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tv   Hearing on Crack Cocaine Sentencing  CSPAN  July 11, 2021 4:13am-7:00am EDT

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we're waiting here for the start of the senate judiciary committee hearing on crack cocaine sentencing guidelines. sentencing disparities among people of color, we are hear from the acting director of the white house national drug control policy among other expert witnesses. live coverage expected to start shortly here on c-span 3. >> the hearing will come to order. today the senate is holding a hearing in this committee on one of the most indefensible disparities in our system of justice and the bipartisan legislation designed to eliminate it once and for all, the equal act. to start things off i'd like to turn to a video about the history of this disparity and the racially disparate impact it's had. >> america's public enemy number
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one in the united states is drug abuse. >> it is epidemic and it can kill. >> we must be intolerant of drug use and drug sellers. >> the crack problem has become a crack crisis and it's spreading nationwide. >> we must be intolerant of drugs not because we want to punish drug users but because we care about them and want to help them. >> in 1996 i was sentenced to 35 years. this disparate caused my sentence to be increased for 20 years longer than it would have been had it been for powder cocaine. >> in 1995 i was sentenced to 11 years. my 11 years daughter was molested while i was in prison at 11 years old. >> my sister was barrel 23 years old. she had been sentenced for powdered cocaine, the sentence less than half of the one she received. >> why did we do that? because we were frightened. >> it was a reaction. >> there was a misperception that crack cocaine was something different chemically than from
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powder cocaine is. >> congress created in disparity which was 100 to 1 between crack and powder cocaine sentences. >> president obama signed the fair sentencing act it reduces the disparity in the amount of powder cocaine and crack cocaine required for a mandatory minimum sentence. >> the u.s. sentencing commission agreed to make retroactive changes in sentencing guidelines. >> doesn't save lives. doesn't reduce crime. so what does it do? it protects the status quo and that is white privilege. >> 80% of crack defendants are african-american and they are 20% more likely to be sentenced. >> it's mostly small time dealers who end up in jail. >> for every white crack dealer there are ten black crack dealers prosecuted. >> we can't get rid of discrimination in every human heart, but we can take it out of the criminal code. >> this is not a weak on crime initiative. you can still enhance their penalties and so if it's
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violence associated with it, you're going to have tougher penalties and that's what we have to concentrate our efforts on. >> president obama signed a law that will close the long disputed gap in federal sentencing for crack versus powder cocaine, cutting the ratio to about 18 to 1. >> but that was a political compromise that no one thought finished the job. >> in november 1985 "the new york times" ran a front page story warning of a, quote, new purified form of cocaine that had emerged on the streets of new york city. the article characterized the drug as the wave of the future and quoted a doctor who claimed that anyone who used it would be addicted almost instantaneously. over the next year thousands of articles and hours of breathless news coverage would be devoted to the dangers of crack cocaine, but much of a coverage was predicated on an outright false hood such as the notion that crack is more addictive than powder cocaine or that it's more
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likely to make its users violent. today several decades removed from our mass panic over crack cocaine we know that powder cocaine and crack are simply two forms of the same drug. make no mistake, both are addictive and dangerous and once they reach the brain they produce similar physiological and psychological effects, but while the scientific consensus on crack has evolved over the years, our nation's drug sentencing policy has not. at the height of the crack scare in 1986 facts fell victim to fear and fear inspired misguided and discriminatory policy. in response to a nation in panic we passed on a bipartisan basis a law that imposed 100 to 1 sentencing disparity between crack cocaine and powder cocaine offenses, the anti-drug abuse act of 1986. to this date it is one of the
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worst votes i ever cast. that legislation derived from a war on drugs era mentality that we could somehow incarcerate our way out of the drug epidemic, that approach did not work with crack cocaine in fact, it has never worked. in the 50 years since president nixon declared our failed war on drugs, drug use and drug availability has increased, our nation has endured a crack epidemic, a meth epidemic and currently an opioid epidemic. by now i hope we all understand that drug addiction is not a choice and just not a moral failing, it is a disease. instead of meeting the public health crisis of addiction with care and compassion, we've met it with punishment and penalties. the results have been devastating. when to comes could crack cocaine we established a sentencing disparity that is directly fueled the crisis of mass incarceration in america. during the first four decades of the war on drugs our federal
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prison population grew by 700% and the cost of operating federal prisons exploded by 1,100%. those bloated costs diverted public safety resources away from where they're needed and it made us less safe. today our nation is home to just 4% of the world's population and about 20% of the world's prisoners. in america we pride ourselves as the land of the free but the sad fact is we have the highest incarceration rate in the world. worse yet the crack powder disparity has exacerbated the system racial inequities in our criminal justice system. we must bring this injustice to an end and we can begin by eliminating the crack powder disparity. i'm confident we can achieve this on a bipartisan basis. over the years i have worked with my republican colleagues like ranking member grassley and even former attorney general sessions to reduce the crack powder disparity.
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in 2009 i authored the fair sentencing act, the bill i wrote would have fully eliminated the crack powder disparity, but to get it across the finish line i agreed to a compromised version with then senator jeff sessions that reduced the disparity from 100 to 1 to 18 to 1. it was a good step forward but not enough. this lingering disparity means that a person arrested for 28 grams of crack -- do we have that? i guess we don't have the illustration, i will skip that. as i said, i'm confident we can come together to finally resolve this injustice because there are other steps we have taken to address inequities in our criminal justice system on an overwhelmingly bipartisan basis like the first step act. with that legislation republicans and democrats with president trump worked together to improve conditions in our nation's prisons and shorten mandatory minimum sentences for nonviolent drug offenses. we made fair sentencing act
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retroactive allowing thousands of people sentenced under the 100 to 1 disparity to petition for early release including matthew charles who will speak to us today. early evidence suggests that retroactive application of the fair sentencing act has worked as intended. last year the department of justice reported that the recidivism rate for those released under the first step act was actually lower than historic recidivism rates. this much is clear, our past efforts of reform have been bipartisan and they're working. the task that now lies before us is finishing the job we've started by eliminating this disparity all together. it has no basis in science, it's done nothing to make us safer. this serves only to undermine trust in our system of justice, especially among black americans who are six times -- six times more likely to be imprisoned on drug charges than white americans, even though the drug use is at a similar rate between them. what's more, legal experts and political leaders of all stripes
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agree, congress needs to finish this job. when i chaired a subcommittee hearing on this issue in 2009 the department of justice testified in support of completely eliminating the disparity. today 12 years later the department of justice, again, is calling for congress to eliminate it in written testimony. i welcome the republican governor of arkansas, asa hutchinson, who testified at our 2009 hearing again with us today calling for congress to pass the equal act. thank you, governor. before i hand things off to ranking member grassley i want to tell a story that is important and very personal. ranking member grassley has been an invaluable and trusted partner in this effort. i know that he feels as i do that there are thousands of people who should be seeing justice in this country who are not because of these guidelines. one person i will never forget is a woman eugeneia jennings,
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originally from alton, illinois. as a child she was abandoned and seriously abused. at the age of 15 she started using crack to dull the pain of her life. at 23 she was convicted for trading a small amount of crack for clothing for her kids. the federal judge, a personal friend of mine, patrick murphy, delivered her sentence and he said, quote, this is not a sentence i'm happy with. i'm not proud of it. congress has determined that the best way to handle people who are troublesome is just lock them up. so, eugenia jennings at the age of 23 was sentenced to 22 years in a federal prison for a nonviolent offense. she never gave up hope. while serving her time she was a model prisoner who did everything asked of her. years into her sentence she developed a rare and serious form of cancer, leukemia. i will never forget the da i that i personally met her in the federal prison in greenville,
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illinois. i sat down with this lady and talked for over an hour. at the end of it she said, i don't know how much longer i'm going to live, senator, but i promise you this, if you can find some way to get me out of this prison to be with my girls, i will never do anything wrong again in my life. so i sat down and wrote a personal note to a former senator from illinois named barack obama and asked him to commute eugenia's sentence. he did. and just in time for eugenia to see her eldest daughter graduate from high school. she died less than two years later at the age of 36. as we approach the end of the graduation season this month i'd like us all to think about eugenia. when she entered prison her daughter was six years old, the next time she saw her in the outside world her daughter was a young woman. eugenia missed her daughter's first day of high school, her prom and so many other rights of
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passage and i want to salute her brother cedric parker who was on the video, the earlier video, he raised those kids while eugenia was in prison. but eugenia missed them because the methodology surrounding crack cocaine still dictates federal policy. ooj is gone but there's still so many people like her counting on us to finally eliminate this disparity. let's not wait another day. now i recognize ranking member grassley for his opening statement. >> thank you, mr. chairman, for holding this hearing. before i begin my statement just a comment, an old disagreement with the statistic you use in regard to 4% of our population and 20% of our imprisonment is greater than any other society. just a question that i don't expect you to answer and maybe there's no answer to it, but do those figures include the
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uighurs, millions ofuighurs that the chinese have in prison in concentration camps. >> that's a very good point. >> i'd like to see if we can find an answer to that. drug sentencing laws are complex, they must be fair and they must be just, but prioritizing public safety is very important, as such they can't be based on violent crime, risk prevention efforts, or racial justice concerns. they must be comprehensive. this is particularly true as we evaluate today's topic, sentencing laws on crack and powder cocaine. i've been a partner on this issue in the past, you've recognized that today and i appreciate that. i've indicated in my openness to reevaluating the sentencing disparity between crack and
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powder cocaine, but i do have some questions about how to best do this. there are discrepancies between crack and powder cocaine in terms of recidivism rates, addiction and violent crime. these factors can't be ignored. i'm hopeful today's testimony will touch on these aspects, but i believe a comprehensive consensus hearing on cocaine certainly would have highlighted these nuanced points. i asked chairman durbin for a comprehensive hearing on cocaine so that we can have a complete understanding of all these issues. i wanted a consensus hearing, meaning that everything was agreed upon and that there were no minority or majority witnesses, but that's not how this hearing unfolded. today's hearing isn't consensus nor is it as comprehensive as it
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should be. instead this hearing is focused only on sentencing issues, particularly in deference to the equal act, and i have told people that i'm willing to look at some sort of reduction in the disparity that exists today. i'm disappointed that my request for a comprehensive hearing on cocaine was dismissed, particularly since i've supported efforts to review crack and powder cocaine sentencing issues in the past. i co-sponsored the fair sentencing act which changed the 101 to 1 sentencing ratio for crack and powder cocaine to where it is today, 18 to 1. i supported this change being made retroactive in the first step act. i joined in an amicus brief submitted to the supreme court to review the applicability of this provision and i
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co-sponsored the first step implementation act which further allows for retroactive review and application of cocaine sentencing. we've accomplished a lot in this area already and maybe there's more that can be done and i've already indicated my willingness to talk about those things. so today's hearing is likely the first of many steps on cocaine sentencing because there's still a lot that we need to know. today's government panel, for instance, shines a light on the vacuum of information congress is operating in. the department of justice submitted a statement for the record in support of the equal act. the biden justice department support for this bill isn't surprising. it's the same position as the obama administration, but nobody from the justice department is here to testify.
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doj's absence makes it hard to fully evaluate and understand the scope and impact of changing the law. and while the united states sentencing commission has released excellent reports on federal drug sentencing laws, its most recent comprehensive report on cocaine sentencing was as far back as 2007. also the last time the sentencing commission testified before the senate on this issue was way back 2009. at that time they stated the sentencing ratio of crack and powder cocaine shouldn't be higher than 20 to 1, it's currently at 18 to 1. so where does all this leave us now? i'm worried we're barreling down legislation without a complete picture of the issue or the necessary government witnesses before us today. i'm nonetheless looking forward
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to hearing this hearing, learning as much as i can and discussing steps forward and i'd like to be involved in those steps forward. i hope the future of this discussion will highlight a variety of perspectives and be more collaborative as we seek to found a solution together, thaw, mr. chairman. >> thank you, senator grassley. our work together is a body of work which i'm most proud of and i want to continue it and though we may have had a disagreement about the elements and the procedures today, there's no fundamental disagreement between us and i look forward to working with you to have a complete hearing on all the important issues that face us. i will now turn to senator booker, the chair of the judiciary subcommittee on criminal justice and counterterrorism for an opening statement. >> mr. chairman, i thank you for the opportunity to speak for a brief time at the top of this hearing. i would like to submit my formal opening remarks for the record.
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i want to share with my colleagues, you know, there's guiding principles to this country where we aspire to the highest ideals of humanity. it's what our constitution is based upon, by our founder fathers who sought to make our nation one of the best evidenced, the ideals not just of humanity but of divine providence. there is a -- from the abraham faith an idea what do you want, o lord, from your people which is to do justice. to love mercy and to walk humbly. this is one of those areas of law where we have created this disparity that to me violate those highest ideals in a way that i can identify as great as this in other areas. i have had the privilege in my life of living in different types of communities. i lived and grew up in a wealthy community where my family was
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the only black family there. in communities of wealth and privilege i saw drug use and know lots of people who were violating our laws. i've lived for the last 20 years in a low income black and brown community and i see the same human frailties, but the consequences for those law breakers is very different. when to comes to crack and powder cocaine it has been stunning to me to see how this law has so terribly impacted the lives of folks, many of whom who need help, many of them who need treatment, but devastated their lives with this disproportionate sentencing. i'm trying to live up to those ideals of humility, i've listened very closely to all of the arguments that have been against changing this and i've been quite satisfied by the data
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and i would appreciate chairman grassley talking about the concerns because both sides of the aisle share the same concern, public safety, public safety. all the data that i can find that from objective sources gives no credence or validity to some of the concerns that i hear most often. for example, in 2014 the sentencing commission looking at the retroactive reduction in crack cocaine guidelines found that retroactive sentence reductions did not result in higher recidivism rates. the data is very clear. i've heard concerns expressed about violent crime, that somehow crack cocaine users, unlike powder cocaine users, and, again, there's dramatic racial disparities, that somehow those crack cocaine users were more likely to be engaged in violent crimes. so i looked with humility towards the validity of those
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arguments and objective sources say time and time again that is not the case. again, recent data dispels this notion that crack offenses account for a higher rate of weapons possession than powder cocaine according to the data from the ussc in fiscal year 2020. more federal offenders charged with powder cocaine offenses carried weapons, 490, than those charged with crack cocaine offenses, 468. in fact, it's the opposite. the data shows that powder cocaine folks are more likely to have weapons. and so for me there is no substantive reason from the actual chemical, they are the same substance, all the way to the allegation that is somehow this will lead to more violence or lead to more recidivism. this is just not the case. what is the case is that this has created within our society deeper schisms along racial
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lines where certain people have had their lives devastated by this disparity. this is not justice. this is not those high ideals of humanity that we talk about in our most sacred civic documents, like the ideals of equal justice under the law. i am so encouraged that this is a bipartisan effort, that there are numerous republicans in the house and senator portman here that are working with us in a bipartisan way to end this stain of injustice in our community. i am so happy that the very people who were out there enforcing our laws from law enforcement organizations, national district attorneys, the americans for prosperity, the due process institute, freedom works, law enforcement leader after law enforcement leader are working together from right on crime to the very sentencing project are working together to
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end what is a shameful chapter in our country. you had richard nixon up there and all of us are mountain ranges, i do not vilify anyone, we have all made good contributions and tough contributions, but, you know, i want to end with these words by erlikman that sought to prey upon our prejudices, to somehow deal with black communities different than others. later in his life he admitted that so much of the source of fear of black people was a political strategy. we knew, he says, quoting them, that we couldn't make it illegal to be either against the war or being black, but he says that these were the two groups that
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were most likely to be against them, but by getting the public to associate hippies with marijuana and blacks with heroin and then criminalizing both heavily we could disrupt these communities. we could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news. did we know we were lying about the drugs? of course we did. i live in a community now that for a generation has been vilified. that on the evening news we made people afraid. where words like super predators and others were heaped upon black communities and we have been devastated in this country as a result of the disproportionate incarceration of african-americans even though there's no difference, no difference in america in the usage of drug rates along racial lines. we need to end this nightmare. it is not just hurting african-american communities, it is a stain upon our highest
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ideals of humanity. we must as a senate do as mika commands, do justice, show mercy, and walk humbly with our lord. thank you. >> thank you, senator booker. senator cotton, as ranking member of the commission on criminal justice was given the opportunity to submit opening remarks. we will welcome two distinguished witnesses to testify about the continued disparities, our first witness is regina labelle, the acting director of the office of national drug control policy. director labelle is a distinguished scholar and program director of the addiction and public policy initiative at georgetown law's o'neal institute for national and global health law. our second witness is arkansas governor asa hutchinson whom i welcome back. governor hutchinson has served
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since 2015 as governor, with he see him every sunday morning on the news. previously he served as a u.s. attorney, u.s. congressman and director of the u.s. drug enforcement agency. i will lay out the mechanics of today's hearing after we swear in the witnesses on the first panel, each witness will have five minutes for opening statements then rounds of questions from the senators, five minutes each, ask them to please stick close to five minutes if you can. following that we will switch to our second panel and chairman booker, depending on the votes on the floor and such may take over that responsibility with five minute opening statements and five minutes of questions from each. so i'd ask if the witnesses on the first panel would please stand to be sworn. if you will raise your right hand. do you affirm the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth so help you god? let the record reflect that the witnesses answered in the affirmative. director labelle, please proceed. >> mr. chairman, ranking member,
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economies members, thank you for inviting me to testify on this important issue of eliminating the sentencing disparity that remains between sentences for people charged with trafficking of crack versus powder cocaine. the biden/harris administration strongly supports eliminating the current disparity in sentencing between crack and powder cocaine. the current disparity is not based on evidence yet has caused significant harm for decades, particularly for individuals, families and communities of color. the continuation of the sentencing disparity is a significant injustice in our legal system and it's past time for it to end. therefore, the administration urges the swift passage of the eliminating a quantifiably unjust application of the law act or the equal act. the biden/harris administration is taking an evidence-based approach to drug policy and eliminating this disparity is in alignment with that approach. i'd like to highlight some of the significant evidence to support this position. first, the sentencing disparity is not based on sound scientific
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evidence. we currently have a system under which the same offense, distribution of cocaine, results in radically different sentences depending on the form of cocaine. even though both formulations affect the brain the same way. research suggests that the 100 to 1 sentencing disparity under the anti-drug abuse act did not result in decreased crack cocaine use, similarly the reduction of the minimum disparity sentence to go 18 to 1 under the fair sentencing act was not associated with an increase in crack cocaine use, however, data published by united states sentencing commission has shown that a higher percentage of black americans are convicted in federal court for crack cocaine offenses versus powder cocaine offenses and the sentencing disparity has caused them to receive substantially longer average sentence lengths for comparable offenses. to put this in perspective under the original 100 to 1 sentencing disparity a five year mandatory penalty would be triggered by
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trafficking 5 grams of crack, whereas the same penalty would oofb be triggered if someone trafficked 500 grams of powder cocaine. simple possession of any amount of crack cocaine exceeding 5 grams incurred a five year mandatory penalty but there was no corresponding machined tore penalty for powder cocaine possession. under the original sentencing disparity on average black americans were incarcerated nor nonviolent offenses for almost the same length of time as white americans who committed violent offenses n 2010 congress took the important step to reduce this disparity to 18 to 1, noufr, in the past two fiscal years black americans accounted for 81% and 77% of all federal crack cocaine convictions respectively. because of the disparity these convictions led to prison time far longer than they would have been for equivalent amounts of powder cocaine. the sentencing disparity is part of a larger system with separate and equal tracks for people of color and white people in the united states who use drugs or
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have a substance use disorder. in 2018 the rate of incarceration for hispanics was three times that of white americans and the incarceration rate for black americans was 5.6 times that of white americans. these racial inequities are not limited to criminal justice. when looking at access to substance use treatment a recent study showed that black individuals generally enter treatment four to five years later than white individuals even when controlling for socioeconomic status. hispanic communities those who need treatment for substance use disorder are less likely to access care than nonhispanics. we know that substance use disorders can become chronic conditions over time and years spent without treatment and in incarcerated settings with both exacerbate substance abuse disorder and lead to other societal issues. president biden has emphasized the need to address racial inn second wits of the criminal justice system, noufr, he has been clear people should not be
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incarcerated for drug use alone but should instead be offered treatment. as a senator he introduced legislation to eliminate the sentencing disparity entirely and it's long past time to do this. the charge has always been to reduce drug use and its consequences and our nation's approach to addressing substance use has led to disproportionate consequences for communities of color. if we follow the evidence and advance equity as president biden has directed our agency to do we need to eliminate the sentencing disparity. in closing the biden/harris administration supports the equal act and a complete elimination of the unfair sentencing disparity between crack and powder cocaine. based on -- this was based on inaccurate and unsound assumptions and has caused disproportionate harm to our most vulnerable communities. tieu for your time and for holding this important hearing that we hope will lead to real change. >> thank you very much. governor hutchinson.
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>> thank you, chairman durbin for your comments today, ranking member grassley and members of the committee. in 2009 i appeared before this committee as was noted by the chair manned and i appeared here on the same subject expressing into i support for reducing our eliminating the disparity of sentencing between crack and powder cocaine cases. as a result of the work of this committee in 2010 the sentencing disparity was reduced down to 18 to 1 but as noted the work is not yet finished and i'm honored to be back here today to express my continued support for eliminating that disparity and creating greater sense of fairness in our criminal justice system. as noted, i've served this country in a variety of law enforcement positions from a federal prosecutor to administrator of the dea and now
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as governor i continue to be concerned about, first of all, reducing illegal drug use and reducing the supply, but also very concerned about fairness in our criminal justice system. for my state perspective and let me just take a moment, the presence of crack and powder cocaine is down in arkansas. arkansas is part of the gulf coast hida, high intensity drug trafficking area and the latest drug assessment is that cocaine is ranked as the fifth greatest drug threat and is considered a moderate threat been the gulf coast hitda region. if you look at the statistics we have had total pounds of cocaine seized decreased by 42% from 2019 to 2020. that's a nationwide statistic. arkansas has adopted at least we have in place the one to one ratio for crack versus powder cocaine in our state.
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i believe that is the right standard that should be set and let me summarize the need for eliminating the sentencing disparate. first of all, as has been noted by our director of ondcp the substances are chemically the same and, therefore, they should be treated the same for sentencing purposes. it's a fundamental principle. secondly, as noted by senator booker and others, there's a disproportionate harm to communities of color. the sentencing commission data shows that in 2019 81% of crack cocaine defendants were black, in 2020 it was 76% of crack cocaine defendants were black. obviously whenever you sentence them to a higher level of punishment that is a disproportionate impact on
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african-americans. what's interesting is the samhsa data shows that crack cocaine users are predominantly white. so that adds to the sense of unfairness in our criminal justice system. and that leads to the third reason which is fundamental and that is that the sentencing disparity is unfair. just as importantly it is perceived as unfair and undermines confidence in our criminal justice system in which all those in law enforcement understands how critical a sense of fairness is to achieving cooperation t respect and to reinforce the rule of law. unfairness erodes cooperation, whether it's the development of informants, to the ability to get cooperation, to the working up the ladder of a drug trafficking organization.
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confidence in equal treatment under the law is the foundation of our rule of law and it is currently being undermined by that disparity. and i know it's been addressed that there is more violence associated with crack cocaine and there might be some disagreement on the statistics there, but however you conclude that topic, we have to recognize that sentencing guidelines has factors that will recognize the degree of firearm use, whether victims that have been harmed and the criminal record of the defendant, all of those are factors that can be brought to bear on the ultimate sentence versus using a much more unreliable indicator for length of sentence, which would be the quantity. so the sentencing guidelines have plenty of leeway to account for violent crime might be associated with crack cocaine
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use versus simply utilizing quantity as a chief indicator. with that i'm very honored to be here before many colleagues that i respect and this committee and the work of it and i look forward to the question time. thank you. >> thank you, governor. acting director labelle, from a scientific perspective is there any rational justification for reducing the sentencing disparity? >> well, the scientific basis of both base cocaine, which is crack cocaine and powder cocaine, they're similar and they have similar effects on the brain, the issue is how the drug is used, that's been the issue in the past. but really the drugs themselves, the form of the drug, is essentially the same. >> i don't know if this illustration will be effective or not. first this is flour and this is an indication of the amount of powder cocaine that would result
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in the sentencing for this weighted amount of crack cocaine. 100 to 1. 18 to 1. i'm sorry. 18 to 1, which is and indication that if there's no science between the difference the sentencing is dramatically different and i think that is the simple direct point we're trying to make at this hearing. governor hutchinson, you have seen this war on drugs from so many angles. i can't think of a person who has the kind of experience you do. u.s. attorney for western district of arkansas, member of the house, administrative drug enforcement administration, undersecretary for border and transportation security and now governor of arkansas. i can't tell you how much i appreciate your candor about the impact that this has on respect for the law in some communities,
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when african americans disproportionately are penalized for this sentencing disparate. what it must mean to the community. have you seen this firsthand as governor of your state or in your previous assignments? >> i have seen it in really all of the assignments that you recited and there's probably no one that supports our law enforcement more than me. i've been a part of t i believe in them. i want to encourage them. and in each of the roles that i've seen unfairness undermines the respect for the law and that is so important to our law enforcement officers. from a personal perspective it's been different as governor because i've seen clemency and pardon applications come across my desk in which i've seen the unfairness play out in the
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criminal justice system and even though we have one to one ratio here in arkansas, you still see the consequences of severe penalties for simple possession, multiple possessions of drugs. so you see the heartache and you want to do everything you can to eliminate unfairness that will feign respect both for law enforcement and for the system. >> and i think that's what i tried to allude to in my opening remarks. the personal and family devastation of long sentences and what -- i'm amazed that any of these prisoners have come back and i've seen so many of them come back after serving long periods of time to rebuild their families and rebuild their lives, but it is devastating. i just want to add one other element to here. this sentencing disparity is not a creation of law enforcement, it is a creation of legislators,
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congressmen, senators who have come up with these laws on sentencing disparities. so it is no reflection on law enforcement, it's a reflection on us and what we have done in establishing these standards of sentencing and i think that's why we have such an awesome responsibility. i can't thank you both enough for being here today and your testimony. senator grassley? >> thank you, mr. chairman. i'm going to start out with director labelle. according to the institute of drug abuse treatment for stimulant addiction including cocaine abuse is an underresearched area, unlike treating opioid a boys there aren't any approved medications to treat cocaine addiction, also the majority of those seeking treatment for cocaine, smoke crack and are likely to be poly drug users. our federal drug sentencing laws
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should avoid creating more victims and addicts in vulnerable communities, however, if we end up legislating on crack and powder cocaine sentencing, we should all be in agreement that deterring drug trafficking is vitally important. first, do you agree? and second, would you -- would more research in cocaine dosage amounts, treatment options, prevention tactics and addictiveness of cocaine be helpful? >> thank you for that important question. i came here from the interdiction committee. ondcp as you know has a wide array of authorities including drug interdiction and so we are looking very closely at the efforts that need to be taken to reduce drug trafficking coming into the united states and then
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inside the united states. so certainly we agree and appreciate it's one of our policy priorities is reducing the supply of drugs coming into the country and then drug trafficking in the country. secondly on your piece we totally agree that we need a whole of government approach and to look at the continuum of care for people with substance use disorder. prevention -- preventing substance use disorders and substance use from ever occurring is an essential part of our strategy, just as treatment is an essential part of our strategy. as you said, there is no medication for cocaine use disorder but that doesn't mean there aren't effective treatments. we are looking at the barriers that exist to one of the most effective forms of treatment for cocaine use disorder. those are things that we appreciate congress' investments, significant investments through the american rescue plan and through the president's budget that's been sent to the hill, there's $10
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billion to be spent on addressing the demand side of the equation and then also we support money and investments on the supply side. thank you. >> your agency is tasked with making a coordinating our nationwide drug control strategy. your office released a statement of drug policy priorities earlier this year, it mentioned that we must reduce the supply of illicit drugs. i think an effective way to stop the supply of deadly drugs is to have an effective and consistent drug control laws on the books. this is true for all controlled substances. i'm confused why your statement on drug policy priorities didn't outline a permanently -- how permanently scheduling fentanyl analogs would be essential to reduce their supplies. do you think permanently scheduling fentanyl-related
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substances in the united states would reduce the supply of these illicit drugs? >> so you pointed out an incredibly important issue which is the fentanyl and fentanyl analogs in the united states and we know that of the 90,000 overdose deaths from last year from 2020 that 75% of them involved a fentanyl or a fentanyl analog. so what we're doing is working with the interagency to make sure that we can present to congress a solution on the permanent scheduling or scheduling of fentanyl analogs. so we're working with doj, dea and our partners at hhs to send something to the hill by the fall. >> are you working with members of congress to do that? because i am committed to anybody that wants to work with on this issue and working in a bipartisan way with congress to make sure fentanyl and related substances are permanently
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scheduled. are you doing that? >> certainly, sir. i know my staff has met with your staff. we just sent a letter and we're happy to have ongoing conversations. >> quickly can you agree these kinds of considerations are critical to review along with racial justice concerns and how can we ensure these factors are considered when reviewing drug sentencing laws? now i realize i couldn't leave out the lead-in. i mentioned in my opening remarks how there are many factors that must be considered when reviewing sentencing laws of crack and powdered cocaine, recidivism data, addictiveness and racial issues. crack offenders receive a weapons sentencing enhancement more often than powder traffickers. also of all drug trafficking cas
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residivate at a higher rate. >> i think the main issue you've raised is one that when people leave incarceration they often residivate. part of the reason is they don't get the treatment they need for their substance use disorder. when they're incarcerated, they should be receiving treatment so they won't residivate. >> governor hutchinson as the
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former head of dea under president bush, the first undersecretary for border and transportation security at dhs and a former u.s. attorney, your law enforcement credentials speak for themselves. yet we have repeatedly and publicly advocated for the elimination of the sentencing disparity between crack and powder cocaine. i'm not being critical, but i think your views are really important in this discussion, because you have this extensive background in law enforcement and you have a career in public service. what led you to speak out on this issue? >> thank you, senator feinstein. being personally aware of unfairness should call us all to speak out just as members of this committee have.
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in the '80s when president reagan started the tough side of the fight against drugs. it really wasn't until i got to congress that working with some of my colleagues on the judiciary committee that i saw how the application of those disparate laws impacted our community. >> are you referring to the 100-1 sentencing disparity. >> yes. i'm referring to the 100-1 sentencing disparity ought to be changed because it was unfair. >> now we're 35 years later. do you believe that our understanding of the situation is better? >> i do.
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we understand the science better. we understand the impact. we understand the unfairness of it. it's supported by statistics. we also have a good sentencing grid that can address the other issues of violence associated with crimes. so we do understand it better and that should lead us to take the final step to eliminate completely that disparity. >> thank you very much. i think that's very powerful testimony. thanks, mr. chairman. >> senator cornyn. >> thank you mr. chairman. i've read over the statement of drug policy priorities for year one and i appreciate your testimony about the importance of follow-on services for people released from incarceration so they don't repeat their
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mistakes. to that end senator whitehouse and i introduced a bill called the residential substance abuse treatment act of 2021 which would expand the access to substance use treatment and jails in prisons. certainly with you on that and want to continue to support those efforts. in my state in texas part of what we did on prison reform is get people access to programs when they're in prison and hope they don't residivate once they get out. it really did require follow-on services. we can't expect somebody to get out of prison and go back to the same old neighborhood and be exposed to the same old temptations and associated.
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what do you intend to do in your office to improve domestic drug enforcement? >> ondcp has many aspects to it. what we try to do is look at source countries, so colombia, mexico, et cetera. that's the first step. keep the drugs from coming into the united states. as you asked about domestic work, we have the high intensity drug trafficking areas program, and they work extensively with their state and local partners to disrupt drug trafficking. so a lot of our work is really focused on working on having partnerships with the drug enforcement administration and making sure all the pieces are in place to support law enforcement, first of all, to divert people away from the criminal justice system. lastly, for people who are
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involved in criminal justice, make sure they get the supports they need both while they're incarcerated and upon reentry. >> do you recall how many americans died of drug overdoses in the last year? >> certainly, sir. 92,000 as of october 2020. >> do you agree with me that a lot of those drugs come across our southwestern border? >> what we know is that 75% of the 92,000 overdose deaths involved fentanyl. fentanyl right now, most of the fentanyl is coming from mexico. >> 90% of the heroin that comes to this country comes from mexico too. do you agree with that figure? >> i believe that's the current figure. >> so we ought to all be concerned, should we not? shouldn't the biden administration be concerned about the overwhelming flood of people coming at the border including unaccompanied children and diverting border patrol from their law enforcement function
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to taking care of these unaccompanied children? shouldn't that be a matter of concern. >> yesterday i met with the mexican ambassador of the united states talking to them about their ports, about the fentanyl coming into their country to keep it even getting to the border, so disrupting labs in mexico. >> do you know how much of mexico is controlled by the cartels as opposed to the government? >> it's significant, sir. >> right, it is significant. it's frightening, in fact. you didn't answer my question about diverting border patrol but we'll move on. governor hutchinson, i have a lot of respect for your public service and certainly i've followed it and worked with you off and on over the years.
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i'm trying to figure out how this disparity issue would apply in other contexts, not just to crack versus powder. if you had the little bags of flour that senator durbin had that he showed with the 18-1 disparity and you had heroin in one and fentanyl in another, fentanyl is a whole lot more powerful, as i understand it than heroin. i'm just wondering across different types of opioids, for example, prescription drugs, heroin and fentanyl, do you think this same principle can be apply applied? i'm wondering how that would work? >> that's an excellent question. i think there is reason for broader discussion about our sentencing policy in relation to drugs. they're ultimately set by congress. you have to look at the impact. you have to look at the chemical qualities of it.
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i think we've made determination based on science that there's similarity between crack and powder cocaine. obviously there's distinctions between fentanyl, which deserves all of the resources and investigation possible because of the harm being done. i think those are very good discussions. i do believe, as i said, that quantity is not always the best indicator as to culpability. >> thank you, chairman durbin. thank you for your long determination on this issue. it's much appreciated. i want to open by echoing governor hutchinson's comment that many of the factors that have been used to argue for the sentencing disparity actually turn up separately in the
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sentencing guidelines. to the extent there are dangers associated with certain episodes of crack ccaine dealing, the sentencing guidelines are capable of taking that up and a judge is capable of ruling on that. i thought that was a very important point and certainly something i saw in his time as u.s. attorney. thank you, governor for that. ms. labelle, i want to double down on my friend senator cornyn's reference to our substance use treatment bill. it's important to pick people up while they're incarcerated and make sure while they're discharged that treatment continues and there's followthrough through that entire process.
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we've seen in rhode island when you do that, it improves recidivism and dramatically reduced opioid overdose fatalities in the immediate aftermath of discharge. so it's a lifesaver in addition to being the right way to handle this condition. i appreciate your recognition of that and i'd love to work with you to make sure this bill gets strong support for the administration. i would say the same about the 3.0 measure. as you know, senator portman and i wrote cara many years ago and it passed with huge bipartisan support here in the senate and passed through congress and was signed into laws. we got large chunks of our cara 2.0 put into another measure. now we're working on cara 3.0 which provides an approach to
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substance use disorder that the general assembly of the united nations has said when they said evidence-based treatment options to drug users and during and following or in lieu of incarceration to prevent relapse and recidivism. we look forward to working with you and support you'll support both of those efforts. >> thank you, senator whitehouse. >> she's welcome to say whether she'll support either of those efforts. >> i want to point out when you talk about the importance of the rsat program and what happened in rhode island, this is really significant that you had a 60% decrease in overdose deaths among people who had just left incarceration. what happened in rhode island really lit a fire around the country for many states to have treatment behind the walls. yes, we've happy to meet with you and talk to you about all of this legislation you mentioned.
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>> be sure to thank your new commerce secretary because she played an important role in making sure our present administration developed that and imposed it and enforced it and saw those really good results. >> thank you, senator. >> before i recognize senator lee, i'm glad senator cornyn is still here. in fy 2019 congress appropriated 570 million for u.s. customs and border protection to deploy nonintrusive inspection systems on the southwest border, technology allowing our border inspectors to x-ray the contents of cars trucks. to increase the scan rate of
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trucks by 70% and passenger vehicles to 40%. we're still seven years removed, but if i recall this was approved and supported by the trump administration to put in this technology and we have been funding it. i thank you for raising that point. >> if i can just reply briefly, that's a good thing, but you have to also recognize that a lot of illegal drugs come between the ports of entry in backpacks by mules carrying drugs for the cartels. we don't know how many people that our border patrol can actually encounter because you don't know the ones you don't run into. 40% of the border patrol are taken off the front lines because they're taking care of unaccompanied children because of the current humanitarian crisis at the border. that leaves a huge opening for
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the cartels to run drugs through those gaps in border patrol coverage. i think the technical means is helpful, but it certainly doesn't address the concern that i have about the fact that the biden administration doesn't appear to have any concerns whatsoever about the current crisis. thank you. >> senator lee. >> thank you, mr. chairman. ms. labelle, i'd like to start with you. cbp saw a sharp increase in the number of total enforcement actions from fiscal year 2018 to 2019 with enforcement actions now on track to almost double in fiscal year 2021.
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>> we've seen some increase in cocaine, but over time it's been relatively stable. we are certainly concerned about increased production numbers in colombia. what we have to do is make sure it never reaches that stage. the efforts being made at the border, most of these come through the ports of entry through vehicles. that's where the scanning information comes through certainly for fentanyl. so what we're seeing over the course of a couple years is that it's relatively stable. but we have to look back at the interdiction piece in colombia and cultivation numbers are up. >> what about the increase we're seeing in fiscal year 2021? isn't it possible at least some of those are attributed to the
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open border policies of the current administration? >> so flow doesn't always equate to seizures. some of that may have been because we had actually earlier this year during covid fewer people coming across the border. again we work with cbp closely to make sure they have the support they need to prevent cocaine from coming into this country. again i want to go back to the interdiction work we do, that the coast guard does and work that we do with colombia to make sure those drugs never even make it that far. >> let's talk about the relationship between sentencing and drug interdictions and drug activity. setting aside for a minute the disparity issue, just assume categorically if we started sentencing cocaine generally
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less harshly, wouldn't that have some risk of increasing or at least incentivizing drug trafficking across our southern border? >> senator, i want to go back to what we're looking at right now, i mean, is the disparity issue. what we're talking about is that 18-1. we haven't seen an increase in crack cocaine use. in fact, it's a tiny proportion of people in this country who have substance use disorders who use crack. for powder cocaine, it's about twice as much. but really we haven't seen the relation between sentencing guideline and use or even trafficking in the country. >> given the fact that we've got -- let's assume for sake of argument that these drugs should be treated the same way for
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sentencing purposes and that there shouldn't be this disparity. this still does leave an outstanding issue that i'm not sure the bill we're discussing today addresses. given how dangerous both crack cocaine and powders cocaine are and the triple increase in sew cane -- cocaine deaths over the last decade. do you understand my question? >> i think so, but i want to -- so cocaine overdose deaths are up. however, what's up, what's causing that increase is the presence of fentanyl in people who have died. so it's not cocaine use solely. cocaine use is actually somewhat down. >> but they're still dying
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because they purchased and used cocaine. yes, it's tainted cocaine and it's cut with something deadly, but these are still deaths. they are still cocaine overdose related deaths. i'm not sure that negates the sentencing concern i'm talking about. my question is do we need to be concerned about what's the appropriate level to set it? i think there is widespread agreement on this committee that the disparity is difficult to defend. the question becomes what do we do about the disparity? do we raise the threshold for one or reduce the threshold for the other? >> i think what the bill calls for and what the administration supports is reducing the crack cocaine threshold to make it even with powder cocaine. i don't think we're requesting an increase. i don't think that's related to cocaine use or overdose deaths. >> mr. chairman, my time is
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expired. can i ask one follow-up question. governor hutchinson, do we raise one, lower the other, meet in the middle? >> that's a great question. my answer to that is, again, i think we're betting off addressing the concerns of these substances in terms of increased penalties based upon whether there's other violence or the victims and the prior record. those are things the sentencing judge can consider. i think that's preferable. with where we are right now, i believe that the act as addressed and drafted is a good remedy for it. >> thank you. >> senator? >> thank you for your years of leadership on this important issue. i just want to thank our
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witnesses for being here today as well and i commend the leadership for those on this committee working hard to advance the equal act and the biden administration that is calling on all of us to apply evidence-based policy in a way that actually addresses racial inequalities and criminal justice. to acting director labelle, i've long worked closely with the ondcp. i look forward to working with you more closely. it's a vital office. i'm glad it survived the attempts to restructure it. whoever's the next director, i hope will commit to coming to delaware to visit us as well. i'm interested in hearing why the crack cocaine disparity does more harm than good in our
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communities and what the administration will be doing to address drug crime with a whole of government approach. >> thank you, senator. thanks for your long time involvement with ondcp and support for the office. i think what really we're looking at today is to restore trust and faith in our criminal justice system. and also for drug policy, one of our policy priorities is to advance equity. that's a huge, huge undertaking. but this is one step we can take today after a number of years. our policy priorities as we sent to the hill, there are seven of them. one of them is racial equity. it also includes supply reduction, so reducing the supply of drugs that are consumed in this country. and that's not only domestic law enforcement. that, as i said, includes going to source countries. i would think half of my time is
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spent on international issues. so it's that whole of government approach that we need to address the issue. >> i look forward to working more closely with you on both the transnational issues and the domestic issues. governor, if i could, i am so grateful for your voice and your leadership on this. this isn't a partisan issue and as the acting director said, it's long overdue. my predecessor in this seat, then senator biden back in 2007 introduced legislation to eliminate this disparity. can you speak to how these disparities have damaged communities and why you support rectifying it and, in particular, why the retroactive provisions of the equal act are importance to make a difference to families and communities already harmed by this longstanding sentencing disparity? >> senator, it's fundamental to everything that we believe about our legal system, is that everyone is treated equally under the law.
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and whenever that fundamental point is undermined, then you have juries that believe in jury nullification. the community does not want to hold people accountable because they see the entire system unfair. you see a lack of cooperation and respect among the police. then you have communities impacted because of long periods of incarceration that is not included applicable to other communities. so all of those reasons, i think it is one of the most important things we can do to build confidence in our criminal justice system and with law enforcement, is to equalize that treatment between powder and crack. >> thank you, governor. thank you, acting director. i look forward to the swift passage of the equal act. it belongs on the president's desk and it belongs in law. we have a lot more to do past
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that, but this would be a great next step. thank you, mr. chairman. >> senator coons, i understand she is remote and virtual but senator klobuchar is seeking recognition, is that true? >> that is correct, mr. chair. >> take it away, senator. >> thank you, senator durbin for your long time leadership on the drug disparity. ms. labelle, as you described in your testimony that the sentencing disparity has had a disproportionate impact on communities of color, the impact continues today. do you agree that eliminating this disparity is a key component as we look at issues of race disparity in the criminal justice system? >> absolutely. >> what more should the federal government do to help address the long term impact that the sentencing disparity had in communities of color? >> i mean, i think i outlined
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some of that in my remarks that we need to make sure, first of all, to restore trust in our criminal justice system, in our drug policies. we also need to make sure that we have equity when we're looking to get to prevent substance use from ever occurring and to treat people, make sure we're getting access to treatment for people in need regardless of their color. that's another piece in our policy priorities that we're working on. >> exactly. for me, it's been a lot about my old days in my other job as a county attorney. it's about expanding drug courts and making sure they're available to everyone. governor hutchinson, many states have taken action to end the disparity in sentencing. in arkansas and minnesota, the criminal code provides the same sentencing guidelines for crack and powder cocaine. what impacts have you observed
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in states that have moved to equal sentencing from crack and powder cocaine? what lessons have you learned from your states that have led you to be testifying today? >> thank you, senator. i can't speak for every state, but you start with equal treatment. that's what a 1-1 ratio gives us. in terms of the impact on communities, you can see that many times these cases are brought into federal court. and while we have it 1-1 at the state level, as everyone knows through the task forces and through federal prosecutions, that these cases will wind up in federal court. while our ratio is good, that difference with the federal system really for the person out there who's a defendant, they just see it as one system.
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so we have to really bring that sense of fairness together at the state and federal level. >> are you a believer in drug courts? i just discussed them with ms. labelle. >> thanks for raising that. i'm a big supporter of it. i supported that while i was head of the dea even. we're a very active drug court treatment system. i've seen them in operation across the country. they're one of the most effective tools we have that brings accountability but also treatment that goes along with it. >> thank you. ms. labelle, justice sotomayor said an expensive record of race-based smiths about crack cocaine. i'd like to run through with you a few of these to make clear why we should take action to
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continue to eliminate the sentencing disparity. first, is it true that the science does not support treating these two drugs differently? yes or no? >> yes. >> that the science does not support -- >> the science does not support treating these differently. >> okay. is it true that both powder and crack cocaine are addictive and pose serious health risks? >> yes. >> and there is not data to support the claim that crack cocaine causes violent behavior? >> no, there's no research to support that. >> could we go back to the first one or the second one about the addiction and the serious health risks in powder versus crack cocaine, just what the science really shows on that? >> so it's based on how you use it as opposed to the drug itself. so most people use crack
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cocaine. it's vaporized and it goes into the bloodstream much faster and it affects your brain in a faster way. however, powder cocaine can be injected and it has similar properties to and affects the brain in the same way as vaporized crack cocaine. >> then back to the other one on violent behavior. i know there are some incidences involving cocaine of violent behavior, but what you're saying is there's not actually data on this? >> the research shows that it's not an individualized issue, that it's really about drug trafficking itself. >> what do you mean by that? >> it's the trafficking that leads to the violent behavior. as governor hutchinson said, there are ways in which our sentencing provides for more violent crimes to increase
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sentencing based on the act itself as opposed to the drug. >> okay. thank you very much. i appreciate your work. >> senator blumenthal. >> thank sthanks, mr. chairman. thank you and senator booker and others on our committee for their work on this issue. i strongly support this legislation. governor hutchinson, you talked in your testimony and i'm going to quote it, about incarceration generally. as a nation, we should not rely on incarceration as the first best and only response to drug offenses. you go onto talk about the cost of incarceration generally.
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the american public understands that we are not reaping the societal benefits that we previously hoped might come with an incarceration first model. looking to the nation state and federal leaders to find evidence based solutions that work. i served as united states attorney in connecticut as well as the state attorney general. i think both of us having sought harsh sentences and i did my share of requests for throwing the book at this defendant. i've come to see that incarceration generally has very, very mixed results, often exactly the opposite of what we hoped as prosecutors to achieve. i wonder if you could talk about
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that issue and as well the way that sentencing involves very unjust and unfair disparity not just in drug offenses but from the first sentencing i observed as a law clerk to a district judge. often personal factors that differ from one judge to another and lead to judges being known as harsh sentencers or lenient sentencers, it just seems like the whole criminal justice system is bedevilled by despair -- disparities in sentencing that in one way or another characterize or criminal justice system. >> thank you, senator. the disparities in sentencing across the board are always a
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challenge. the federal level addressed it through the sentencing guidelines, which i'm supportive of as long as there's some escape clauses for the judge whenever there's unusual factors in it. at the state level we are not as reliant upon sentencing guidelines. we have those, but there's much more discretion among the prosecutors, as you know, and the sentencing. you wind up having differences between jurisdictions, and then you have big differences between those that plead versus those that go to jury trial. those are disparities that i struggle with as governor. now, in terms of incarceration, you've got to distinguish -- i mean, i believe in incarceration of those violence that are a risk to public safety, as i'm sure you do. but we have to distinguish those that have both a criminal problem and an addiction problem. that's what we're trying to identify through drug treatment courts, the nonviolent offenders that have addiction issues and
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they might be selling to support their habit. if we could identify those, then incarceration is not the first answer. there is other options we should look at. >> i completely agree that incarceration serves a valid important function when there is a threat to the public when that threat can be addressed through confinement, but i agree with you also that dealing with substance abuse disorder is certainly a key to making incarceration productive. let me ask you if i may, ms. labelle, i gather your view is that colombia is now again the source of the major influx of cocaine into this country. it was for a while and then it
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abated and now it is again, is that correct? >> it's about 90% of u.s. cocaine is sourced from colombia. >> can the same tactics be used as before to reduce that flow? >> so we're working on a plan to address the issue both from land titling redevelopment. so all of those things are being worked on right now. there will be elements of the previous approach. we have a great relationship with colombia and we can build on those relationships to have an effective approach to reducing cultivation in colombia. >> thank you very much. thanks, mr. chairman. >> senator booker. >> thank you very much, mr. chairman. governor, it's such an honor that you would take time to be here. i'm just so grateful for your loud voice on rational sentencing. you come at it with a tremendous
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amount of gravitas because of your service not just as a governor, but really someone who was responsible as a head of the drug enforcement administration. so i just want to ask you to go into details. you said in support of the equal act that our efforts are failing in getting the real high level drug traffickers. if it's failing in that, who is getting churned into the system? if we're not getting through the sentencing the major traffickers, who are we getting? >> it's hard to get major traffickers. that's where i agree totally with our interdiction efforts that the director referenced. we have to disrupt that supply chain, but it's hard to get the level of cooperation you need to go up the chain. in terms of -- but we have to stay after that, first of all. secondly, in terms of who we are
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prosecuting, we've seen instances at the federal level where someone is peripherally involved in a drug trafficking organization but they get hammered under the conspiracy for the major elements of it. and so congress has addressed some of that. i applaud them for it. so we have to continually work to separate those that have true addiction problems versus that are in it for the economy, the money, the profits and are engaged in the violent activities of it. i think law enforcement does a terrific job in terms of putting their priorities on the right places and society has changed. i think we've learned that if you've got somebody who's genuinely selling, incarceration is necessary whether it's methamphetamine or cocaine. but if you've got somebody who has an addiction problem and
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that's why they've engaged in the minor selling of it, then let's look at alternatives. >> two more points. so that's my concern. this has been the best area of bipartisan work i've had as a senator. the thoughtfulness of people on both sides of the aisle are really good. my friend senator lee asked a really good question. for a lot of these offenders, it's that first level that gets you 5 years or the second level that gets you 10 years. why is the equal act the right way to go of lowering the crack disparity to the cocaine level? why not raise the cocaine level that triggers those higher sentences to the crack level? why is the equal act the one you're endorsing of those two strategies when it comes to public safety and helping people that might be engaged in the use of small amounts? >> that's a great question.
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to me the most important thing is to equalize it so it is fair. where we are right now, it would be hard to justify increasing the penalties or adjust the amounts upwards in terms of the powder cocaine. so it's just i think you get broader support. i think you accomplish the objective. when i look at the concerns about a career criminal, about violence, all of those things, they could be factored in separately in the sentencing guidelines. >> if i may interrupt, you have seen now what's happened when we act in a bipartisan way to lower sentencing. you've seen when we've given judges more discretion. is that trend a good thing or are you concerned about public safety? >> from the data, there has not
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been an adverse consequence from those changes. >> one of my biggest concerns is the faith with which people have in law enforcement, the faith that we as a society have in our justice system, really our justice system sits on that foundation. a judge once said the constitution is only worth as much as the paper it's written on unless it's in the hearts of the people. i would imagine in your experience right now you know there's minority communities who have a lot of cynicism about our criminal justice system that has been bred from bad experiences with feeling like they've witnessed this disparity. in your experience, what would be the effect of leveling this finally be in the confidence people have in the justice system in general? >> it would be a significant step forward in rebuilding confidence in our criminal
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justice system. i don't necessarily think it ends there. i think we have to continually look at our policies, our incarceration and to make sure that we have the resources to stop violence in our minority communities as well as making sure that we have community support and that we have drug treatment courts and those treatment facilities that are available as well. >> thank you very much. i'm sorry, ms. labelle, i didn't have any questions for you. you are still amongst my two favorite labelles in america. >> thank you, senator booker. now, i'm going to thank the two witnesses for joining us today. their testimony was terrific. appreciate the sacrifice they made to be here. thank you very much, governor. thank you, ms. labelle. i'd like to say a few things for the record here. first, the department of justice
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fully supported the equal act. a department witness would have been here in purpose to explain that support but for the fact he had a previously scheduled family vacation this week but he sent a statement in support of the equal act which i have asked unanimous consent to enter into the record. the u.s. sentencing reports that crack cocaine offenses have declined significantly since the sentencing guidelines were first reduced more than ten years ago from nearly 6,000 cases in 2009 to just over 1200 cases in fiscal year 2020. also the dea's 2020 national drug assessment reports that in 2019 the number of cocaine reports to the dea was the lowest number reported in the
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past six years. those report less than half the number reported in their peak in 2006. so a change in sentencing has not resulted in more cocaine being reported or offenses being reported as well. i'd like to ask consent that statements in support of the equal act by will be entered into the record without objection. senator booker has graciously agreed to come forward for the second panel. we'd ask them to please come to the table to be sworn in. i hereby authorize senator booker as chairman to swear in the next panel of witnesses.
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>>i'd like to submit for the record these letters that highlight a fraction of the issues and opinions and i hope they create a more complete and robust picture of how to approach the issue. these letters are from the individual prosecutors, executive director, the heritage foundation, the national narcotics officers coalition and the national association of police officers. >> thank you very much. i want to thank everybody for their patience. it's so great to see this panel here. i want to introduce the majority witnesses of our second panel and then i'll return to the
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ranking number grassley to introduce the minority witnesses. first matthew charles is joining us today. thanks to the first step act under the 100-1 disparity, mr. charles, my friend, was sentences to 35 years in prison. he was a model inmate. that is not a reflection of his looks but his behavior. a federal judge ruled in 2016 that he should be released under the retroactive sentencing guideline reductions that resulted from the fair sentencing act. after rebuilding his life for almost two years, an appellate court ruled that mr. charles had been released in error. after the first step act passed mr. charles was eligible for resentencing and thank god he was released again. he has been extraordinary in his activism, leadership and service in the community, a further tribute to the model citizen he is as he was a model inmate.
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we're also joined by mr. russell coleman, the u.s. attorney for the western district of kentucky during the trump administration. he has also previously served as staffer for the minority leader mr. mcconnell. i want to thank mr. russell publicly for his service to our country, his years of commitment to making this nation better. now ranking member grassley, would you introduce the other two witnesses? >> i'm not prepared to do that now. somebody screwed up here. >> that's okay, sir. i'll take the blame. do not put it on your staffers. i'm sure it was me. while we're waiting perhaps for that, i want to make sure everybody does know this is indeed flour. i tested it. i was a little concerned. it is not gluten free flour, though, so it's a dangerous substance.
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>> obviously i'm not going to read a whole dissertation here. forget it. just let them introduce themselves. >> gentlemen, you're going to introduce yourselves when you speak. would the witnesses please stand to be sworn in. would you please raise your right hand. do you affirm the testimony you're about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you god? >> i do. >> thank you all. mr. charles, would you please proceed with your opening statement? >> we're going to get your microphone on one way or the other. >> thank you, chairman durbin, ranking member grassley, senator booker and members of the
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committee. good morning. my name is matthew charles. it's an honor to have this opportunity to speak with you today, just as it was an honor for me to be at the state of the union address two years ago and receive a standing ovation from members of the house and senate. some of you know my story. as a young man i was on the wrong path. i grew up in a public housing unit in north carolina with a father who was both physically and verbally abusive. i was angry and lost and i began to mimic that behavior i experienced at home. i share this not as an excuse but to help you understand why i made the bad choices that resulted in my incarceration. at 18, i tried to escape home life and join the army, but i was still angry and mad at the world. for the next decade, i was in a dark place. i sold drugs and spent about 5 years in state prison but i had not yet hit rock bottom.
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in 1995 i was arrested for selling 216 grams of crack cocaine to an informant and illegally processing a firearm. because of my prior criminal activity and because i sold crack instead of powder, i was given a 35-year sentence. if crack and powder were treated the same back then, my sentence could have been only 15 years, not 35. but the 100-1 disparity was in place at that time and i honestly didn't seem like someone who deserved a break. while in the county jail, i mt a guy named jesus. when he was sentenced, he left me his possessions. among those things was a bible. i read the bible for the first time in my life and the hard shell i constructed to protect myself began to crack. i gave up the anger and pain that had controlled me. i surrendered my life to the lord jesus christ.
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that decision changed my attitude toward people. i went to federal prison and continued to live out the new life that i had accepted. doing so allowed me to live a positive lifestyle and afforded me the opportunity to work as a ged tutor, a law clerk and to mentor some younger people. over the next 21 years i didn't receive a single disciplinary infraction. when congress passed the fair sentencing act in divine, i believed i was eligible for a sentencing reduction. we knew that the basis for treating us differently had evaporated. what was clearest of all to us, the fact that we saw every day inside a prison was that the stiffer penalties for crack were applied disproportionately to black people, who have suffered grave injustices and irreparable
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harm. we know the harm these excessive sentences caused to our children, our families and our communities. we had hoped congress would eliminate the unjustified disparity in 2010, but we saw political compromise reduce it to 18-1. the first sentencing act did not apply retroactively but the u.s. sentencing commission made those changes retroactive. in 2013 i applied for a sentence modification. at my sentencing hearing, the judge commended my rehabilitation and reduced my sentence. i left prison in 2016. at that time i moved to nashville, got a job as a driver, reconnected with family, volunteer weekly at a food pantry, called the little pantry that could and became deeply involved in my church. i was doing everything i could to make my second chance a success. but after a year and a half of freedom, the obama administration's department of
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justice okayed a prosecutor to appeal my release. i was sent back to prison for 7 months. thanks to senators grassley and durbin i was spared another decade behind bars. i left prison for good on january 3rd, 2019, just two weeks after president trump signed the bill into law. i spent the last 2 1/2 years add advocating for those left behind. i know there are a lot of people like me who committed to making changes and find a new path and who do not need to spend decades in prison to learn their lesson. i deserved to go to federal prison for my crimes but i didn't need a sentence of 35 years especially when 20 of those years are due to the fact i sold one type of cocaine rather than another. the fair sentencing act might have been the best political
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compromise congress could have reached 11 years ago. the u.s. sentencing commission recently found that black people made up 77% of all federal crack convictions in 2020. in other words, we used to see a tremendous amount of racial discrimination. now we see a little less. but even a little less discrimination is too much. the difference in crack and powder drug rates was just in 1986, it wasn't just in 2010 and it isn't just now. it's time to finish the job and i urge you to pass the equal act. thank you for allowing me to testify. >> i have been somewhat deputized by the ranking member. mr. garcia you're going to speak
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next. i just want to say, sir, that you serve as the executive director of the south texas high intensity drug trafficking agency since 2008. that is extraordinary because it includes part of the southern border that is one of the highest drug trafficking areas in the united states. you have showed extraordinary commitment to your work in protecting your community and making us a stronger and safer nation. from 2007 to 2008 you were the director of the new mexico hyda. you have tremendous experience when it comes to issues of drug trafficking. you've worked your whole life in public safety, 31 years serving as the narcotics deputy commander, sergeant, agent and a trooper. sir, it's an honor to have you. would you please give us your
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testimony? >> thank you so much for the opportunity to have a chance to come before you. senator grassley has been an instrument of support for law enforcement in general, in particular when it comes to the use of the national guard training program. so thank you so much for your work and effort. senator booker, when we worked together on the committees along with governor hutchinson, it was something that he came up with because of your support, something that is now modeled as a national model in drug monitoring initiatives. thank you, sir, for your efforts. so many of you have helped the law enforcement community out, senator feinstein, senator cornyn, senator cruz. all of you understand the
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importance behind the law enforcement community. i think it's as critical today for us to recognize that. i've been in law enforcement, like you said, senator, for 45 years. 42 of those years i spent in narcotics enforcement. i have personally witnessed the devastation that drugs cause our community. the international criminal organizations, the drug cartels, the drug trafficking criminal organizations, the drug smugglers and the local drug dealers are what i consider to be the predators that feed upon the innocence and gullibility of the most vulnerable citizens of our country. many of those citizens live in lower socioeconomic areas. these predators don't discriminate. they care not what color their victims are, as long as their profits continue to roll in. no judicial system is perfect, and we applaud you in the law enforcement community for working to make it better.
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we believe that sentencing guidelines are the consequences used to hold traffickers accountable for their actions. these guidelines are established to act as deterrents to the would-be criminals and if these are removed, we sends the wrong or, at best, a very mixed message. in the two-year timeframe as an example from 2019 to 2020, the agencies that currently report drug seizures to the system at the el paso intelligence center reported over 125,000 kilograms of cocaine. for that same time frame, the hida groups along the united states/mexico borders in the county, not the entire state, the four states along the border we reported 68,376 kilograms combined of cocaine.
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when you combine those at the current market value price per kilo, that means that we were able to take away from those drug cartels 5, 708, $965. that's a lot of money which is why they are in the business. it's for the profit. according to the drug enforcement administration forensic laboratory, cocaine purity levels continue to be at high levels at an average of 83%. cutting agents are used to increase the weight and profit for the cartels. in 2016, 60% of those 1500 drug submissions reported the use of fentanyl mixed in with cocaine. street level dealers, like their cartels, fight for control over sales, territories, which is one of the things that makes them violent and the innocents
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suffer. the replacement of a street level dealer happens almost instantly if they are arrested. any change in our laws that minimizes the consequences of actions by these monsters gives the impression that our society is willing to tolerate the abuse of our public by individuals that care not who they hurt, as long as there is a monetary gain for them. narcotics officers will fight to lower the availability of illicit drug and a modification in our judicial system has to be made, but not at the expense of those that are already suffering from the drug use disorders. thank you, gentlemen, all of you, for your endeavors to make these corrections and for doing your part to protect our citizens. thank you for the opportunity to testify. i look forward and welcome your questions. >> mr. garcia, we are grateful that you are here. i have the privilege of assuming a role of deputy to chuck grassley again in just giving a
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brief introduction to steven wasserman. you come with dedication to country. you have been an assistant district attorney in columbia since 2003 and appearing as a member of the board of directors for the national association of assistant u.s. attorneys. you obviously have distinguished yourself within that organization because you were vice president of policy for its executive committee from 2018 to 2020. your legal experience is significant and previously you were a trial attorney focused on organized crime at the united states department of justice from 1996 to 2003. if you will allow me, sir, you and i have something in common. we are both stand in the shadow of siblings that are better than us. your sister is debbie wasserman-schultz, someone who people on both sides of the aisle is a lot of affection for.
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would you please give us your testimony. >> thank you, chairman durman, ranking member grassley, senator booker and members of the committee for the opportunity to appear before you. it's an honor to testify as vice president for policy for the national association of assistant u.s. attorneys. i'm here today seoully in my individual capacity and not on behalf of the department of justice or my u.s. attorney's office. represents our nation's mr than 6,000 federal prosecutors and civil attorneys across 94 judicial districts. we stand firm to protect the innocent and prosecute the guilty. we are guided by the constitution and will always enforce the laws of congress equally and fairly. to that end, we're not here today to oppose or support any lemgs, but rather, provide practical insights into our experience in the field and on the frontlines of our nation's justice system. while the underlying rationale
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behind the equal act is that powder cocaine and crack cocaine should be treated the same for purposes of sentencing, make no mistake, powder cocaine and crack cocaine are not equal. there are several reasons that support this reality that i would like to highlight in my testimony. first, crack is more addictive than powder and thus more destructive. second, crack offenders have more troubling characteristics and finally third, the continued rise in drug dependency in this country counsel caution in moving forward with reforms. first the manufacturing process for crack cocaine makes the substance more concentrated. the method ingestion, smoking, makes the effects shorter lived. although chemically crack and powder cocaine are similar, the intense, short-term high produced by crack results in increased binge use, chronic use, and greater risk of overdose compared to powder cocaine.
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the more addictive nature of crack enhances the risk of death and community harm. federal law enforcement efforts are focused on drug trafficking rather than possession. in these cases, there is significant differences in the criminal histories, recidivism rates and involvement with weapons and violence between those who traffic in powder cocaine and those who traffic in crack. according to a 2017 report from the u.s. sentencing commission, federally prosecuted crack offenders typically had a more serious criminal history than federally prosecuted drug trafficking offenders as a whole. including those who sold powder cocaine. federal sentencing guidelines outline six criminal history categories. powder cocaine traffickers are 20% more likely to be in the lowest criminal history category than our crack traffickers. further, 5.8% of crack offenders fell within the highest criminal history category and another 5.1% were designated as career owe fenders.
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conversely only 1.8% of powder cocaine traffickers fell within the category and 3% were designated as career offenders. crack offenders have the highest recidivism rate of all drug offenders at 60.8%, nearly 20% higher than the rate for powder cocaine traffickers. for crack traffickers, assault was the most prevalent and serious recidivist offense with a rate of $27.%. drug trafficking represented the second most for crack offenders at over 17%. rather than allowing more individuals to re-enter communities earlier, we encourage congress to ensure effective methods are in place to prevent recidivism prior to release. while the worst violence with the crack cocaine epidemic of the '80s and '90s have subsided over the last 25 years, federal crack offenders continue to possess weapons at a higher rate
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than powder cocaine traffickers. for example, the u.s. sentencing commission reported in fiscal year 2020, 39.3% of crack offenders had their sentences enhanced for possessing a weapon, 20% more often than powder cocaine traffickers. the data demonstrates that this data further demonstrates the marked differences between federal crack cocaine offenders and powder cocaine offenders. as this committee is likely aware, drug use and overdose dretsz an epidemic deeply damaging our nation. cocaine remains one of the most common causes of overdose deaths and is now often mixed with other dangerous drugs. according to the u.s. national institute on trug abuse between 2012 and 2016, there was a 23-fold increase in the number of deaths involving cocaine in combination with synthetic opioids like fentanyl. reducing sentences for the most common re-offenders in the most violent drug traffickers when drugs are used so lethal and
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prevalent is concerning. should congress determine that action is warranted to equalize the penalties between powder cocaine and crack, we would encourage members to consider loeg the quantity thresholds for powder cocaine to matches the existing thresholds for crack. as the committee moves forward, we urge you to consider the impact of these decisions on communities as a whole and the potential victims of drug trafficking and recidivism. we thank the committee, chairman durman, ranking member grassley, senator booker, for providing us the opportunity to speak regarding this issue and i look forward to your questions. thank you. >> thank you very much. i would like to turn to the ranking member to start with questions if possible. >> i appreciate that privilege very much. thank you, senator booker. to -- >> mr. ranking member, obviously i am rusty as anything about serving this role. i skipped over a witness who shot me a glance that is illegal in the state of new jersey, but
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we're in d.c., can i allow him to speak? >> yes. >> thank you very much, mr. ranking member. mr. coleman, forgive me. would you give your five minutes of testimony which will be followed immediately by ranking member grassley's question. >> thank you, mr. chairman. i'm quite certain the ranking member questions were more value add than what i might bring to the committee today. it is an extraordinary privilege to sit at this table in this room before the committee. it's also an extraordinary privilege to sit with this particular witness panel with mr. charles, his story of redumbion, with mr. garcia, who represents hida, one of those acronyms that matter in terms of saving lives and empowering federal, state and local aggressive drug task force efforts and i applaud him for his 30 years of public service. it's also a privilege to sit with someone who represents our nation's assistant united states attorneys. as your former colleague then attorney general sessions would say, ausas are the coin of the
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realm, the coin of the realm in implementing what this committee and congress passes and they do an amazing job serving our country, so it's a real privilege, gentlemen. this room, this beautiful wood panelled room is very far from louisville, kentucky, and i take you to louisville, kentucky, in 2020. i take you to louisville, kentucky, last year, a city where the relationship between law enforcement, the relationship between public safety, the rule of law, disappeared. i take you to a place where there was not a window in downtown louisville that one could look through without seeing a piece of wood. i take you to a place where faith in law enforcement by communities that were also wracked by the highest homicide rate in the history of louisville, a community where overdose rates were 5% for many of the dangerous substances that we're talking about here. i take you to a community that was broken.
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as justice jackson, united states attorney general in 1940 said to a group of u.s. attorneys in his favorite speech, he said, humility is the number one characteristic that you need as a u.s. attorney and i found in the summer of 2020 in louisville, that's going to be the case whether you want it or not. because i take you back to, and i'm so grateful for this committee and hopefully there's no buyers remorse, i'm so grateleful for this committee in moving forward my nomination to serve in 2017 after i took that oath i was under the direction to charge the most serious readily provable offense and we did that in the western district of kentucky. we used every tool in our toolkit. we increased federal firearms prosecutions 67% over a two-year period. why did we do that? we were looking at a homicide rate that increased 110%. that was the tool that we thought in our toolkit and at the end of 2019 after we increased our gun prosecutions,
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we still had almost 100 homicides. humility, mr. chairman, became the name of the game as the united states attorney because we increased our engagement with our state and local partners. i have a one paiger here we call it covered by the tools we're not talking about. weight-based mandatory minimums, 924-c, 924-e, the recidivist 851, recidivist enhancement, these are powerful tools that aren't on the table today. these remain and i wouldn't be at this chair, mr. chairman, if we were removing these powerful tools. but what we're talking about is building trust and more effectively using resources. the wheels came off in terms of trust in louisville, kentucky, in 2020 between law enforcement and the communities that we should serve. i'm not a pollyanna to say that equalizing the disparity in this particular bill, that that would eliminate significant challenges between law enforcement and the communities with we police.
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i'm not a pollyanna in that regard. but this is a significant, this disparity is a significant limiting factor in the relationship between communities of color, those that are primarily impacted by violent crime and overdose death in louisville, kentucky, and law enforcement. it is a limiting factor. you didn't mention in my -- i'm grateful for the introduction, i served as an fbi special agent for a number of years. information is the name of the game in allowing us to have clearance rates to more significant impacting and protecting people. the information flow is broken. the jury nullification issue is a significant issue when communities of color, those most significantly impacted, are not engaging with law enforcement. it does not alou us to do our jobs as effectively as we could. we have to look at different tools. we have to look at trust building. this is -- this modest proposal is a way of not touching the significant mand attorney general minimums, frankly that we need, that i would arguee
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need in the federal system, but allows us to build bridges to a community that needs better relationship with law enforcement. i close other than saying how honored i am to be joined by the national district attorneys association who carry the bulk of prosecutions in this country by the chiefs who attempt to police urban areas that have seen thisrenching of relationship torn apart between those we're seeking to protect and law enforcement. i close by an eloquent comment from the gentleman who sat here a moment ago and said the efficacy of law enforcement is dependent upon the community's confidence and trust in the justice system. it must be fair equitable. for us to do our jobs as law enforcement we have to try new approaches and concede with humility where we failed. this is an effective tool that leaves our most significant weapons in place, it leaves them alone, but allows us to tackle those that should be brought into the federal system and leave the street level dealers to our national district
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attorney association colleagues to move forward on. >> thank you very much for that testimony. i will turn to chairman dur bin first followed by ranking member grassley. >> thank you, mr. chairman. mr. wasserman, i'm going to keep on trying to come up with a bill that the organization you belong to supports, but it's been difficult. nasa opposed the bipartisan first step act which ranking member grassley and i helped to write, and if you had prevailed in that situation, mr. charles would still be in prison. i'm glad he's not. your organization opposes equal act, too, which puts you out of
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step with many major prosecutor and law enforcement organizations, national district attorneys association, major city chiefs, law enforcement leaders, association of prosecuting attorneys and law enforcement action partnership. i'm trying to reconcile some of your testimony and it's difficult. i'm not an expert, i'm not a scientist. i'm a political scientist, whatever that is, and went to law school. doesn't qualify my as a scientist. but when i read your testimony distinguishing crack and powder cocaine and you refer to the intense short-term high produced by crack results in binge use and the rest, i'm quoting, it would seem to me that you're saying that when you smoke it, cocaine, as opposed to ingesting it, it creates this sensation in your body. i don't doubt that. that's quite possible.
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but i would like to ask you, couldn't we say the same for marijuana? would a marijuana brownie have, i don't know, no personal experience, would a marijuana brownie have less impact than smoking marijuana, for example? >> i'm having trouble with my microphone. thank you, chairman, for the question. let me correct one thing, it's important to note that my association is not opposing or supporting the bill. i think you mentioned we are opposing it. we have expressed concerns about it. with respect to your question about marijuana and its impact, depending on how it is ingested, i think there can be differences, i'm not a scientist, so i can't tell you the differences in at least it
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relates to marijuana, how ingesting it may impact the use. what i can say, though, is with respect to crack cocaine, as a law enforcement -- member of the law enforcement community, i can speak to the increased rates of addiction, death an recidivism that we consistently see with crack compared to powder cocaine. drugs in our society and in our sentencing scheme are differentiated based upon their perceived harm. marijuana is penalized significantly less than other drugs like cocaine, crack, heroin and meth because of the perceived harm. >> but we do not make a distinction, do we, under the law, marijuana and cigarette form as opposed to marijuana in some other form? is probably is a mistake to use
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marijuana because the whole body of law relating to marijuana is changing dramatically in my state and others. but the point i'm getting to is, marijuana is usually prosecuted by weight, is it not, as opposed to the manner of ingestion? >> it's prosecuted by weight, as is -- as are the other drugs. i would note that crack cocaine is specifically manufactured to be smoked for the effects that it has on the user and because it's cheaper. >> i would just say that i have been convinced, or i wouldn't have embarked on this journey, that the science is not on your side on this and i would also add that the points that you made use a word i've not seen before, crim know genic, yes, it is, crimogenic when dealing with federal crack offenders with extensive criminal histories or use of firearms, there is no argument in the equal act that that should be ignored or
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forgotten. in fact, it is certainly likely to come up in the sentencing proceeding as it should, criminal histories, use of firearms, all of those things should be considered, but we have addressed ourselves primarily to nonviolent drug offenses. senator grassley and i agree that would be the standard, the threshold we would use. i just like to close, i only have a few seconds, thank you to the whole panel. i'm sorry we couldn't get into more detail. but the reason for this effort is mr. charles, a man facing 35 years in prison. that is a rare sentence in its severity, thank goodness, but to imagine that he was facing that based on the mistakes that he made in life which he readily acknowledges, it is always our first human instinct to believe that raising the penalties on crimes will lead to deterrence. we have clear evidence that did not work when it came to the 100
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to one disparity in sentencing. we ended up with more addicting and a cheaper product on the street, the opposite of what we were counting on. we have to think anew on this and i think we are learning that drug addiction is, in fact, a disease that needs to be treated as such and i think we're learning also with drug courts which many people applaud including the previous panel, that when you sit down with someone who is accused of a drug crime who is adiktsd and deal with them in a more humane and personal way, absent crim no genic elements and guns and such, that you get a much better result and make the communities that they're living in much safer. i thank this panel very much. >> thank you, chairman. i would like to go to ranking member, grassley. >> thank you, senator booker. first to mr. charles not a question but great to see you today and it's wonderful to have
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somebody like you with the experience you've had to testify about the inequities of our judicial system. i'm grateful for your continued support of the first step act and for your voice being part of the conversation today. my first question is going to be mr. wasserman and mr. coleman. leading into that question, the vast majority of federal inmates will one day leave prison and re-enter society. former inmates should be productive citizens upon release and shouldn't return to a life of crime. the first step act encourages successful re-entry through prison re-entry programs. that's why i'm concerned by the sentencing commission's data in which the fiscal year 20 report showing those offenders who distribute crack cocaine have higher rates of recidivism than
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any other drug dealer. do you two as prosecutors with firsthand knowledge of how the investigations and prosecutions go, is recidivism an important factor that congress should weigh in evaluating any change in the sentencing laws for cocaine? why or why not? >> thank you, ranking member grassley. absolutely recidivism is an important factor in how the senate should move forward. as i mentioned, crack offenders residvate at the highest level of all federal drug offenders, crack traffickers i should say, and what we're talking about really is that these people are going back into their communities and revictimizing the members of their community. it is i think an oversimplification to focus
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solely on disparate impact based on race. you have to consider the fact that the disproportionate negative impact of addiction and violence that flows from crack cocaine on primarily the african-american community and also needs to be considered and recidivism only magnifies that problem for communities of color. >> i'll go back to your comment senator grassley we must prioritize public safety at all times. everything must be viewed through the lens of prioritizing public safety. we have a tremendous amount of data released under the first step act, very low recidivism rates to begin with. we retain tools when recidivism does occur, we remain enhancements and retain the ability to return those individuals into custody if need be. the reality, it's an important point we haven't talked about much here, is the infrequency of
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seeing crack cocaine now. i won't presume to say, but in the western district of kentucky in the three and a half years i served as united states attorney it was exceedingly rare to see crack cocaine. it remains a threat. i would not say we must treat it as a dangerous substance. we have the mandatory minimums if this bill were to go forward to do that, but we're not seeing it at any degree of quantity. the threat is elsewhere now, sir. >> and to director garcia, you mentioned in your testimony that the stream of cocaine coming to the u.s. from mexico is consistent. you also noted that cocaine being mixed with synthetic opioids like fentanyl is a problem. do you think lowering the ratio of crack to powder would make it
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more appeal for cartels to smuggle cocaine across the border? >> thank you, senator. the lowering of the sentencing guidelines for crack cocaine, i don't know that it would make it easier for the drug cartels to bring it in. the drug cartels are not bringing in crack cocaine. they're bringing in cocaine. it is only, as mr. wasserman said, done cheaper to sell the crack cocaine so, therefore, the street dealer that buys a kilogram of cocaine can break it down to so many smaller pieces he can make more money of it. therefore, we believe that the lowering of the sentencing guideline for crack cocaine in and of itself would not have that type of effect. but as senator lee said earlier, and senator booker followed up on, the concern is do we want to
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lower cocaine sentencing guidelines or do we want to raise cocaine sentencing guidelines so that there's not that disparity between the two? i think that that's something that this body has to take into consideration. >> thank you, senator grassley. senator cornyn. >> thank you, mr. chairman. mr. garcia, i want to direct some questions to you first of all, thank you for being here today and thanks for your service to the people of texas and the united states. i think the southwest texas high intensity drug trafficking program plays a very important role in dealing with the scourge of illegal drugs, but i think what you can offer us is a reality check for what conditions are on the ground. one reason why i hope that vice president is designated individual to help the
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administration deal with the current border crisis, actually travel to the border, is that she can do what i try to do every time i go to the border which is to listen to the experts and understand the circumstances on the ground and what we might be able to do to make them better. but can you explain what effect the current border crisis, the surge of 180,000 people a month, on the border, what impact has that had on your work and the work of your colleagues who are trying to stop the flow of this poison across the border into the united states? >> thank you, senator. as you discussed earlier with the previous panel, our partners at the border patrol are overwhelmed. they are swamped with having to deal with this humanitarian issue. as a result, in the state of texas, the governor has instructed the texas department of public safety to step up and fill that void.
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at the same time, our local sheriffs have taken up that responsibility, to fill some of that void. even with the amount of -- even with the reduction of tourism and travel between the two countries, the levels of cocaine seizures that were done in 2020 remain the same as that prior to the covid situation. so we know that it's still coming in. we understand that our drug trafficking organizations, our international criminal organizations, they're taking advantage of the situation. they're finding that loophole and finding that ability to come in and that's exactly what they're doing. >> as i mentioned to miss labell, in my visits to the border talking to the border patrol, they tell me the very fact they're having to deal with all these unaccompanied children, for example, has taken a lot of border patrol off the front lines. do you believe that's part of
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the business model or plan or strategy on the part of the cartels to floods the border patrol and the border so that it can open up gaps that they can then exploit? >> on a personal level, yes. i believe so. i think that they tried it several years ago when we had the first wave of undocumented children that came in and we -- they saw what they could get away with and so i believe that this is just another way for them to do a distraction so they can move their poison in. >> senator sinema from arizona, nord border state senator and i as well as henry, the congressman from laredo and tony gonzalez who represents the 23rd
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congressional district, a bill to provide additional tools to border patrol and those government officials responsible for dealing with this surge to try to begin to mitigate some of the poll factors. i realize you're probably not an immigration specialist, you're a law enforcement officer and deal with investigating and prosecuting people for crimes, but you mentioned the fact that this is not only having an impact on the border patrol themselvesrs but also on the border communities, including the local sheriffs and police departments and are they seeing an increase in crime and other offenses as a result of the fact that there are not just children coming across but actually sex offenders, people who have committed numerous crimes for which they've been convicted but they mix themselves in with these other mygrants coming for other reasons, are those threats
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to local communities and the united states in your opinion? there has been an increase that we have noticed in the amount of crime that has stepped up, primarily as the crimes of theft, burglaries that have occurred because thing mients are coming in or these individuals are coming in and they are in need of things and they go after it. what is most affecting is the destruction of property to the ranches and to the farms that are happening. the sheriff's departments, again, as i said, are overwhelmed. their jails are also full. they have no place to house them. so all of those things combined take what i would consider a snowball effect upon this country and the law enforcement officers that are sworn to protect it.
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>> thank you, mr. garcia. >> thank you, senator cornyn, to your point that you've raised twice now, i hope we can get some data. i think we both want to see it. the best data i can come up with on drug seizures, ports of entry between ports of entry, is 2020 fiscal year 2020. so it would not reflect the current surge in border activity, so maybe if we can get that information it would be helpful in understanding this. >> i'm sure mr. garcia may be able to enlighten us a little bit but, of course, they're coming in both places, across the ports of entry and you made the important point that ability to scan and detect bulk drugs coming across the ports of entry are -- that's important and it needs to get better and sounds like we're on a pathway there. but the cartels are not stupid. and they realize if they can't get the drugs across the ports of entry they're going to come between the ports of entry and you see reports of people
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dressed in camo or all in black carrying backpacks of drugs across the border through the -- between the ports of entry and as we pointed out, fentanyl doesn't take a lot of fentanyl to kill somebody or to -- you can put a lot of it in a backpack put it that way. thank you. >> thank you very much, senator cornyn. i now turn back over to senator booker. musical chairs. here we are. i'm going to vote on the floor as he did. >> so this is when the trouble starts when all my senior senators leaving the room and leave me alone with the panel. you should be afraid. i'm grateful again. let me get my questions open here. mr. charles, i want to start with you, my friend. i've gotten to know you quite
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well over these years and what i would like to know first and foremost is, what do you think about in general about the mandatory minimums in your own experience that difference between ten years and 35 years, and you've been blunt with me about sort of the people you observed, can you stay for the record, are the longer decades longer often, do they make a difference in terms of the impact on individuals? maybe even just from your own calculations when you were living a life as you admit of crime, were you, were mandatory minimums affecting your thoughts? were they acting as a deterrent of you should you have gotten caught? >> no. the mandatory minimums, i'm dead set against mandatory minimums the reason being i believe that judge should have discretion to be able to sentence a person based on the particulars of that person. in other words, the past criminal history of that person, the role in the offense as well
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as the culpability. i believe the judge has the discretion to sentence a person to a shorter sentence or a longer sentence based on that. but when it comes to the mandatory minimums you are bound by the guidelines to impose this sentence and in my case, when i received 35 years and the mandatory minimum was invoked because the united states sentencing guidelines was mandatory when i was sentenced in 1996 and because of that, i received a 35-year sentence and as i stated earlier in my testimony today, that sentence exceeded by 20 years what a sentence of one to one had been had my offense been powder cocaine. as a matter of fact, the judge that actually released me in 2019, judge trotter, she stated that because i had satisfied my sentence for the other offenses that i was entitled to immediate release. i satisfied those other sentences 10 or 12 years ago.
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it was the crack cocaine that continued to hold me bound. >> so the weapons possession and all that you satisfied those. in many ways you were seeing a longer sentence for yourself than actual violent offenders got for other crimes, that's correct, right? >> that is correct. >> you were a nonviolent drug offender in for a longer period of time than people who showed propensity towards violence and convicted of violence? thank you very much. mr. coleman, you heard me, i had a great conversation with senator lee and we were both talking about what the right rectification of this was, whether to lowers the crack criminal penalties to equal the powder ones or to raise the powder ones to equal the crack cocaine penalties. could you give some thoughts, i asked governor hutchinson about that, i'm curious what you think? >> i'm grateful for the
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opportunity to revisit because my default reaction was, the converse of where we sit today. my tee fault was, as a prosecutor skp, why should we concede? we shouldn't we take the alternate route bringing down those thresholds for powder? as i looked at the bill and based on my experience the last few years as a united states attorney and cumming it with the trend that arc of justice with this committee, is towards removing low-level offenders from the federal system so we can better steward our finite resources. as much as our often state partners think we have unlimited resources in the federal system, we don't. we can always use additional united states attorneys and new agents. if we could take some of those resources that are being utilized to house low-level offenders or a void in this hypothetical, raking in a new
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category that the state system is uniquely equipped to address that would be the preferred route. my default reaction was as you suggested to senator lee raised to go the other route, but if we're attempting, as this committee is and what makes sense on the ground to steward limited resources and remove the lower-level offenders from the federal system that is by leaving in place, i know there's disagreement in terms of mandatory minimums, but leaving those powerful tools in place, this route, your route, this bill, coupled with the ability to build that bridge, start building that bridge, addressing the limiting factor that we have between communities of color and law enforcement, again this won't eliminate that, but this matters to communities in louisville, kentucky. i've heard it time and time again. they may not know the specific 841 provision, but they know that there's a disparity there and in terms of whether i'm trying to recruit a source or
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garner information or affect clearance rates, it's a limiting factor for law enforcement efficacy. >> mr. coleman, i have another question for you but yield to my friend from texas, senator cruz. he's got i'm sure a million things to do. i'm here for the duration. i will let my friend go ahead. >> thank you, mr. chairman. we have a drug crisis in america. we have an opioid crisis in america that is taking far too many lives. unfortunately, this drug crisis is getting worse with the open border policies of joe biden and kamala harris. since 1999, according to the cdc, nearly 850,000 people have died from drug overdoses. one of those 850,000 was my
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sister. this is a crisis that affects everyone in america. the numbers are staggering. in the 12-month period ending in september 2020 over 90,000 people died of an overdose. a nearly 30% increase over the previous year. cocaine overdose deaths are at record highs. between 2013 and 2019, deaths involving cocaine more than tripled. and in 2020 alone, the cdc estimates that 20,000 americans died from a drug overdose involving stimulants including cocaine. drugs not only take the lives of the users, but they lead to violence, criminal dealers, cartels, gangs, ruthlessly
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employ violence. according to the u.s. sentencing commission weapons were involved in 25% of all drug trafficking offenses and strikingly nearly 40% of individuals convicted of trafficking in crack cocaine carried a weapon. and we're seeing the consequence in our communities as violent crime is soaring. indeed, just todays the white house has come out acknowledging the violent crime epidemic that is happening on this administration's watch. new york, for example, had 45% more murders and 97% more shootings last year. chicago, had 274 more murders in 2020 than in 2019.
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fentanyl seizures this year are up 264% over last year. cocaine seizures are up 149% from last year. according to cbp the southwest border is the key entry point for most drugs. and yet, this committee is not debating how do we stop this massive flood of drugs killing americans, killing children, killing vulnerable americans leading to violence and trafficking and leading to gangs and cartels, we're not debating that. mr. garcia, would the bill before this committee in any way address the problem of mexican drug cartels smuggling cocaine and other dangerous drugs across the border? >> not that i can think of,
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senator. >> when i visited the southern border this past march, the laredo field office of the cbp told us fentanyl seizures were up 2,067%. cocaine seizures were up 187% over the previous month. mr. garcia, do you agree that current situation at the border makes it easier for mexican drug cartels to smuggle illegal drugs like cocaine into the country? >> we believe that the current situation at the border and how it is tied up, our partners in the border patrol primarily, has opened the door for those cartels to increase their smuggling of the various type
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drugs. >> and can you please describe for this committee the human consequences, the very real human consequences and harms, that come from dramatically increased illegal drug traffic that is coming across our southern border right now? >> the illegal drug trafficking trade, senator, is the fact that it doesn't affect only those citizens here in this country. it affects the citizens from the source countries to begin with, the countries that they traverse, at the border it affects those people involved in the smuggling of it. forget the environmental impacts it might have but as those drugs reach the united states, and they are distributed across this country, we don't know what's being mixed with them.
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the use of fentanyl and fentanyl analogs in addition to marijuana, cocaine, heroin, mixing with everything they can, because the people that they're selling this poison to, are getting an effect of it. to answer your question, it is devastating and continues to devastate. >> a final question if the biden administration continues its open border policy and we continue to see more and more illegal drug smuggling into this country, should we expect more and more overdoses, more and more violence and more and more murders? >> senator, i speak to you as a law enforcement officer, not as the representative for the hida program other than my fellow law enforcement officers, i come to you because you, as this body, have to do something to correct our judicial system. you have to do something to fix
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this. so i'm providing you my experience and my expertise in law enforcement to tell you whether it is the biden administration or whether it's the prior administration, or any other administration that comes after, if we don't secure our border and if we don't curtail the amount of drugs that are coming into this country, our citizens will continue to suffer. and as a result, we have limited control over the violence, over the deaths, over the other types of crimes that are a result thereof. >> thank you. thank you mr. cruz. i would like to turn to senator blackburn for her questioning. >> thank you, mr. chairman. mr. charles, i just want to say i am so delighted to see you here today. >> thank you. >> i want to thank you for continuing to be a voice and to
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speak up. i think it's necessary and i think you have an important message and you're an important voice in this entire discussion. thank you very much for taking the time to be here today and you probably have found it's about as hot here as in nashville. welcome to this muggy weather. mr. garcia, i want to talk with you for just a moment, if i may. you were just talking about the impact of drugs and what you're seeing te border and, of course, you're right there in texas and in tennessee, i many times will say because of the open border situation that we're facing right now and have for the last several months, every town is
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becoming a border town in every state a border state. and certainly when i speak with law enforcement, they are living this out every day because of the impact of drugs on our city streets and in our communities. as i talk to moms, one of the things that they have mentioned to me is fentanyl. and you were just referencing this. so -- and the distress that they're seeing with fentanyl now being used in pills that are made to look like prescription pills, fentanyl that is laced into marijuana, fentanyl laced into cocaine, and these -- this is deadly. it is absolutely deadly. and so if you would speak to the volume that you are seeing come
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across the border and how that compares to with what we have seen in years earlier? >> thank you, senator blackburn. we are seeing an increase in the amount of fentanyl coming across the border not only in the south texas area, but primarily in arizona and southern california. the fepts nall that is being produced in mexico is being produced namely by the sin no lo cartel -- >> that is el chapo's cartel. >> yes, ma'am. and the cartel novacnj cartel that is also from the western part of the country. so, therefore, in south texas although seeing an increase in fentanyl we're not seeing it to the degree that our counterparts in arizona and in southern florida are. >> the majority of drugs that are on the street in the country come across the arizona border, correct? >> i'm sorry?
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>> the ma jor of street drugs in the country come across the arizona border, correct? >> the majority of street drugs in this country come across the entire southwest border. >> okay. >> from brownsville to san diego. it's -- that's where it's coming across. >> okay. >> our fentanyl has increased. like i said, but for us it is not our number one drug of concern. our number one drug of concern is methamphetamine. but the problem that we face as you stated earlier, senator, the fact that fentanyl is being mixed with pretty much every other drug. >> and the number of deaths, mr. wasserman, i would assume you all are tracking deaths that are related to fentanyl? have you seen an uptick? what kind of uptick are you seeing? >> i mean, the data from the government indicates that -- and
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i believe director labell testified -- 75% of the deaths in 2020 of the 90,000 or so had some opioid and she may have said fentanyl if i heard her correctly, involved in the deaths. while i work in the district of columbia, my knowledge is certainly more focused on that area, my understanding of the larger fentanyl problem is yes, it's a serious epidemic. >> well, i will tell you that this is something that moms talk about a lot and the dangers that are associated with this and the absolute fear. they look at how this has moved into middle school kids and the concerns that are there. children that do not know what
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they're coming up against and this is something that is just so deadly. we thank you for the work that you're doing. mr. charles, we thank you for your voice in this discussion. i have some other questions that will be submitted for responses in writing and i thank you all for taking your time to come before us today. thank you, mr. chairman. >> senator blackburn, we thank you always for your thoughtful questions. >> this has been a constructive hearing. we have to bring it to a close. i do want to say on behalf of senator durbin, he called the first 12 years ago, the first hearing for the complete elimination of this disparity and thought it was unjust then and still been leading in many ways as my mentor in this effort. the fair sentencing act, first step act, brought us closer to doing away with this wrong, but we can't let another decade go by without addressing this injustice. we need the equal act.
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we need to pass it into law. so i know senator durbin mention himself to this -- pledges himself to this mission and i do as well and the great thing is we have a bipartisan coalition growing and some of my colleagues today have demonstrated their openness at least to potentially working with us on that. i want to put into the record letters of support for the equal act from the major city chiefs association, from the due process institute, from the national district attorneys association, from the americans for tax reform, from our street, and from the american conservative union. i want to say one more time to the witnesses, thank you for being here, all four of you, as i tried to indicate, and i hope people understand, are living your lives in accordance to the hope that we can make this nation safer and stronger and
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better for all. i do unfortunate want to burden you a little bit more because questions for the record will be open until tuesday as my friend senator blackburn said, she will have some questions for you all for the record. i imagine my team will as well. so the record is going to be open until june 29th, 2021, at 5:00 p.m. and the record will remain open to submit letters and similar materials. but with that, gentlemen, i apologize there's a lot going on on the floor and i have to head there and i won't be able -- charles, won't be able to get down and hug you, i have to sprint this way. i try to hug all the bald people i see and you have a great head on your shoulders. no disrespect to the other gentlemen but come on. this has been helpful and with that this hearing is adjourned. >> thank you.
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