated and extremely high dosages of MDMA.

Then, there is the relevant clinical example of the weight-reducing drug Phenfluoromine, which causes in laboratory animals virtually identical effects to the serotonin neurotransmitter system as are observed in so-called MDMA neurotoxicity. Over several decades in Europe and the United States, tens of millions of people were administered Phenfluoromine daily, often for months and years; and yet, during all this time neuropsychiatric disorders induced by these serotonin effects have never been demonstrated.

Carefully examining the record of human research with MDMA, particularly the NIDA-funded studies of George Ricardi, one observes a persistent pattern of poorly-controlled studies, often with deliberate exclusion of vital data sets from published reports, as well as unreported pre-selection biases and criteria used to recruit research subjects, which have led to grossly exaggerated and misleading claims in the scientific literature and in the media.

A careful analysis of the MDMA research record provides a weak case for long-term dangers. Indeed, my own investigation, which was the first FDA-approved study where MDMA was administered to human volunteers, found no evidence of short-term or long-term neuropsychological damage. In fact, many of our research subjects were notable for their impressive level of psychological and physical health and successful functioning in the world.

It is very unfortunate that the lavishly funded NIDA-promoted position on so-called MDMA neurotoxicity has inhibited alternative research models which would better delineate the true range of effects of MDMA, including its potential application as a therapeutic medicine, particularly for clinical conditions non-responsive to conventional treatments such as the severe psychological distress and existential alienation of people with end-stage medical illness, as well as other patients with refractory chronic post-traumatic stress disorder. Relevant to this hearing--

CHAIRPERSON MURPHY: Doctor, could you sum up?

DR. GROB: Okay. Well, okay, basically, let me just--My last couple of sentences.

As a child and adolescent psychiatrist who has studied and published in the area of substance abuse, I am very concerned about the welfare of our children and adolescents. And I am well aware of the dangers they are exposed to in their daily lives. But I strongly believe that, in spite of the best of intentions, our current drug policies have been ineffectual at best, and grossly counterproductive at worst, in terms of reducing the harmful consequences to young people.

Therefore, I strongly encourage the U.S. Sentencing Commission to reject the temptation to escalate drug war policies and consequences, and to reconsider its position on the vexing case of MDMA. Thank you for your time and attention.

CHAIRPERSON MURPHY: "Vexing case." That's good.

Ms. Stewart?

MS. STEWART: Good morning. It's a pleasure to be here again for, I believe, the ninth year in a row. I was not intending to speak, but Mary Price, our general counsel, is very ill, so I'm speaking on her behalf.

Many of you know me from testifying here before. And we've certainly worked with the Commission for many years to bring forward the families and the people whose lives are affected by the laws that you pass. And we think that that input has been very helpful.

It's interesting, because I tried to find someone who had a loved one in prison serving time, federal time, for Ecstasy. And I could not, in our database of cases, and we have several thousand cases. And I don't know--you certainly have the figures--how many people are serving time for Ecstasy in the federal system right now. The one person I know was granted a commutation in July, and so she's out: Amy Pofal.

But it's interesting to me, and I wonder how much impact this will have in the end. Our history shows us that as the commission's, or as federal, sentencing gets tougher, more cases go into the federal system. My suspicion is that most cases are being prosecuted at the state level at this point. But I found that interesting, and wanted to share that with you.

We do have concerns about what's going on with Ecstasy. Mary Price's written testimony lays it out, and I don't intend to go over it at all in detail. And the testimony you've just heard from the two doctors I think is very instructive.

But I do want to express concerns about the process. And I have a concern that there is a trend going on in the Commission that does tend to be moving toward more closed-door discussions. And I would encourage the Commission to try to continue to remain open and have open discussions.

The original proposal for MDMA and MDA and PMA and MDEA was to make them all the same as heroin. That seems to have been done sort of, as far as we know, in the dark. And we don't have the reasoning behind that. We were not able to get the information that was supplied to you by the DEA and NIDA and everyone else. And it would be very helpful, if we can't sit in on those meetings, if we could at least get the materials from them, so that we could understand what your basis is for coming up with these equations.

I realize that now the penalty--proposal, rather, has been scaled back to 500 grams; one gram equals 500 grams, instead of one gram equals one kilo. But that's still a little bit random to us, and we don't understand what it's based on.

We're very pleased that the Commission agreed to extend the period of testimony on this. And we appreciate being able to testify and to bring in people who I think can help enlighten you in making these decisions.

I would just add--and again, referring you to Mary's testimony for our full arguments here--but we certainly want you to recognize that the medical and scientific community are not of one mind about the dangers of MDMA and as they relate to heroin, cocaine, and methamphetamine, or even mescaline. And we want you to keep these fundamental disagreements in mind as you make your decisions.

And I think that--And I'm reticent to say this, because I certainly want you to know that we support the Commission, and we have for years. And John Steer will attest to that, because we've worked together for many years. But I do want to stress how disappointing it is for me to attend the hearings--the meetings, rather, now--and to feel that they're very pro forma; that there isn't a lot of substantive discussion going on.

We aren't being privy to--and we shouldn't be privy to--everything you're discussing, I understand. But it feels very much like everything has been decided the day before, and you're simply showing up to rubber-stamp it. And it leaves those of us who care deeply about sentencing policy with this feeling that we don't know how you're coming to the decisions you're coming to, and how we might be able to influence them better if we want to.

And so, I would encourage you to try again to be as open as possible in your decision-making process, so that we understand how it's being arrived at and how we might be able to help influence it.

I think that this meeting is extremely important. I always look forward to testifying--even though I wasn't going to this year. But again, even having the five-minute time limit makes all of us a little bit nervous. And I know that, you know, we've brought in people from many far parts of the country to share their expertise with you. And we hope that you will take the time to listen to them, because their voices are very important.

And I guess I don't want the public and the practitioners that care about these issues to feel that the Commission is more concerned about making the trains run on time than actually trying to ensure that justice is served. And I think that that might be the impression that some people are left with, and I know that's not the case. But I don't want that to be the fact.

I would just refer you on the last page of Mary's testimony to the suggestions she has made to help address some of the concerns I just expressed. And one is to either permit the members of the public to attend the briefings that you receive by DEA and the Justice Department and NIDA, etcetera; or at least make those materials available to all of us.

To actively encourage and invite experts outside of the Justice Department to address the Commission when you are seeking information--for instance, on Ecstasy--because it seems that, especially with drugs, there's so much difference of opinions about the seriousness and dangerousness of them that it's worthwhile to get the expertise from around the country, because it's very confusing. And I appreciate your attempt to straighten it all out.

And then, just in general, to revisit drug sentencing policy in light of some of the concerns raised by the discussions around Ecstasy. I mean, that's always something we're hoping that you will do, is look beyond weight-based sentencing to another scheme.

Thank you very much for your time. I appreciate the opportunity to speak to you.

CHAIRPERSON MURPHY: Well, thank you. And I think I appreciate your openness and what you say about your observations about the process.

As I said before we started this panel, we have really been inundated with information on Ecstasy. And it's very welcome. A lot of it is scientific. A lot of it is about particular cases. A lot of it is about substantive positions on it.

And I think that, you know, what you say about the briefings and so on and the briefing materials--We will have to talk about it, but I think those are interesting suggestions. I think that we have no desire to be operating in a murky way at all.

One of the things that--It may not at all be apparent from the outside, but we have taken on a tremendous workload. There was an awful lot of backlog. We sincerely would like to do what we can to make the guidelines more workable. And we've taken on a huge workload this year. And that impacts our ability to have the time to dialogue, other than in the written form and so on.

But we certainly--And you know, when I have to go testify before the Senate caucus on Ecstasy on Wednesday, I won't have very much time to say. It's in the nature of our world today, unfortunately, I guess, that there isn't as much time. A lot of things have to get submitted in writing.

But these other things about the process, I'm sure we're going to take them to heart, and consider what you had to say.

MS. STEWART: Well, thank you.

CHAIRPERSON MURPHY: Are there any questions that anybody has?

COMMISSIONER O'NEILL: I have.

CHAIRPERSON MURPHY: Okay. Mr. O'Neill?

COMMISSIONER O'NEILL: I guess this question is for the physicians in the crowd, or the doctors in the crowd. As you know, part of what we have to do in terms of the Sentencing Commission is, we decide these penalty structures. And we do it in part in where we place the drugs in the schedule in comparison to other drugs, and the known harms of other drugs.

Part of the difficulty, I suppose, that we're having is, we've been able to read and have had a lot of different scientific evidence presented to us. And since none of us is a scientist that I'm aware of, it's sometimes difficult to digest this information.

We ordinarily penalize drugs on the basis of the harm to the individual, both in terms of the short-term harm to the individual and in terms of long-term effects to the individual; and in terms of collateral social damage that the trafficking in that drug, you know, provides or, if the individual becomes addicted to that drug, what kind of collateral social damage they sort of visit upon society.

My question is this: In terms of both the short-term and the long-term damage to the individual that the standard dose of the drug provides, what is it most like? Can you compare it to another drug that we currently penalize, like heroin, like cocaine, like marijuana? Is it similar, in terms of its effects on the body, both short-term and long-term?

DR. GROB: Well, I think the dangers of MDMA are considerably less than, let's say, heroin or cocaine or methamphetamine, both short-term and long-term. These people are often--meth users, cocaine users, heroin users--are often ravaged by their drug use. Their function often progressively deteriorates. They got hung up in an addictive cycle where they're taking the drug over extended periods of time.

This is not at all the case with MDMA. Most users are using it occasionally. Of course, there are outliers, individuals who have a propensity to abuse anything they might take in excess. But those people are rare.

In terms of potential danger of short-term effects, there are a small number of fatalities reported. But compared to the overwhelming numbers of people who have tried the drug, it's surprisingly low. In Great Britain, they estimate every weekend a half-million to a million people are taking the drug, and they only average about 15 of these overheating deaths per year. Each of those cases are quite tragic; and yet, 15 out of the millions that take it is very low.

I would say the dangers of MDMA are considerably less than, let's say, alcohol, which is notoriously toxic to individuals, families, and society.

I'm not quite sure what other drug one might equate it with; perhaps mescaline. There are, you know, biochemical differences; nevertheless, it might be better to move it in that category. Maybe Dr. Nichols wants to comment on that.

DR. NICHOLS: Yes. I'm not really sure what drug you would actually compare it to if you wanted to make a straight comparison. It certainly has weak central nervous system stimulant properties. The dose of Ecstasy is between 125 and 150 milligrams. So the dose of something like dextroamphetamine would be maybe 5 milligrams. So it certainly is much weaker as a stimulant.

But the effects are completely different. And I think you've seen in the materials you've been given that it combines supposedly the effects of an hallucinogen with the effects of a stimulant. I actually coined a term, "antactogens", to describe these, and published studies to show that MDMA, MDE, and all these Ecstasy type drugs actually have a completely different type of pharmacological effect. They don't fit easily into a single category.

I'm really not sure what you would compare it to. But all I do know is that, from the point of view of acute toxicity or the ability for addiction, it's far below the potential of methamphetamine or cocaine. I would say it's far below even alcohol.

CHAIRPERSON MURPHY: Okay. We do have another panel on Ecstasy, too.

COMMISSIONER KENDALL: Is that a shot across the bow, or--

CHAIRPERSON MURPHY: Well, it's just--

[Laughter]

COMMISSIONER KENDALL: I want to ask Julie a question. Was your organization involved at all in the hearings before Congress on this issue?

MS. STEWART: We did not supply witnesses. We did write written proposals.

COMMISSIONER KENDALL: See, because I took what you said a moment ago to heart, and I took that as a very wise and gentle admonition. But I would kind of turn it around on you. Once a directive comes over from the Hill, on some of these matters, you've been around up here long enough to know that all that we're seeing now, and the stacks that we're reading, the time for that might have been to affect the process back before Congress.

MS. STEWART: No, I agree with you. And we were involved in it. I don't think a lot of the groups that are here today were involved in it. So a greater effort could have been made to get this expertise before the Congressional hearings.

COMMISSIONER KENDALL: Because I trust that the United States Senate would very much want to have as much good scientific information as available and as possible before they make the decisions that they make.

MS. STEWART: This is a more thoughtful body than Congress is, frankly.

COMMISSIONER KENDALL: Well, I won't comment on that.

[Laughter]

CHAIRPERSON MURPHY: Well, we got a compliment out of her, though.

Mr. Horowitz?

COMMISSIONER HOROWITZ: May I ask Dr. Nichols a question?

I think you mentioned in your statement that you certainly didn't think that MDMA was a safe drug. And I just wanted you to explain what you meant by that reference.

DR. NICHOLS: Well, of course, there's no safe drug. People die every year of penicillin reactions.

There are people who take large doses. It stimulates the blood pressure, stimulates heart rate. And in conditions where they dance actively and there's a lot of vigorous physical exercise, you can get hyperthermia.

Hyperthermia can actually be caused if there's no drug at all. But certainly, it's potentiated by MDMA. So you do increase the risk of these malignant hyperthermia fatalities, or that type of adverse reaction.

For someone who is predisposed to have cardiovascular problems, a heart defect, certainly you could see some of that. So it does affect the cardiovascular system. It's not just like drinking water. But in terms of its relative danger, I'm trying to draw the distinction there.

COMMISSIONER HOROWITZ: In comparison to, say, heroin and powder cocaine, other than in terms of addictiveness--which I understand everybody to say those are far more addictive--how does MDMA compare in terms of, at least for now, short-term physiological or neurological damage to the individual?

DR. NICHOLS: Cocaine can actually cause cardiac arrest, because it has a local anesthetic effect on the heart. So you can have an immediate cardiac arrest with the use of cocaine. Heroin, of course, can cause respiratory depression. And most of heroin overdose death is due to respiratory depression.

So MDMA is a central nervous system stimulant. It does stimulate the heart, and it stimulates the blood--increases blood pressure. But in terms of the risk, I would say it's a different type of risk. If you took a very, very large dose of MDMA, you could have, I suppose, stroke or cardiovascular problems. But I think you're talking about two or three times the dose.

And also, MDMA is taken orally, and oral medications typically are much safer because you have a slower absorption through the stomach. The onset of the increase in plasma concentration goes up much more slowly.

With cocaine, whether it's smoked as a freebase or insufflated nasally or injected, or heroin injected, you immediately have it into the system. And I won't even go into all of the health problems you have with needle administration.

So there is inherent difference in safety, because if you overdose on MDMA, for example, there are plenty of warnings, because your system is starting to ramp up and people presumably would see these toxic effects and could get you some kind of medical care. If you overdose on intravenous heroin or cocaine, you may be gone before much can be done. I mean, it's very rapid because of the route of administration.

CHAIRPERSON MURPHY: Okay. Judge Sessions?

COMMISSIONER SESSIONS: Dr. Nichols, I think you testified that there is little risk of addiction, because you lose the benefit after two or three days?

DR. NICHOLS: Right.

COMMISSIONER SESSIONS: That is, if you use it for three days, you no longer get the high? Is that correct?

DR. NICHOLS: Yes.

COMMISSIONER SESSIONS: Is that verified in some way?

DR. NICHOLS: MDMA has unique psychopharmacology. That's the reason that you're hearing about it. It makes people feel very emotional and feel close to other people, and they kind of open up. And that's different from something like methamphetamine, which has some of that, but which is mostly a stimulant--makes people feel really good, euphoric, kind of manic.

And with MDMA, taken on a daily basis, you lose that component of it. It's probably related to the--I hesitate to get too scientific, but it's probably related to the depletion of serotonin, acute depletion, of tolerance of a particular type of receptor that serotonin interacts with. So you lose that other component.

So MDMA has a serotonin component, but it also has a dopamine component. So when you take it every day, you lose the serotonin component after about two days, but the dopamine component is still there. So it has a stimulant effect after that, but if you want a stimulant effect you might as well get amphetamine or methamphetamine. There's nothing really different at that point. You just have a weak stimulant effect.

CHAIRPERSON MURPHY: Okay. Well, thank you very much. We will take, then, the next Ecstasy panel.

[Whereupon, the panel was excused.]

CHAIRPERSON MURPHY: Well, on this panel we've got William McColl, the director of legislative affairs at the Lindesmith Center - Drug Policy Foundation; and Julie Holland, Dr. Julie Holland, from the same organization; and Richard Glen--How do you pronounce it?

MR. BOIRE: "BOY-AIR."

CHAIRPERSON MURPHY: Boire. Thank you. Executive director of the Center for Cognitive Liberty and Ethics. And then, Doctor--Is it "DOUGH-blin," or "DUB-lin"?

DR. DOBLIN: "DOB-lin."

CHAIRPERSON MURPHY: I didn't have it at all. President of the Multidisciplinary Association for Psychedelic Studies.

All right, Mr. McColl, do you want to begin?

A PANEL CONSISTING OF:

WILLIAM D. McCOLL, DIRECTOR OF
LEGISLATIVE AFFAIRS, THE LINDESMITH
CENTER - DRUG POLICY FOUNDATION;
JULIE HOLLAND, M.D., THE LINDESMITH
CENTER - DRUG POLICY FOUNDATION;
RICHARD GLEN BOIRE, ESQ.,
EXECUTIVE DIRECTOR, THE CENTER FOR
COGNITIVE LIBERTY & ETHICS;
and RICK DOBLIN, PH.D., PRESIDENT,
MULTIDISCIPLINARY ASSOCIATION FOR
PSYCHEDELIC STUDIES

MR. McCOLL: Thank you very much. I'd like to thank all of the Commissioners for the holding of this public hearing and for inviting us to speak. We are very appreciative of this opportunity.

The Lindesmith Center - Drug Policy Foundation is a 20,000-member non-profit organization. We are the leading independent drug policy institute focusing on a public health approach to minimize the harms from both use and from drug prohibition.

We are concerned regarding the proposals to increase sentencing guidelines for MDMA. We believe that the renewed interest in MDMA has created an increase, obviously, in use, and that there is a natural reaction to desire to increase sentences. And as Commissioner Kendall pointed out, Congress certainly reacted strongly, and we understand that--

COMMISSIONER JOHNSON: The increase stimulates the use, you said? Increase in attention?

MR. McCOLL: The media attention placed on MDMA and the sort of increased information around MDMA seem to have increased use, we believe, in the current situation, yes, that was what I was trying to refer to.

Unfortunately, history has shown that increasing sentences are unlikely to deter use, and in fact may result in numerous problems. Bearing in mind that we have only a short period of time, I have four general points, with a few sub-points, that I'd like to make. And then I'll refer tomy colleagues.

The Lindesmith Center - Drug Policy Foundation just hosted the largest ever national conference on MDMA use. Drawing on this body of knowledge, we at Lindesmith Center - Drug Policy Foundation have come to a number of conclusions that we hope that you will take into consideration as you're making your decisions.

The first is that the scientific evidence around MDMA clearly is in dispute. There is a strong push from psychiatrists and psychologists to consider examination for therapeutic use. And indeed, there is a movement to move MDMA into Schedule III, something that we are supporting.

Regarding long-term risks, you've heard quite a bit around the issue of serotonin. That seems to be hotly debated right now, and it's something that we are very concerned not get lost; that although it does appear that there is some reduction in serotonin, we do not know what those long-term effects are. And indeed, it may be that there is not a great effect on people. We should certainly have seen some indication of that from the 1980s, and we have not.

Regarding short-term use, one of the notable effects of MDMA are the temporary body temperature changes. Many of the reported deaths from MDMA are due to hyperthermia. And of course, this is a very severe issue. It's something that we prefer to approach from a public health perspective, through getting information and education out to potential users and abusers of this particular drug.

Interestingly, I might add that one of the things that came out in the conference is that body temperature actually varies with the ambient temperature of the room; not, as I had assumed, that temperature goes up consistently with MDMA, but rather that, for example if you're in a room with a lower temperature, your temperature will go down. So that may not play much of a part in your decision, but it's something to be aware of and certainly something to take into consideration--for example, at raves.

We are also aware that we believe in comparison to other scheduled substances that there is a very low addiction potential with MDMA.

In addition, our conference suggested concerns regarding increases in sentencing. We are particularly concerned that what we have right now is a fairly non-violent market. We believe that we're afraid that there will be a more violent market--Is that the one-minute symbol?

CHAIRPERSON MURPHY: Yes.

MR. McCOLL: I will really work hard to--

CHAIRPERSON MURPHY: You're the only speaker that's ever heard it.

[Laughter]

MR. McCOLL: We are also concerned that the MDMA market is flooded with adulterants, most notably, ketamine and--I can't even pronounce the other one. "DXM" is the short piece. And we're concerned that moving sentencing schemes up for MDMA will actually increase adulteration.

We're concerned on the effect on sentencing structure. Mandatory minimums, of course, are now becoming a national issue and a cause for concern, particularly in relationship to the number of minority individuals who are currently imprisoned. We are concerned that low-level first-time offenders will be receiving lengthy sentences, as major traffickers bargain down.

And then, I'll make my final point and conclude. We believe that a public health approach to do pure education and greater education of potential users, as well as the testing of capsules, will in the long run prove more effective than sentencing. And in conclusion, we urge the Commission to not increase, or to increase as minimally as possible, the penalty for MDMA.

CHAIRPERSON MURPHY: Thank you.

Dr. Holland.

DR. HOLLAND: Judge Murphy, gentlemen of the Commission, good morning, and thank you for the opportunity to speak here today.

My name is Dr. Julie Holland. I am an assistant professor of psychiatry at the NYU School of Medicine. I am also a psychiatrist working in the psychiatric emergency room of Bellevue Hospital in New York City.

For the past five years, I have worked nearly every Saturday night and Sunday night on what can only be called the front line of mental illness. Like anyone who works in psychiatry, I am acutely sensitive to the dangers of substance abuse. I have witnessed every kind of casualty of drug and alcohol use imaginable: psychosis, severe depression, violence, suicide attempts, homelessness, and self neglect.

At least three-quarters of these patients that I see on any given shift are exacerbating, if not causing, their psychiatric illness by using alcohol and cocaine. Far less than 1 percent of these substance-induced psychiatric disorders are secondary to Ecstasy use.

Based on my own experience and on the published data, I can report that MDMA is not a significant cause of psychiatric crises. I have made it clear to my colleagues and the doctors I train that I am particularly interested in MDMA-related psychiatric cases, as I am editing a book on MDMA; and yet, I have heard of only three of these cases in the past two years, out of thousands of psychiatric emergency room patients who came or were brought to Bellevue.

This is not because MDMA use is uncommon in New York City. The rave and dance club scene is as active in New York as it is anywhere in the country. If Bellevue isn't seeing Ecstasy casualties, it's because they aren't out there.

The national data confirm the Bellevue experience. Eleven percent of high school seniors in 2000 reported having taken MDMA in their lifetimes. The National Household Survey reported 1.4 million people between the ages of 18 and 25 have taken it, as well. Yet, neither the medical nor the psychiatric emergency rooms are overrun with the Ecstasy casualties that one might expect.

According to the Drug Abuse Warning Network, less than one-third of 1 percent of drug-related emergency room visits in '99 involved Ecstasy as the reason. By contrast, 19 percent of drug-related ER visits involved, 17 percent were due to cocaine.

Even the rare MDMA cases tend to be less severe than the cases involving other drugs. The most common adverse effects from acute MDMA intoxication are anxiety or panic reactions. Also common among frequent or higher-dose users is a transient depression several days after ingestion. More serious psychiatric consequences from Ecstasy use are quite rare.

Not only are MDMA-related cases a small percentage of all drug-related emergency room visits, but a large percentage of MDMA cases are not life-threatening. In a recent study conducted by the physicians in the emergency department at Bellevue, regional hospital Ecstasy cases phoned in to the New York City poison control center were analyzed. There were 191 cases reported during '93 to '99. This is a rate of fewer than 30 cases per year. Seventy-three percent were mild, and experienced minor or no toxicity.

The most commonly reported symptoms were increased heart rate, agitation, and nausea and vomiting. In these seven years, only one Ecstasy-related death was reported, which was due to hyperthermia, or overheating. Ecstasy is simply not the killer drug that the media would like us to believe.

Contrast the MDMA-associated morbidity and mortality with that of methamphetamine, for example. According to the Dawn data, in the five years between '94 and '98, there were 2,600 deaths reported secondary to methamphetamine. During that same time period, there were 27 deaths attributed to Ecstasy. Compare this 100-to-1 ratio of mortality to the proposed penalties for methamphetamine and MDMA: a ratio of two-to-one.

In '99, there were 4,700 deaths attributed to heroin. In '99, nine people died secondary to Ecstasy use. Compare this mortality ratio of over 500-to-one to a penalty ratio of one-to-one.

MDMA is less like to cause violence than alcohol. It is less addictive than cocaine or tobacco, and less deadly than heroin. It is also less deadly than tobacco or alcohol, which kill 400,000 and 110,000 Americans per year.

Heroin and cocaine rank first and second when a drug is attributed directly to causing death. Ecstasy death statistics are so small, they do not even make the list.

Based on what I have learned over the last 15 years, it is my belief that MDMA can be used relatively safely when in a supervised setting. Clinical research studies utilizing MDMA have been conducted with minimal adverse effects, supporting the notion that a single therapeutic dose of MDMA is not intrinsically dangerous. The context and the manner in which the drug is used contribute substantially to the risk of its use.

Overheating, by far the most serious acute complication of Ecstasy use, is only brought about when a person engages in vigorous activity in an overheated environment without adequately replenishing lost body fluids. In a clinically controlled setting, MDMA-induced hyperthermia has never been reported.

I understand that initially the Commission proposed that penalties for MDMA may be aligned with those of heroin. MDMA should in no way be equated with heroin. Given the doses per gram, the proposed increased penalty equates one dose of MDMA with ten doses of heroin. There is a higher potential for physical dependence, addiction; there is a withdrawal syndrome with heroin. There is tolerance with MDMA; there is no withdrawal syndrome.

Physically addicted laboratory animals or individuals have not been reported. There are people who compulsively use Ecstasy--psychological dependence. They are a small minority of the users.

HIV, Hepatitis, oral administration, I think have been covered already. I'm just trying to skip down here.

MDMA should also not be equated with cocaine. The bulk of the patients I see in the psych ER are either psychotic from cocaine use, or depressed and suicidal from withdrawal. These people are homeless. They've spent all their money on crack. There are clearly some people who are taking too much Ecstasy too frequently, but they are not anywhere near the dire situation of these cocaine addicts. And the penalties for Ecstasy distribution should not--They don't belong between heroin and cocaine.

The guidelines should reflect the danger of the drug and the potential damage to people's lives that this can cause. I see alcoholics and crack addicts every time I go to work. Psychiatric and medical ERs are overrun with these casualties. I do not see people whose lives have been ruined by MDMA.

It is my firm belief that people who are abusing drugs need to be educated and treated within the health care system. Behavioral change and improved self-care will not result from incarceration.

Please consider unintended public health consequences from stiffer penalties: the likelihood of drug substitutes flooding the market, which will increase the potential risk from drugs which are more likely to cause hyperthermia and death.

In closing, I would like to note that the conclusions I have reported are widely shared within the community of experts on drug abuse. The statement submitted to this Commission on behalf of the Federation of American Scientists--This was signed by Charles Schuster, a former head of NIDA, Jerome Jaffe, former drug czar in the Nixon era. These people agree: There is no rational basis for the proposed treatment of Ecstasy as on par with heroin weight-for-weight.

I hope the Commission will give that statement the weight to which it is entitled, due to the cogency of its arguments and the credentials of its signers. I would respectfully request that the Commission reconsider its proposal to increase the penalties associated with MDMA. I believe that there is little scientific justification for the severity of these proposed penalty increases. Thank you for your consideration of this important matter.

CHAIRPERSON MURPHY: Thank you.

Mr. Boire.

MR. BOIRE: Thank you. I am Richard Glen Boire, an attorney and the Director of the Center for Cognitive Liberty and Ethics.

The Center is a non-profit, non-partisan, 501(c)(3) law and policy organization which seeks to foster cognitive liberty, the basic human right to unrestrained, independent thinking, including the right to control one's own mental process and to experience the full spectrum of possible thought.

In my written remarks, I presented four reasons why this Commission should not increase the base offense levels for MDMA or Ecstasy offenses. The four points I elaborated were, one, punishing manufacturers and distributors of genuine MDMA is an attack on cognitive liberty and freedom of thought, the same way that punishing printers and sellers of books in the 16th and 17th centuries was an affront to intellectual freedom and to basic concepts of a free and democratic society.

Second, increasing the base offense level for those who manufacture or sell genuine MDMA will increase the individual and aggregate harm associated with MDMA.

Three, rather than increase the punishment for those who manufacture or distribute genuine MDMA, the Commission should consider increasing the punishment for those who misrepresent another substance as MDMA.

And four, the Commission should consider abandoning Section 2(D)1.1 of the guidelines, and replacing that section with upward departures or specific offense characteristics which enhance the punishment of people who commit a federal crime under the influence of a drug such as MDMA or while in possession of a drug.

In the five minutes allotted me at this hearing, I'd like to underscore my second and third points. First, increasing the base offense level for manufacturing or selling genuine MDMA will end up increasing the individual and aggregate harm associated with MDMA.

In this report that was prepared for the Commission, it's discussed that there are 117 people sentenced under Section 2(D)1.1 in 1999 for trafficking in MDMA. But the analysis in this report is limited to what they call "prison bed impact," and it ignores the effect that the proposed amendment will have on countless other people.

The impact of raising the punishment for selling genuine MDMA will negatively touch the lives of hundreds of thousands, if not millions, of people, many of them young adults, who despite the criminal prohibition will continue to purchase and use MDMA.

A basic economic analysis shows that, faced with increased punishment if caught distributing genuine MDMA, dealers will have the incentive to fraudulently sell other drugs as MDMA or Ecstasy. In a nutshell, raising the punishment for manufacturing or selling genuine MDMA will lead to increased misrepresentation of other drugs, perhaps more dangerous and more addictive, as MDMA or Ecstasy.

It is easy to see the danger of misrepresenting drugs. Imagine a long-haul truck driver who believes he is buying a "No-Doz" caffeine pill, but is actually being sold a sleeping pill. Or imagine a heart patient who believes he or she is purchasing a drug that lowers blood pressure, but in fact he is sold a drug that's a powerful stimulant.

Under the proposed amendment, the young adult who believes he or she is buying and ingesting MDMA--and we've heard from the scientists that this drug is not like the other drugs, it's not addictive, it does not produce a violent mental state--the person who believes he is buying MDMA will face a greater probability that he or she will actually be sold, and go on to ingest, methamphetamine, ephedrine, dextromethaphane, or any number of other drugs which are commonly sold as Ecstasy.

This is a dangerous recipe for increasing the individual and social harm associated with Ecstasy. But the Commission has the power to propose a scheme that will actually decrease the harm. And that's the final point I'd like to underscore.

It is that, rather than increase the punishment for those who manufacture or distribute genuine MDMA, the Commission should increase the punishment for those who misrepresent another substance as MDMA. There is already federal law. There are state laws which make it a crime to sell a counterfeit controlled substance.

If the Commission would set that punishment higher than what it would be for selling genuine MDMA, it would discourage dealers, unscrupulous dealers, from selling fake MDMA and endangering the lives of many of our young people.

To conclude, I would like to state for the record that punishing otherwise law-abiding citizens who have done nothing more than use or enable the use of psychoactive substances such as MDMA, is an affront to the principles of cognitive freedom and autonomy that are the necessary substrate for many of our well-established and cherished freedoms. The right to control one's own consciousness is the quintessence of freedom. Thank you.

CHAIRPERSON MURPHY: Thank you.

And Dr. Doblin.

DR. DOBLIN: Commissioners, thank you for the opportunity to be here today. I'm Dr. Rick Doblin--having recently obtained a Ph.D. in public policy from the Kennedy School of Government at Harvard University.

My dissertation was on the regulation of the medical uses of Schedule I drugs, especially MDMA and marijuana. I also founded in 1986, and currently direct, the Multidisciplinary Association for Psychedelic Studies, MAPS, a non-profit research and educational organization with 2,000 members working to develop MDMA into a carefully regulated, FDA-approved prescription medicine as an adjunct to psychotherapy.

I recommend today that you consider the unintended consequences from increasing the penalties on the non-medical uses of MDMA. As a result of the political pressure to portray illegal drugs as having overwhelming risks and no benefits, any increase in penalties will further stigmatize MDMA.

This will have a negative effect on the ability of scientists to obtain approval from FDA and DEA, and funding from the National Institute of Mental Health, for research into MDMA-assisted psychotherapy.

I understand that the regulation of research is not in your area of responsibility. However, I appeal to you to consider including a sentence or two in your written recommendations stating that the Commission supports scientific research into MDMA's therapeutic potential.

The World Health Organization expert committee that recommended in 1985 that MDMA be placed on Schedule I internationally did include a statement urging signatory nations to the Convention on Psychotropic Substances, "to facilitate research on this interesting substance." This statement has proven helpful when regulatory agencies have reviewed proposals to conduct MDMA research in humans.

The excessive restriction of opportunities to conduct research on controversial drugs is not unique to MDMA, but has been historically the case throughout the last century for any drug whose non-medical use was criminalized. Several weeks ago, MAPS and the Marijuana Policy Project filed an amicus curiae brief to the U.S. Supreme Court in the U.S. versus Oakland Cannabis Buyers Cooperative case, whose legal issue was whether there is a medical necessity defense to the Controlled Substances Act.

In that brief, we describe in detail the political obstacles that have and still obstruct scientific efforts to conduct research into the potential medical uses of marijuana.

Since MDMA was criminalized in 1985, there have been over 900 papers published in the scientific literature on MDMA. None are from controlled, double-blind clinical trials examining MDMA's therapeutic benefits. As NIDA Director Dr. Leshner stated in a March 7, 2001 interview in the Journal of the American Medical Association, "There's an awful lot of hype that Ecstasy is a medicine, but there's no evidence. The plural of anecdote is not evidence."

I'd like to bring to your attention that this lack of evidence is not for lack of trying by scientific teams around the world. From 1985 to 1992, FDA rejected all applications to conduct research into the therapeutic uses of MDMA. FDA rejected a protocol by Dr. Greer to study MDMA-assisted psychotherapy in treating pain and depression in a terminal cancer patient whom he had successfully treated prior to MDMA's criminalization.

FDA also rejected an application for an experienced researcher to administer MDMA to a woman suffering from unipolar depression who had failed to obtain relief from all available drugs or from several courses of electroshock therapy, which has risks far in excess of therapeutic doses of MDMA.

This woman, who was my grandmother, subsequently died as a result of her depression, having weakened herself by refusing to eat. MDMA may not have helped her, but we should have been permitted to find out.

In 1992, FDA finally permitted human research with MDMA, though initially into its risks, not its benefits. In 1999, FDA indicated that it would approve well-designed studies into MDMA's therapeutic uses.

This spring, MAPS-supported researchers plan to submit a protocol to FDA seeking permission to conduct a study in patients suffering from post-traumatic stress disorder as a result of sexual assault. Such a study has been approved in Spain, and we are funding that study. This summer, Dr. Groh plans to submit his protocol to study MDMA in treating depression and anxiety in pain in cancer patients.

Along with your recommendation regarding penalties for the non-medical uses of MDMA, I urge you to consider including a statement that the Commission supports research into MDMA's therapeutic benefits, similar to the statement by the expert committee of the World Health Organization in 1985. Thank you for your time.

CHAIRPERSON MURPHY: Thank you. I would just like to say before opening up for questions, you said something, Mr. McColl, about the mandatory minimums. And I'd just like to say a word about that. Obviously, as a sentencing commission, and with five of us being judges who actually have applied these guidelines to real people and real-life situations, we think that the mandatory minimums are a very crude kind of thing that binds a judge from trying to reach the most just possibility in sentencing.

When we face a legislative directive, Congress is telling us to, in this circumstance, increase the penalties because Congress in its wisdom has decided that they aren't hard enough. If we don't follow that directive or satisfy Congress that we've done it in a reasoned way, their remedy is a mandatory minimum. And so, it's very complicated. And I know that you know that.

MR. McCOLL: I understand that, Judge Murphy. And actually, I'd like to say that, hopefully, we'll be able to help you with that, because we do intend to take these issues to Congress as well and talk to them about mandatory minimums.

CHAIRPERSON MURPHY: Are there any questions?

COMMISSIONER SESSIONS: I have one.

CHAIRPERSON MURPHY: Judge Sessions?

COMMISSIONER SESSIONS: Mr. McColl, you made a point that increasing penalties for Ecstasy would result in contributing to further adulterants being put in these drugs. What's the logic there?

MR. McCOLL: The rationale is that, as the penalties for actual Ecstasy and MDMA go up, if you put in an adulterant actually, like ketamine or something like that, then they may be subject to actually lower penalties than the MDMA itself. And that was largely the same point that Mr. Boire made.

CHAIRPERSON MURPHY: Well, that would be like if you were having weight or something as part of the penalty. I mean, if you were measuring by the--

DR. HOLLAND: We're talking about fake pills. You know, Ecstasy sells for $25 to $30 a tablet--

CHAIRPERSON MURPHY: Then it's not an adulterant; it's a different substance.

MR. McCOLL: Right. Right. It's a different substance. That's correct.

DR. HOLLAND: It's a completely fake pill. But some of these fake pills are causing more deaths than MDMA. Absolutely. So it is a real concern.

COMMISSIONER KENDALL: Dr. Holland, do you believe that MDMA has any therapeutic effect?

DR. HOLLAND: I absolutely do, yes, sir.

COMMISSIONER KENDALL: And in what context?

DR. HOLLAND: I'm editing a book about its therapeutic use. I'd be pleased if you could read it when it comes out. It's used as--

COMMISSIONER KENDALL: Could you give me the "Readers Digest" version?

[Laughter]

DR. HOLLAND: It's used as an adjunct during therapy. You know, the best way to think of it is like anesthesia during surgery. It allows the psychiatrist and the patient to go much deeper and look at very painful material in a completely relaxed, basically painless atmosphere. And a lot of therapeutic work can get done in a short period of time. It's a catalyst.

COMMISSIONER KENDALL: It's taken "Tony Soprano" three seasons to open up.

DR. HOLLAND: Right. Exactly.

COMMISSIONER KENDALL: You're saying that if he'd had a little Ecstasy in the first season, he'd have been more--

DR. HOLLAND: It would be a sitcom. It would be 30 minutes.

[Laughter]

COMMISSIONER KENDALL: I say all that tongue-in-cheek. But in truth and in fact, that's what you're saying?

DR. HOLLAND: Especially for phobias and panic disorders and things where there's a definite symbolic cause of the behavior, I believe that a single session that is MDMA assisted would eradicate the symptoms.

COMMISSIONER KENDALL: Which is part of the component we've heard about, of how it causes one to be more empathetic?

DR. HOLLAND: The defenses are really down. You open up, and you get to key issues very quickly.

COMMISSIONER JOHNSON: Ecstasy is about a ten-year phenomenon?

DR. HOLLAND: It's been going on since at least early '80s.

COMMISSIONER JOHNSON: Twenty years.

DR. HOLLAND: It's getting bigger and bigger, really. It's really a worldwide phenomenon.

DR. DOBLIN: Actually, there were half a million doses used in therapeutic settings from around 1976-'77 up till the early '80s. And MDMA emerged from this underground therapeutic use into recreational context, and that's what generated the criminalization.

COMMISSIONER SESSIONS: I thought '67. We heard from the last panel '67.

DR. DOBLIN: No, that's MDA.

DR. HOLLAND: Right.

DR. DOBLIN: Which is similar, but more neurotoxic.

COMMISSIONER O'NEILL: In terms of the book that you're doing, is it all basically scientific studies that have looked at this in clinical settings?

DR. HOLLAND: Well, every chapter author is basically an M.D. or a Ph.D. that's a specialist in their field. The only human studies right now, there are some underway in Spain, looking at it with PTSD.

COMMISSIONER O'NEILL: So how are they demonstrating its therapeutic effect, then, exactly?

DR. HOLLAND: The demonstrated therapeutic effect is purely anecdotal, but it's extremely strong. The problem is, our Government is not allowing us to demonstrate it.

And I really feel compelled to say something about the NIDA-funded pet studies. I know you've all heard a lot about these pet studies and the Hopkins studies. They are flawed. They are open to scientific criticism. And I don't think that you've really heard the criticism.

COMMISSIONER O'NEILL: But I mean, is that any different than saying that you are publishing anecdotal studies, either? I mean, anecdotes don't necessarily make for good science, either.

DR. HOLLAND: I'm not publishing anecdotal studies. There are human studies that are coming out of Germany, for instance, that are showing single oral doses aren't showing any of the changes that are being propagated by the Hopkins studies and by our Government.

DR. DOBLIN: But it's true that we don't have the evidence to demonstrate therapeutic efficacy, which is a shame. Fifteen years after it's criminalized we're about, I think--or 16 years--to get permission from the FDA for the first study, I hope. And I hope that this action won't compromise that effort.

DR. HOLLAND: Right. Fifteen years after it's criminalized, millions of people are taking the drug every weekend, but the doctors can't give it to patients and show that it works. It's been 15 years of frustration.

COMMISSIONER O'NEILL: So you're saying that these people are self-medicating, essentially? And this came out of a sort of a self-medicating movement?

DR. HOLLAND: I don't know that everyone is self-medicating. I think some people are taking it because it feels very good to them. But I think, I hear--

COMMISSIONER O'NEILL: But that's most drugs, though, right?

DR. HOLLAND: I get e-mails every day from people who are saying that they've gotten a benefit; you know, from schizophrenics, from people with chronic pain, from people with depression, who say that they've received some sort of benefit from using this drug. So I think it's worth noting that most drugs do have risks and benefits, and there are a lot of people who think that there are benefits to this drug.

CHAIRPERSON MURPHY: Dr. Hanson, NIDA has been mentioned. Do you want to say anything? You know, I'm just giving you the opportunity.

DR. HANSON; Well, I have been a NIDA-supported researcher for almost 20 years. And never once did NIDA inflict on me any sort of suggested result to my research. They've never implied they wanted me to demonstrate neurotoxicity for a substance.

Now I'm the director of the division that supports this same research. And again, that has nothing to do with policy. When we spend the money, we want to select the best science that's out there. We want to find out what these drugs do. And that's all our interest is.

And in terms of what does MDMA look like? If you go down to the molecular level and the cellular level, its properties are very similar to methamphetamine. It works very similarly. It interacts with the proteins in a very similar fashion to methamphetamine. It generates free radicals, much like methamphetamine.

In terms of what is the long-term neurotoxic potential of these substances? I agree, those are question marks. We don't understand what long-term consequences of suppressing serotonin systems will be. Will it be deleterious? Will these people have compromised memory and cognitive function? We don't know. The studies aren't out there, and we just--we can't tell.

As far as its therapeutic benefit, also, there's been very little study that has been conducted. And so, again, we don't know exactly what type of therapeutic benefit these agents would have.

Is it a unique drug that's very distinct from anything that's out there? No, I don't see it as a unique drug. It has overlapping properties with other amphetamines, but it still works in similar fashions. There's nothing magic about it. And we know about the molecular function of this substance. The science is there. The literature is there.

COMMISSIONER KENDALL: One question I have, and I don't know, and I've read quite a bit about this stuff. Is it a controlled substance worldwide?

DR. DOBLIN: Yes, it is. That's what this 1985 decision of WHO was, yes. Which is also why it's been hard for us to get permission to do research in other countries, as well.

COMMISSIONER O'NEILL: What about in terms of its dangers vis-a-vis methamphetamine, in terms of health risks that have been demonstrated, at least? Do we have any idea about the comparison?

DR. HOLLAND: Well, I think most methamphetamine abusers end up injecting methamphetamine. I would say I see two or three cases a month with people who are psychotic on methamphetamine.

I mean, I believe it's more dangerous psychiatrically and physically. And perhaps chemically and on a cellular level, they are similar; but in terms of people's subjective experience and the worldwide phenomenon of its use, MDMA and methamphetamine are not at all similar.

CHAIRPERSON MURPHY: Well, we've run about half an hour over our time. It's been very worthwhile being able to get the input that we have today. We appreciate it very much. Thank you.

[Whereupon, at 11:55 a.m., this 2001 Public Hearing of the United States Sentencing Commission was adjourned.]

 

 

 

 

Minutes of the March 19, 2002
Public Meeting

Chair Murphy called the meeting to order at 2:04 p.m. in the Commissioners Conference Room.

The following Commissioners and staff participated in the meeting:

Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
William K. Sessions, III, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner
Michael E. O’Neill, Commissioner
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel
Pamela Montgomery, Director, Education and Sentencing Practice

The following members of the Probation Officers Advisory Group (POAG) participated:

Ellen Moore, Chair, Probation Officers Advisory Group, & Supervising U.S. Probation Officer, Middle District of Georgia
Cathy Battistelli, Sentencing Guidelines Specialist, Chair Elect, Probation Officers Advisory Group, and U.S. Probation Officer, District of New Hampshire

Chair Murphy began the meeting by welcoming representatives from the Probation Officers Advisory Group (POAG).

Pamela Montgomery introduced representatives of the POAG, stating that the group met in Washington D.C. on February 19 - 20, 2002, to assess proposed amendments to the guidelines. Ms. Montgomery stated that Ellen Moore will be stepping down as Chair of the POAG after the public meeting and that Cathy Battistelli will serve as the new Chair of the POAG.

Ms. Moore thanked the Commission for the opportunity to meet with them. She said that the POAG had identified eight proposed amendments which they would like to discuss with the Commission.

In discussing the proposed cultural heritage amendment, Ms. Battistelli stated that the POAG feels very strongly that there should be a separate guideline for cultural heritage offenses because of the unique harms caused by this type of offense. She stated that the POAG did not discern any application difficulties with having a stand alone guideline. The POAG did not take a position on the enhancements for pattern of similar violations or use of weapons; however, the POAG does believe that an upward departure would be appropriate if the value of the cultural heritage resource underestimates the actual value. Ms Battistelli stated that the POAG did have concerns with a potential grouping issue. She stated that in the latest version, multiple counts would be grouped under subsection (d) of §3D1.2, but the POAG saw a potential problem with multiple counts for cultural heritage violations and other types of federal theft. Ms. Battistelli stated that the POAG was not sure how the grouping rules would apply in that situation. The POAG suggests that the Commission consider a commentary note to address this issue.

Ms. Battistelli also stated that the POAG expressed concern that probation officers would be very dependent upon the government for information regarding loss or valuation of the cultural heritage item. The POAG believes this could be an issue that would be argued at sentencing, adding to the degree of complexity at sentencing hearings.

Ms. Moore discussed several areas of concern regarding the proposed amendment on the career offender provision and offenses under 18 U.S.C. §§ 924(c) and 929(a). She stated that the POAG understands the Commission’s desire to be in harmony with statutory directives; however, the POAG has concerns that stem from the difficulty in completing multiple sets of calculations for this specific offense, leaving room for error in calculation. Ms. Moore listed the potential application problems identified by the POAG:
• the procedural complexity inherent in determining the sentence for this offense in conjunction with §5G1.2;
• the imposition of sentence with respect to multiple counts of 18 U.S.C. § 924(c) convictions;
• the potential impact on appeal if a defendant is successful in having the sentence imposed on the 18 U.S.C. § 924(c) conviction reversed, and only one day of imprisonment was imposed on the underlying offense;
• the proposed example in the commentary note — the POAG suggests that this be clarified as necessary to provide total flexibility when imposing a sentence on each count of conviction to the extent that the mandatory minimum requirements are met.

Vice Chair Steer stated that he previously had asked Ms. Moore and Ms. Battistelli if they would provide him with some of their most complex cases. He stated that together, they identified a couple of areas in which the proposed language for determining the total career offender sentence could be clarified. When the POAG met in February, they suggested a model that would require the judge to impose as much of the sentence as possible under the 18 U.S.C. § 924(c) count.

Vice Chair Steer stated that after his most recent discussion with Ms. Moore and Ms. Battistelli, they agreed that it was better to allow sentencing courts to impose the sentence as best as they could, taking into account the statutory directives that require consecutive sentences on the
18 U.S.C. § 924(c) counts and any other counts that implicate mandatory minimum penalties. Vice Chair Steer stated that this would allow the court to configure the sentence to achieve the most appropriate career offender punishment. He indicated that some of the more complex cases would require additional work, but as Ms. Moore stated, some judges might not feel comfortable imposing a sentence of only one day on some counts. Vice Chair Steer said that he supported working out the details and submitting another draft proposal with revised application notes.

Vice Chair Castillo then asked whether the POAG was asking the Commission to defer this amendment.

Ms. Moore stated that the POAG’s former consensus was for deferral, but that she believed the group supported the new revisions.

Ms. Battistelli then stated that the POAG had no concerns with the proposal for expanding the official victim enhancement and that the group appreciated the commentary example and the definition of "prison employee."

In discussing the proposed revision to §3E1.1, the acceptance of responsibility guideline, Ms. Moore stated that the POAG was very passionate about this proposed amendment. She stated that the POAG believes that this is one area of the guidelines that is very subjective. The POAG believes that the additional one level decrease is best left to the recommendation of the government and the discretion of the court.

She stated the POAG believed "timeliness" should not be restricted because timeliness is measured differently according to the local rules in individual districts. Ms. Moore stated that the POAG strongly prefers Option 2 of the proposed amendment which addresses the circuit conflict about whether or not to deny acceptance if the defendant committed additional conduct after arrest.

Vice Chair Steer asked how frequently the probation officers encounter situations in which the defendant committed additional criminal conduct after arrest while awaiting trail. Specifically, he requested information on how frequently the additional criminal conduct is something other than a positive urinalysis.

Ms. Moore stated that the additional criminal conduct is usually discovered from a positive drug urinalysis. She stated that, in the Middle District of Georgia, the position on positive urinalysis has changed. Formerly, positive results would eliminate the applicability of the acceptance of responsibility adjustment. Now, however, if the defendant agrees to participate in a drug treatment program then the judge is more likely to grant the acceptance reduction. Ms. Moore stated that judges in her district apply this interpretation uniformly and allow the adjustment when the defendant is doing well and making a good effort to become drug free. Ms. Moore added she rarely encounters the situation where a defendant commits entirely new and unrelated criminal conduct while awaiting trial. In that instance, she stated that the judges in her district would uniformly deny acceptance.

Ms. Moore stated that the POAG supports the proposed amendments regarding terrorism offenses and believes that the proposal is probably a very good implementation of new statutory provisions. She stated that the POAG could not comment on the substance of the proposed amendments because they do not yet have any experience with terrorism defendants and the sentencing thereof.

Ms. Battistelli then discussed the POAG’s position on potential changes to the drug guidelines. She stated that her remarks were premised on the POAG’s belief that there should be a change in the penalties for crack cocaine. Ms. Battistelli stated that some of the POAG’s concerns about other guideline application issues, such as the application of acceptance of responsibility, are closely related to the high sentences that some drug defendants receive.

Having said that, Ms. Battistelli stated that the POAG prefers that the Commission resolve the circuit conflict regarding mitigating role prior to implementing the mitigating role proposal. The conflict concerns whether the defendant’s role in the offense is determined by comparing his role to other members of that conspiracy or by comparing his role to other like conspiracies. Further, she stated that the mitigating role proposal may create application difficulties because it appears to take the adjustment out of the application order set forth in Chapter One.

Regarding the proposed enhancement for underage or pregnant individuals, Ms. Battistelli stated that some members of the POAG questioned what would happen if a defendant was charged under 21 U.S.C. § 846 for conspiracy to distribute drugs in a protected location. She stated that the POAG saw a potential application problem because the statute was not listed under the first prong and this might prohibit the individual from getting the enhancement.

Regarding the enhancements for weapons and bodily injury, Ms. Battistelli stated that the POAG felt there could be some confusion in application because some of the enhancements are very defendant specific versus offense specific. Ms. Battistelli suggested that this could be clarified with an application note.

Ms Battistelli stated that the POAG did not take a position on the prior criminal conduct enhancement.

The POAG, however, is opposed to the proposed amendment establishing a floor of level 26, but they see no problem with giving a two level enhancement for a prior drug related controlled substance offense. Ms. Battistelli stated that this seems consistent with §2K2.1. This seems to be an instance where there is permissible double counting.

Ms. Battistelli stated that the POAG does not support the proposed reduction for no prior convictions. She stated that the POAG believes the Safety Valve provision sufficiently addresses this issue. If, however, the Commission prefers to provide a further reduction, the POAG suggests that the Commission consider creating a zero criminal history calculation in Chapter Four. She stated that it seems unfair to allow this reduction solely for drug defendants. A zero criminal history category would allow all defendants to benefit and be sentenced fairly.
Chair Murphy stated that the Commission had been considering and hearing testimony on drugs for some time and that it was beneficial to receive input from the POAG.

Ms. Battistelli indicated that the POAG’s greatest concern about the drug proposals was the possibility of having enhancements go into effect without a change in the quantity levels. She stated that this would increase sentences that are already very high.

Vice Chair Steer stated that he was not certain as to whether the Commission would be in a position to clarify the circuit conflict on mitigating role. He then asked which approach the POAG would prefer, comparing the defendant’s role to others in the same conspiracy or some hypothetical average.

Ms. Battistelli indicated that there was no consensus on this issue, but she stated that some probation officers were astonished at the idea of comparing a defendant’s role to anyone beyond the immediate conspiracy. However, in the First Circuit, the defendants are compared to other conspiracies. Ms. Battistelli indicated that this makes it difficult to get a mitigating role adjustment. Ms. Moore added that a number of other Circuits take the Eleventh Circuit’s approach and only compare the defendant’s role to that of other members of the immediate conspiracy.

Ms. Battistelli stated that the POAG prefers Option 1 of the proposed amendment regarding sentencing alternatives because it would be easiest to implement. She further added that the POAG believes that placing defendants in community confinement centers beyond a specific time limit is very difficult for the offender and for the facility itself. Ms. Battistelli stated that the POAG understands that the Commission has received information indicating that community confinement centers are widely available. She stated that many of the community confinement centers are actually local jails from which defendants might not be able to look for work or are in a lock down status.

Chair Murphy stated that the Commission recently met with Kathy Hawk Sawyer, Director of the Bureau of Prisons, and had heard about the difficulty in getting more halfway houses.

Ms. Battistelli relayed her personal experience with the difficulties in obtaining new halfway houses. She stated that in the District of New Hampshire, the probation officers have been trying to obtain approval for a new halfway house for the past two years, and it does not appear that they will be successful in the foreseeable future due to lack of public support.

Ms. Battistelli then stated that the POAG does not support Option Three of the proposed amendment. She stated that if the availability of sentencing alternatives is limited to only those defendants in Criminal History Category One, then this might disadvantage defendants who are in Criminal History Category Two for very minor offenses.

Vice Chair Steer asked whether the POAG had guidance regarding the maximum length of recommended home detention.

Ms. Battistelli replied that the maximum recommended time is six months.

Vice Chair Steer then asked about the general availability of electronic confinement and what is required for implementation.

Ms. Battistelli responded that electronic monitoring is available in every district. All that is generally required for implementation is the availability of a dedicated telephone line. She added that in some instances, the Probation Office has had to provide funds for telephone line installation and maintenance.

Vice Chair Steer asked whether it would be feasible to increase the recommended time for home confinement from six months to ten months.

Ms. Battistelli responded that this might be feasible, but that the effectiveness tends to diminish after six months and defendants may tend to violate the terms of confinement after six months. She stated that the ideal term is six months. Ms. Battistelli added that this is not based on empirical data, but the guidance may have originated with the Administrative Office of U.S. Courts; additionally, the community confinement center discussed in a guideline application note refers to a six month period of confinement.

Vice Chair Steer added that there was also a statutory basis for the six month term.

In discussing the proposed amendment to §5G1.3, Ms. Battistelli stated that the POAG prefers Option One because it would be easiest to implement. She stated that the POAG requests that the Commission clarify the term "fully taken into account" in §5G1.3(b). The POAG does believe, however, that in fairness to all defendants those who are similarly situated should receive the benefit of sentence adjustment for discharged prior terms that are fully accounted for in the instant federal sentence.

Chair Murphy thanked the POAG for sharing its experience with the Commission. She stated that the Commission will miss working with Ms. Moore, and she also welcomed Ms. Battistelli as the new Chair of the POAG.

Chair Murphy adjourned the meeting at 2:33 p.m.