Department of Justice Seal

Testimony* of
Deputy Attorney General
Before the United States
Sentencing CommissionMarch 19, 2002


     I appreciate the opportunity to appear before the Sentencing Commission today to discuss the important issues of federal drug sentencing policy.

     The focus of my testimony today will be on sentencing policy for crack and powder cocaine offenders. We have forwarded to the Commission written comments on the other proposed amendments to the sentencing guidelines published in the Federal Register in January.

     At the outset, I would like to thank the Commission for being responsive to many of the Department of Justice's concerns regarding federal sentencing policy. In particular, I want to make special note of all the work the Commission is doing - and has already done - in response to the passage of the USA PATRIOT Act. We deeply appreciate your efforts to implement the important new substantive criminal law and sentencing provisions of the Act. This work is a critical part of the country's ongoing fight against terrorism.

     The Commission has asked for specific comments on whether federal cocaine sentencing policy should be amended. For reasons I will lay out in detail, we believe the current federal sentencing policy and guidelines for crack cocaine offenses are proper, and that it would be more appropriate to address the differential between crack and powder cocaine by recommending that penalties for powder cocaine be increased.

     Moreover, we will oppose any effort by the Commission to issue guidelines that do not adhere to the congressionally enacted statutes that define and prescribe penalties for federal cocaine offenses.



     We are guided in all of our work on drug policy by the President's comprehensive national strategy to fight illegal drug use. As you may be aware, the strategy seeks to expand the national drug treatment system while recognizing the vital role of law enforcement and interdiction programs. The strategy recognizes that the individual consequences of drug use can be deadly to the user and that the consequences for society are no less serious.

     Unfortunately, drug abuse continues to plague this country at unacceptably high levels. According to estimates generated by the National Household Survey on Drug Abuse, 2.8 million Americans are dependent on illegal drugs, and an additional 1.5 million are non-dependent abusers. In 2000, Americans spent $62.9 billion dollars on drugs. Of that, $36.1 billion was spent on cocaine alone.



     We understand that the Commission is considering lowering penalties for crack offenders. After thorough study and internal debate, we have concluded that the current federal policy and guidelines for sentencing crack cocaine offenses are proper. It would therefore be more appropriate to address the differential between crack and powder cocaine by recommending that penalties for powder cocaine be increased.

     Current research shows that crack is an extremely dangerous substance for many reasons. The most common routes of administration for crack and powder cause crack to be the more psychologically addictive of the substances. This makes crack cocaine more dangerous, resulting in far more emergency-room episodes and public-facility treatment admissions than powder cocaine, despite the fact that powder cocaine is much more widely used.

     Further, crack can easily be broken down and packaged into small and inexpensive quantities for distribution - sometimes as little as single dose quantities, for just a few dollars - making it particularly attractive to some of the more vulnerable members of our society. As Professor Randall Kennedy has noted, "[b]ecause it is relatively inexpensive," crack has had the "dubious 'achievement'" that it "helped tremendously to democratize cocaine use." Crack dealers have fulfilled its "promise" by marketing it to these vulnerable groups.

     Additionally, the open-air street markets and crack houses used for the distribution of crack cocaine contribute heavily to the deterioration of neighborhoods and communities. Both the scale of marketing and its open and notorious nature enable many, who would not previously have had access to cocaine powder, to purchase, use, and become addicted to crack cocaine.

     The present crack market is associated with violent crime to a greater extent than that of cocaine powder. Crack offenders are more frequently associated with weapons use than powder cocaine offenders. For example, in FY 2000, weapons were involved in 10.6% of federal powder convictions, and 21.3% of federal crack convictions. Federal crack offenses are also more frequently associated with violence and bodily injury than powder cocaine offenses. Although the Commission has proposed separate enhancements for offenders who employ weapons, violence by offenders themselves is only a portion of the crime that crack causes and thus would not reflect the dangers of the drug.

     Crack is linked to robbery and assault by customers seeking to finance their habits. Crack is strongly linked to prostitution, as well. In one recent study, 86.7% of women surveyed were not involved in prostitution in the year before starting crack use; fully one-third became involved in prostitution in the year after they began use. Women who were already involved in prostitution dramatically increased their involvement, with rates nearly four times higher than before beginning crack use. And because of the incidence of prostitution among crack users to finance their habit, crack cocaine smokers have been found to have rates of HIV infection as high as those among I-V drug users.

     Another recent study found that women who used crack cocaine had "much higher than average rates of victimization" than women who did not. Among an Ohio sample of 171 adult female crack users, 62% had been physically attacked since the onset of crack use. Rape was reported by 32% of the women since they began using crack, and among these, 83% reported being high on crack when the rape occurred, as were an estimated 57% of the perpetrators.

     These and many other statistics and studies tell the story of the devastation that cocaine, and crack cocaine specifically, bring to the nation - especially its minority communities. Lowering crack penalties would simply send the wrong message - that we care more about crack dealers then we do about the people and the communities victimized by crack. That is something that we simply cannot support.

     Further, lowering crack penalties is inconsistent with a rejuvenated national fight against illegal drug use. As we indicate in the national drug strategy, effective drug control policy, reduced to its barest essentials, has just two elements: modifying individual behavior to discourage and reduce drug use and addiction, and disrupting the market for illegal drugs. We think lowering crack penalties fails on both counts.

     We recognize that this Commission others have expressed concern that current federal cocaine sentencing policy tacitly directs federal enforcement resources towards lower-level drug traffickers. With this in mind, today the Attorney General announced a new federal drug enforcement strategy that seeks to identify and target the most significant drug and money laundering organizations operating across the country for federal investigation and prosecution.

     As part of this strategy, I will personally be coordinating all of the Department's drug enforcement efforts which will placed increased emphasis on intelligence based targeting to reach the most significant drug organizations. We think this new strategy - together with existing sentencing mechanisms such as the safety valve and substantial assistance departures - will go a long way towards addressing the concerns over low level offenders and federal drug sentencing policy.


     If the Commission decides to amend the penalty structure for crack and powder cocaine, we strongly urge the Commission to make only recommendations to Congress and not to issue guidelines amendments. By issuing guidelines, the Commission would effectively decouple the guidelines from the mandatory minimums passed by Congress. The Department of Justice opposes - and has historically opposed - departing from the penalty scheme established by Congress, for two principal reasons.

     First, a sentencing system consisting of guidelines that are inconsistent with federal statutes could produce potentially irrational sentences, providing a 10-year sentence under the mandatory minimum statute for a defendant who trafficked in 50 grams of crack, while providing for a far lesser sentence for a defendant who trafficked in a hundredth of a gram less. Such a system would fail to honor the congressional mandate, set forth in the Commission's organic statute, to "avoi[d] unwarranted disparities among defendants with similar records." 28 U.S.C. 991(b)(1)(B).

     Second, and more fundamentally, decoupling would disregard Congress' expressed wishes. The current mandatory minimums are the law of the land. The Commission should not ignore it and impose its own will in the face of clear congressional action. By changing the guidelines before any change in the existing provisions of title 21, the Commission will be doing just that: ignoring existing law. In our constitutional system, the Sentencing Commission exists to effectuate the expressed will of Congress. The Supreme Court's decision upholding the constitutionality of the Sentencing Reform Act is fundamentally premised on the belief that Congress had appropriately cabined the Commission's discretion. As the Court noted in Mistretta, "Congress instructed the Commission that these sentencing ranges must be consistent with pertinent provisions of Title 18 of the United States Code . . . ." Mistretta v. United States, 488 U.S. 361, 374-75 (1989) (emphasis added). It would be wrong to depart from that understanding.


     We appreciate the chance to share our views with the Commission. We think the Commission should be guided by the words of President Bush: "We must reduce drug use for one great moral reason: Over time, drugs rob men, women, and children of their dignity and of their character. Illegal drugs are the enemies of ambition and hope. When we fight against drugs, we fight for the souls of our fellow Americans."

*NOTE: Mr. Thompson frequently speaks from notes and may depart from the speech as prepared. However, he stands behind the speech as presented in written format.