Testimony of Marc Mauer
Executive Director
The Sentencing Project
Before the

United States Sentencing Commission
Regarding

Proposed Amendments to the Federal
Sentencing Guidelines for Drug Offenses
March 17, 2011

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

T

hank you for inviting me to testify about the Commission’s recent proposed
amendments and request for comments regarding the federal drug
sentencing guidelines. I am Marc Mauer, Executive Director of The

Sentencing Project, a 25-year-old national research and advocacy organization
dedicated to improving the nation’s criminal justice system. I have been extensively
engaged on issues of drug policy and the federal drug sentencing laws for many years
and have previously had the pleasure of testifying before the Commission on crack
cocaine sentencing and federal mandatory minimums.
My written comments to the Commission will address (1) the proposed permanent
amendment to implement the Fair Sentencing Act of 2010; (2) the Commission’s
consideration of applying a permanent amendment retroactively; and (3) overall
revision of the drug trafficking guidelines.

OVERVIEW
In 2009, more than half (51%) of the federal prison population was serving time for
a drug offense. These 95,205 sentenced prisoners represented a nearly 20-fold
increase from the 4,749 incarcerated drug offenders in 1980. The increased
imprisonment of drug offenders constitutes the most significant source of the 700%
growth in the federal prison system during this time. Even while state incarceration
levels have begun to stabilize in recent years, the federal prison population has
continued to rise.

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

Moreover, the swelling of the federal prison population and the heavy proportion of
drug law offenders has contributed to significant racial and ethnic disparity within
the federal criminal justice system. According to the Commission’s 2009 data on
federal criminal cases, 70% of all drug defendants were either Black (30.6%) or
Hispanic (39.7%). For cases involving powder cocaine, crack cocaine or heroin,
which comprised 53% of all drug cases, at least 80% of the defendants were either
Black or Hispanic. Crack cocaine cases had the highest proportion of racial and
ethnic disparity, with 89% of defendants being either Black or Hispanic.
I am pleased that the issues now before the Commission hold the potential to
directly confront these disturbing trends of unprecedented growth and racial
disparity in the federal prison system. The decisions of this body will have a
significant impact on the lives of thousands of men and women entangled in the
federal criminal justice system and facing lengthy imprisonment, many for low-level
and nonviolent drug offenses.

IMPLEMENTATION OF THE FAIR SENTENCING ACT
The Sentencing Project and others were dismayed by the Commission’s October
2010 vote promulgating an emergency, temporary amendment to implement the
Fair Sentencing Act of 2010 (FSA). The much celebrated and universally endorsed
legislation was incorporated into the sentencing guidelines by raising the base offense
levels for crack cocaine, thereby reducing the number of defendants eligible for relief
under the reform and lessening the size of the sentence reduction for those who
qualify.
We find this decision problematic for two reasons. First, according to the
Commission’s estimates, the decision to rescind the base offense levels of 24 and 30
set by the Commission in 2007, and raise them to 26 and 32 forfeited a 2,000 bed

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

reduction over 10 years. Coming at a time when federal facilities are 36% above
rated capacity and the federal prison system is seeking a significant budget increase to
build new prisons, this action unnecessarily compounds ongoing crowding problems
within the Bureau of Prisons. In addition, there is no evidence to suggest that the
increased time served in prison resulting from this decision will provide any
additional public safety benefits, yet will come at great expense.
We were also concerned about the stated rationale for the decision. While minutes
from the October 2010 public meeting indicate that Commissioners believed that it
was Congress’s intent to have the Commission increase the base offense levels for
crack cocaine when it passed the Fair Sentencing Act, there is no documented
evidence to support this claim. Indeed, comments submitted by Members of
Congress on this very issue contradict this claim and urged the Commission to
maintain base offense levels for crack cocaine at 24 and 30. Senator Richard Durbin,
champion and author of the Fair Sentencing Act, wrote:

The level 24 option is more consistent with Congress’s clearly stated
goals in passing the Fair Sentencing Act, including reducing racial
disparities in drug sentencing; increasing trust in the criminal justice
system, especially in minority communities; reducing overincarceration of nonviolent drug offenders; and shifting the focus of
federal drug enforcement from low-level offenders to drug kingpins.
Finally, because the level 26 option fails to even incorporate the mandatory
minimums within the recommended guideline range, the intent of Congress is
subverted if the emergency amendment is made permanent. Congress reformed the
sentencing structure for crack cocaine offenses because of the growing consensus that
the penalties for low-level offenses were too high. The new trigger quantities for the
five- and ten-year mandatory minimums were carefully selected because the conduct
associated with 28 grams was considered sufficiently serious. Logic would suggest

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

that the sentence associated with the most serious offenses would hover at the top of
the recommended guideline range, not below it. Setting base offense levels at 24 and
30 would better incorporate the punishments Congress deemed appropriate for the
serious and major drug offenses and not over-punish where Congress does not believe
it is warranted.

RETROACTIVE APPLICATION OF PERMANENT
AMENDMENT GOVERNING CRACK COCAINE CASES
Passage and implementation of the Fair Sentencing Act was a milestone in advancing
more proportional and fairer sentences in the federal criminal justice system. The
universal agreement to reform the old crack cocaine sentencing structure is a
testament to the excessive nature and unfairness associated with the law. I applaud
the Commission for its commitment to addressing the 100 to 1 crack cocaine
disparity through thoughtful and well-researched arguments to Congress over the
years. The lessons learned since 1986 and the impact on people incarcerated under
the law weighed heavy on the debate. It is unthinkable that this legislative victory,
which was influenced by a long history of injustice, would not apply to the many
thousands currently incarcerated for a crack cocaine offense under the old sentencing
structure. I urge the Commission to apply its changes retroactively to the Drug
Quantity Table, as outlined in its permanent amendment implementing the Fair
Sentencing Act.
In comments submitted to the Commission last fall, The Sentencing Project and
allied organizations provided arguments for why the Amendment to the crack
cocaine sentencing guidelines should be applied retroactively. We believe those
points still hold. The background notes of U.S.S.G.§ 1B1.10 state that in selecting
an amendment for retroactivity, the Commission should consider such factors as (1)
the purpose of the amendment; (2) the magnitude of the change in the guideline

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

range made by the amendment; and (3) the difficulty of applying the amendment
retroactively to determine an amended guideline range.
First, the purpose of the Amendment certainly weighs in favor of retroactivity given
that the Commission has for many years stressed the importance of Congressional
action to increase the five-year and ten-year statutory mandatory minimum threshold
quantities for crack cocaine offenses. A primary goal of such change was to ease the
harsh treatment of lower-level crack offenders and focus the penalties more closely on
serious and major traffickers. The FSA was enacted in response to these concerns.
Since the problems targeted by the legislation are still present in the system, refusing
to make the Amendment retroactive would reduce its ability to address the concerns
circumscribed by the legislation. For instance, failing to make the Amendment
retroactive would exacerbate the problem of over-incarceration. According to the
Commission’s estimates, 15,227 people would be eligible for a sentence reduction
under the level 24 option and 12,835 under the level 26 option. Moreover, failing to
make the Amendment retroactive would sustain the racial inequalities associated with
crack cocaine sentencing policy since 85% of the offenders eligible for retroactive
application of the Amendment are African American.
Second, the Amendment is likely to have a significant effect because it is expected to
reduce the average sentence for currently imprisoned eligible crack cocaine
defendants by 48 months under the level 24 option and by 37 months under the
level 26 option. Given that the Commission has only declined to make retroactive
those amendments that “generally reduce the maximum of the guideline range by less
than six months” based on this factor, the magnitude of the change produced by the
Amendment also weighs in favor of retroactivity.

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

Third, retroactive application of the Amendment would not be difficult to
administer if only the changes to the Drug Quantity Table are applied retroactively
without exclusion. Including the enhancements incorporated in the Amendment as
retroactive would make judicial calculations more complicated by relying on old
evidence to make new determinations and therefore slow down the process of
retroactive consideration. Also, judges will already consider public safety concerns
and institutional disciplinary records in determining eligibility for sentence
reduction, so no additional exclusion for applicants’ criminal history category is
necessary or appropriate. Setting those parameters for retroactivity would not pose an
unreasonable burden on judicial resources.

REVISIONS TO THE DRUG TRAFFICKING GUIDELINES
The Sentencing Project supports Commission interest in revising the drug sentencing
guidelines and expanding eligibility for the “safety valve.” As mentioned earlier, the
disproportionate growth in the imprisonment of drug offenders is largely responsible
for the ballooning federal prison population, and the racial and ethnic disparity
among those serving time for drug offenses is staggering. As of FY 2009, nearly twothirds of federal drug defendants received either five-year (27.2%) or ten-year
(37.2%) mandatory prison terms. There is little evidence to suggest that such harsh
punishments for drug offenders, most of whom are not the “kingpins” of the drug
trade, provide a cost-effective strategy for dealing with substance abuse.
The excessive length of federal drug sentences brought about by the mandatory
minimum sentences established by Congress also interferes with appropriate judicial
consideration of sentencing factors. Since the mandatory sentences are determined
by the quantity of drugs possessed by a defendant, judges are not permitted to
consider factors that would otherwise be relevant at sentencing, such as the offender’s
role in the offense or background histories of family dysfunction or abuse. Many

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TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR | THE SENTENCING PROJECT

judges believe that mandatory minimums are set too high and Commission survey
results found that 76% of judges believed that the safety valve should be expanded
for drug trafficking offenses. The Sentencing Project agrees and believes that
defendants who are non-violent and low-level should benefit from the safety valve.
In addition, the rationale for lowering the sentencing guidelines for crack cocaine
cases applies as well to guideline levels for all drug cases. Congress set sufficient, if
not excessive, mandatory sentences for drug offenses. Those mandatory minimum
sentences should be reflected in the recommended guideline range, and not be set
below it. The current guideline framework exacerbates the problem of inordinate
sentence length for drug offenses and ignores Congress’s intent by excluding the
statutory minimum sentence out of the relevant range. Fixing this disconnect will
allow for more proportional sentences.
Thank you for this opportunity to testify before the Commission and to address
these serious matters affecting the federal sentencing system.

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