Testimony of Washington National Office Director Laura Murphy Before the United States Sentencing Commission

Testimony of Laura Murphy, Director
American Civil Liberties Union
Washington National Office
United States Sentencing Commission Hearings

March 19, 2002

The American Civil Liberties Union (ACLU) appreciates this opportunity to comment upon several proposed guideline amendments. The ACLU is a nonpartisan organization of nearly 300,000 members dedicated to the defense and enhancement of civil liberties. Because protection of the Bill of Rights stands at the core of our mission, we have a particular interest in ensuring that due process and equal protection of the law, as well as the right of freedom of association and freedom from disproportionate punishment, are upheld wherever threatened. We have been involved for nearly a decade in opposing the disparity in sentencing for equal amounts of crack and powder cocaine. We urge the commission to amend the crack guidelines to equalize crack and powder cocaine sentences at the current level of powder cocaine.

The majority of this testimony will focus on the proposed amendment to the Sentencing Guidelines that addresses this concern. (Drug Amendment #8) However, we are also interested in two guideline changes relating to passage of the USA PATRIOT Act . They would change the definition of terrorism to include domestic terrorism within the sentencing guidelines (Terrorism Amendment #1 Parts A, E, F and H) and punishing hoaxes and threats to the same degree as the underlying offense (Amendment A). We urge the Commission not to include the definition of domestic terrorism passed in the PATRIOT Act as part of the definition of terrorism in the Guidelines. We also ask that the Commission not to amend the application note regarding the punishment of threats. We believe that hoaxes and threats should not be punished to the same degree as commission of the underlying crime.

Since the Controlled Substances Act of 1970, Congress has drawn a clear distinction between the manufacture and distribution of a drug and its simple possession. Regardless of the drug, the penalty for simple possession was the same — a maximum of one year imprisonment for a first time offender. However, in 1988, Congress enacted an amendment to the Anti-Drug Abuse Act of 1986 that created a distinction in sentencing with respect to one substance, cocaine base or “crack.” This amendment set a mandatory minimum sentence of five years for a first time offender’s simple possession of more than five grams of crack cocaine. The maximum one-year penalty for a first offense remained the same for possession of any other form of cocaine, including cocaine hydrochloride (powder cocaine). This is an extraordinarily harsh penalty.

Two classes of mandatory minimum sentences were established pursuant to the Anti-Drug Abuse Act of 1986. For the highest-level traffickers, a minimum 10-year sentence, without parole, was provided for participating in the manufacture, distribution or conspiracy to manufacture or distribute 5 kilograms (approximately 11 pounds) of cocaine and for mid-level cocaine distributors, a 5-year minimum was set for 500 grams (a little more than 1 pound). However, because of the enormous media attention paid to crack cocaine, the 10-year minimum was set for only 50 grams (less than 2 ounces) of crack, and the- 5-year minimum was set for 5 grams (about the weight of two pennies). Crack is cocaine. The Commission has been sympathetic to this fact for a long time, which is why it made the courageous recommendation to address this problem in 1995. Most recently, the Commission has heard testimony from experts who have re-iterated this point. During the two days of hearings in February of this year, the Commission heard testimony from Dr. Deborah Frank and Dr. Ira Chasnoff, who both made this point. The distinction lies in the manner in which the drug is ingested — cocaine powder is usually absorbed through the nasal passages and sniffed, snorted, or freebased; whereas crack cocaine is absorbed through the lungs and smoked.

Cocaine Sentencing Has Racially Discriminatory Consequences

Unfortunately, the difference in the cocaine weights that trigger mandatory sentences for crack and powder cocaine has racially discriminatory consequences. Nationwide statistics compiled by this Commission reveal that the race of those prosecuted for crack offenses has predominately been African American. In 1992, 91.4% of those sentenced federally for crack offenses were Black, 5.3% were Hispanic and only 3.2% were White. Caucasians, however, comprised a much higher proportion of crack users: 2.4 million Caucasians (64.4%), 990,000 African Americans (26.6%), and 348,000 Hispanics (9.2%). Since 1992, the percentages have changed somewhat, but the disparities still remain. Of the total of crack cases prosecuted in 2000, 84.7% were against African-Americans, 9% were against Hispanics and 5.6% were against Whites.

The ACLU has been closely monitoring issues involving race and drug policy now for nearly a decade. On August 26, 1993, we helped convene the first national symposium exploring the disparity in sentencing between crack and powder cocaine, entitled “Racial Bias in Cocaine Laws.” This Symposium featured “The Experts Speak” panel, “The Families Speak” panel, and a Roundtable Discussion with representatives of civil rights, criminal justice, and religious organizations. The thrust of the expert’s panel was that the mandatory minimum sentences for crack cocaine is not medically, scientifically or socially supportable, is highly inequitable against African Americans, and represents a national drug policy tinged with racism. I wish I could say that once these disparities were highlighted, Congress acted to change them.

Many other organizations have been intimately involved in fighting to change this disparity. The Commission heard excellent testimony from Families Against Mandatory Minimums, the National Council of La Raza, the Leadership Conference on Civil Rights and even the American Bar Association, protesting the disparities. I hope that the Commission will once again submit to Congress proposed changes and that this time Congress will accept those changes.

The Reasons for the Sentencing Differences are Unwarranted

Three reasons are often cited for the gross distinction in penalty between powder and crack cocaine: addictiveness and dangerousness, violence, and accessibility due to low cost. All three reasons fail as a justification for the l00-to-l ratio in punishment between two methods of ingesting the same drug. The Commission has been aware for many years that there are no justifiable scientific or medical reasons to justify the disparity.

Disparate treatment in sentencing between crack and powder cocaine users is not justified on the basis of the alleged greater dangerousness or addictiveness of crack. There is no difference in health risk. In her 10-year study of the developmental and behavioral outcomes of children exposed to powder and base cocaine in utero, Dr. Frank testified that the “the biologic thumbprints of exposure to these substances” are identical. While there are differences in the manner in which the body absorbs base versus powder cocaine, since Cocaine hydrochloride (powder) can easily be transformed into crack by combining it with baking soda and heat, it is irrational to apply a stiffer penalty between cocaine which is directly sold as crack, and cocaine which is sold in powder form but which can be treated by the consumer and easily transformed into crack. Furthermore, the myth of the “crack baby” has been debunked. Dr. Frank testified, “There are no long-term studies, which identify any specific effects of “crack” compared to cocaine on children’s development. Based on years of careful research, we conclude that the ‘crack baby’ is a grotesque media stereotype, not a scientific diagnosis.”

There is no research to indicate that the use of crack cocaine creates more violent behavior than using powder cocaine. A comparison of powder to crack cocaine offenses indicates that in 91% of all powder cases and in 88.4% of all crack cases there is no bodily injury. Threats were present in 4.2 % of powder cases and 3.7% of crack cases. Bodily injury occurred in 1.4% of powder cases and 4.5% of crack cases and death occurred in 3.4% of both powder and crack cases. Furthermore, according to Dr. Hanson, there is “very little research on the role that drugs of abuse, such as stimulants like cocaine or amphetamine actually play in violence.” Dr. Hanson concludes, that, “research has not been able to validate a casual link between drug use and violence.”

Stiffer penalties for crack are not justified by its cheapness and accessibility. To apply draconian penalties for first time possession of crack on the basis of its low cost discriminates on the basis of class, especially in light of the fact that powder cocaine, in spite of its higher expense, is a drug abused more in this country. Furthermore, higher penalties for crack cocaine guarantee that small time street level users will be penalized more severely than larger distributors who possess powder cocaine before it is transformed into crack. This type of drug abuse policy, which disproportionately impacts lower income people, is neither logical nor effective.

The Legislative History of the 100 to 1 Ratio is Based on a Weak Record

Eric Sterling, counsel to the House Judiciary Subcommittee on Crime participated in the enactments of the 1984 and 1986 Anti-Drug Abuse Acts. Mr. Sterling has explained how five weeks before the 1984 presidential election, with the Republicans accusing the Democrats of being “soft on crime,” the Republicans attached a “tough” crime bill onto an emergency-spending bill, which passed with 20 minutes of debate. In 1986, college basketball star Len Bias died from a drug overdose, adding to the emotionally charged situation. The Commission noted the sense of hysteria surrounding passage of the crack laws. In the 1995 Special Report, the Commission noted, “The media played a large role in creating the national sense of urgency surrounding drugs, generally, and crack cocaine specifically. Crack cocaine was first sold in the United States in the early 1980’s and began to attract media attention in 1984 and 1985. By 1986, the media coverage of crack reached frenzied proportions. Congress also took a role in promoting the crack hype by declaring October of 1986 “Crack/Cocaine Awareness Month.” Politicians made hysterical and non-rational statements. Mr. Sterling spoke of Representatives filling the Congressional Record with articles of “crazed black men killing innocent people while on cocaine.” Sterling quoted Senator Chiles as stating, “I doubt America can survive crack.” Senator Gramm added an amendment sentencing imprisoned cocaine possessors to twice the amount of time they would have received had they possessed a grenade instead.

The fact that the disparities are not based on either a rational congressional record or a rational scientific record raises even more serious due process concerns. Fairness and rationality are touchstones of due process. Unfortunately, there is nothing fair or rational about the crack powder disparity.

Drug Policy as a Whole is Racially Biased

Many commentators have noted that the history of drug policy in the United States has been tinged with racial bias. In a recent law review article, Richard Dvorak noted that From the first anti-drug law forbidding opium dens in San Francisco in the late 1800s to anti-crack legislation in the 1980s, race has been the driving force behind the movement to outlaw drugs. From opium to heroin, powder cocaine, marijuana, and finally crack cocaine, there has been a pattern of drug criminalization in American motivated by White fear. Those fears were based on a belief that crazed drug addicts would denigrate the White community, and the drug pushers, usually thought to be people of color, would lead vulnerable Whites on a road of crime and prostitution.

Given the underlying racial bias in drug policy, or at the very least, the perceived racial bias, the Commission must adopt a policy that is seen as fair and non-biased. Otherwise, drug policy will continue to be discredited, especially among people of color.

Efforts to Repeal the Disparity

Of course, this body made a significant effort to address the disparity in 1995 when it unanimously recommended that Congress reconsider the five-year mandatory minimum sentence for simple possession of crack and a majority of the Commissioners voted to equalize the sentences of cocaine distribution. Unfortunately, Congress blocked those recommendations. However, both before the 1995 recommendation and since then, there have been a number of legislative attempts to address the problem. On October 13, 1993, Congressman Charles Rangel (D-NY), introduced the “Crack-Cocaine Equitable Sentencing Act of 1993” (H.R. 3277). This bill would have amended the Controlled Substances Act and the Controlled Substances Import and Export Act to eliminate certain mandatory minimum penalties relating to crack cocaine offenses. For all cocaine offenses, if 500 or more grams were involved, the defendant would have received a minimum sentence of five years, and if 5 kilograms or more were involved, a minimum sentence of 10 years.

On the opposite end of the spectrum are the bills that would lower the amount for powder cocaine to trigger the 5-year mandatory sentence to equal that of crack. In 1997, Representative Solomon introduced H.R. 332 the “Powder-Crack Cocaine Penalty Equalization Act of 1997.” Representative Solomon’s Bill brought the ratio of powder and crack to 1 to 1 by decreasing the amount of powder cocaine necessary to trigger mandatory sentences to the same level as crack cocaine. Representative Pascrell introduced H.R. 2229, which basically mirrored H.R. 332 but also contained a provision requiring that the DEA report annually to Congress on the number of Federal arrests for crack and powder cocaine offenses including the age, gender and race of the persons arrested and the amount of controlled substance involved in the offense.

In 1999, Senator Hatch, Chairman of the Senate Judiciary Committee, (R-UT) and Senator Abraham attached an amendment to the Bankruptcy Reform Act that would have lowered the disparity between crack and cocaine by reducing from 500 to 50 grams the amount of powder cocaine necessary to trigger the mandatory minimum, putting the ratio at 10 to 1 instead of 100 to 1. This Amendment was basically S. 260, a bill introduced by Senator Spencer Abraham (R-MI) and co-sponsored by Senators Hatch, Feinstein (D-CA) and Robb (D-VA).

The ACLU strongly opposes any measures that involve lowering the amount of powder cocaine. Cocaine sentences are already severe and increasing the number of people incarcerated for possessing small amounts of cocaine is not the answer to the problem. Additionally, any measures that decrease the amount of powder cocaine would disproportionately impact minority communities because of the disparate prosecution of powder cocaine offenses. In 2000, 17.8% of all powder cocaine defendants were white, 30.5% were black and 50.8% were Hispanics. As Charles Kamasaki, Vice-President of the National Council of La Raza noted in his testimony before the Commission on February 25, 2002, “Latinos are significantly over-represented among those convicted of powder cocaine offenses. Lowering powder thresholds would increase average sentences by at least 14 months, with the inevitable increase in incarceration rates. In our judgment, the real-world, tangible harm produced by lowering the powder thresholds would far outweigh the abstract, symbolic value of reducing statutory sentencing ratios.” The ACLU agrees with National Council of La Raza and believes that any proposals that reduce the amount of powder cocaine necessary to trigger mandatory sentences will only exacerbate the equal protection problems with cocaine policy, not solve them.

Representative Rangel (D-NY) re-introduced his original legislation in the form of H.R. 939 the “Crack-Cocaine Equitable Sentencing Act of 1999” and in 1999, Representative Waters (D-CA) introduced H.R. 1241 the “Elimination of the Crack Cocaine Disparate Sentencing Act of 1999,” which mirrored the Rangel bill. And in 2001, Rep. Rangel again introduced his same legislation as H.R. 697.

Rangell/Waters and Hatch/Abrahams bills represent the two opposite extremes. Both bills eliminate the disparity between powder and crack, the first by eliminating the penalties for crack and the second by lowering the trigger amounts for powder cocaine. There have been other proposals that have suggested a variety of other ratios from 20 to 1 to 10 to 1. Current proposals suggest lowering the amount of powder cocaine from 500 to 400 and raising the amount of crack from 5 grams to 30 grams so that the disparity was 20 to 1.

The ACLU believes that the disparity in sentencing between powder and crack cocaine is irrational and unwarranted, and that, by and large, the legislature and the courts have drawn a distinction where science and medicine have concluded none exists. As such, we strongly urge this Commission to request that Congress eliminate the provisions that distinguish between the punishment for powder and crack cocaine at the quantity ratio of 100-to-1. In the face of the overwhelming statistics and the growing sentiment in Congress and the courts, this Commission must not continue to adhere to the unwarranted distinction in penalty between crack and powder cocaine. But we strongly urge the Commission not to exacerbate the problem by increasing the punishment for powder cocaine sentences.

Patriot Act

Definition of Terrorism

Section 802 of the USA PATRIOT Act amended 18 U.S.C. sec. 2331 to include a definition of domestic terrorism. The Congress defined domestic terrorism as activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or any State and appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination, or kidnapping, and occur primarily within the territorial jurisdiction of the United States. The ACLU opposed this definition before Congress and we urge the Sentencing Commission not to adopt it for sentencing purposes. The Act does not require the Commission to adopt this definition and we urge you not to.

This definition is so broad that government could prosecute political protestors as terrorists. Any act of civil disobedience is designed to influence government policy by intimidation or coercion. A number of high-level political protests such as the protestors at Vieques Island who entered onto United States military bases to protest U.S. weapons testing, or the protestors at the World Bank and IMF meetings who have engaged in acts such as destroying property or throwing objects into large crowds or Green Peace who protest while in boats anything from nuclear weapons testing to whale hunting. All of these scenarios are arguably acts that “pose a danger to human life.” The ACLU does not take the position that people who violate the law are protected under the First Amendment – people who commit civil disobedience may be prosecuted for violating whatever law they have violated. However, we do object to people who are engaged in legitimate forms of protest being characterized as terrorists. This definition is too broad and could be misused by the government to prosecute people with unpopular political beliefs.

It is notable that Congress did not create a new crime of domestic terrorism, which it could have done and at one point was considering doing.

The Commission has proposed changes to the terrorism definition in three places. First, Part E recommends adding a note to Guideline section 3A1.4 (Terrorism), which would allow for upward departure in cases of domestic terrorism. Section 2S1.1 (Money Laundering) would amend the application notes to include a new definition of terrorism that defines terrorism as “Domestic terrorism (as defined in 18 U.S.C. sec. 2331(5)), a federal crime of terrorism (as defined in 18 U.S.C. sec. 2332(b)(g)(5)) or international terrorism (as defined in 18 U.S.C. sec. 2331(1)). And lastly, section 2L1.2 (unlawfully entering or remaining in the United States), amends the application notes section to add a definition of terrorism that mirrors the definition previously mentioned.

If the Commission wishes to amend its definition of terrorism, it does not need to adopt the one passed in the PATRIOT Act and we would urge the Commission NOT to include one general definition of terrorism that contains both sections 2331 and 2332, which is federal crime of terrorism. Besides the fact that Section 2331 is so broadly defined as to sweep in conduct that one would not traditionally think of as “terrorism,” section 2331 does not create a crime, whereas section 2332 is. For sentencing purposes it is unfair to combine in one definition conduct part of which is criminal and part of which is not. Combing domestic terrorism with federal terrorism would be like including alcohol or cigarettes in a definition of dangerous substances. Those substances may in fact be dangerous, but it is not a crime for adults to consume them and therefore a person should not be penalized for doing so. Likewise, domestic terrorism might in some cases be dangerous, it is not in and of itself a crime (a person could be prosecuted for the underlying criminal offense that is contained within the definition of domestic terrorism) and a person should not be punished to the same degree as an offense that is a crime. I

Hoaxes and Threats

Section 801 of the USA PATRIOT Act created a new crime, 18 U.S.C. sec. 1993 “Terrorist Attacks and Other Acts of Violence against Mass Transportation Systems.” Proposed Guideline Amendment A incorporates this new crime. Apart from incorporating the new law, the Commission queried whether hoaxes and threats to commit crimes of mass destruction should be treated the same as if the person had committed the underlying offense. Guideline sec. 2M6.1, “Unlawful Production, Development, Acquisition, Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass Destruction: Attempt or Conspiracy” currently has several base offense levels. If the offense involved a threat to use one of the aforementioned weapons but did not involve any conduct evidencing an intent or ability to carry out the threat, then the offense base level is 20, whereas if the offense was committed with intent to injure the United States or aid a foreign national, then the base offense level is 42. Under current law, a person is punished twice as severely for committing the criminal offense than for threatening to do so.

The ACLU recommends that the Commission does not adopt a guideline that punishes threats to the same level as the underlying offense. The current policy of differentiating between a threat made without any evidence of intent or ability to carry out the threat, and an intentional offense, makes sense and there is no reason to change it. A person who does not have the ability to carry out a threat simply does not pose the same danger to society as a person who does. Furthermore, people who threaten such conduct but do not carry it out are sometimes mentally ill or delusional and should be treated differently from someone who is not. The PATRIOT Act does not require that Congress treat threats and hoaxes the same as a completed offense and we recommend staying with the status quo. Additionally, Congress is currently considering a number of hoax bills that would penalize more severely terrorist hoaxes . We recommend that the Commission wait until Congress passes this new legislation before amending any guidelines addressing hoaxes or threats.

Conclusion

In conclusion, we ask the Commission to eliminate the 100 to 1 disparity in cocaine sentencing. We also ask that the Commission NOT include domestic terrorism within the definition of terrorism and that the Commission not make upward adjustments for hoaxes or threats.

Thank you for taking our views into consideration.