[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
DRUG MANDATORY MINIMUMS: ARE THEY WORKING?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIMINAL JUSTICE,
DRUG POLICY, AND HUMAN RESOURCES
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MAY 11, 2000
__________
Serial No. 106-205
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
70-887 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Lisa Smith Arafune, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on Criminal Justice, Drug Policy, and Human Resources
JOHN L. MICA, Florida, Chairman
BOB BARR, Georgia PATSY T. MINK, Hawaii
BENJAMIN A. GILMAN, New York EDOLPHUS TOWNS, New York
CHRISTOPHER SHAYS, Connecticut ELIJAH E. CUMMINGS, Maryland
ILEANA ROS-LEHTINEN, Florida DENNIS J. KUCINICH, Ohio
MARK E. SOUDER, Indiana ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
DOUG OSE, California JANICE D. SCHAKOWSKY, Illinois
DAVID VITTER, Louisiana
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Sharon Pinkerton, Staff Director and Chief Counsel
Steve Dillingham, Special Counsel
Ryan McKee, Clerk
Cherri Branson, Minority Counsel
C O N T E N T S
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Page
Hearing held on May 11, 2000..................................... 1
Statement of:
Allen, George, former Governor of Virginia................... 13
Rosmeyer, Frances, parent, Families Against Mandatory
Minimums; William Moffitt, president, National Association
of Criminal Defense Lawyers; and Wade Henderson, executive
director, Leadership Conference on Civil Rights............ 91
Steer, John, U.S. Sentencing Commissioner; John Roth, Chief,
Narcotics and Dangerous Drug Section, Criminal Division,
Department of Justice; and Thomas Kane, Assistant Director,
Information Policy and Public Affairs, Bureau of Prisons,
Department of Justice...................................... 25
Letters, statements, etc., submitted for the record by:
Cummings, Elijah E., a Representative in Congress from the
State of Maryland, prepared statement of................... 9
Henderson, Wade, executive director, Leadership Conference on
Civil Rights, prepared statement of........................ 144
Kane, Thomas, Assistant Director, Information Policy and
Public Affairs, Bureau of Prisons, Department of Justice,
prepared statement of...................................... 75
Mica, Hon. John L., a Representative in Congress from the
State of Florida, prepared statement of.................... 4
Moffitt, William, president, National Association of Criminal
Defense Lawyers, prepared statement of..................... 97
Roth, John, Chief, Narcotics and Dangerous Drug Section,
Criminal Division, Department of Justice, prepared
statement of............................................... 65
Steer, John, U.S. Sentencing Commissioner, prepared statement
of......................................................... 32
Waters, Hon. Maxine, a Representative in Congress from the
State of California, prepared statement of................. 224
DRUG MANDATORY MINIMUMS: ARE THEY WORKING?
----------
THURSDAY, MAY 11, 2000
House of Representatives,
Subcommittee on Criminal Justice, Drug Policy, and
Human Resources,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 11:15 a.m., in
room 2154, Rayburn House Office Building, Hon. John L. Mica
(chairman of the subcommittee) presiding.
Present: Representatives Mica, Mink, Cummings, Kucinich,
Turner, and Schakowsky.
Staff present: Sharon Pinkerton, staff director and chief
counsel; Steve Dillingham, special counsel; Don Deering,
congressional fellow; Ryan McKee, clerk; Cherri Branson,
minority counsel, and Jean Gosa, minority assistant clerk.
Mr. Mica. Good morning. I would like to call this hearing
of the Subcommittee on Criminal Justice, Drug Policy, and Human
Resources to order.
I apologize for the delay in the beginning of this hearing
this morning, but we did have six consecutive votes and all of
the Members were delayed. I just spoke to Mrs. Mink, the
ranking member. Unfortunately, she is on her way to the White
House, but Mr. Cummings and several others from the other side
are on their way.
In an effort to expedite the proceedings, I am going to go
ahead. The order of business will be opening statements. I will
start with mine. Then, we have three panels today and by
proceeding at this time I think we will be able to move quickly
and hopefully make up for some of the lost time.
Again, good morning and welcome to our subcommittee. The
hearing before the Subcommittee on Criminal Justice, Drug
Policy, and Human Resources today will examine Federal drug
sentencing policies and practices and issues. This will include
examining whether mandatory sentences for serious drug
offenders can be useful tools in holding serious drug offenders
accountable.
To date, our subcommittee has examined topics relating to
almost every major dimension of our Nation's drug policy, both
on the demand side and also on the supply side. Today's hearing
is another critical element of our overall efforts to ensure
that our Federal Government is performing effectively its role
in combating the Nation's threats posed by drug abuse and by
serious drug offenders, particularly those who manufacture and
distribute these deadly drugs to our communities. Our oversight
of these and other anti-drug policies, practices and priorities
will continue in the months ahead.
Today, among our witnesses will be Federal officials who
are engaged in developing and implementing drug sentencing
policies and priorities. The U.S. Sentencing Commission was
created to help ensure that our sentencing policies and
practices are both rational and fairly administered. Now that
the commission's vacancies have been filled, hopefully we can
learn more about both existing practices and the commission's
future plans and priorities.
The Department of Justice will testify regarding its
prosecution policies and practices. They will discuss the tools
and leverage prosecutors need in prosecuting and enforcing our
laws against very serious drug offenders. We will also examine
the impact on our prisons of locking up serious drug offenders
and other multiple felony offenders, as well as the need and
provision of drug treatment for appropriate offenders.
Looking at some of the Department of Justice data on
Federal prisons, it is evident that drug abuse is a tremendous
problem for the vast majority of our prisoners and that a
sizable percentage admitted to being under the influence of
drugs at the time of the commission of their crimes.
According to past data compiled by the Bureau of Justice
Statistics, 73 percent of Federal prisoners admitted to prior
drug use. More than one-half, 57 percent, admitted to regular
drug use. More than one-third of the prisoners report being
under the influence of alcohol or drugs at the time that they
committed their crimes and one-fourth of all prisoners report
being under the influence of illegal narcotics at the time of
their offense.
According to these same statistics from the Source Book of
Criminal Justice Statistics in 1998, nearly one-half, some 46.4
percent of all Federal prisoners reported receiving some prior
treatment services, almost 40 percent receiving the treatment
while under correctional custody. To me, this illustrates the
need to carefully target those offenders who are most in need
and likely to succeed in drug treatment and also raises
questions about the effectiveness of some of our programs.
After all, our Federal prisoners' current average annual cost
to taxpayers exceeds $21,000 a year, according to the Bureau of
Prisons.
Regarding treatment services for eligible nonviolent
offenders, let me remind members and others that I am
introducing legislation that will assist State and local
prosecutors in establishing viable drug treatment options for
deserving nonviolent offenders who are, in fact, serious about
reforming their lives. This program will use the full leverage
of the criminal justice system to ensure offender compliance.
Such a program has been successfully implemented for almost
a decade in Kings County, NY. It has saved that community
millions of dollars and broken the chain of drug addiction for
hundreds of addicts and restored them to productive lives
without endangering the public. I hope that Congress will be
able to authorize and fund this important program, and we have
had those involved in that program testify. We have also
visited onsite that program. It holds great promise.
While I am convinced that there is a very strong need for
increased successful drug treatment programs in our prisons and
that a select group of nonviolent offenders who suffer from
addictions are deserving of this opportunity, let me be clear
that serious and tough penalties are, in fact, needed for those
who manufacture and distribute illegal narcotics and dangerous
drugs.
The mere fact that such offenders may have a drug addiction
problem while committing serious and dangerous crimes is no
excuse for lenient penalties or slaps on the wrist.
We all know the direct link between illegal narcotics and
serious and dangerous crimes, even deaths. The drug czar now
claims that we lose approximately 50,000 lives per year in the
United States to illegal narcotics. This cannot be allowed to
continue. We must make some progress and, as I have said
before, we must take action now.
The front page stories of both the Washington Post and the
Washington Times newspapers this week provided a good example
of what I am talking about. According to the news accounts, the
ringleader of one of the most violent drug gangs in the
District of Columbia is being prosecuted for 15 murders. Can
you imagine that, how vile and violent can drug trafficking, in
fact, be?
Sadly enough, beyond our wildest imagination, the U.S.
Attorneys Office unsealed a 76-count indictment, an indictment
with almost 100 pages of horrific details, charging 13 gang
members with crimes that included murder, drug trafficking,
racketeering and conspiracy.
Let me be clear on this point. I have no reservation
whatsoever in seeing that these types of killers and habitual
criminals receive the maximum and most severe penalties
possible. The safety of our communities and our loved ones
demands that we be tough and that there be consequences for
these types of actions.
In that regard, I'm glad that we have testifying before us
today a former Governor who has supported tough measures for
serious and dangerous criminals. I thank him and all of our
witnesses who have come forward to testify. We appreciate your
willingness to appear before this subcommittee and to share
your knowledge and experience as we strive to address this
urgent national public health priority.
We will also learn more about the concerns of some that we
have, in fact, inflexible penalties that may overly be harsh
consequences in some cases and that some groups may experience
these consequences and they may have direct impact on some
groups in our society more harshly than others. I think we can
all agree that our system must be fair, effective and just in
responding to serious crimes.
With those opening comments, I am pleased at this time to
yield to the gentleman from Maryland, my distinguished
colleague Mr. Cummings.
[The prepared statement of Hon. John L. Mica follows:]
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Mr. Cummings. Thank you very much, Mr. Chairman. I do thank
you for holding this hearing on Federal drug sentencing
policies and practices today.
In 1984, Congress passed the Anti-Drug Abuse Act, which
reinstated mandatory minimum sentences and increased penalties
for drug-related crimes in the Federal criminal justice system.
The act also established a 100-to-1 sentencing differential
between powder cocaine and crack cocaine. Further, in 1988,
Congress created a mandatory minimum penalty for simple
possession of crack cocaine. The U.S. Sentencing Commission
incorporated these penalties into the Federal sentencing
guidelines.
Noting serious problems resulting from the crack/powder
cocaine sentencing differential, in 1995 and again in 1997, the
U.S. Sentencing Commission asked Congress to reevaluate the
crack/powder cocaine sentencing disparity. Congress rejected
the 1995 request and has not acted on the 1997 request.
The Sentencing Commission's request was based on extensive
research that showed many problems with the implementation of
mandatory minimum sentences. The Sentencing Commission found
that nearly 90 percent, nearly 90 percent of the offenders
convicted in Federal court for crack cocaine offenses are
African Americans, despite Federal surveys that routinely show
that the majority of crack users are White.
In addition to these racial disparities, commentators have
found that mandatory minimums lead to lengthy sentences for
low-level drug dealers, fail to target violent criminals, and
do not have a deterrent effect on major drug traffickers.
In a 1997 report, RAND found that mandatory minimum
sentences are not cost-effective, do not reduce drug
consumption, and do not decrease drug-related crime. Moreover,
RAND found that mandatory minimums are less cost-effective than
previous sentencing guidelines. In fact, it appears that the
only thing mandatory minimum sentences have accomplished is
growth in the prison industry. The Bureau of Justice Statistics
estimates that drug sentencing and mandatory minimums may be
largely responsible for the doubling of the prison population
since the mid-1980's.
Given this kind of evidence, it is no wonder Chief Justice
Rehnquist has described mandatory minimum sentences as
``perhaps a good example of the law of unintended
consequences.''
Mr. Chairman, Federal drug policy must be well crafted and
wisely applied so that it results in solutions, not unintended
consequences. Our policy must be designed in coordination with
a larger national effort that recognizes the appropriate
allocation of drug enforcement and drug control efforts at all
levels of government. To this end, Federal sentencing policy
should reflect Federal priorities by targeting the most serious
offenders to curb interstate and international drug trafficking
and violent crime. Mandatory minimums do not achieve these
goals.
Mr. Chairman, in 1970, Congress repealed most of the
mandatory minimums which had been part of the Federal criminal
justice system's sentencing structure. We took this action
because the evidence clearly showed that increased sentence
lengths were ineffective. Now we are confronted with similar
evidence and have failed to act for 3 years. Maybe this hearing
will serve as the impetus to Congress's overdue reexamination
of this issue.
And might I add that many of the people who sit in jail
rotting are my constituents. They are African Americans, mostly
men, and it is not funny. Then when I look and I see the people
that you were talking about a little bit earlier, such as the
man, Mr. Chairman, the indictment that you just talked about
here in Washington, those are the people who really do deserve
to be in jail.
We need more treatment. I have said it over again and I
will say it and I will say it again. We spend a phenomenal
amount of money building prison cells but when it comes to
treatment, it is just not enough.
With that, Mr. Chairman, I look forward to hearing our
witnesses today and again I thank you for calling this hearing.
[The prepared statement of Hon. Elijah E. Cummings
follows:]
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Mr. Mica. I thank the gentleman and I will recognize the
gentleman from Texas, Mr. Turner, for an opening statement.
Mr. Turner. Thank you, Mr. Chairman. I want to join Mr.
Cummings in thanking you for the opportunity to have this
hearing.
As a member of the Texas Legislature, I worked very hard in
Texas to try to revise our penal code to be sure we kept
violent offenders behind bars longer. We ended up with one of
the largest prison systems in the world. That is not to say
that we always put the right people behind those bars and I
think we probably do need to take a very close look at the
Federal law to be sure that we are using every prison cell to
the best advantage and that we are holding violent offenders in
those cells.
I am one who believes very firmly that we need to emphasize
drug treatment much more than we do, that we need to be sure
that we are being innovative in the way we administer
punishment to those nonviolent offenders, so we do get their
attention and recognize that even a nonviolent drug offender
deserves to be dealt with very firmly. But I think this is a
good hearing, a worthy purpose, to take a look at mandatory
sentencing at the Federal level. Thank you, Mr. Chairman.
Mr. Mica. I thank the gentleman and recognize the
gentlelady now from Illinois, Ms. Schakowsky, for an opening
statement.
Ms. Schakowsky. Thank you, Mr. Chairman. Just a few words.
The United States now has more than most any other nation
in the world in the number of people behind bars. Many of them
are nonviolent drug offenders. I am concerned about the
mandatory minimum sentences as perhaps being the very best
way--I think they are not the best way to deal with this
problem. I look forward to alternatives being discussed.
I am also concerned, as Mr. Cummings is, about the 100-to-1
sentencing ratio between powder cocaine and crack cocaine and
the numbers of people, particularly minority people, who
therefore are incarcerated disproportionately.
So I appreciate this hearing and look forward to the
witnesses.
Mr. Mica. I thank the gentlelady.
The gentleman from Maryland moves that we keep the record
open for 2 weeks for additional statements. We will probably be
joined by additional members and we will give them an
opportunity to submit or present their opening statements.
Without objection, so ordered.
I am pleased now to turn to our witness list today and our
first panel consists of one very well known individual,
certainly well known because he served here in the House of
Representatives from 1991 to 1993. He is a friend of many of
the current Members of the Congress. He also has the
distinction of representing one of the most historic States now
in the position of Governor, but there he served as delegate
from 1983 to 1991 in the Virginia House of Delegates and held
some of the area that was Thomas Jefferson's seat.
So, we are indeed delighted to have a chief executive of
the State of Virginia, their 67th Governor, the Honorable
George Allen. Welcome, Governor Allen.
We are an investigations and oversight subcommittee and in
that capacity, since you are not a Member of Congress, I am
going to ask you to stand and be sworn real quickly.
[Witness sworn.]
Mr. Mica. Sorry to inflict that formality. We usually do
not do that for Members but since you have left the gang, so to
speak, we have to do that.
But again you are so welcome. We are pleased to have you
testify. We would like to hear your position on the question
before us. Welcome, and you are recognized, sir.
STATEMENT OF GEORGE ALLEN, FORMER GOVERNOR OF VIRGINIA
Mr. Allen. Thank you, Mr. Chairman, and members of the
committee. I very much appreciate the opportunity and thank you
for the invitation to testify today. I commend the
subcommittee's interest in looking at how the Federal
Government can partner with the States and localities in
combating the scourge of illegal drugs, in trying to stop them
and also stop them from ruining more lives.
Mr. Chairman, I fully endorse the sentiments that were
expressed in your opening statement. I do believe the mandatory
minimum sentences for drug dealers are logical and desirable
and that mandatory sentences, in my view, ought to be
increased, especially for those who sell drugs to children, so
that they serve even longer sentences in those situations.
Now mandatory minimum sentences, as a general rule, reflect
the desires of people in a State or in America in the sense
that it comes from Washington, and it is their sense of outrage
over certain crimes. There are mandatory minimum sentences not
just in dealing with drug dealing but also there are mandatory
minimum sentences for assaulting a police officer, as opposed
to assaulting a citizen who is not a law officer. There are
mandatory minimum sentences for second drunk driving offenses.
There are mandatory minimum sentences for habitual offenders
and also mandatory minimums, I think very appropriate, for the
use of a firearm in commission of a crime.
Now, drugs breed so much of the crime. In fact, the
majority of all crime is drug-related. The chairman mentioned,
as did Congressman Cummings, the situation here in the District
where this individual is indicted who had been involved in 15
murders, besides having a reign of terror as far as drug
dealing.
Now, you also need to think of how many other people were
victimized by his minions or part of his network and people who
have been robbed, individually robbed, or their homes broken
into, their businesses broken into or their cars broken into
from people who are addicted to drugs and have to find ways to
pay for that addiction.
Now, drug use is on the rise. It was declining maybe in the
1980's but we are seeing it rising. It is rising among college
students. It is rising among high school students, even in
middle schools. Reports from the Federal Government and
national reports show that between the ages of 12 and 17, 1 out
of every 10 youngster between that age group are currently
using drugs.
The age of heroin use, first-time heroin use--early in
1990, the average age for first-time use was around 26, 27
years old. It is now at 17 years old for heroin use.
Now Mr. Chairman and members of the committee, I am the
father of an 11-year-old daughter and younger kids than that,
but this is very worrisome to me as a parent and I think to
parents all across America. It is not just an issue, though, in
urban areas; it is an issue in rural areas; it is an issue in
suburban areas, as well, and we must do everything we can to
keep the scourge of drugs from dimming and diminishing the
great promise and bright future that all our children should
have.
Now, I would like to share with you some of our experiences
in Virginia and some of the things that clearly do work. What
we did is we abolished the lenient, dishonest parole system.
Criminals, felons, especially violent criminals, are serving
much longer sentences, and it is common sense. The results are
that the crime rates are way down in Virginia. Virginia's crime
rates are lower than the national average.
And the effort in Virginia I think can be translated into
what you all are facing here as you make these decisions,
especially when you realize how much drugs are involved in
crime activity. Drugs obviously breed crime. Drugs destroy
young lives, especially young lives, and it also tears families
apart.
I think that we need to send a message that we are serious,
that as far as fighting these drug dealers, that we want you
out of our neighborhoods, out of our communities, out of
circulation, and especially we want you out of reach of our
children.
So I proposed an idea called project drug exile. It builds
upon what we have done in Virginia, and you had our attorney
general, Mark Early, speak to this committee just a few months
ago on project exile, which was cracking down on those
possessing illegal drugs--excuse me--illegal guns, and that has
worked very well in the city of Richmond.
Now, project drug exile builds upon that approach in that
you have more law enforcement, you have more prosecution and
when people are caught, then they get mandatory sentencing.
Congressman Cummings and Congresswoman Schakowsky brought
up the disparities as far as the powder cocaine versus crack
cocaine. Yes, there is that discriminatory result in
sentencing. My view is that what ought to be done is do not
diminish the punishment for using crack cocaine; you ought to
increase the punishment for those who are selling powder
cocaine and, in fact, Ecstasy or methamphetamines like Crystal
Meth or Ice.
I also recommend that the committee increase the mandatory
minimum sentences at the Federal level--in fact, double them,
double the mandatory minimums for those who are selling drugs
to minors. Also, I think you ought to raise the penalty for the
lethal combination of the illegal possession of a firearm and
illegal drugs, increase that penalty to 7 years.
So Mr. Chairman and members of the committee, I have no
compassion or any sympathy whatsoever for these drug dealers
who peddle this poison to our children. We ought to treat them
as if they are forcing them to use rat poison because the
results can be very much the same.
So I think what needs to be done is we need to have multi-
faceted, consistent enforcement. We need strong incapacitation
because if somebody is behind bars, they cannot be running
their operations; they cannot be harming the lives of our loved
ones, our families, and ruining our communities.
So I thank you again for your interest and hope that this
committee can go forth to help make our communities, working
with the States, working with localities, safer places for our
children to live and play and learn and us to raise our
families. Thank you, Mr. Chairman.
Mr. Mica. Thank you so much for your testimony and again
your participation. You have answered, right off the bat,
several of my questions, the first one about the results of
your abolishing the lenient parole system. You said you had
dramatic decreases in violent crimes as a result of that
policy. Can you elaborate?
Mr. Allen. Yes. Here is what we found. I came into office
in 1994 but in the early 1990's, crime was increasing in
Virginia. And when you look at who was committing crimes, you
found that three out of every four violent crimes were being
committed by repeat offenders. Rapists, for example, were
serving about a quarter of their sentence and if you look at
the recidivist rate, rapists are actually the very worst and
they were serving about 3.9 years on a 12-year sentence. They
are now serving--well, they are still in but they are serving
12 to 13 years on average.
So what we found as that if you have these violent
offenders who have shown a disposition to commit violent
crimes, if you double the amount of time the first offenders
are serving and indeed, for repeat offenders they are serving
three to five times, in some cases seven times longer, they are
behind bars and they are simply not in your neighborhood; they
are not lurking in a parking garage.
And the violent crime rates are down by 17 percent. The
overall crime rate is down 24 percent. Our juvenile justice
reforms--our juvenile crimes also dropped by--I believe the
figure is 13 percent, which is more than the drop in the
national average. And we have found that it has worked very,
very well. In fact, it has worked better than we anticipated.
Now, in having these folks behind bars, that also prevents
crime. Having somebody incapacitated or incarcerated prevents
crime. The estimates are that over a 10-year period we expect
to avert 26,000 violent crimes and 94,000 nonviolent felonies
between 1995, which is the year this went into effect, through
the year 2005, and also save more than $2.7 billion in crime-
related costs that would be prevented by the time this law is
10 years old.
We also looked retrospectively at the thousands of people
who would not have been a victim of rape or murder or malicious
woundings or robberies had this law been in effect, rather than
releasing felons early who had murdered a young student who was
working at a Wonder Bread facility in Richmond or a law officer
killed on Father's Day from somebody released early or a woman
being raped by a rapist who was released early.
So we have found it to be very salutary. The crime rates
are down; we are safer. Nevertheless, we still, I think, as
citizens, as parents, as concerned leaders, especially you all
in Congress, need to understand that drug use is on the rise
across this country. It is going to take a multi-faceted
approach of fighting drug manufacturing overseas, stopping it
at our borders. We also have to fight it in our streets and
neighborhoods and communities and we also, as was alluded to by
some of the members, we also, I think, need to get into the
minds and the sentiments of youngsters never to use drugs and
try to rehabilitate or get those who have started using drugs
off of drugs so that they can hopefully lead a productive,
fulfilling life.
Mr. Mica. One other question and I will yield to my
colleagues. There is some concern that by increasing these
penalties, that we are packing the prisons. I wondered about
the impact, since you have abolished some of the lenient parole
system, the impact on your prison population.
The second part of my question would be does this unfairly
impact some of the minority population? One of the concerns
that has been raised here and in the media in general debate
about this is that the mandatory sentencing, the tough
sentencing is unfair toward some minority populations.
So could you tell us about the effect on the prison
population and minority impact?
Mr. Allen. OK. I have about three different areas that I
would like to cover.
As far as prisons, when I came into office, what the State
had been doing is putting all these felons--many felons--in
local jails, so you had hardened criminals, tough criminals who
were felons, in with misdemeanants who were serving less than
12 months and there were several sheriffs suing in that regard
and we did not have sufficient prison capacity. We had to
increase the prison capacity in Virginia.
Most of the people said when you are going to abolish
parole, it is going to increase prison needs, and that is true,
although there were prison needs that were needed anyway and
had just simply not been built in the previous years.
Now, when you look at the abolition of parole and what
happened in other States, such as Florida in particular and to
some extent North Carolina, when they abolished parole, if they
did not increase the prison capacity, what happened was Federal
judges came in there and said you have overcrowded prisons and
they started randomly releasing violent criminals. Naturally,
the population was pretty upset with the crime and also the
fact that they did not abolish parole and these folks were
being released.
Now, what you can do in a prison system is run them
intelligently, as well. The proper classification of prisoners
is essential to making sure you do it in the most cost-
effective manner. Violent criminals ought to be in maximum
security. Others ought to be in medium. Nonviolent offenders
ought to be in minimum security, so some of the prisons we
built were work camps and they were just in big barracks and we
had those folks working. We had them cleaning up State parks
after floods. We had them planting riparian buffers. We had
them painting courthouses, building baseball fields. Some were
doing the grounds work on community colleges.
So they are working. They are doing things and it is
obviously a much less costly way of doing things.
So yes, you do have to have more prison space if you are
going to have more prisoners in there serving longer sentences,
but that is a primary responsibility of government. That is why
people create governments, to provide safety, to prevent men
from injuring one another. And I also think it is important to
have obviously a good education system as another top
responsibility.
Now, as far as disparity in sentencing based on race, we
had found, or at least there had been studies that showed that
for apparently very similar circumstances, that the sentences
in Virginia prior to the abolition of parole, that the
sentences for African Americans were harsher than for those who
were Caucasian or White. You also found disparities in region.
There would be one region of the State that would be much
tougher on burglaries than they would in another and it had
nothing much to do with race. It was just differences in that
we have jury sentencing in Virginia and juries may come up with
different sentences.
Now, what we have found as a byproduct of the abolition of
parole and the sentencing guidelines that we have put into
Virginia, that the disparities have been reduced in that
judges--and judges do sentence, also, not just juries--but
judges sentence within these guidelines, that the sentencing
disparities are much, much less. In fact, there is no disparity
between those who are African Americans or Hispanic or
Caucasian or Asian, whatever the race or ethnic origin may be.
It is much closer than before, where you have these sentences
that could be, say, 20 years to life or 5 years to 20 years.
Now with the sentencing guidelines, where we wanted to
increase the amount of time served, that disparity aspect has
been eliminated as a byproduct of the abolition of parole.
I will say one other thing as far as the minority
population, and this is a concern to all of us, that we do not
want any discrimination based on race. It is the actions of
that individual that matter.
And while there is a disproportionate, compared to the
population of percentages in the State of Virginia of African
Americans in prison, which I think is the same in the Federal
system, as well, what we have found in Virginia was that
African Americans were disproportionately victims of crime. I
will always recall folks who said they could not sit on their
front porch until we had abolished parole and people were
getting put into prison for committing those crimes and no
longer running roughshod in the neighborhood, and also sending
a message to folks that you are not just going to get--it is
not going to be a catch and release system.
So African Americans, as all citizens, are benefiting from
the lower crime rates in that African Americans just
statistically are disproportionately victims of crimes.
I will finally close with this aspect on the prison
situation, as you talk about, well, we will have to build more
prisons, and so forth. I will always invite somebody to suggest
to me or suggest to you or whoever runs the Federal Bureau of
Prisons who would be released? Who do they think is in prison
and ought to be released soon or early or released before their
time is up? And then I would ask them to find out who that is
and then ask them, do they want to rent out a room in their
house to them? Would they like this wonderful nonviolent
theoretical person to be moving in next to them? Would they
like them hanging around with their children? I have yet to
have a good answer to that question.
So I think it is the responsibility of a government to
protect law-abiding citizens, victims, and law enforcement
professionals.
Mr. Mica. Thank you for your response and I would like to
recognize the gentleman from Maryland, Mr. Cummings.
Mr. Cummings. Thank you very much, Governor, for being with
us. I just want to make sure I am clear on one thing. You said
African Americans, the statistics show that African Americans
are more likely to be the victims of crime. Is that right?
Mr. Allen. Yes, sir.
Mr. Cummings. Is that all over the United States or----
Mr. Allen. That was our experience in Virginia. That was
the statistics and studies from Virginia.
Mr. Cummings. Now, what you did not say, and I am trying to
make sure I understand you, are you saying that African
Americans are more likely to commit crimes, also?
Mr. Allen. I do not think anybody by race or religious view
or by ethnic origin is more likely to commit crimes. The
question from the chairman was that there are concerns that the
proportion, the number, the percentage of African Americans in
prison is a higher percentage than the African American general
population, and that is true.
But it is also important to understand that African
Americans are also more likely, as a percentage--and these are
statistics from our experiences in Virginia--to be a victim of
crime. What we found in Virginia is the highest crime areas
were the Norfolk area and the Richmond area, and that is why
project exile in Richmond, with the abolition of parole, with
enhanced enforcement, with more prosecution, getting these
folks off the streets and putting them in prison who have
illegal guns, and I think the same will apply with project drug
exile in getting after these drug dealers since drug dealing
and drug addiction spawn so much crime, will actually be of
great assistance in reducing the crime rates in the city of
Richmond but it will also have an impact along the whole
Interstate 81 corridor, where there is a lot of truck traffic
and a lot of concern about some of these Ecstacies and Meth-Ice
and so forth.
Mr. Cummings. The reason why I asked you that question is
because, as you are, I am sure, well aware, African American
men have become--not become; it has been going on for a long
time, this whole issue of profiling. I was just trying to make
sure--you know, you talk about victims, but I am trying to
figure out whether you had this belief that African Americans
are more likely to commit crimes when in Jones v. United States
in the Fourth Circuit, the Court of Appeals found that project
exile was disproportionately enforced in African American
communities.
Ninety percent of exile defendants are Black while Blacks
constitute only 10 percent of the State.
Mr. Allen. Those statistics are slightly wrong but----
Mr. Cummings. Well, why don't you correct me? I want to
know. I want to be real clear.
See, the victim thing is one thing but I live in a
neighborhood where I see the enforcement. And I practiced law
for years and I watched how laws were enforced in White areas.
As a matter of fact, I remember when I first started practicing
law I would go to White counties and they would have these
programs where the person never got a record and I was shocked.
When I was in the city, they would get a record just like that.
They had all kinds of programs for White people but for Black
people, it was a whole other thing.
So I am just trying to figure out how are we doing this
measuring where you are talking about African Americans and
Whites. Victims is one thing, but I want to know where you, the
former Governor, are coming from because people listen to you.
You are a very influential man and the papers are writing what
you are saying and I want to make sure that we are all clear as
to what you are saying.
And I want to be clear. If you have a feeling about African
Americans, and I am one who grew up in a poor neighborhood and
who was profiled many times and still am, I am just wondering
what your feelings are on that.
Mr. Allen. I believe that the individual who commits a
crime ought to be held accountable for the commission of that
crime and for the devastation that they bring to whomever the
victim is or to society as a whole. It is certainly not my
belief that any group or individual based upon their race has a
greater propensity to commit a crime than another.
I certainly oppose racial profiling. I think what you need
to do is look at people's actions, look at what they are doing.
Do not look at somebody by the color of their skin as a way of
judging whether somebody has a propensity to do one thing or
another. I think we all ought to be judged equally and based
upon our actions.
And in the event that--you brought so many things up, Mr.
Congressman. You mentioned, for example, that from your
experiences, in some, as you called them, White communities or
counties versus----
Mr. Cummings. A metropolitan area like Baltimore City.
Mr. Allen. Right, and so forth, and you saw differences.
That is one thing and this is what we found in Virginia. When
we abolished parole and came up with these sentencing
guidelines so that felons would be serving longer sentences,
serving longer time, I should say, serving more time in prison,
is that if you do have a mandatory minimum, you know darned
well if somebody has actually been convicted of selling drugs
to a minor--let's say it is a large amount--right now the
Federal law says 5 years and I think it ought to be 10 years,
and I do not care if that person is African American and I do
not care if they are Caucasian and I do not care if they are
Hispanic, Asian, whatever they may be. If that person is doing
it, that vile person, that parasite ought to be treated just as
harshly because what is happening to the children, the drugs
know no color and the life that is being snuffed out knows no
color.
And what we need to do, I think, as a government is to make
sure that every single child in this country has an equal
opportunity to succeed. And yes, that does mean we have to have
good tax policies and reasonable regulatory policies. The key
to success, in my view, is knowledge and education and make
sure these youngsters who start off with so much potential, so
much imagination, that when they get into middle school, when
you see 12-year-olds being sold Ecstasy, that is dimming their
future. All of that great potential of life is--sure, they can
turn it around but that is going to be tough. That is going to
be tough.
And that is why I think it is so important that for all
children, regardless--I do not look at people based upon their
race; I look at them as a human being, as somebody with great
potential, who is here on Earth for a short period of time.
Let's make sure that they have an opportunity to succeed and
compete and lead a fulfilling life.
I think that we, as a government, have to provide that good
education and also make sure that they are living in a safe
community and learning in a safe school, as well.
Mr. Cummings. I just have a few more questions. Let me ask
you this. I listened to everything you said. Talk about
treatment for me, what you did with regard to treatment in your
State.
One of the things that is interesting is that you talked
about your daughter and I have two daughters and I certainly
understand what you are saying. One of the things that I have
found in talking to young people is that one experience with
crack cocaine and you can become addicted, particularly women,
girls.
Mr. Allen. And they are using it more apparently, from the
studies.
Mr. Cummings. Right. Now you talked about all of that
potential of young people and wanting to see them accomplish
the things that they want to accomplish in life. Let's say, and
people do make mistakes; all of us do at some point in our
lives, and let's say that person has that experience and
becomes hooked on crack cocaine.
Now, treatment hopefully will bring that person back, to
get them back to where you are talking about, but without the
treatment, it is like falling off the cliff. So I was just
wondering what your feelings were.
Mr. Allen. Well, as far as the users are concerned, the
users do have to be held responsible and they are accountable,
as well.
What we did, especially in the juvenile justice reforms, is
where there were students or youngsters, juveniles under 18 who
were getting into trouble but still were nonviolent, what was
missing in their lives, we found so often, was discipline. They
were not getting discipline at home. They were not on a sports
team. They were not in any organized activity.
So what we found is that treatment was worthwhile but they
needed structure in their life. So for those who were being
disruptive, let's say, in school, we created alternative
schools because they still needed an education but there would
be more structure in those alternative schools. There would be
kind of a military component to it.
For those who were actually committing crimes and were a
danger to society, yes, they were treated as adults. Just
because somebody is 16 years old when they rape someone, the
rape victim does not feel any differently about the trauma of
it if the person is 16, as opposed to 26. Or if somebody is
shot or murdered, that does not matter, the age of the culprit,
and therefore that person ought to be treated in that regard
and get them out of society and treated like an adult.
Now, in there we do have military-style boot camps and you
can see--I saw one myself, how some of them would become
leaders. They would have to get up early. They had a lot of
regimen to their lives, and that was a treatment of sorts.
Now as far as drug treatment, my general view is that if
somebody is in prison, they should not be getting drugs. Maybe
cold turkey is the term that is used. They should be getting no
drugs whatsoever.
Mr. Cummings. I agree with you on that.
Mr. Allen. So that is a treatment in itself.
I do think, and part of my proposal on combating drugs is
to understand that there are those youngsters who still can be
turned around and have not actually harmed anyone else.
Chairman Mica was talking about that in his opening statement.
I think we need to make sure that in this treatment, that we
allow people who care in communities about folks to get
involved, including those who are involved in religious
organizations. They are communities of faith.
I have seen and have talked to folks who have done that,
whether it is in the Newport News area, the Virginia Beach
area, the Richmond area or Fredericksburg, and allowed
communities of faith or religiously affiliated organizations to
compete like everyone else or any other agency, secular or
nonsecular, for these grants to try to turn these youngsters
around and get them off of drugs.
Mr. Cummings. And the older people?
Mr. Allen. Excuse me?
Mr. Cummings. And the older people, like people 25 and----
Mr. Allen. They should be able to help them, as well, sure,
of course. I was focussing--you were talking about our
children.
Mr. Cummings. I understand. I understand.
Mr. Allen. But older, as well. Same applies, although you
do not have to worry about alternative schools and so forth for
somebody who is 25 years old. You are not going to have them in
the juvenile justice system.
But an older person, obviously the drug treatment can be
important, although if they are incarcerated for committing
another crime while on drugs, being on drugs is no excuse for
committing a crime. You are still held accountable for that,
any more than just because they are drunk on alcohol, that is
not an excuse for committing the crime.
Mr. Cummings. Thank you.
Mr. Allen. I want to make one more point to you,
Congressman Cummings, because you bring up concerns that are on
all our hearts, and no one wants to have disproportionate
racially discriminatory sentencing. I did not as Governor and I
am glad we resolved that.
I was very sensitive to the concern that you have expressed
and others, so on the parole board, we could not abolish parole
retroactively; it can only be abolished prospectively, after
January 1. I made an effort to make sure we had viewpoints of
many people on that five-member parole board and I had a
majority of the members on the parole board who were African
Americans. The majority indeed were also women.
One of the members was a former drug enforcement agent but
two people on that parole board were victims of crime. One was
a mother whose son was murdered and the other was a rape victim
of a rapist who had committed repeated rapes. So I thought that
perspective from a variety of backgrounds was very much
important in determining whether somebody should be released
early on parole.
They did an outstanding job on that parole board, that
group with their background, and the parole grant rate dropped,
with those sentiments and with those experiences, the parole
grant rate dropped from nearly 50 percent to around 10 percent,
and that also helped make Virginia safer.
Mr. Mica. I would like to thank you.
I would like to yield now to Mr. Turner.
Mr. Turner. Governor, I know we all agree that the efforts
that we made in the various States, including my own in Texas,
trying to toughen our laws against violent offenders, has been
effective and I think the crime rate reductions that we have
seen across the country, the results, the availability of
prison cells for violent offenders, as well as the results the
efforts that Congress and the administration have made to put
more police officers on the street to arrest those offenders.
The purpose of our hearing today is primarily centered on
taking a look at mandatory minimum sentences and I notice you
expressed your support for them and I really think that some of
our other witnesses will probably address those mandatory
minimum sentences at the Federal level, which is, I think, the
issue we really need to center in on today because I agree;
there are some instances where I think they are definitely
appropriate--repeat offenders, certain offenses that we
determine to be particularly egregious. Certainly I think the
Congress and I think the State legislatures should have certain
mandatory minimum sentences.
What we are concerned about primarily today is the Federal
system and the fact that the Department of Justice reports that
there are one in five of our Federal prisoners today who find
themselves incarcerated and according to the Department of
Justice, many of those offenders are there without any prior
record of violence; they are there without any prior criminal
record but have simply been caught up by the mandatory minimum
sentence laws, which placed them behind bars.
I am one who believes very firmly that we need every prison
cell we have in this country at the Federal level and the State
level because any time we end up seeing one person released on
parole or after completing their sentence, there is another
violent offender standing at the door that we need to use that
cell for.
So I am as zealous as you are in trying to be sure we put
violent offenders behind bars, but I think we have to be not
only zealous but we have to be smart in the management of our
prison systems. And if we are not smart, it means that there is
going to be a dangerous, violent offender out on the streets
that should be behind those bars.
I do not know how far we can go in this country continuing
to build prisons. I have supported every prison appropriation
that we have had here and in my State legislature, but we all
know that smart management is going to help us save tax
dollars. I think today we have almost 2 million people all
across this country in jails or prisons somewhere. And to be
sure that the taxpayers can afford our criminal justice system,
those of us in public policy positions have to be ready to make
the tough choices and the smart choices about criminal justice
policy.
Do you have any sense, Governor, about the differences
between our Federal mandatory minimum sentences and the
mandatory minimum sentences that you have in the State of
Virginia? Or is that an issue that I really should not ask you
about?
Mr. Allen. No, that is fair enough. In fact, when you are
talking about prisons and building more prisons, this is almost
an answer to the chairman's question. Thank goodness Texas had
some excess prison beds when we were doing this because we were
getting sued, as I said, by these local sheriffs because
Virginia, as a State, was not being sufficiently responsible in
having the capacity capable for handling felons. We double-
celled them but we also had to send--I have forgotten--it seems
like around 500 prisoners to Texas to I think they were
privately or maybe locally county-run prisons in Texas because
we simply did not have the space until we could get the prisons
built.
We found that the mandatory minimums that you generally
have in States, you have it for the drunk drivers, repeat drunk
drivers, the habitual offenders, three strikes you're out for
three violent crimes, violent felonies, three strikes you're
out for life. You have them for assaulting police officers;
there is a mandatory minimum sentence for that, and use of a
firearm in the commission of a crime, and I would like to see
the mandatory minimums increased, but you could not get but so
far through the legislature on some of these.
So I think the mandatory minimums that I was speaking of
today actually ought to be increased and maybe we would agree
on the fact that those who are selling drugs to children, to
minor children, these buzzards, these predators ought to be
behind bars and they ought to be behind bars for a longer
period of time.
I think that when you mix drugs and guns, illegal guns and
illegal drugs, that is a type of situation that you are just
asking--that is such a likelihood. It is such a volatile
situation, literally and figuratively, that some individual
like that should get a mandatory minimum sentence. And those
are the types of people that you would want in prison.
I do not know of anyone actually in the Federal prison that
I think ought to be released, but I think that the Federal
prison system could obviously use the same sort of approach as
we did and make sure that you are classifying prisoners
properly. They do not all need to be in the same cell.
Nonviolent offenders we found you can almost put them in a
barrack situation in bunks and have 150 of them in this big
room in bunk beds and you do not need as many correctional
officers to watch them all, either, if you configure it. It is
more of an engineering simplicity as far as keeping your
eyesight or keeping your viewing their activities.
So I do not have any suggestions on how they might run the
Federal system more efficiently but I think we are running our
Virginia system much more efficiently, with proper
classification and also construction that reduces--first of
all, uses greater use of technology, as well as configurations
that do not require as many correctional officers per inmate as
was previously the case in Virginia.
Mr. Turner. I think in your State and in mine and in most
States, we can take some comfort in the fact that violent
offenses are on the decline.
Mr. Allen. Right.
Mr. Turner. The crime rate is declining. But I do think
that we do need to work very diligently when we all are faced
with the fact and the reality that drug use is on the rise.
Mr. Allen. Sure is, right.
Mr. Turner. That there has to be some public policy changes
to ensure that we stem that tide. And a lot of those efforts, I
am afraid, have to be centered on drug treatment, drug
prevention, and to be sure that we are utilizing our prisons to
hold the violent offenders and not the nonviolent.
If we end up with a system where we have incarcerated a
whole lot of nonviolent drug offenders and we do not
rehabilitate them properly, we are probably just perpetuating a
cycle. And the thing that always amazed me in my time of
practicing law was for certain elements of our society, how
oftentimes a prison term does not result in a rehabilitated
individual. We have to get smarter, I think, about doing that
in our States and at the Federal level.
But I do appreciate your testimony today and your thoughts
on the subject and I concur with your sense that we must
continue to be sure that we work diligently on this problem and
I commend you on your initiative.
Mr. Allen. Congressman, I commend yours, as well. I think
the key to determining some of this is what is your definition
of a drug offender? If the definition of a drug offender is if
that person is a drug dealer, I think they ought to be
incapacitated.
And while yes, the prison population is increasing across
the country, also the crime rates are going down. And, as you
well know, and I know you seem to have very good common sense
and good knowledge about all of this from your experience in
the State legislature, as well as here and as an attorney, is
that if the incarceration was not at the rate it was now, the
crime rates would not be dropping as much.
And there is a cost. Just as there is a cost of
incarceration, there is also a cost to letting violent
criminals or drug dealers and so forth loose and running
rampant. There is a cost and I know you care very much that you
do not want to see more victims of crime because there is a
cost to that, as well.
So I commend you for your care, your patience and also your
insight.
Mr. Turner. Thank you, Mr. Chairman.
Mr. Mica. Thank you. And I would again like to thank you,
Governor Allen, for coming before us today, sharing with us
your experiences as Governor, the Virginia experience, and also
responding to questions and concerns about addressing mandatory
minimum sentences.
We will excuse at this time. Thank you again for being with
us and we wish you well.
Mr. Allen. Thank you, Mr. Chairman.
Mr. Mica. With that, we will call our second panel at this
time. I am pleased to call before our subcommittee the
Honorable John Steer, who is with the U.S. Sentencing
Commission. He is a Commissioner with that body. Mr. John Roth
is Chief of the Narcotics and Dangerous Drug Section of the
Criminal Division of the Department of Justice. And Mr. Thomas
Kane, Assistant Director, Information Policy and Public Affairs
with the Bureau of Prisons in the Department of Justice.
As I did indicate, this is an investigations and oversight
subcommittee of Congress. We do swear in our witnesses.
Also, if you have lengthy statements or documentation that
you would like to have submitted as part of the subcommittee's
hearing record today, just make a request through the chair and
we will grant that request and put that information or lengthy
documents, where possible, into the record of today's hearing.
With that, I would like you all to stand and be sworn,
please.
[Witnesses sworn.]
Mr. Mica. Welcome. Now is it Mr. Steer who has a tight
schedule, Commissioner Steer?
Mr. Steer. Thank you, Mr. Chairman.
Mr. Mica. You have a tight schedule, so I want to
recognize----
Mr. Steer. I tried to loosen it up a little bit.
Mr. Mica. I want to recognize you first. We have been
looking forward to hearing from you and welcome. You are
recognized.
STATEMENTS OF JOHN STEER, U.S. SENTENCING COMMISSIONER; JOHN
ROTH, CHIEF, NARCOTICS AND DANGEROUS DRUG SECTION, CRIMINAL
DIVISION, DEPARTMENT OF JUSTICE; AND THOMAS KANE, ASSISTANT
DIRECTOR, INFORMATION POLICY AND PUBLIC AFFAIRS, BUREAU OF
PRISONS, DEPARTMENT OF JUSTICE
Mr. Steer. Thank you, sir. I did have a plane that I had
scheduled to catch to Columbus, OH but I think it is leaving
here in a minute or two. I will try to schedule a later flight.
Mr. Mica. I apologize. Again we got a delay because of the
votes. So thank you for hanging in there, but we have been
waiting for your testimony and look forward to it at this time.
Mr. Steer. I appreciate that. This is a very important
hearing and I am pleased to be here as a representative of the
newly reconstituted Sentencing Commission.
As of last November 15, seven new Sentencing Commissioners
were sworn in. We had had an unprecedented break of more than a
year prior to that when there were no voting Sentencing
Commissioners. And when we came on board, we found that there
was quite a backlog of work awaiting us, no less than seven
major crime bills that Congress had enacted for which the
Commission has a responsibility to write sentencing guidelines
to implement the penalty provisions. So we got right to work on
those, and I think in this first amendment cycle which just
concluded with the submission of amendments to Congress on May
1, we have made a lot of progress in implementing each of those
bills. For the most part, they dealt with economic crime policy
and new technology offenses.
They did, in one respect, deal with drug policy in the
methamphetamine area, and in that regard, what we did was to
conform the drug sentencing penalties and the guidelines to the
heightened mandatory minimums that Congress had legislated in
1998.
By the way, Mr. Chairman, I should have asked at the
beginning. I have a lengthy statement with some charts attached
and I would ask permission that they be placed in the record. I
am going to be summarizing my remarks.
Mr. Mica. Without objection, your entire statement will be
included in the record and the attachments will be made part of
the record.
Mr. Steer. The remainder of my testimony focusses primarily
on three areas. First, I want to do a quick review for the
committee if I could of the four major statutory enactments
over the last 16 years that more or less set the stage for our
drug sentencing policies today and hit the highlights of the
way that the guidelines mesh or attempt to mesh with those
major enactments of Congress.
Then I want to move into some discussion of some data. The
commission collects quite a lot of data on the application of
the sentencing guidelines, and we hope to share with you today
some figures and charts that we have made that show some of the
trends that have occurred over the last several years.
Along the way, I will be commenting on the interactions of
the guidelines and mandatory minimums and will discuss some of
the problems in trying to make those two systems as compatible
as possible.
As far as the historical development of drug sentencing
policy, as I said, there are essentially four laws over the
last 16 years that comprise the major framework. The first of
these was the Sentencing Reform Act of 1984. That was the law
that set up the Sentencing Commission, and directed and
authorized the creation of sentencing guidelines, which were to
be presumptively mandatory. These guidelines took effect on
November 1, 1987. And incidentally, in the discussion of the
legislative history for that particular act, Congress showed a
distinct preference for the use of guidelines, mandatory
sentencing guidelines, over a system of statutory mandatory
minimum penalties.
But that was in 1984. Two years later in 1986, as Mr.
Cummings alluded to, Congress switched gears dramatically and
enacted a series of 5 and 10-year mandatory minimum penalties
for all of the major street drugs.
Now interestingly, again I would like to just recall a bit
of the legislative history that was written here on the House
side and to some extent reinforced in the Senate.
The theory of the 5-year mandatory minimum penalties that
were prescribed for each of these major drugs was that it would
impact, although it was designed based on type and quantity of
drugs, it was hoped that the 5-year mandatory minimum would
impact primarily on what Congress considered to be the serious
traffickers, and that was described further in the legislative
history as the manager at the retail level primarily--the
individual who was in charge of the street-level distribution
dealers but who had a management role in the events. And the
10-year mandatory minimum Congress described as being
appropriate for what was considered to be the major trafficker,
the individual who was if not a kingpin, someone who was the
head of a regional distribution network.
Just to give an example, under that regime of mandatory
minimum sentences, the 5-year mandatory minimum was set for 100
grams of heroin or 500 grams of powder cocaine; the 10-year
mandatory minimum was set for 1 kilogram of heroin or 5
kilograms of powder cocaine. There were also heightened
mandatory minimums for individuals who had prior drug
convictions.
As the Commission was developing the sentencing guidelines
pursuant to the 1984 enactment, what it did when Congress
passed the 1986 mandatory minimums was to also switch gears and
to hitch, if you will, the drug sentencing guidelines' basic
reference points to the mandatory minimums. So the 5-year
mandatory minimum under the drug sentencing guidelines for a
first offender corresponds to what we call an offense level of
26 as a measure of offense seriousness, and that, in turn,
corresponds to a range of 63 to 78 months. The 10-year
mandatory minimum, in turn, corresponds, again for a first
offender--no other adjustments--to a level of 32, 121 to 151
months.
Of course, the guidelines also have a range of other
aggravating and mitigating factors--the aggravating factors,
such as use of a weapon, obstruction of justice, involving a
minor in drug sales; mitigating factors such as mitigating role
and acceptance of responsibility.
The third major enactment was the Anti-Drug Abuse Act of
1988. In that bill, Congress, on the one hand, applied the
mandatory minimums to simple possession of more than 5 grams of
crack; on the other hand, Congress doubled the mandatory
minimum for continuing criminal enterprise offenses and, very
importantly, made a decision, not much discussed in the
consideration of the bill, but very important, that the
conspiracy offenses, drug conspiracy offenses, should be
subject to the same mandatory minimums as the substantive
trafficking offenses.
And finally in the scheme of things, there was the Violent
Crime Control and Law Enforcement Act of 1994. That is the bill
that contained the so-called safety valve for low-level
nonviolent drug offenders. The way that works essentially is
that if the defendant can show that he meets five criteria
spelled out in the law and mimicked in the sentencing
guidelines, basically no violence, no weapon, no aggravating
role, not more than one criminal history point, and that he
tells all that he knows about the offense to the government,
then it lets the defendant out from under the mandatory
minimums and allows the guideline system to work with its
mitigating factors that may apply. As a result, the sentence
may be reduced below the mandatory minimum.
The Commission responded in 1995, and made a further
response to the safety valve enactment in 1996 by reducing, for
those who meet the safety valve requirements, drug offenses by
an additional approximately 25 percent, so that this brought
down all of the drug penalties across the range for those who
meet the criteria of the safety valve.
With that as background, I would like to turn to a
discussion of some of the data that we have summarized today.
The first chart that these gentlemen have put up shows the way
that drug types have changed over time. Again we are focussing
here not on law enforcement but rather on who actually has been
sentenced in Federal court.
As you will see, the trend line for powder cocaine
offenses, drug trafficking offenses, has been downward until,
in this last year it has trended back up. That is the top
yellow line as you see it.
For crack offenses, the red line, the trend has been mostly
up over the years. The number of crack offenses has essentially
doubled.
Methamphetamine and marijuana have also been on a fairly
rapid growth track. Marijuana has become the predominant drug
type in each of the last 3 years.
And now if we could look at two maps together you can see
for two drugs, crack and methamphetamine, how they have changed
in terms of the predominant drug type over the years.
In 1992, crack offenses, which are shown in yellow on these
maps, were the predominant drug type sentenced in only three
States and methamphetamine, shown in pink on the maps, was the
predominant drug type in only one State, Hawaii. Now, you can
see how rapidly that has changed over a period of time. By
1996, crack was the predominant drug type in 17 States, mostly
in the Southeast and Midwest, and methamphetamine had become
the predominant drug type sentenced in 10 States, mostly in the
West.
Last year, the most recent one for which we have
statistics, crack has declined somewhat as the predominant drug
type and is now predominant in 10 States. Methamphetamine has
continued to grow and is the predominant type in 12 States.
And by the way, Mr. Chairman, Florida is not shown in color
on these maps, but powder cocaine has been the predominant drug
type in Florida throughout this period but has decreased
somewhat in importance, from 60 percent in 1992 to about 46
percent in 1999, while heroin and crack have been growing as
drug types for which offenders were sentenced.
Now let's look at sentence length. This next chart shows
that crack offenses are significantly the most severely
sentenced and have been over time. The length of sentence has
varied from 92 to 118 months. Methamphetamine sentences are
likely to increase by one-third in the future years, according
to Commission projections, because of recent Commission
amendments, as I mentioned, that conform the guideline
penalties to the mandatory minimums. But overall, the trend
lines have been down as far as length of sentence for most all
of the drug types.
I now have several charts that discuss some of the
interactions between mandatory minimums and the guidelines.
This first chart looks at a group of cases that did not qualify
for the safety valve, and were not substantial assistance
cases. It shows how, in some respects, the mandatory minimums
interfere with the workings of the guidelines.
For example, the red bar at the second from the bottom
shows that, for these defendants, 60 percent of these
defendants who received a mitigating role adjustment under the
guidelines had their sentence trumped and made irrelevant as
far as guideline factors by the mandatory minimums. Thirty-
eight percent of the defendants who qualified for a downward
adjustment for acceptance of responsibility were trumped, and
about a third of those who were in criminal history category
one, had an absence of a weapon, and had no aggravating role
were nevertheless subjected to a mandatory minimum.
If we can look at the next two charts, they compare how
mandatory minimums apply in respect to guideline role
adjustments. The chart on the left shows that mandatory
minimums do impact defendants with a mitigating role. The red
bar indicates the 5-year mandatory minimum, the white, the 10-
year mandatory minimum, and the yellow, the 20-year mandatory
minimum. This shows the percent of defendants in each year that
were subject to those mandatory minimums and yet had a
mitigating role. The chart on the right shows, for the same
years, those defendants who were subject to an aggravating
role.
Now, if you recall again the theory, the conceptual theory
that Congress used in 1986, this shows some divergence from
that theory. The chart on the left shows that mandatory
minimums are impacting quite frequently defendants with a
mitigating role, i.e., a minor or a minimal role in the offense
and are not necessarily hitting regularly defendants who have
an aggravating role in the offense.
Now, if we could turn for just a moment to the operation of
the safety valve for the low-level nonviolent defendants,
overall, the safety valve that was enacted in 1994 and
implemented in the guidelines seems to be working very well to
differentiate among offenders with lower culpability. About 25
percent of drug trafficking defendants now receive the safety
valve and get somewhat lower sentences as a result. As you can
see, this chart indicates the incidence of the safety valve
over time with respect to the highest mandatory minimum to
which they were subject. As you would expect, most of these
defendants--they tend to be lower level defendants--escaped
from the 5-year mandatory minimum most frequently; some were
subject to the 10-year mandatory minimum and because they met
the criteria, were no longer subject to it, and rarely would
they have escaped from a 20-year mandatory minimum.
Now although the benefit of the safety valve is substantial
in terms of reducing sentence, it nevertheless results in a
substantial sentence, depending on the quantity of drugs
involved and the other culpability factors. So these two
figures or, these two bar graphs, contrast the sentence for
defendants who were subject to the safety valve and those who
were not and who were sentenced to imprisonment. The bar graph
on the left shows that defendants who were subject to the
safety valve go to prison very often, but their average
sentence is 59 months, compared to 102 months for those who did
not meet the safety valve.
Finally, lets just look very quickly at some of the
demographic factors. I should tell you that the age of Federal
offenders who are sentenced for drug trafficking has remained
fairly constant at about 35 years but is lower for crack
cocaine defendants, who are about age 28. Drug trafficking is
predominantly dominated by males, although we have seen an
increase in the degree to which females are represented in the
drug trafficking population.
As far as the impact on race, these two charts indicate
that there has been a differential impact with respect to the
mandatory minimums. The first chart indicates that over time,
mandatory minimums have applied differently based on the race
of the defendant. The impact on White offenders has gone down
somewhat; the impact on Blacks has evened out and has held
fairly steady, and the impact on Hispanics has generally become
greater.
In the most recent full year for which we have data, this
chart on the right indicates that, insofar as the particular
mandatory minimum that impacts on defendants, White defendants
were more often subject to the 5-year mandatory minimum; with
regard to the 10-year mandatory minimum, Blacks began to be
impacted more frequently; and as far as the heightened
mandatory minimums, the 20-year mandatory minimum and the life,
mandatory life imprisonment, they impact most heavily on Black
defendants.
I would add a note of caution in interpreting these data.
These data indicate differential impact. They cannot be said to
necessarily represent a systemic discrimination problem. They
are based primarily on the defendants who had a particular
quantity of drugs or, in some cases, quantity and prior drug
conviction.
In conclusion, let me make just a couple of summary
comments about the interaction of guidelines and mandatory
minimums. I think that our data indicate over time that the
guidelines can achieve the requisite level of toughness that
Congress desires but also can do that by tempering toughness
with individuality and proportionality.
Mandatory minimums are a very broad-brush approach. They
look at just one or two factors, and they tend to treat
offenders who may be very different as if they were similar.
They tend to have the effect of blocking legitimate mitigators
under the guideline system in deserving cases.
In conspiracy cases they tend to reach very broad because
drug quantities are aggregated over time and quantities
trafficked by one offender can be attributed to another
offender. That is not true for the substantive offenses.
The crack possession mandatory minimum creates a unique
structural problem with respect to the guidelines, and it is a
situation where the guidelines simply cannot compensate for the
way the statute is written. Specifically, under the statute,
for a defendant with up to 5 grams of crack, the maximum
sentence--the maximum sentence is 1 year. If you have any
minute fraction over 5 grams, then the minimum sentence is 5
years. So there is that cliff effect and that gap effect.
Again I think the Commission can respond to direction from
Congress. We can make the guidelines as tough as Congress wants
them to be while also doing a superior job of recognizing
important distinctions among offenders.
In the final analysis, of course, whatever system is in
place is up to Congress. Congress is the ultimate arbiter of
sentencing policy. The Commission, as a group, exercises
delegated authority and we try to mesh these two systems as
best we can.
As I hope our data indicates, we have a growing body of
information and expertise to assist Members of Congress in
understanding the impact of these policy decisions, and we
certainly are anxious to work together with Congress to achieve
the most effective and fair sentencing policy that we can.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Steer follows:]
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Mr. Mica. Thank you for your testimony. We will withhold
questions until we have heard next from Mr. John Roth, who is
Chief of the Narcotics and Dangerous Drug Section, Criminal
Division of the Department of Justice. Welcome, sir, and you
are recognized.
Mr. Roth. Thank you. Mr. Chairman and members of the
subcommittee, my name is John Roth. I am the Chief of the
Narcotic and Dangerous Drug Section in the Department of
Justice.
I come to you today as a career prosecutor, someone who has
represented the United States in criminal courts, primarily in
narcotics cases, for the last 14 years. I have done so in two
different U.S. Attorneys Offices, as well as in the Criminal
Division of the Department of Justice. I have had the
opportunity to be involved in the prosecution of literally
hundreds of narcotics cases and I have seen the operation of
the guidelines and the mandatory minimum sentences at a first-
hand level. On behalf of the Department of Justice, I thank you
for the opportunity to speak here today.
We are the Nation's prosecutors. The Department enforces
Federal criminal laws enacted by Congress, including those laws
that carry mandatory minimum sentences. We believe that the
existing sentencing scheme for serious Federal drug offenses
provides prosecutors with a valuable weapon in the fight
against major drug traffickers. At the same time, the current
mandatory minimum laws strike the right balance between
allowing nonviolent offenders to escape the mandatory minimum
sentences in appropriate circumstances.
Mandatory minimum sentences are reserved principally for
serious narcotics offenders based on the quantity of narcotics
distributed. Additionally, criminals with serious violent or
drug felony convictions or who have operated a continuing
criminal enterprise also receive stricter sentences. These
crimes threaten our safety and should be dealt with severely.
Mandatory minimums assist in effective prosecution of drug
offenses by advancing several important law enforcement
interests. I will talk about two of them.
First, mandatory minimums increase the certainty and the
predictability of incarceration for certain crimes and ensure
uniform sentencing for similarly situated offenders. The
department believes that uniform and predictable sentences
deter certain types of criminal behavior by forewarning the
potential offender that, if apprehended and convicted, his
punishment will be certain and substantial.
Mandatory minimum sentences also incapacitate certain
dangerous offenders for long periods of time, thereby
increasing public safety.
In addition to serving important sentencing goals,
mandatory minimum sentences also provide an indispensable tool
for prosecutors because we are allowed to provide, under a
substantial assistance departure, we are allowed to ask the
court to relieve specific defendants who cooperate in the
prosecution of another individual from the mandatory minimum
sentence.
In drug cases this is especially significant. Unlike a bank
robbery, where a witness, for example, could be a bank teller
or an ordinary citizen, typically in narcotics cases,
especially serious narcotics cases, the only other witnesses
are other drug traffickers. Drug dealers take pains to ensure
that their distribution takes place far from the prying eyes of
law enforcement and the more sophisticated the drug dealer, the
more cautious he is about dealing with anyone who might be law
enforcement.
As a result, Congress has given us a tool to conduct
effective narcotics investigations. The offer of relief from
the mandatory minimum sentence in exchange for truthful
testimony and other forms of substantial assistance allow us to
move up that chain of supply, offering the sentence against the
lesser dealers to go after the more serious drug traffickers--
the organizers and the source of supply.
Substantial assistance agreements also give us the best
evidence that we can possibly have concerning a trafficking
organization--evidence from the inside of the trafficking
organization as to what was involved. It allows us to strip
away the secrecy in which narcotics traffickers conduct their
business and to obtain the truth. Such cooperation is essential
in our efforts, and we use it every day. It is no exaggeration
to say that it would be impossible to do our jobs without
substantial assistance departures.
While the Department views mandatory minimums as effective
law enforcement tools, we also recognize the need to apply the
provisions appropriately, protecting the rights of the
individual defendants and to prevent miscarriages of justice.
In this regard, the primary change of the law in 1994 was
the addition of the safety valve provision, which Mr. Steer
discussed. It allows the courts to impose a sentence without
regard to any mandatory minimum sentence in certain cases.
Specifically, the safety valve allows even an otherwise serious
drug defendant who didn't use a firearm or violence, who is not
a leader, manager, organizer, and who does not have a serious
criminal history, to be sentenced below the mandatory minimum,
provided that the offense did not result in death or serious
bodily injury. The defendant, in exchange, must truthfully tell
the prosecutor all of the facts he knows about the case--the
fact that those facts are not useful for cooperation or in
other cases is irrelevant. He still is allowed to have the
safety valve.
The sentencing guidelines also provide a reduction of two
levels for those individuals who meet the safety valve
criteria. I will just give one example of how the safety valve
works.
Assume a defendant is charged with possession with intent
to distribute cocaine, approximately 5 kilos of cocaine, which
has a rough wholesale value of $100,000. He does not have a
significant criminal history, does not possess a firearm or
violence, no death resulted, and he has expressed some
responsibility for his crime. Normally, that is a 10-year
mandatory minimum, 120 months, but because he is eligible for
the safety valve, he would be subject to a sentencing range of
between 70 and 87 months, a little under 6 years on the low end
of that guideline range. If the court found that he, in fact,
played a minor role in the offense, he would actually get
between 57 and 71 months, or just under 5 years for 5 kilograms
of cocaine. So essentially it is a 50 percent reduction from
the mandatory minimum for a minor role offender.
The safety valve provision has succeeded in its purpose of
preventing mandatory minimum provisions from sweeping too
broadly. Its provisions are mandatory and not discretionary and
it is widely used. According to Sentencing Commission data for
1998, there were 12,055 drug defendants sentenced where the
mandatory minimum was applicable. Of those cases, 4,185 or
about a third were provided relief from mandatory minimum
sentences.
As a result in large part of these amendments to the
mandatory minimum sentences, sentences for Federal drug cases
on the whole have decreased. In 1992, the average drug sentence
was 89 months; in 1998, the average was 78 months, or a 12
percent decline.
In the Department of Justice we have an obligation to apply
the law fairly and without discrimination. We promote uniform
and equitable application of the guidelines and mandatory
minimum sentences in two ways. First, we are required to charge
the most serious readily provable offense or offenses,
consistent with the defendant's conduct. We have no discretion
to charge a lesser offense, except under narrow circumstances.
Second, prosecutors must seek a plea to the most serious,
readily provable offense charged. While these rules are subject
to limited exceptions, the prosecutor must have a specific
approval of the U.S. Attorney or a supervisor in the office and
the reasons for that departure must be set forth in the file
and disclosed to the court.
I would like to address finally the contention that
mandatory minimums put too much discretion in the hands of the
prosecutor. First, it is important to note that the provisions
of the safety valve are mandatory; they are not discretionary.
If a criminal defendant meets the characteristics within the
safety valve, the government or the judge has no discretion but
to award that reduction to the defendant.
Second, if the prosector makes a substantial assistance
motion to the court because the defendant has assisted in the
prosecution of another, the court has complete discretion to
sentence the defendant without regard to the sentencing range.
While the prosecutor could recommend a sentence, the court
would not be bound by that sentence and could sentence the
defendant to whatever sentence the court saw fit.
And finally, because the sentencing guidelines are based to
a great extent on offense conduct, rather than simply on the
crime charges, and that is especially true in narcotics cases,
the prosecutor's ability is limited to determine the guideline
sentence simply by the charges.
Taken as a whole, the Department of Justice believes that
the system of mandatory minimums is fair and effective,
promoting the interests of public safety while protecting the
rights of the individual. We also recognize the need to
periodically review the mandatory minimum provisions and to
adjust their levels in light of our experience.
Again, thank you for the opportunity to speak on this
important issue and I welcome your questions.
[The prepared statement of Mr. Roth follows:]
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Mr. Mica. Thank you and we will suspend questions until we
have heard from our final witness, who is Thomas Kane,
Assistant Director, Information Policy and Public Affairs, with
the Bureau of Prisons.
Welcome, sir, and you are recognized.
Mr. Kane. Thank you, Mr. Chairman. I do have a longer
witness statement that I would submit for the record and would
summarize----
Mr. Mica. Without objection, your entire statement will be
made part of the record. Thank you.
Mr. Kane. Thank you. Mr. Chairman and members of the
subcommittee, I appreciate the opportunity to appear before you
today to provide information regarding Federal sentencing
policy and practices as they impact the Federal Bureau of
Prisons.
The Sentencing Reform Act of 1984, which established
determinate sentencing, abolished parole, and reduced good
time, as well as mandatory minimum sentences for drug and
weapon offenses and increases in prosecutions and convictions,
all have given rise to a dramatic increase in the Federal
inmate population. From 1980 to 1989, the inmate population
more than doubled, from over 24,000 to almost 58,000. During
the 1990's the population more than doubled again, reaching
140,000 early this year.
Based upon our population projections, we anticipate in
fiscal year 2007 a Federal inmate population of approximately
205,000. That is growth of nearly 50 percent over the current
level.
Overcrowding in BOP facilities is currently 34 percent over
capacity systemwide. At medium and high security facilities it
is at 58 percent and 52 percent respectively. We must reduce
overcrowding at those facilities for the safety of surrounding
communities, staff, and inmates. We are making substantial
progress, with 22 new prisons fully or partially funded, and
for fiscal year 2001, we are requesting additional funding for
nine new prisons over the next 3 years, as well as 6,000
additional contract beds, primarily for low security criminal
aliens.
Since the passage of the Anti-Drug Abuse Acts of 1986 and
1988, both of which included an increased emphasis on resources
for drug treatment, the Bureau has redesigned its drug
treatment programs. These programs are designed to treat
offenders with substance abuse problems, regardless of the
offense for which they are incarcerated. Upon entry into each
institution, all inmates are interviewed by our psychology
staff concerning their past drug use and their records are
reviewed to determine their need for drug treatment.
Based upon the result of these reviews, some inmates are
required to participate in a drug abuse education course which
is available in every Bureau institution. Participants in drug
abuse education receive information on the physical, social,
psychological and criminal impact of alcohol and drugs. In
fiscal year 1999, 12,200 inmates participated in the drug abuse
education course.
Currently, there are 47 drug abuse treatment programs in
Bureau institutions, with a combined annual capacity of over
12,000 participants. Residential program participants are
housed together in a separate unit of the prison that is
reserved for drug treatment. The programs average 9 months in
duration and provide a minimum of 500 hours of drug abuse
treatment.
An inmate is eligible for a residential drug abuse
treatment program if he or she meets the following three
criteria: No. 1, has a diagnosis based on the American
Psychiatric Association diagnostic criteria for alcohol or drug
abuse or dependence disorders and a record review supports this
diagnosis; No. 2, signs an agreement to participate in the
Bureau's drug abuse programs; and No. 3, is ordinarily within
24 months of release.
Ninety-two percent of inmates who are eligible for these
treatment programs have volunteered to participate in the
program. Residential treatment typically is provided within the
last 2 years of an inmate's sentence, close to the inmate's
release to the community. This ensures continuity with an
inmate's transitional treatment program, which includes 6
months of community corrections center or halfway house
placement with drug treatment.
In fiscal year 1999, 10,800 inmates participated in
residential drug abuse treatment programs. In fiscal year 2000,
12,400 inmates are expected to participate.
In 1998, the Bureau's Office of Research and Evaluation
completed the interim report for a study of the effectiveness
of the residential drug abuse treatment program. The study,
conducted with funding and assistance from the National
Institute on Drug Abuse, revealed that the program has a
beneficial impact on the ability of inmates to remain drug-and
crime-free upon release from confinement. In comparison to
inmates who did not receive residential treatment, inmates who
completed treatment were 73 percent less likely to be
rearrested within 6 months of their release from custody and 44
percent less likely to use drugs within 6 months of release
from custody.
The results also showed that program graduates had a lower
incidence of misconduct while incarcerated than did the
comparison group of individuals who did not participate in the
program. The results of the final report based on a 3-year
followup will help us determine whether the positive effects
continue beyond the initial period.
In addition to the 47 residential programs, nonresidential
drug counseling is available in every Bureau institution and is
provided by staff from the psychology services department. This
treatment is available for drug-abusing or drug-dependent
inmates who have minimal time remaining on their sentences,
have serious mental health problems or are otherwise unable to
participate in one of the Bureau's residential units.
In closing, we continue to effectively meet the statutory
requirement to treat 100 percent of eligible offenders prior to
their release. Thus far this year, the Bureau has opened four
new residential drug abuse treatment programs. As our
population continues to grow, including the addition of
approximately 7,000 more D.C.-sentenced felons by the end of
2001, we will evaluate our need for additional beds and request
them as appropriate.
Mr. Chairman, this concludes my prepared remarks. Thank you
very much.
[The prepared statement of Mr. Kane follows:]
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Mr. Mica. Thank you, and I will start out with a few
questions.
First, Commissioner Steer, the offenses that you talked
about, these are all for drug trafficking. There is no one
involved here because of use of illegal narcotics; is that
correct?
Mr. Steer. That is correct, Mr. Chairman.
Mr. Mica. And they are involved in drug trafficking in
significant quantities, as set by law? They are exceeding or
meeting that requirement; is that correct?
Mr. Steer. Well, they are involved with whatever quantity
was trafficked, which may vary from a little to a lot.
Mr. Mica. The reason I bring that up, the marijuana, of
course, has a high sentencing but people sometimes say that
people are sitting in jail for our Federal--we have to limit
this to Federal prisons right now--because of use of marijuana
or a small quantity. None of these are those cases, right?
Mr. Steer. That is right. That is rarely the case in
Federal prison, that you would find someone who has been sent
there for use of a small quantity of drugs.
Mr. Mica. Also, the statistic, and I am not sure if you
said 20 or 25 percent of those sentenced are now getting lesser
sentences, and over what period of time is that?
Mr. Steer. The safety valve is applying to about 25 percent
of the total number of defendants sentences for drug
trafficking, including the reduction that is available under
the drug guidelines for those who are, because of quantity or
other factors, above the mandatory minimum.
Mr. Mica. One of my concerns early on with it, the
administration, was the lack of prosecution in Federal drug
courts and I have a chart here, 1981 to 1998. In 1992 there
were 29,000 Federal drug prosecutions and then it dropped in
1993, dropped in 1994, dropped in 1995, dropped in 1996,
dropped in 1997 below those levels. It did increase in 1998. We
finally got an increase in drug prosecutions. It did not seem
to be a priority.
Now we are back to 1992 levels of prosecution but let me
share with you, and I might ask Mr. Roth to respond to this,
this is last month, a Knight Ridder report. It said,
``Convicted drug offenders are spending less time behind bars
but more of them are being prosecuted.'' That would bring us up
to date.
My concern is we were prosecuting less; now they are
spending less time behind bars, and this is according to a new
study of judicial records. Shorter sentences over the 1992 to
1998 time span--that includes most of the Clinton
administration--suggests that the Federal judges and
prosecutors are finding ways around tough mandatory minimum
sentences mandated by Congress to crack down on drug offenders.
To some experts, the findings also suggest that Federal
agents are increasingly nailing ``small fry'' drug offenders
rather than the kingpins whom the Federal agencies are uniquely
suited to pursue. This study by the Transactional Record Access
Clearinghouse, a government performance analysis center in
Washington that is associated with Syracuse University, found
the average Federal drug sentence dropped by about 20 percent
between 1992 and 1998. I guess we are hearing up to 25 percent.
Is this the case, Mr. Roth? Is this our policy?
Mr. Roth. I do not believe it is, Your Honor, or chairman.
A couple of issues.
One, the TRAC data uses different data than the Sentencing
Commission. The Sentencing Commission's own data indicate that
there has been a drop of about 12 percent in the average
sentence length between 1992 and 1998. Much of that, I think,
can be attributed to the fact that there is a safety valve.
So in roughly a third of the cases, we are not sentencing
people who would otherwise be eligible for a mandatory minimum
sentence to the mandatory minimum sentence. The example I gave,
for example, of a 5 kilogram cocaine dealer who had a minor
role in the offense, instead of getting the 120 months, he is
going to get 60 months.
It is the department's policy that we honor the law and the
spirit behind the mandatory minimums and the sentencing
guidelines, that we charge the most serious criminal offense
that is readily provable, and that we plea defendants, except
in narrow exceptions, to the most serious readily provable
offense, and we take that very seriously.
Mr. Mica. Congress also created a safety valve,
Commissioner Steer, to allow for mitigating circumstances.
Mandatory minimum sounds good and it probably should be
applied. I think if we polled Members of Congress, they would
want strong sentences for those who commit serious crimes but
sometimes when you do a law one-size-fits-all, you do need some
mitigating circumstances.
Is the safety valve adequate enough or should we do away
with mandatory minimum sentences because there is not the
ability to be fair or flexible?
Mr. Steer. Well, Mr. Chairman, I think that the safety
valve is doing, relatively speaking, a good job of sorting
among offenders, and those who are less culpable and less
dangerous are receiving lesser sentences.
I think in an ideal world, when you have a well-functioning
system of mandatory guidelines, and I think you have a pretty
good system, not a perfect system at the Federal level but a
good system, then arguably there is not the need for mandatory
minimums that there may have been without mandatory sentencing
guidelines. Some of the data that I attempted to share
indicates that there are defendants who have mitigating factors
about them that are left behind, that do not necessarily meet
the safety valve criteria.
After all, we are talking about in some cases a difference
of one criminal history point, one prior conviction for driving
under the influence or one prior conviction for some other very
minor offense that can disqualify the defendant. That one prior
conviction may result in a total of two criminal history points
and, as a result, the defendant does not meet the criteria for
the safety valve. Or some other small change in sentencing
factors can make a big difference in sentence because----
Mr. Mica. The question was is there enough flexibility or
do we need to change the law again?
Mr. Steer. Well, I think that we could improve on the
current law. In my estimation, we could have a good system
without the mandatory minimums by relying on tough sentencing
guidelines that make appropriate distinctions. We can make them
as tough as Congress wants, in response to whatever direction
Congress chooses to give the Commission.
Beyond that, if that was not acceptable to Congress, and
realistically, it probably is not at the current time, there
are a number of things that could be done with respect to fine-
tuning the system of mandatory minimums or expanding the safety
valve that might make them work better overall.
Mr. Mica. Has the Commission recommended any legislative
changes to modify the safety valve provision or are you
prepared to make any recommendation at this time?
Mr. Steer. I am not on behalf of the Commission prepared to
do that today because we are so relatively new and we have not
had a chance to focus on drug mandatory minimum sentencing
policy. I think we will be doing that and we will be glad to,
at an appropriate time, share some recommendations with the
Congress on what changes they might make.
Mr. Mica. Thank you. We look forward to that.
Finally, Mr. Kane, what percentage of our Federal prisoners
have access to drug treatment? Did you say we now have about
140,000 Federal prisoners?
Mr. Kane. We do, Mr. Chairman.
Mr. Mica. OK. What percentage of those prisoners now have
access to drug treatment? One of the things we are hearing is
that there is a lack of access to drug treatment among
prisoners at large, but our direct and immediate responsibility
is over our Federal prison system. We can look beyond that but
in your case, can you give us a guesstimate as to where we
stand?
Mr. Kane. Yes. We are meeting the statutory requirement to
provide 100 percent of individuals who require residential
substance abuse treatment that type of treatment. We also do
nonresidential treatment and drug education programs for the
kinds of people, for the latter two, for the kinds of people,
Mr. Chairman, who I think you mentioned in your opening
statement, who may be users, occasional users, even regular
users but do not rise to the level of drug abuse or dependency.
The dependency or addiction people are typically treated in the
residential programs.
I would say virtually all Federal offenders who are in
Bureau of Prison facilities have access to the level of
treatment that they need.
Mr. Mica. Virtually all?
Mr. Kane. Yes.
Mr. Mica. And residential, I consider them residents when
they are sitting in prison, but residential also would have a
different connotation. I am trying to look at from the entire
spectrum. You are telling me virtually all of our Federal
prisoners in prison, in residential programs and others, have
access to some drug treatment?
Mr. Kane. Yes. Actually, of the 122,000 Federal prisoners
who are actually in Bureau of Prison facilities; some are also
in halfway houses, some are also in contract facilities; but
within Bureau of Prison facilities, there are three types of
drug treatment programs. One is residential and it is only
called that because the individuals who participate actually
live in a dedicated area and do their drug programming in that
area; so by definition, residential treatment program.
There are also nonresidential treatment programs that
involve individuals who live anywhere in a Bureau institution
but who would go to a psychologist for diagnosis and then
participate in programs as part of their daily routine. That
also involves such things as work programs, education, etc.
And then third, for individuals whose crimes may have been
related to their involvement in drugs or alcohol, those who are
under the influence, as you mentioned in your opening
statement, anyone who has been recommended by the court for
treatment and an individual who may have violated a condition
of release, supervised release, parole, etc--all of those folks
must--they are required to undertake a drug treatment education
program.
In the education program, those who have higher needs--
regular users, for example, those addicted--are then educated
and encouraged to go on to nonresidential programming, if that
is what they need, or the residential programming if they rise
to the level of dependency or abuse.
So again, literally virtually all offenders have access to
those treatment programs.
Mr. Mica. We have about 11 minutes left. I will just yield
it to the minority.
Mr. Cummings. I will just be very brief.
Mr. Roth, in a recent report, the Leadership Conference on
Civil Rights found that the U.S. Attorneys Office in Los
Angeles had prosecuted hundreds of minorities on crack cocaine
offenses but not a single White person had been similarly
prosecuted in a 6-year period. And I am just wondering what is
the Justice Department's feeling on that?
Mr. Roth. That is a good question, Mr. Cummings. I think I
will have to get back to you on that because I do not have an
answer for you.
Mr. Cummings. That is incredible, isn't it?
Mr. Roth. I am sorry, sir?
Mr. Cummings. I said that is incredible, isn't it?
Mr. Roth. As I said, I cannot comment on it until I
actually see it.
Mr. Cummings. OK.
Our first panelist, can we go to chart No. 11? Can you
explain that to me real quick? What does it mean? I mean I see
it but tell me what it means. Does that mean that----
Mr. Steer. This looks at the highest mandatory minimum to
which defendants were subject and sorts according to the race
of the defendant. So it shows that the 5-year mandatory
minimums most frequently impacted on Hispanic defendants; the
10-year mandatory minimum most frequently impacted on Black
defendants, the same for the 20----
Mr. Cummings. Is that the percentage, say, of Black folks
being sentenced or Hispanics being sentenced, or is that the
percentage that----
Mr. Steer. Mr. Cummings, I believe it is a percent of those
who were subject to that particular mandatory minimum.
Mr. Cummings. OK, I got you.
I am just wondering, what do you think accounts for that?
Even the chairman had to kind of look at that one. That is a
substantial change. I mean when you look at the figures as the
years go up, what accounts for that?
Mr. Steer. I think we do not know fully what accounts for
that. I can speculate to a certain extent. Part of it is
certainly the conduct of the defendant. The quantity of drugs
in particular, the quantity and type of drugs for which they
were held accountable at sentencing explains largely the 5 and
10-year mandatory minimums.
The 20-year and life mandatory minimums bring in another
factor--prior record in many instances, prior felony
conviction. And in those instances, the prosecutor also has to
make a decision to file a piece of paper, to file an
information seeking the application of the heightened mandatory
minimums. So it is a combination of conduct, prior conduct, and
a decision of the prosecutor to seek that higher mandatory
minimum.
Mr. Cummings. Now, the safety valve provision was enacted
to allow judges to sentence first-time nonviolent drug
offenders to less than the mandatory minimum if they provide
substantial assistance to the government. If the Federal drug
policy concentrates on kingpins and major traffickers, how can
the testimony of the low-level people be helpful? Shouldn't the
low-level people be prosecuted in State court? Mr. Roth.
Mr. Roth. It is a combination of two. Low-level people are
prosecuted in State court. When you look at the statistics of
State prosecutions versus Federal prosecutions, it is far and
away predominantly State prosecutions.
On the other hand, when you are investigating a conspiracy
or an organization, it is fundamental that you have to start at
the bottom because the kingpin is not going to be dealing with
the undercover officer, the informant, or the person who is
actually selling the drugs on the street. You just have to work
your way up the chain. Frankly, the only way we have to do that
is with the substantial assistance departure.
Mr. Cummings. And you found that to be very helpful?
Mr. Roth. It is one of the most effective tools that we
have to prosecute the kingpins. I cannot recall a single large
conspiracy case involving significant drug traffickers where we
have not given somebody a substantial assistance departure.
Mr. Cummings. Because of time, I am going to have to yield
to Mr. Turner.
Mr. Turner. Mr. Roth, I certainly can understand how you
believe mandatory minimums are a powerful tool for the
prosecution, how they increase certainty and predictability of
crimes. I am not sure that I agree that they always result in
justice.
The thing that I really want to ask in my very limited time
here, Mr. Steer, what would it take for us to get a
recommendation from the Sentencing Commission with regard to
improvements in the mandatory sentencing scheme?
Mr. Steer. Well, I think you just need to ask and give the
Commission some time to focus on that. As I said, we have only
been in our positions for a few months and have not had a
chance to focus broadly or deeply on Federal drug sentencing
policy.
But part of what we are statutorily authorized and directed
to do is to provide recommendations to Congress from time to
time that would help improve Federal sentencing policy and I
think we are anxious to do that.
Mr. Turner. Well, I will certainly ask. You might give me
some indication of how long it will take.
Mr. Steer. Well, we are meeting in a few weeks--excuse me--
in just a couple of weeks to reflect on this past amendment
cycle, which has been a fairly hurried, compressed one, and to
try to do some mapping of plans for the future. I am sure that
the topic of drug sentencing policy will come up.
Now, I think it will take a while for us to develop a whole
slate of recommendations, but we will be glad to get to work on
that.
Mr. Turner. Give that some thought. I will talk with you
after the hearing. I would like to know what kind of timetable
it might be on, but I think it would be very helpful to the
committee to have the recommendations from you.
Obviously, the presentation you made indicated that there
is some need for improvement. We notice in your own testimony
you cited two Supreme Court justices who have been critical of
the mandatory sentencing laws and I think if we can take an
objective look at it, this Congress would be doing the right
thing.
Mr. Steer. Thank you, sir.
Mr. Turner. Thank you, Mr. Chairman.
Mr. Mica. I thank the gentleman.
Well, we do have additional questions, both Mr. Cummings
and myself, but unfortunately we do have also a total of five
votes. So I guess this panel is very fortunate to be excused at
this time, but we will be submitting additional questions to
you for the record and trying to work with you as we sort out
the law and trying to make minimum mandatory as effective as
possible and the laws relating to illegal narcotics trafficking
and violent offenses against our society as effective as
possible.
So I thank each of you for your participation at this time
and excuse this panel.
The bad news is for the third panel, we are going to recess
until 2:05 in order to accommodate the five votes that are
coming up. So approximately 2:05 we will regather here and this
hearing will stand in recess until 2:05.
[Recess.]
Mr. Mica. I would like to call the subcommittee back to
order.
Our next order of business is our third panel of witnesses.
The three witnesses consist of Frances Rosmeyer from Families
Against Mandatory Minimums; Mr. William Moffitt, who is
president of the National Association of Criminal Defense
Lawyers; Mr. Wade Henderson, executive director of the
Leadership Conference on Civil Rights. I am pleased that these
witnesses have joined us.
Again this is an investigations and oversight subcommittee
of Congress. I will swear you in in just a moment.
If you have lengthy statements or material which you would
like to have made part of the record upon request of the chair,
unanimous consent will be granted.
I am pleased also to be joined by our ranking member, Mrs.
Mink, who was not with us. Did you have an opening statement or
some comments you would like to make?
Mrs. Mink. No, I just want to apologize for missing the
earlier portion, but we had an event at the White House on pay
equity that I had to be present for. Thank you very much.
Mr. Mica. Thank you. And we have, with the consent of the
minority, left the record open for 2 weeks and we will be
submitting questions to our witnesses.
With those guidelines, let me ask our witnesses to stand,
please.
[Witnesses sworn.]
Mr. Mica. Witnesses answered in the affirmative and we are
so pleased to have each of you with us today. I appreciate so
much your patience. We have had two full panels and a recess on
any number of votes. Some days we can get through the whole
process without those interruptions but today was not one of
those days. So again we thank you for your patience.
I will first recognize Frances Rosmeyer, again with Parent,
Families Against Mandatory Minimums. You are welcomed and
recognized.
STATEMENTS OF FRANCES ROSMEYER, PARENT, FAMILIES AGAINST
MANDATORY MINIMUMS; WILLIAM MOFFITT, PRESIDENT, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AND WADE HENDERSON,
EXECUTIVE DIRECTOR, LEADERSHIP CONFERENCE ON CIVIL RIGHTS
Ms. Rosmeyer. Thank you. Good afternoon and thank you for
the opportunity to speak to the committee this afternoon.
I am Frances Rosmeyer and I reside in Alpharetta, GA, a
suburb of Atlanta. I am a very proud member of FAM, Families
Against Mandatory Minimums.
My daughter, Kellie Mann, is incarcerated at the Federal
prison camp in Alderson, WV and has entered her 7th year of
incarceration. Kellie was sentenced in 1994 for a crime that
was committed in 1992. Her sentence was under the mandatory
minimums as a first-time, nonviolent drug offender, along with
her ex-boyfriend, Patrick. Both Kellie and Patrick were charged
with three Federal conspiracy drug charges for 19 grams of LSD.
The actual weight of the drugs was 0.33 gram but because of the
carrier, which was paper, the weight was increased to 19 grams.
Hence the charge of 19 grams.
The weight of the LSD triggered the 10-year mandatory
minimum sentence, something I have always questioned. Kellie's
sentence includes 10 years in prison, 5 years supervised
release, and countless hours of community service.
Her sentence began in 1994 and will not officially end with
a release from the government until about 2007, and I am sure
it will affect her much further into her life far past 2007.
Patrick, on the other hand, received 36 months and served
approximately 18 months because of his ability to help the
government.
This began in 1992 when Kellie visited Atlanta from our
home in San Francisco. We formerly lived in Atlanta and moved
to California for career opportunities. At the time, Kellie had
not dated Patrick for about 2 years and had moved along in her
life wonderfully. She was a full-time college student, working
full-time, and still living at home. While visiting Atlanta,
she had a chance meeting with Patrick. They ran into each other
at a friend's house. Their relationship had always been one of
testing and daring, and he proposed another test. He asked her
to send him some LSD on her return to San Francisco. When she
returned home, she began her search. Being relatively new to
the area, she knew very few people and it took her a while to
locate any drugs, which she finally located at a concert.
She purchased the drugs, placed them in an envelope and
mailed them to Patrick. When Patrick went to the post office to
pick up the package, he was arrested by DEA agents and this
ordeal began for all of us. He gave her name to help himself
and soon the government was at my door in San Francisco.
The words mandatory minimum laws were foreign to me. I had
never heard of these laws. Kellie has never professed her
innocence. She realized she broke the law; she admitted she
broke the law. She admitted to her crime. Our question has
always been does her punishment fit her crime?
She is serving a sentence longer than many violent
criminals, longer than repeat offenders and longer than those
receiving the benefit of the safety valve. Why? In 1994,
Congress passed a new crime bill which included the safety
valve, but what they failed to include was retroactivity for
inmates like my daughter. At that time, about 5,000 inmates
would have been affected. Today, after attrition, it is below
1,000.
This has not only affected Kellie; our entire family went
to prison. It has cost us not only economically but the larger
cost is the psychological effect that it has on all of us as a
family and will continue to deteriorate and hold us hostage for
many years after her sentence.
My husband and I live in fear daily--in fear not only of
her daily life because of where she is, but the larger fear is
of her future. Kellie is an intelligent woman but now has many
more obstacles to overcome. Losing her 20's, where does she go
when she has to start over?
My daughter is not and never has been a threat to society.
I do have a picture of my daughter. Do you have it? Thank you.
While professing we are fighting a war on drugs, where does
the war end? We must clear our vision and realize what we are
doing. It is not working. Help my family and thousands of
others. Change these laws to treat each individual as an
individual, to have the ability to look at the way they lived
their lives before that one dreaded mistake. She is not a
violent woman, never has been, and I can tell you if you went
to the prison today, they would tell you she will never be a
violent person.
Sunday is Mother's Day, a very difficult day for me. I have
spent many Mother's Days without her and it is time for her to
come home.
I am here to beg my government to make changes. This kills
families. It not only takes fathers away, it takes mothers
away, it takes daughters away, and sons. There are many women
in prison with small children that have become part of the
government housing because they have been taken away as first-
time nonviolent offenders, not just for drugs--for being
bookkeepers of people who were laundering money. Please bring
them home. These laws are not working. The basis is there but
changes need to be made.
Someone here in this city has to stand up for me, in my
city. I elect the officials here. I expect them to do my voting
and to do what is good for me. I am the citizen. I am the
taxpayer and I am begging you all to stand up and take a stand,
a deep look at what we are doing.
This morning I heard something that I never thought would
affect me, such simple words. Someone on the panel announced
that we had 2 million people in prison in this country. It
smacked me in the face because when he said it it was with some
form of pride. It does not make me proud to live in a country
where we house people in prisons, where we refuse to help the
drug addicts on the street, where we refuse to even help the
homeless. It does not make me proud. I want to be proud of my
government my country, so please help me get there.
I have a few words for the Governor that I just wrote down
this morning from his own testimony. I want to thank him for
realizing that the war on drugs is not working. He said those
words and then he contradicted himself.
Governor Allen uses a very broad brush to paint the people
in prison. They are not all murderers; they have not raped
people; they have not stolen money. Some of them, like my
daughter, made a bad decision and she has always been willing
to take that responsibility, but 10 years--and actually, it is
not 10 years; it turns into 16 years--of her young life to pay
for that mistake it is outrageous. It is despicable.
We need to start thinking about our children. My daughter
has lost her 20's. She was a bright girl in school, had a
wonderful future as an anthropologist. It is gone. It is
absolutely gone. She is paying that price. And on many
occasions throughout the years she has been in prison I have
wondered why our government doesn't stop to look at children
like mine who were young, bright, and have so much to give. Why
did they not choose to use her mistake to educate other teenage
kids, other kids in college? Why not use that intelligence
intelligently, versus locking her up somewhere where she does
not pay taxes, she is useless; she costs us money. That is what
she does as a taxpayer. That is how I look at people there.
They have so much to give this country, so much to offer,
so much intelligence, so much knowledge. Use them. Put them in
the high schools. Put them in colleges to educate the children.
You know, a Senator one time told me many years ago when I
first got involved in this, when this all first happened, I
asked him what it was going to take for the government to
realize that they are passing laws that citizens like me know
nothing about. I said, ``Don't you, as my representative, think
that I deserve an education about the laws? Don't you think
that the kids that you are putting in prison, the college
students, the high school students, don't you think that they
deserve to be educated on the laws that you are going to
sentence them to?'' And his words to me were incredible. He
told me that they were going to use my daughter to teach other
college students. That is despicable.
The government has a responsibility to its citizens and if
you are going to pass laws in this town, we deserve to be
educated. Thank you.
Mr. Mica. Thank you for your testimony and we will now hear
from William Moffitt, who is the president of the National
Association of Criminal Defense Lawyers.
You are most welcome today. I again thank you for your
patience, and you are recognized.
Mr. Moffitt. Thank you very much. We at the National
Association of Criminal Defense Lawyers are greatly
appreciative of this opportunity to be heard on this issue of
primary importance.
Not only am I president of the National Association of
Criminal Lawyers; I am a member of the Virginia Bar for 25
years and I think I could be helpful to this committee in
expressing and telling this committee that the system described
this morning, the Virginia system, is very different from the
Federal system that you are confronted with.
In the Virginia system as it currently exists, the system
imposed by Governor Allen, a citizen avoids the imposition of a
mandatory minimum penalty simply by pleading guilty or avoiding
a trial by a jury. The judge at that point is left with the
discretionary call as to what the sentence is, regardless of
the fact that the statute imposes a mandatory minimum. So a
statute that imposes a 5-year mandatory minimum, if the person
simply pleads guilty or is tried without a jury, does not cause
the person to suffer a penalty of 5 years. The judge in that
situation is allowed to impose whatever penalty he or she deems
is appropriate.
The guideline system in Virginia is not mandatory. It is
advisory. Thus, the sentencing guidelines in Virginia are used
by judges if they choose and they can avoid the use of the
guidelines merely by sentencing the individual to a sentence
outside the guideline range, either above or below. This is
very different than the current Federal system, which has
inviolable mandatory minimums and a mandatory guideline system.
We would suggest to you under the circumstances that one of
the major issues in the Federal system, as opposed to any other
system, is the absolute lack of discretion in the judiciary.
What the mandatory minimum sentencing scheme has done has taken
discretion from the judges and placed it in the hands of the
prosecutor.
Now on its face, that means very little. In reality, it
simply means this. Every discretionary call of a judge is
reviewable by another set of judges. No discretionary call by a
prosecutor is reviewable by anyone. So under the circumstances
that you see, many of the discretionary calls that cause the
disparities that you are seeing and that we have seen over the
years that have existed in this system are unreviewable by
anyone, and we suggest that this is a misplacement of
discretion in the system.
It is an interesting placement of discretion in the system,
where we spend a lot of time deciding who the Federal judges
are going to be. We spend a lot of time vetting them and
reviewing their credentials and questioning their judgment as
to whether or not they are the appropriate people to exercise
judgment over other human beings. We spend no such time
questioning the prosecutors in the same way.
So we replace the discretion of people who have
participated in the system for 20 or 30 years in order to get
to the point of being a judge with that of a 26 or 27-year-old
prosecutor who is just out of law school. And I suggest to you
in an intelligent system, that is nowhere to place discretion.
Discretion ought to be placed at the other end of the system.
One other thing that you do not see because we get caught
in the elastic of the statistics and the numbers is the most
important thing for a person to be in our system to avoid the
impact of the mandatory minimum is to be a large and successful
drug dealer. The larger and more successful the drug dealer,
the more the drug dealer has to sell to the government at the
time of his or her arrest, the easier therefore it is to avoid
the mandatory minimums that exist supposedly to incarcerate the
drug dealer at the highest level.
And I suggest to you what is happening in our system, in
our current system, is the high level drug dealer avoids the
consequences of the mandatory minimum system because the high
level drug dealer has something to offer. It is the low level
drug dealer that suffers the impact of the mandatory minimum
system in the current system.
I am struck as I sit here. The drug war, as I remember it,
began in 1968 when Richard Nixon began it. I was 19 years old
and I was in college. I am 51 years old and I am the president
of the National Association of Criminal Defense Lawyers and I
have been a practicing lawyer for 25 years. My entire career,
this country has been engaged in a drug war. My entire career,
this drug war has been met over and over by people seeking
greater penalties for political gain, and yet the war continues
unabated, undisturbed.
I sat here this morning and listened to the fact that more
of our children, despite since 1987 and the mandatory minimum
system, I sat here while we listened to the Governor suggest
that more people are using drugs today than were using when we
began the mandatory minimum system.
The mandatory minimum system has not solved the problem. It
will not solve the problem. You will not incarcerate us out of
the drug problem in America today. We have to finally decide to
be more intelligent about how we view this problem. This
problem is symptomatic of other problems that exist within the
framework of our system. And it is often the people who suffer
most those other problems that suffer at the hands of these
drug problems, and the laws as we define them.
We have got to begin to get intelligent about this. We have
got, when we see the skyrocketing rates of incarceration of
African Americans and Latinos in this country and we all turn
our eyes to them and say this is horrible, it is time for us to
do something about it.
I stood with a million men outside this Capitol. We were
simply there asking, in part, that the 100 to 1 disparity of
crack cocaine versus powder cocaine be changed. One million men
petitioning their government. That very week this body was
addressing that problem. That very week we were unheard.
I, too, have a daughter, a 16-year-old daughter who goes to
high school. I have two explanations I have to give her. I have
to talk to her about drugs and then I have to talk to her as an
African American woman and answer her question as to why this
society punishes people of color differently than it treats
people not of color. And every day I have to talk to her and
tell her that she has to have faith. And every day generations
before me told me I had to have faith, told my mother that she
had to have faith, told my father and my grandfather that they
had to have faith. We are losing faith. Faith is no longer
enough. We today must do something.
We have international treaties in the United Nations that
suggest that when we have laws that have adverse racial impact,
they are to be changed, and yet the United States does nothing.
When will we change? When will we provide more than lip
service to the notion that we cannot keep incarcerating
minorities using these types of laws for the lengths of time,
in the numbers? We have already disfranchised 1.4 million
African American people in this country through the use of drug
incarcerations. How many more? When will it end? When will we
declare peace and begin to change how we perceive this problem
so that we might be progressively solving it?
I really do appreciate the opportunity to be heard today.
This is an important issue. It is an important issue not just
because of mandatory minimums. It is an important issue because
of the signal that it sends to the people of this country about
whether we care or not, whether we are concerned or not.
I appreciate your concern. I hope that it is time that we
stop talking and we begin doing and that we change this. The
war has gone on long enough. It seems a bit irrational to me
that as a society, we declare war on ourselves. So thank you
for having me.
[The prepared statement of Mr. Moffitt follows:]
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Mr. Mica. Thank you so much for your testimony.
I am pleased to now recognize Mr. Wade Henderson, who is
the executive director of the Leadership Conference on Civil
Rights. You are welcome and recognized, sir.
Mr. Henderson. Thank you, Mr. Chairman and thank you, Mrs.
Mink, for the opportunity to appear before you today.
I am Wade Henderson, the executive director of the
Leadership Conference on Civil Rights. I would respectfully
request that my complete statement and its attachment be made a
part of the record of today's hearing.
Mr. Mica. Without objection, so ordered. Thank you.
Mr. Henderson. The Leadership Conference is the nation's
oldest and most diverse coalition of civil rights
organizations. The Leadership Conference on Civil Rights
consists of over 180 national organizations representing
persons of color, women, children, organized labor, persons
with disabilities, the elderly, gays and lesbians and major
religious groups. It is a privilege to represent the civil and
human rights community in addressing the subcommittee today.
We commend you for convening this timely hearing. Last week
the Leadership Conference released a new policy report
entitled, ``Justice on Trial: Racial Disparities in the
American Criminal Justice System.'' I will first provide an
overview of our report and then discuss the specific issue of
drug sentencing.
The new Leadership Conference report compiles evidence
about disparities in every aspect of the criminal justice
system from police tactics to sentencing laws. We conclude that
the criminal justice system is beset by massive unfairness.
Both the reality and the perception of racial bias have adverse
consequences for minority communities and for the criminal
justice system itself. We respectfully submit the full report
for the record. It is also available over the Internet at
www.civilrights.org.
In the half century since the Leadership Conference was
founded, the Nation has made great strides in combating racial
discrimination. With the criminal justice field in particular,
racial inequality is growing, not receding. Law enforcement
disparities threaten 50 years of hard-fought civil rights
progress.
For example, the Civil Rights Act of 1964 bans employment
discrimination but today, 3 out of every 10 Black males born in
the United States will serve time in prison, severely limiting
their prospects for legitimate employment. The Voting Rights
Act of 1965 guarantees the franchise but today, 31 percent of
Black men in Alabama and Florida and 1.4 million Black men
nationally have lost the right to vote as a result of felony
criminal convictions.
Our civil rights statutes abolished Jim Crow laws and gave
minority citizens the right to travel and to use public
accommodations freely but today, racial profiling and police
brutality make such travel hazardous to the dignity and health
of law-abiding Black and Hispanic citizens.
``Justice on Trial'' details how unequal treatment of
minorities characterizes every stage of the process. Minorities
are victimized by profiling and other police tactics, by
racially skewed charging decisions of prosecutors, by biased
sentencing practices and by the failure of judges to redress
inequities that become more glaring every day.
These disparities are unjustified. The vast majority of
Blacks and Hispanics are law-abiding citizens. Enforcement
tactics that assume otherwise are unfair and intolerable.
Now our report discusses the consequences of these
policies. For example, almost one in three young Black males is
under some form of criminal supervision, either in prison or
jail or on probation or parole. A Hispanic male born in 1991
has a one in six chance of spending time in prison. There are
more young Black men under criminal supervision than there are
in college and for every 1 Black male who graduates from
college, over 100 are arrested.
In my written testimony and in the Leadership Conference
report itself, we present a number of recommendations to
address these disparities, including more accountability for
police and prosecutorial decisionmaking, more diversity in law
enforcement, juvenile justice laws that do not turn Black and
Hispanic youth into hardened career criminals, and a ban on
racial profiling.
We do not propose less public safety. The issue is not
whether to be tough on crime but whether to be fair and smart
while being tough on crime. There is no contradiction between
effective law enforcement and the promotion of civil rights.
Let me now discuss the report's specific recommendations
regarding the subject of this hearing--drug sentencing. The
decision to sentence a convicted criminal to prison has
traditionally been entrusted to impartial judges but in recent
years, sentencing has become mechanistic--a decision
effectively controlled by legislators, prosecutors and
sentencing commissioners. This change in the culture of
sentencing has had disastrous consequences for racial
minorities.
Our report analyzes mandatory sentencing laws enacted in
the 1980's and concludes that they have led to racial
injustice. These laws deprive judges of the discretion to
tailor a sentence based on the culpability of the defendant and
the seriousness of the crime. Mandatory minimum sentencing laws
are not truly mandatory because prosecutors may grant
exceptions. Prosecutors can choose to charge some defendants
with offenses that do not carry mandatory penalties or they can
accept a plea in which charges carrying mandatory penalties
will be dismissed. These laws transfer sentencing authority
from experienced, impartial judges to young adversarial
prosecutors.
Now, some civil rights supporters originally favored
mandatory minimums, but the evidence is clear that minorities
fare worse under mandatory sentencing laws than they did under
a system of judicial discretion. By depriving judges of the
responsibility to impose fair sentences, mandatory sentencing
laws represent injustice on autopilot.
The effect of current sentencing policies has been
dramatic. Since 1972, the populations of Federal and State
prisons have increased 500 percent to 1.2 million individuals.
Including jail populations, America now incarcerates about 2
million people.
An increasingly large percentage of those in prison are
charged with drug crimes. Between 1980 and 1995, the number of
those serving time for drugs increased more than 1,000 percent.
There are now 400,000 Federal and State inmates serving time or
awaiting trial for drug offenses.
These statistics describe a national strategy to address
the public health problem of drug abuse with massive
incarceration. A drug control strategy that depends so heavily
on prison building is unwise for many reasons, including the
racial disparities it creates. My written testimony and the
LCCR report document these racial disparities in detail, but I
will provide some highlights.
Whites who serve time for felony drug crimes serve shorter
prison terms than Blacks--on average, 27 months for Whites and
46 months for Blacks. From 1970 to 1984, Whites comprised about
60 percent of those admitted to prisons and Blacks around 40
percent. By 1991, these ratios had reversed, with Blacks
comprising 54 percent of prison admissions versus 42 percent
for Whites.
Hispanics represent the fastest growing category of
prisoners, having grown 219 percent between 1985 and 1995.
Between 1985 and 1995, the number of White drug offenders
in State prisons increased by 300 percent while the number of
similarly situated Black drug offenders increased by 700
percent.
Now, these disparities in drug sentencing do not occur
because minorities use drugs at a higher rate than Whites.
According to Federal health statistics, drug use rates per
capita among racial minorities and White Americans are similar
and studies show that drug users tend to purchase drugs from
sellers of their own race. But while Blacks constitute about 12
percent of the population, they constitute 38 percent of those
arrested for drugs, 59 percent of those convicted of drug
offenses, and 74 percent of those sentenced to prison for a
drug offense.
The statistics in certain cities are extraordinary. In
Columbus, OH, Black males comprise 11 percent of the population
but 90 percent of the drug arrests. In Jacksonville, FL, Black
males comprise 12 percent of the population but 87 percent of
drug arrests.
Much of this discrepancy can be traced to practices such as
racial profiling. The assumption that minorities are more
likely to commit drug crimes and that most minorities commit
such crimes prompts more minority arrests. Whites commit drug
crimes, too, but police enforcement tactics do not focus on
them. Drug arrests are easier to accomplish in inner city
neighborhoods than in middle class White neighborhoods.
At the Federal level, differences in laws governing crack
and powder cocaine cases cause disparity; that has already been
noted. As members know, 5 grams of crack triggers the same
mandatory sentence as 500 grams of powder cocaine. But in 1993,
95.4 percent of those convicted of Federal crack offenses were
Black or Hispanic. Whites were prosecuted in State courts
instead.
In 1995, the U.S. Sentencing Commission recommended that
the differences in cocaine sentencing thresholds be abolished.
And after Congress blocked that change, the Commission
recommended a less dramatic reduction in the 100 to one
disparity. Five years later, Congress has not adopted any of
the Commission's recommendations on this subject.
The result is continued enforcement of a law that everyone
agrees is irrational at best and racist at worst. Few policies
contribute more to minority cynicism about law enforcement than
the crack/powder cocaine disparity. If anti-drug efforts are to
have credibility in minority communities, these penalties must
be equalized, as the commission initially proposed.
Mandatory sentencing laws are engines of racial injustice.
They have filled America's prisons to the rafters with
thousands of nonviolent minority offenders. Repeal of these
laws would be a significant step toward restoring racial
fairness in the criminal justice system. Thank you very much,
Mr. Chairman.
[The prepared statement of Mr. Henderson follows:]
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Mr. Mica. I would like to thank all of our witnesses for
their testimony and participation and again their patience in
coming before us both this morning and this afternoon.
First of all if I may, Ms. Rosmeyer, I think we all are in
great sympathy with you for the plight of your daughter. It
appears that when mandatory minimum went into effect for her
offense, she was harshly penalized and it appears that the
safety valve change, I guess that we did in 1994, left many
people, as you testified, who were not given the opportunity of
that safety valve any opportunity for rehearing.
Did you testify that there are about 1,000 left?
Ms. Rosmeyer. About 1,000 left in prison.
Mr. Mica. There were originally 3,000.
Ms. Rosmeyer. 5,000, approximately 5,000.
Mr. Mica. It is a difficult situation and unfortunately
your daughter got caught in it.
I think you are aware of the provisions of the safety valve
and those requirements, as I understand, and we had testimony
today, are not discretionary; they are mandatory as far as
application. Do you think that they are adequate?
Now, I want to separate you from your daughter's situation.
I know that you would like to see that retroactive, but what we
have in place, is that adequate?
Ms. Rosmeyer. The safety valve?
Mr. Mica. Yes.
Ms. Rosmeyer. Well, it is only going to affect the safety
valve at this point with the retroactivity, obviously it will
affect the 1,000 individuals left. You are talking about
presently, going forward?
Mr. Mica. I know your position, but we now have in place
this mechanism for mitigating circumstances----
Ms. Rosmeyer. Yes, I am in agreement with the safety valve
as it is now.
Mr. Mica. I just heard some testimony by Mr. Henderson
about several instances of racial disparity in, I guess,
sentencing and prosecution. I think you cited Columbus, OH and
Jacksonville; is that correct?
Mr. Henderson. Yes, sir.
Mr. Mica. Has your organization complained to the
Department of Justice or asked for investigation of these
cities or areas, jurisdictions where there is such a
discrepancy?
Mr. Henderson. Well, Mr. Chairman, our organization has
written to the Attorney General, actually to President Clinton
over a year ago with respect to the broader issue of racial
profiling. In that letter we did not cite the specific examples
of Columbus, OH and Jacksonville, FL at that time. The report
which we published was only recently published last week.
But I can assure you we will be following up both with the
Attorney General and in correspondence to the President
himself, followup to these disparities that we have documented.
Mr. Mica. It seems to me where we have had incidents, even
in the area that I live in, central Florida, we have had a
sheriff who is very active in going after drug traffickers and
there were charges of disparity. There was a State
investigation; there was a Department of Justice investigation.
We had it investigated from stem to stern and I am
wondering why, if you have, and your statistics are correct,
instances where there is such a disparity, that we do not have
the Department of Justice reviewing those instances. I thought
that was part of our oversight responsibility as a Federal law
enforcement agency.
Mr. Henderson. Mr. Chairman, I think you raise an excellent
point. Certainly the concerns which we have documented in this
report with regard to the appearance of racial profiling--in
fact, really more than the appearance, the actual fact of
racial profiling in incidents that have helped to create the
disparities we have documented--we think is a serious problem
and we think it is one that the Department of Justice does have
a responsibility to examine thoroughly.
I think one of the problems we have encountered is that the
law enforcement community, broadly defined, has resisted
accepting responsibility for racial profiling as an enforcement
technique that they employ in carrying out their own
responsibilities. That is to say many communities deny the
existence of racial profiling in terms of their official
response to the problems that we have identified.
Certainly we think that the disparities which we have
helped to unearth and the disparities of such wide magnitude as
reflected in our report raise serious presumptions about
inherent unfairness in the way the system operates.
We are not contending, I should point out, that in every
instance the disparity results from intentional discrimination
or some widespread bigotry that could be rooted out by
dismissing someone who happens to be in a leadership position.
We think that the problem is really systemic and we think that
the way to root it out is to, of course, confront it, to have
the problem identified, accepted as a real problem, and to have
prescriptive steps taken to resolve it, and we are pressing the
Department of Justice to do a more vigorous job in bringing
these issues to light.
I should note that recently in the city of Los Angeles the
Civil Rights Division has noted that because of apparently a
widespread pattern of police misconduct, that it is
contemplating bringing action in that community and is, in
fact, in negotiation now, I gather, with city officials to
address those problems. That is the kind of step that we hope
the department will take not just in Los Angeles but in other
communities where this evidence is unearthed.
Mr. Mica. Thank you.
We are getting hit by the buzzer again, with votes. I am
going to yield the balance of the time to the ranking members,
Mrs. Mink.
Mrs. Mink. Thank you very much. All three of you raised
some very profound and provocative questions about the current
system that we operate under.
Knowing the general climate of Congress in wanting to find
easy answers to very complicated questions, they plunged into
this whole area of mandatory sentencing as perhaps one way of
demonstrating their vehement objection against the whole
problem of drug abuse in our society. But each of us, in our
own offices, have had innumerable examples of the terrible
injustice that has occurred because of the way in which
mandatory minimums are set.
Now, noting again the reluctance of Congress to admit they
were wrong and need to correct these wrongs with any degree of
rapidity, I ask this question in the sense of some sort of an
intermediary step, just short of any repeal or rescission of
what we have done.
Is there any thought that perhaps if we allow the courts to
enter into this judgment area, once the individual has been
arrested and sentenced, arrested and brought to trial, if we
allowed in the same context to have the judge pass judgment as
to the fairness and equity of the mandatory sentence? Is that
workable or is that just throwing more sop to the whole
situation?
Mr. Moffitt. Mr. Moffitt for the NACDL.
There are several things that we would suggest. No. 1, the
discretionary call in the system as to whether or not a
sentence ought to be reduced below the mandatory minimum, that
should be vested in the judiciary and not in the prosecutor.
Mrs. Mink. Well, if we take that absolute statement that we
cannot live with mandatory sentencing at all, my suggestion is
that leaving mandatory sentencing to some extent in the hands
of the prosecutor but allowing the courts, upon motion by the
attorneys in question, to review the equity of that situation,
given our testimony here where the person who was the one who
instigated this activity gets off with just a couple of months
and her daughter gets 10 years; on the face of it, it is so
inequitable. Couldn't we find some way to----
Mr. Moffitt. Certainly that would be an improvement. That
would certainly be an improvement in a system which you have
also----
Mrs. Mink. Well, you know, in Congress we deal with
incrementals.
Mr. Moffitt. I understand.
Mrs. Mink. And I wondered whether that little incremental
would be of any help at all.
Mr. Moffitt. Certainly my constituency would take any help
that Congress would be willing to give it under these
circumstances, but you also have to understand that under I
believe it is Title VIII, 28 U.S.C. 993, when the mandatory
minimum sentences were passed, many other things were passed
along with them. For instance, the socioeconomic status of a
particular defendant cannot be taken into account as a
sentencing factor any longer.
So all the things that traditionally were issues that
judges normally took into consideration when they imposed
sentences, many of those, by statute, have been taken away. So
we would ask that some of those, judges be allowed again to
exercise some discretion in the sentencing area.
When you speak about the safety valve, one of the problems
with the safety valve you heard this morning is that something
as innocuous perhaps as a DWI can affect a person's eligibility
for the safety valve. Something as innocuous as the
codefendant's possession of a firearm can affect eligibility
for the safety valve. So it might not be that this particular
accused had a firearm; it might be that someone in the
conspiracy had a firearm and that will affect that person's
eligibility for the safety valve.
So the safety valve needs to be less restrictive than it is
currently for it to have a larger impact. And particularly in
areas, minority areas, where people get small arrests that
affect their prior record, any small conviction affects
eligibility for the safety valve. That is why the safety valve
sometimes does not have the impact on minority communities that
it was intended when you initially passed it.
So those are issues that can be dealt with that are
incremental in change and I would ask that they be looked at
and discussed. Further, I do have some remarks that are written
and I would ask that they be made a part of the record.
Mr. Mica. Without objection.
Mrs. Mink. Could I have a unanimous consent request. Our
colleague Maxime Waters has a statement and I ask unanimous
consent that it be inserted in the record.
Mr. Mica. Without objection, Ms. Waters' entire statement
will be made part of the record.
[The prepared statement of Hon. Maxine Waters follows:]
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Mr. Henderson. Mr. Chairman, may I respond to Mrs. Mink's
request for interim steps that might be taken?
Mr. Mica. Yes, go right ahead. I think we have a moment or
two left.
Mr. Henderson. I think there are three things that I would
recommend as short-term steps toward improving this problem. I
do believe the Federal Government has an obligation to show
leadership in this area and to lead by example.
Certainly I think that over the last 2 years in particular,
the problem of racial profiling has been highlighted and
documented extensively. It exists; it is a problem; it should
not be tolerated. I think the President could issue an
Executive order banning the use of racial profiling in Federal
law enforcement agencies. I think it would make a major step
toward putting the imprimatur of the Federal Government against
that policy and it would certainly encourage States and local
law enforcement agencies to reflect on the use of this policy
carefully.
Second, I think that the Department of Justice should be
encouraged to review its support for mandatory minimum
sentencing. I was surprised and, in fact, troubled by the
testimony of the Department of Justice witness at your hearing
today, which announced the Department's support for these
policies, and I think they should be encouraged and we will do
so, make an effort to do so, to review these issues and to
hopefully adopt a more enlightened policy.
And third, the U.S. Sentencing Commission, which testified
through Commissioner Steer here today, at least the
Commissioner expressed his concern about the use of mandatory
minimums and seemed to suggest that the Commission itself would
have trouble supporting such provisions.
We know, for example, that the Commission issued a report
in 1991 that made clear its opposition to the use of mandatory
minimums. We would hope that that report could be updated with
new additional research and information and presented to the
Congress with its findings for review. And certainly this
committee is in a position to ask the U.S. Sentencing
Commission to provide an update on its 1991 report and we would
certainly encourage you to do that, as well.
Mr. Mica. Thank you. Thank each of you for your
participation, for your testimony.
Ms. Rosmeyer. Could I say one more thing, please?
Mr. Mica. Very quickly.
Ms. Rosmeyer. Yes, very quickly.
I want to just clarify what I said earlier because I am new
at this and they are not, so I am going to clarify myself.
With respect the safety valve, I feel it should be broader
because of exactly what Mr. Moffitt was saying--the fact that
the smallest of incidents in someone's life takes that ability
away--no safety valve.
Mr. Mica. Thank you for clarifying.
Ms. Rosmeyer. Thank you.
Mr. Mica. And if any of you wish to submit additional
testimony or remarks for the record, we are, by unanimous
consent request, leaving the record open for 2 additional
weeks, and we welcome again submissions to be made part of the
record.
Unfortunately, our time has expired but I do thank you. I
appreciate your being with us.
There being no further business to come before the
subcommittee, this meeting is adjourned.
[Whereupon, at 3:02 p.m., the subcommittee was adjourned.]
[Additional information submitted for the hearing record
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