Reggie B. Walton Appendix: Testimony Presented on November 14, 2006

Testimony of Judge Reggie B. Walton Presented to the United States Sentencing Commission on November 14,2006, on Sentencing Disparity for Crack and Powder Cocaine Oflenses Thank you for affording me the opportunity to appear beforc y.ou today on behalf of the Judicial Conference of the United States’ Criminal Law Cornnittee. At its September 19, 2006 session, the Judicial Conference expressed its determination “to oppose the exi5ting sentencing differences behvesn crack and powder cocaine and agreed to support the reduction of that difference.”‘ Earlier, the Crinlinal Law Conlmi3ee had recommended to the Judicial Co-LJerence that these positions be taken. TVhat I indicate below are my pmonal views on the mark. I personally bscme involved in the debate about wherher there was justification for diEerent sentences in crack and powder cocaine distribution related cases when I served as the TrtThite House’s Associ&e Director of the Office ofNational Drug Control Policy in the late 1980s. At that tiiie, I advocated for different sentences because of the greater potential for addiction froin the use of crack-? and the level of violence ~ ‘?relL&ary Rcport, Judicial associ2ted with the crack trade which existed at Conference Actions, Septmber 19, 2006, at 5. 7. -“[A]!though both povlrder cocaine and crack cocaine are potentially addicnve, zhi7_li?istering the drug Fu a manner that maxiiizes the effect (e.g., iiljectiilg or smoking) increases the risk of addiction. It is this di8erexe in qpical rneIhhods of a&Astration, not differences in the inherent propeiiies of the i?iio fors of &-e hgs, rhet nakes crack cocaine (conthued.. .) that tinie.‘ Ho~vever, Inever thought that the disparity should be as severe as it ultimately has become. T’lether there renabis justification for some level of disparity is obviously a policy decision that will have to be made by the legislative and executive branches of government. Nonetheltss, it is unconscionable to maintain the current sentencing s’mc-tue for several reasons. First, although I fdy believe that people who distribute illegal drugs should be punished for fie5 conduct, the punishment we impose must be fair. And just as important, the punishment imposed must be ptrceived as fair. While 1 cmot categorically say that some degree of difference in pun.ishent for crack and powdSyr cocaile offenses is not warrmted, no reasonable justifications exist for the 100-to-1 disp~ity.~ The fact that crack cocaine has greater addictive potential 7 -(. , , continued) more potentially addictive to zypical users. Smokiilg crack cocaine produces quic.ker onset of, shorter-lastirg bd more intense effscts thm snorhng powder cocaine. These factor; in turn result in a greater likelihood that the user will aMster the diig inore frequently to sustain these shorter “h~glx” and develop an addiction.:’ U. S. SENENClNG COhEM’N, S?ECW &.FORT 10 THE CONGSSS: COC,~~ .4h’D FEDEUL SEhTENCING POLICY 19 (!day 2002), available g-t !I~:.!/~~~~~l.USSC.EOV/’J. c~nmessi’02cracli;2002craclii-ol.haa. ’See footnote 6, m. %et – 21 U.S.C. 0 Sll(b)(1994); U.S.S.G. 6 2Dl.l (2006) 2 than powder cocaine cannot be seriously challenged.’ However, while violence associated with the crack kade has not totally abated, it is clearly not at the level it was in the 1980s 2nd early 1 990sm6 Nevertheless, policy makers can undoubtedly justi@ some level of dispaiity for crack and powder cocaine sentencing. That said, I believe the following hypothetical illustrates why the current sentencing structure is not fair, nor does it have the appearance offairness. On the om hand, a middle class white male college student is arrested for possessing one kilogram of powder cocaine he intended io distribQte to some of his fdlow students. On the other hand, a black male high school dropout in the same ciiy is aiestzd on the same day in an economically depressed neighborhood for possessing with intent to dis~bute one kilogm of crack cocaine after being stopped for conlmitting a traffic violation. Roth young men have no prior crirninal See foomote 1, 5’11iXa 5 – “‘An inportant bzsis for he establishment of the 100-to-1 dmz quantity mio was the bdief thzt crack cocaine trafficking was highly associated with violence generally. More recent data indicate hat si,gificantly less traffickiag-relat.ted violence or SySte-rlllC Colence, as measured by weapon use znd bodily injury docmented in presentence reporis, is issociated wirh crack cocaine trafficking offenses than previously assmed. h 2000, weapons werz not imolved to my degree by my paiicipant in the ofiznse ii~ aliiost iw-tlzirdJ (64.8%) of crack coc&ie o,,erzsm. Furihemoic, ~lzree-qv,aris-s of federal crack cocehe offenders (74.5%) had no persorzd weapon imolveiiier~t. Further, when weapons were present, they mely were activsly used. In 2000, ody 2.3 percent of crack cocaine o$'”zizdws used a ;.;ea?oi-~. Bodily injriy of my type occurred ia 7.9 percent of crack cocaine offmses in 2000.” U.S. SZ, -5. YCXG Conn~’~, supra note 2, at 100. 3 records, but their potential sentences are widely disparate.’ In the case of the p0~~7der cocaine distributor, he faces a mandatory miniinurn statutory sentence of 5 years and a maxknurn sentence of 40 years.s His 3 auideline sentence range, with adjustments, is 37 to 46, but at least the BO month mandatory minimum statutory sentence would have to be iniposed. As for the crack cocaine distributor, he faces 2 mandatory ilninm sentence of 10 years and 2 maximum sentence of life.’ And the cxck cocaine distributor’s guideline sentence is 108 to 135 months, but at least the 120 nion’ch mandatory minimm statutoly sentence would have to be imposed. For the povdtr cocaiile distributor to face thz sme prison exposure 2s the crack cocaine dis’iribxtor, he would havt to possejs with intent to distribute at least 50 kilograms ofpowdsr cocaille, 2nd could possess as much as 150 lulogaim of powder cocaine and still be subject to the same prison exposure as the first hne crack oficnder who possessed with iatent to distribute the one kilogram of crack cocaine. It is difficult to llllagine how policymakers seeking to rcach a fair balance ‘A deded breakdown of the stamtory and guideline sezttence for boIh hypothxical defhdmts was prepartd by the Corn’s probation office and is artached as an zddenhi. “ht is set fonh below is a suiii;cry of thost sentences. ‘221 U.S.C. 6 641(a)(l) and (b)(l)(B)(ii)(II) (mlawhl intent to fisiributz 500 gams or more of cocaine). ’21 U.S.C. 9 841(a)(l) md (b)(l)(A)(ili) (uiaivful inttent to distribute 500 pins or more of cocaine base). 4 .. . .. between just punishment for the conduct committed by these two hypothetical defendants could conclude that the disparate sentence called for by current federal law is rationally merited. And Mer complicating the current unfairness in the sentencing of crack and powder cocaine traffickers is the discretion federal prosecutors have to decline prosecution, thereby leaving the two hypothetical defendants to the variables of state laws if prosecutions are pursued in state courts. But even if policy-makers can somehow rationalize the different potential sentences these two hypothetical individuals face, in my experience many members of the general public do not. Some people fail to believe that diserent treatment is fair because, in their view, “cocaine is cocaine.” This position o\wlooks the s sreater addictive poteIl;ial of crack cocaine use, but nonetheltss, I how som-e people who have this view. Others, howevzr, although understanding the grzater zddictive potential of crack, nevertheless disagree with the imposition of different punishnznt. Underlying the views of many who fall into either of these camps is the belief that the policy of treating crack and powder cocaine offhders differently is unfair to those at the lower end of the socioscononiic ladder and to people of color because people in these categories are disproportionately prosecutsd for crack related trafficking offenses. And my anecdotal observations cause me to conclude that these perceptions are not totally unfounded. 5 I do not mean to suggest that the policy became law with the conscious objective of targeting the poor md people of color. I how those were not my objectives when I worked for the Wlite House and advocated for diffsrent treatment of the two substances, and I would not ztnribute such improper motives to others who took the sanx position. However, regardless of why thz policy became law, the current state of affairs should cause the policy to be re-examinzd. With the tremendous increase in the number of inniates in fsderal not most, of this population being poor people of color (namely young black and Latino males)ll charged or convicted for coilTmitting crack cocaine distribution related ofk~lses,~~ concern should exist. and many: if “As of2003, 161,673 persou -tere held b fzderal pfisons, an 81% incrzzse fron 89,538 irl 1995. BLX.AU OF JLSTICZ STATISTICS, PRISOhTjG IN 2003 2 (Nov. 2004): available li~:/i~??-ir.oio.lrsdoi oo-,~,~is/Dub~D~=bOj Ddf. And es of November 2006, fie %dual prison hate population has iilcreastd to 193,671. Federal B~~eau of Prison Weekly F’opulariox Report @Tov mber 2, 2 00 6) , aT-aila’DI e 11 rh : i J incw b OD EOT- 1 ow .ti on s he rlil T -rm or^. i 50. ]’As of September 2006,40 percent of 211 imiates in federal prisoils are bleck, 2nd 3 1 percent self-idzztify as Hispzic. Federal Burezu of Prisons haate Breakdom (Szptein3er 23, 2006), available – Id. And in 3005, black and Hispmic males coxpiised rougl?ly 60 percmt of all ildividual; szntenced to fzderal prison. U.S. Sentenchg Conin’n, 2005 ,linXU.4.l, REPORT SOL~CE3OOK~ Ta31e 7 (Age, Race, and Gendzi of Offenders, Fiscal Year 2005), andable & http :/lw,vw .us s c . ,oov/A\DGPT/200 5 itzble 7. p df. hrrp://w?i;isii.bop.gov/ne~~s/qilick.jsp. 93 percent of federal prisoners =e malt. 54 percent of all federal prisoners zre cweitly iilcarceizted for bg-relEtzd o3enses. 12 Federal Bixeax of Prisons Iunatt Breakdown (Septembcr 23, 2006), a7,ailzble gt h~://T~-~~.bop.,Oov/news/quick.jsp. h addition, 34.2 percent of all fzderal ofkders in 2005 v;eie sentenced for drug off-enses, nezly half of which concerned either pom-der or crack (continued.. .) 6 My experience also tells me that the attimdes of some in the general population about the unfairness of our dtug laws has had a coercive impact on the rwpect many of our citiztns have about the general fairness our nations’s criminal justice 5y~tern.l~ I know from discussions I have had with people, corments made to me by potential jurors during the jury selection process, and cornmtnts made to me by jurors at the completion of trials, that some people desire not to stme on juries when crack cocaine is involvcd because of the negative ahtudes they have about the crack and powder cocaine sentencing disparity or have refused to convict crack offmders, despite the quality of the government’s evidznce, because of their .,continued) cocaine. U.S. Scnteilcing cormn’n, 2005 ,b-XLL4L m?ORT SOLXCE3OOK, !?ig-w of Oflenders ia Each PrL-nay Offense Cztegoiy, Fiscil Ye= 20@5), available g hq :/hv,w .ussc, gov/A\RpT/2 00 5iFig-a.pdf. Furthermore, “[ tJhe ovemhelnhg riaj oriry OF crack cocabe oflenders consistently have been black 91.4 percet in 1992 md 84.7 pexent in 2000.” U.S. SEmENCIXG COhm’N, smra note 1, it 62. (Disrrhtioa. See Judge Charles P. Sifton, @didehes, Rario Exansr’7ied fri ‘3ookeer. ’ Resextencefor I3 – Cornspiracy to Distribxie Crack Cocaine Base, NEW YO= LAW Jo?JI& hkrch 3 1,2005, Et 23 (statihg that “[tlhe disp23.3 besqcei sentences impostd for equiyalent miomts of powder versus crack cocaine is now ipproachhg corninon howledge, and a souce of populx and scholarly concern”) (citing cases aDd ~icles); cf. Dororhy E. Roberts, 7’170 Social end Moral Cost of Mass I7zcai.ceraiion i72 AJiicorz Anzei-tcaiz C077m~u~tiie~, 56 ST.K!N. L. &V. 1271, 1287 (Apr. 2004) (citing Todd R. Clear 8.c Dina R. Rose, Individual Sentencine Practices and Agge~~t-te Social Problems. in Criine Control and Social Justice: The Delic& Belance 27, 42 __ – (Damell F. Haivkiils, Sm-uel L. Myers, Jr, & Randolph N. Stone eds., 2003)) (noting reseuch suggesting fiat “people who live ia ncighborhoods with high prison mites tend io fzel a strong distrust of formal sanctions, less obligatio3 to obey the law, and less confideace ia the capacisy – of informal social control in their conm.uiities”). 7 attitudes about the current sentencing structure. l4 In conclusion, the collateral consequences resulting fi-om the policy decision to differentiate between sentences imposed on offmders convicted of crack cocaine related distribution offenses, as opposed to the sentences imposed on offenders convicted of powder cocaine distribution related offenses, warrants a re-evaluation of the policy. The failure to do so has left nmy io believe that there is an indiffcrence to the real and perceived unfairness of the policy because of tbz population is dispropoIfionately impacted by it. As a nation that prides itself on rreating all who appmr before our COWLS of law with fairness and equality, the time has come to address a vexing problem for those of us who are enhsttd io administer the system and those who suffzr the consquences of The policy. See TVilliam Spade, Jr., Bej,orzd ihe 100;l Rasio: Towards a R~ii~izd Cocaine Serzte7zci7~glDolicy, 38 LmZ. L. €GV. 1233, 1279-84 (1996) (describing resistmce to hc 1d – – sentenchg dispairy on the part of judges, jzrries, md prosecutors, 2nd stating lhzt ‘L[a]nxtodal evidence 5om 6istricts with predomi~mtly Afncm-Ameiican julies indicztes List some of thtin acquit Africzn-,Ljmxicm crack defenhts whether or lot they believe d~em to be guilty if they conclude that the law is ~rlair”); see also Aidres7~ J. Fuchs, The E.ij?ect of Apprmdi v. New J’e7wy 071 the Fzderal S~nfencing Gtlidelirzes: Qlur-ring the Disdizcfion Beiivzen Seni~iicing Facto7-s orzd Eleme7zt of-4 Crinze, 69 FORDXkM L. R5V. 1399, 1437 (2001) (starhg that “[a] jury could become conscious of this dispariry if it was privy to seitencing infomation in a case iilvolviilg defeadmts chuged wid possessing both powder and crack cocaine. Mer behg irfoimsd of rhhe penalties associated with d~e crime, jurors may hesitate to rtach a verdict thzt xould relegate the deftndants io such disparate periods of incarcerztion”); Gerald F. Uelmen, Perspective OIZ Jdsiice: TKhj/ Soriae JuI-ips Jdge L?ze Systenz, LOS AXGELSS TmES, J~T. 31, 1936, at 9 (noting that =owing nuiibers ofjurors deeply distmst &e q-stem thzt they are given rhe power to control,” in large paii because ofracial disparities in drug sentencing). &I L 8