The Honorable Lamar S. Smith
Chairman, Subcommittee on Crime
House Judiciary Committee
207 Cannon House Office Building
Washington, D.C.  20515

Dear Chairman Smith:

The undersigned organizations write to express opposition to H.R. 4689, a bill to disapprove Amendment 4 of the federal sentencing guideline amendments recently transmitted to Congress by the United States Sentencing Commission.  Amendment 4 would set a maximum base offense level of 30 for drug defendants who qualify for a mitigating role adjustment under the guidelines.

First, we oppose H.R. 4689 because it undermines the authority Congress vested in the Sentencing Commission to promulgate rational, cohesive sentencing guidelines.  In enacting the Sentencing Reform Act of 1984, Congress established the Commission as an independent expert agency in the judicial branch to insulate from undue political pressure the complex and technical task of drafting sentencing rules.  The Commission did the job Congress entrusted to it: it carefully evaluated empirical evidence and drew conclusions that led it to promulgate Amendment 4.  H.R. 4689 makes short shrift of that careful and considered judgment.  The Congress should defer to the Commission's expertise, particularly as the amendment was approved unanimously by the bipartisan Commission.

Second, we support the Commission's efforts, reflected in Amendment 4, to limit undue reliance on drug quantity as the predominant factor determining drug sentences.  Drug quantity can be an inaccurate measure of a defendant's culpability.  Low-level, non-violent defendants may be held legally accountable for a vast quantity of drugs, even if the defendant did not know about or profit from the larger enterprise.  Although those defendants can quality for mitigating role adjustments they are still often subject to unduly long sentences based on quantity.  Drug quantity may be a relevant sentencing factor, but a defendant's role in the offense is also a very important factor in determining a just sentence.  Amendment 4 strikes a reasonable balance between these factors.

We note that the goal of limiting reliance on drug quantity and increasing consideration of role as a sentencing factor, has been endorsed by Republican Senators Jeff Sessions and Orrin Hatch.  Their pending bill (S. 1874) includes a provision similar to Amendment 4.   In introducing the bill, former United States Attorney Sessions stated that this change is ""very significant because couriers, who are often low-level participants in a drug organization, can have disproportionate sentences of 20 or 30 years simply because they are caught with a large amount of drugs in their possession.""  (Congressional Record, December 20, 2001, S13964).

Third, Amendment 4 will begin to redress racial disparities in drug law enforcement.  Over 73 percent of all individuals convicted for federal drug crimes (including over 93 percent of all those convicted for crack cocaine offenses) are African-American or Latino.  Unnecessarily lengthy sentences for low-level, non-violent drug offenders exacerbate disproportionate minority incarceration rates.  Efforts to tie sentences more closely to a defendant's culpability will enhance fairness and improve the credibility of federal drug efforts in minority communities. 

Contrary to the statements of the sponsors of H.R.4689, Amendment 4 will not result in wholesale changes to drug sentences.  The only defendants covered by Amendment 4 are those found by a court to have been minor or minimal participants in drug crimes.  The Sentencing Commission estimates that only six percent of all drug defendants will qualify (approximately 240 people each year).  While the amendment would cap their base offense level at level 30, it does not prohibit a judge from increasing the sentence based on obstruction of justice, presence of a firearm, or any other factor determined by the court to be appropriate.

Thank you for considering our views.

Sincerely,

Julie Stewart
Families Against Mandatory Minimums

Jamie Fellner
Human Rights Watch

Wade Henderson
Leadership Conference on Civil Rights

Charles Kamasaki
National Council of La Raza

Laura Murphy
American Civil Liberties Union

Nancy Price
National Association of Federal Defenders

Irwin Schwartz
National Association of Criminal Defense Lawyers