) ~l, lgas 1 GAS UNITED STATES SENTENCING COMMISSION PUBLIC HEARING ON PROPOSED GUIDELINE AMENDMENTS Thursday, March 24, 1994 Federal Judiciary Building Education Center One Columbus Circle, N.E. O Room C - 415, South Lobby Washington, D.C. 20002 - 8002 The hearing commenced at 9:07 a.m. BEFORE : WILLIAM W. WILKINS, JR., Chairman JULIE E. CARNES, Commissioner MICHAEL S. GELACAK, Commissioner HENRY GRINNER, Commissioner GARY KATZMANN, Commissioner A. DAVID MAZZONE, Commissioner ILENE H. NAGEL, Commissioner O MILLER REPORTING CO., INC. 507 C STREET, N;E. WASHINGTON, D.C. 20002 (202) 545 - 6666 gas 2 C O N T E N T S PAGE Marvin Miller 7 National Organization for the Reform of Marijuana Laws Julie Stewart 14 Peggy Edmunson 19 Alice O'Leary 24 Families Against Mandatory'Minimums Reverend Andrew Gunn 29 Clergy for Enlightened Drug Policy Nkechi Taifa 41 American Civil Liberties Union Tom Hillier' 53 Federal Public and Community Defenders Dr. John Morgan 68 Dr. John Beresford 75 Committee on Unjust Sentencing Mary Lou Soller 87 American Bar Association Alan Chaset 97 National Association of Criminal Defense Lawyers K.M. Hearst, accompanied by Bob Vincent 106 U.S. Postal Service Barbara Piggee 117, 137 Families Against Discriminative Crack Laws Reverend Jesse L. Jackson 120 National Rainbow Coalition Nicole Washington 144 Neighborhood Families Against Unjust Crack Laws Dr. Arthur Curry 148 MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 54€ - €€66 ~, gas 3 C 0 N T E N T S (cont'd) PAGE Dr. Robert Lantz 153 Families Against Mandatory Minimums Jose Clark 160 Rob Stewart 167 Drug Policy Foundation Marjorie Peerce 174 New York Council of Defense Lawyers Maureen Winters 180 Joseph Timilty 183 Ed Rosenthal 188 Ruth Dodd 202 Professor Jonathan Turley 214 "The Project for Older Prisoners OPEN MIKE: Christopher Miller 207 Chuck Morley 235 Kelly M. Robinson 242 Erika Teal 244 Dionne Whitaker 246 Juanita Hodges 247 Beverly A. Clark 251 Eric E. Sterling 254 Dr. John Beresford 257 Jose Clark 261 MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 546 - 6666 Il, £;aS 4 1 PROCEEDINGS 2 CHAIRMAN WILKINS: If I could have your attention, 3 please. I will callthis meeting to order. There are still 4 some signing in. The door will be open for those who wish 5 to come in later on today. 6 As far as today is concerned, I don't know whether 7 we will be taking any formal breaks ornot, depending on how 8 we move through the large number of witnesses that we want 9 to hear from. So, if any of you need to take a break or 10 anyone here at this table needs to, simply take it on your 11 own time, and we will continue with the hearings that are O 12 going to be recorded and preserved for all of us to review 13 at a later date. 14 Let me welcome everybody here to another in a 15 series of public hearings the Sentencing Commission has held 16 since its creation a few years ago. 17 I am Billy Wilkins. I am Chairman of the 18 Sentencing Commission. I would like to introduce those who 19 will participate in this public hearing today. 20 First of all, to my far right is Henry Grinner. 21 Henry is the Chief of Staff of the United States Parole 22 Commission, and he is here today representing the chairman 0 MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 546 - 6666 il,. gas 5 1 of that commission, Ed Reilly. Then Commissioner Mike 2 Gelacak, Judge Julie Carnes. To my far left is Gary 3 Katzmann. He works in theDeputy Attorney General's Office 4 and represents the Attorney General at Commission meetings. 5 Next to Gary is Judge Dave Mazzone, and next to me is 6 Commissioner Ilene Nagel. 7 Since the creation of the Sentencing Commission, 8 we have relied upon various sources of information on which 9 to make informed decisions on various issues that have been 10 presented to us. Some of you remember that we began with an 11 extensive study of past sentencing practices. Today, we 12 analyze every case of every defendant sentenced in our 13 federal courts, and that data bank now includes over 186,000 14 different cases, with a variety of relevant information. We 15 also work closely with various working groups: groups of 16 judges, probation officers, prosecuting attorneys and 17 defense attorneys. 18 We also rely upon information gathered at our 19 public hearings. That is what we are about today. I am 20 delighted that all of you are here. We, on the Commission, 21 appreciate the time, the effort that all of you, obviously, 22 have already put in to participating in this hearing today 0 MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 545 - 6666 gas ~lii 6 1 through the written comments that we received. Of course, 2 the Commission is always open to additional comments or 3 ideas or thoughts that you may have, that you may pick up 4 from this meeting today. 5 'Let me mention a couple of ground rules. We have 6 a large number of individuals who wish to testify, and we 7 want to be fair to everyone, sothat those who would testify 8 later this morning and this afternoon will have the same 9 opportunity to be heard as everyone'else. 10 Consequently, I hope you have been requested 11 and, if not, I will emphasize that now to try to limit 12 your remarks to ten minutes. Just summarize your remarks, 13 and then you will be available for us to question you. Then 14 we willhave your written comments as a primary source of 15 later review. We have a.lighting system set up so that it 16 will be of some assistance to you. So, when the red light 17 goes on, you should attempt to summarize your remarks and 18 conclude. Then we will open the floor for questions. 19 Let us move now to our first panel of the day. 20 First of all, Mr. Marvin Miller. Mr. Miller is an attorney, 21 from my circuit. We are glad to have you, Mr. Miller. 22 MR. MILLER: Thank you, Mr. Chairman. O MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 545 - €666 €€5 7 1 CHAIRMAN WILKINS: He is representingthe National 2 Organization for the Reform of Marijuana - Laws. 3 Julie Stewart, no stranger to the Sentencing 4 Commission. She is a familiar face to all of us. As you 5 know, Julie is the president of Families Against Mandatory 6 Minimums. 7 Peggy Edmunson and Alice O'Leary are here. They 8 are two members, also, of Families Against Mandatory 9 Minimums. 10 Is there any other witness to this panel? 11 MS. STEWART: Reverend Gunn will be late. He said O 12 hewould be here a little late. 13 CHAIRMAN WILKINS: Fine. We will go ahead and 14 hear from all of you. Mr. Miller, are you going to start 15" off? 16 MR. MILLER: Yes. Thank you, Mr. Chairman. 17 Ladies and gentlemen of the Commission, I am a 18 criminal defense lawyer. I am also a member of the board of 19 the Virginia College of Criminal Defense Attorneys. 20 In preparatory to meeting with you this morning, I 21 had conversations with federal prosecutors, law enforcement 22 agents, state prosecutors, federal judges, and state judges MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 54s - bsss €aE 8 1 in an informal survey in Virginia and elsewhere across the 2 country regarding the issue of marijuana and how it is 3 weighed and the guidelines, in general. 4 The main thing I wish to discuss with you this 5 morning is to invite you to consider amending the 6 commentaries and the applicable notes on how marijuana 7 weight is computed. There are some who believe that the way 8 it can be computed now is only the usable part of the plant, 9 but not everyone agrees with that. 10 The commentaries are not real clear in 2D1.1 11 because they say you take the usable part, but what is that? 12 In actuality, in a number of growing cases, I have rarely 13 had a case where I couldn't get the police and their experts 14 to agree with my experts that, when you grow marijuana, you 15 are going to lose sometimes up to half of the plants because 16 they are not all going to be female. There is no dispute 17 anywhere by anyone that the male plants are useless. They 18 just have no toxicity, no intoxication value. The chemicals 19 are not there. You can distinguish male between female. So 20 this is one of those rare areas where gender has a real 21 general applicability. 22 If you have seedlings, you cannot tell from the MILLER REPORTING CO., INC. 507 C STREET, N.E. WASHINGTON, D.C. 20002 (202) 546 - 6666 gas 9 1 seedlings whether they are male or female. The way the 2 guidelines can be read in the stricter sense right now, what 3 the commentaries are, if you have 80 seedlings, you have 80 4 plants. That is just not rational, because you are going to 5 lose. 6 If you ask a horticulturist this who works for a 7 professional nursery and I have had them come in as 8 experts in cases before, and there testimony has not been 9 refuted the horticulturist will come in and say "if you 10 grow from seedlings, you are going to lose anywhere from 7 11 to 2O percent just because they are not going to make it." 12 Then, of the remainder, you could have up to half that will 13 be female, which is the other half being male.