[House Report 106-850]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-850
======================================================================
TO AMEND SECTION 274 OF THE IMMIGRATION AND NATIONALITY ACT TO IMPOSE
MANDATORY MINIMUM SENTENCES, AND INCREASE CERTAIN SENTENCES, FOR
BRINGING IN AND HARBORING CERTAIN ALIENS AND TO AMEND TITLE 18,
UNITED STATES CODE, TO PROVIDE ENHANCED PENALTIES FOR PERSONS
COMMITTING SUCH OFFENSES WHILE ARMED
_______
September 14, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 238]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 238) to amend section 274 of the Immigration and
Nationality Act to impose mandatory minimum sentences, and
increase certain sentences, for bringing in and harboring
certain aliens and to amend title 18, United States Code, to
provide enhanced penalties for persons committing such offenses
while armed, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 3
Background and Need for the Legislation.................... 3
Hearings................................................... 4
Committee Consideration.................................... 4
Committee Oversight Findings............................... 4
Committee on Government Reform Findings.................... 4
New Budget Authority and Tax Expenditures.................. 4
Congressional Budget Office Cost Estimate.................. 4
Constitutional Authority Statement......................... 7
Section-by-Section Analysis and Discussion................. 7
Changes in Existing Law Made by the Bill, as Reported...... 8
Dissenting Views........................................... 11
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. MANDATORY MINIMUM SENTENCES FOR BRINGING IN AND HARBORING
CERTAIN ALIENS.
Section 274(a)(1) of the Immigration and Nationality Act (8 U.S.C.
1324(a)(1)) is amended--
(1) in subparagraph (B), by striking ``A person'' and
inserting ``Except as provided in subparagraphs (C) and (D), a
person''; and
(2) by adding at the end the following:
``(C)(i) Except as provided in clauses (ii) and (iii), a person who
violates subparagraph (A) shall, for each alien in respect to whom such
a violation occurs--
``(I) in the case of a violation of clause (i), (ii),
(iii), or (iv) of subparagraph (A) in which the offense was
done for the purpose of commercial advantage or financial gain,
be fined under title 18, United States Code, imprisoned not
less than 2 years nor more than 10 years, or both;
``(II) in the case of a violation of subparagraph (A)(v) in
which the offense was done for the purpose of commercial
advantage or financial gain, be fined under title 18, United
States Code, imprisoned not less than 1 year nor more than 5
years, or both;
``(III) in the case of a violation of subparagraph (A) in
which the offense was done for the purpose of commercial
advantage or financial gain and during and in relation to which
the person causes serious bodily injury (as defined in section
1365 of title 18, United States Code) to, or places in jeopardy
the life of, any person, be fined under title 18, United States
Code, imprisoned not less than 5 years nor more than 25 years,
or both; and
``(IV) in the case of a violation of subparagraph (A) in
which the offense was done for the purpose of commercial
advantage or financial gain and resulting in the death of any
person, be punished by death or imprisoned for any term of
years or for life (but not less than 20 years), fined under
title 18, United States Code, or both.
``(ii) In the case of a violation of subparagraph (A) in which the
offense was done for the purpose of commercial advantage or financial
gain after 1 prior conviction for any other such violation of
subparagraph (A) has become final, the minimum term of imprisonment
shall be not less than two times the minimum term specified in clause
(i).
``(iii) In the case of a violation of subparagraph (A) in which the
offense was done for the purpose of commercial advantage or financial
gain after 2 or more prior convictions for any other such violations of
subparagraph (A) have become final, the minimum term of imprisonment
shall be not less than five times the minimum term specified in clause
(i).
``(D) In no case may any penalty for a violation of subparagraph
(A) be imposed on any person based on actions taken by the person to
render emergency assistance to an alien found physically present in the
United States in life threatening circumstances.''.
SEC. 2. ENHANCED PENALTIES FOR PERSONS COMMITTING OFFENSES WHILE ARMED.
Section 924(c)(1) of title 18, United States Code, is amended--
(1) in subparagraph (A)--
(A) by inserting after ``device)'' the following:
``or any violation of section 274(a)(1)(A) of the
Immigration and Nationality Act''; and
(B) by striking ``or drug trafficking crime--'' and
inserting ``, drug trafficking crime, or violation of
section 274(a)(1)(A) of the Immigration and Nationality
Act--''; and
(2) in subparagraph (D)(ii), by striking ``or drug
trafficking crime'' and inserting ``, drug trafficking crime,
or violation of section 274(a)(1)(A) of the Immigration and
Nationality Act''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall take effect 90 days after the
date of the enactment of this Act, and shall apply to offenses
committed after the termination of such 90-day period.
Purpose and Summary
To deter and punish alien smuggling, H.R. 238 would set
mandatory minimum sentences for alien smuggling crimes
committed for commercial advantage or financial gain and
enhance penalties for alien smuggling committed while armed.
Background and Need for the Legislation
Some aliens entering the United States illegally do so on
their own, while others employ the services of professional
alien smugglers. Alien smuggling is a serious and rapidly
growing problem, according to numerous media reports and a
recent comprehensive audit done by the U.S. General Accounting
Office (Alien Smuggling: Management and Operational
Improvements Needed to Address Growing Problem, May 2000, GAO/
GGD-00-103).
In recent years the strong U.S. economy and low
unemployment have increased the economic incentive for aliens
to immigrate illegally to the United States. Rising wages and
greater job opportunities spur illegal immigration.
In addition, Congress has greatly increased U.S.
Immigration and Naturalization Service resources for additional
Border Patrol agents, special agents, and detention and
deportation officers. This enforcement buildup has made it more
difficult for illegal aliens to enter the United States
undetected.
Both the rising economy and more effective law enforcement
have led to increased reliance by illegal aliens on
professional alien smugglers. Smuggling fees have gone up, and
the smugglers have become increasingly better organized and
more ruthless.
Smuggled aliens often endure inhumane treatment at the
hands of smugglers and employers. For example, recent media
reports describe Mexican alien smugglers who abandon aliens in
the desert, without food or water, to avoid apprehension. Other
aliens have died or suffered serious injuries when locked by
smugglers into trucks and cargo containers.
Chinese alien smugglers charge exorbitant fees--as much as
$60,000 per alien--that the aliens must pay through long
periods of indentured servitude in sweatshop conditions in
places like New York City's Chinatown. Smugglers often coerce
indebted aliens into drug trafficking, prostitution, and other
illegal activities. Aliens who fail to cooperate with smugglers
suffer severe penalties.
However, under current law, individuals convicted of alien
smuggling crimes often receive lenient sentences. GAO's recent
report stated that convicted smugglers, including those
responsible for death or serious injury, receive an average
sentence of only 10 months, which may be suspended, plus an
average fine of about $140.
Lenient sentences have contributed to the upsurge in alien
smuggling. Organized crime syndicates realize that the risk of
punishment for smuggling aliens is far less than the risk for
smuggling drugs or committing other serious crimes.
H.R. 238 would strengthen the punishment and deterrence
directed against alien smuggling by establishing mandatory
minimum sentences for alien smuggling crimes, increased
sentences for persons who cause serious bodily injury or
jeopardy to life while committing alien smuggling crimes, and
increased sentences for repeat offenders. It would also enhance
penalties for persons who use or carry firearms while
committing alien smuggling crimes.
Hearings
The committee's Subcommittee on Immigration and Claims held
one day of hearings on H.R. 238 on May 18, 1999. Testimony was
received from Rep. Rogan, the bill's author, Mr. Bo Cooper,
Acting General Counsel for the U.S. Immigration and
Naturalization Service, and Captain Anthony S. Tangeman, Chief
of the Office of Law Enforcement for the U.S. Coast Guard.
Committee Consideration
On March 8, 2000, the Subcommittee on Immigration and
Claims met in open session and ordered favorably reported the
bill H.R. 238, as amended, by voice vote, a quorum being
present. On July 19, 2000, the committee met in open session
and ordered favorably reported the bill H.R. 238 with amendment
by voice vote, a quorum being present.
Two amendments were adopted by the committee. The first,
offered by Rep. Jackson Lee, provided that H.R. 238's mandatory
minimum sentences shall not be imposed based on actions taken
to render emergency assistance to an alien in life threatening
circumstances. The second, offered by Rep. Lofgren, provided
that H.R. 238's mandatory minimum sentences shall apply only to
alien smuggling crimes committed for commercial advantage or
financial gain.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 238, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 7, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 238, a bill to
amend section 274 of the Immigration and Nationality Act to
impose mandatory minimum sentences, and increase certain
sentences, for bringing in and harboring certain aliens and to
amend title 18, United States Code, to provide enhanced
penalties for persons committing such offenses while armed.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 238--A bill to amend section 274 of the Immigration and
Nationality Act to impose mandatory minimum sentences, and
increase certain sentences, for bringing in and harboring
certain aliens and to amend title 18, United States Code, to
provide enhanced penalties for persons committing such offenses
while armed.
SUMMARY
H.R. 238 would establish mandatory minimum prison sentences
for certain crimes involving the transportation of illegal
aliens into the United States. Assuming appropriation of the
necessary amounts, CBO estimates that implementing the bill
would cost $160 million over the next five years to accommodate
more prisoners in federal prisons. Enacting H.R. 238 would
affect direct spending and receipts, so pay-as-you-go
procedures would apply, but CBO estimates that any such effects
would be less than $500,000 annually.
H.R. 238 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect state, local, or tribal governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The following table summarizes the estimated budgetary
impact of H.R. 238. The costs of this legislation fall within
budget function 750 (administration of justice).
By fiscal year, in millions of dollars
----------------------------------------------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending for Prison Construction and 3,669 3,809 3,926 4,046 4,168 4,292
Operations Under Current Law
Estimated Authorization Level\1\
Estimated Outlays 3,463 3,677 3,822 3,973 4,110 4,246
Proposed Changes 0 1 8 14 17 20
Prison Operations
Estimated Authorization Level
Estimated Outlays 0 1 8 14 17 20
Prison Construction 0 0 100 0 0 0
Estimated Authorization Level
Estimated Outlays 0 0 10 40 45 5
Total 0 1 108 14 17 20
Estimated Authorization Level
Estimated Outlays 0 1 18 54 62 25
Spending for Prison Construction and 3,669 3,810 4,034 4,060 4,185 4,314
Operations Under H.R. 238
Estimated Authorization Level\1\
Estimated Outlays 3,463 3,678 3,840 4,027 4,172 4,271
----------------------------------------------------------------------------------------------------------------
\1\ The 2000 level is the amount appropriated for that year. The estimated authorization levels for 2001 through
2005 reflect CBO baseline estimates, assuming adjustments for inflation. Without such adjustments, the current-
law amounts would remain at about $3.7 billion a year, and the bill's effects on prison operations would be
about $7 million lower over this period.
BASIS OF ESTIMATE
For this estimate, CBO assumes that the bill will be
enacted near the start of fiscal year 2001, and that the
necessary funds for prison operating costs will be appropriated
at or near the beginning of each fiscal year.
Spending Subject to Appropriation
Prison Operations Costs. According to the U.S. Sentencing
Commission, the bill's provisions would increase the average
prison sentence for the relevant offenses from 12 months to 34
months. The commission estimates that the longer sentences
required by H.R. 238 would increase the prison population by
about 1,900 prisoners a year by fiscal year 2005. In 2000, the
annual cost to detain a federal prisoner is about $9,000. CBO
estimates that the cost to support additional prisoners under
this bill would be about $60 million over the 2001-2005 period.
Prison Construction Costs. It is likely that an additional
federal prison would be needed to house the number of prisoners
detained in federal facilities that would be added by this
bill. Based on information from the Bureau of Prisons, CBO
estimates that construction of a new prison for this purpose
would begin in 2002 and total costs would be about $100 million
over the 2002-2005 period, subject to the availability of
appropriated funds, for a facility with a capacity of 1,150
prisoners.
Direct Spending and Revenues
Because those prosecuted and convicted under H.R. 238 could
be subject to greater criminal fines, the federal government
might collect additional fines if the bill is enacted.
Collections of such fines are recorded in the budget as
governmental receipts (revenues), which are deposited in the
Crime Victims Fund and spent in subsequent years. CBO expects
that any additional receipts and direct spending as a result of
enacting this bill would not be significant.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts. Pay-as-you-go procedures would apply to
H.R. 238, but CBO estimates that any changes in direct spending
or receipts would be less than $500,000 for each year.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
The bill contains no intergovernmental or private-sector
mandates as defined in UMRA and would not affect state, local,
or tribal governments.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Shelley
Finlayson (225-3220)
Impact on the Private Sector: Patrice Gordon (226-2940)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis and Discussion
Sec. 1. Mandatory Minimum Sentences for Bringing In and
Harboring Certain Aliens. Section 1 provides that smuggling an
illegal alien into the United States, transporting or harboring
an illegal alien within the United States, or inducing an alien
to enter the United States illegally, when done for the purpose
of commercial advantage or financial gain, shall be subject to
a minimum sentence of 2 years. Conspiracy to commit, or aiding
or abetting the commission of, any of the preceding crimes
shall be subject to a minimum sentence of 1 year.
The minimum sentence shall be 5 years for any of the
preceding crimes that cause serious bodily injury or jeopardize
the life of a person, and the maximum sentence for such a crime
shall be increased from 20 to 25 years. The minimum sentence
shall be 20 years for any of the preceding crimes that result
in the death of a person.
Upon a second conviction for any of the preceding crimes
the minimum sentence is doubled, and upon a third or subsequent
conviction the minimum sentence is quintupled.
Sec. 2. Enhanced Penalties for Persons Committing Offenses
while Armed. Section 2 adds alien smuggling to the list of
Federal criminal offenses that receive increased sentences if a
firearm is involved. (The list currently includes all crimes of
violence and drug trafficking crimes, see 18 U.S.C.
Sec. 924(c).) Committing an alien smuggling crime with a
firearm would add 5 years to the sentence, 7 years if the
firearm is brandished, or 10 years if the firearm is discharged
or is a particularly dangerous weapon.
Sec. 3. Effective Date. Section 3 provides that the
amendments made by H.R. 238 shall take effect 90 days after its
enactment and shall apply to offenses committed after the
termination of such 90-day period.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 274 OF THE IMMIGRATION AND NATIONALITY ACT
bringing in and harboring certain aliens
Sec. 274. (a) Criminal Penalties.--(1)(A) * * *
* * * * * * *
(B) [A person] Except as provided in subparagraphs (C) and
(D), a person who violates subparagraph (A) shall, for each
alien in respect to whom such a violation occurs--
(i) * * *
* * * * * * *
(C)(i) Except as provided in clauses (ii) and (iii), a
person who violates subparagraph (A) shall, for each alien in
respect to whom such a violation occurs--
(I) in the case of a violation of clause (i), (ii),
(iii), or (iv) of subparagraph (A) in which the offense
was done for the purpose of commercial advantage or
financial gain, be fined under title 18, United States
Code, imprisoned not less than 2 years nor more than 10
years, or both;
(II) in the case of a violation of subparagraph
(A)(v) in which the offense was done for the purpose of
commercial advantage or financial gain, be fined under
title 18, United States Code, imprisoned not less than
1 year nor more than 5 years, or both;
(III) in the case of a violation of subparagraph
(A) in which the offense was done for the purpose of
commercial advantage or financial gain and during and
in relation to which the person causes serious bodily
injury (as defined in section 1365 of title 18, United
States Code) to, or places in jeopardy the life of, any
person, be fined under title 18, United States Code,
imprisoned not less than 5 years nor more than 25
years, or both; and
(IV) in the case of a violation of subparagraph (A)
in which the offense was done for the purpose of
commercial advantage or financial gain and resulting in
the death of any person, be punished by death or
imprisoned for any term of years or for life (but not
less than 20 years), fined under title 18, United
States Code, or both.
(ii) In the case of a violation of subparagraph (A) in
which the offense was done for the purpose of commercial
advantage or financial gain after 1 prior conviction for any
other such violation of subparagraph (A) has become final, the
minimum term of imprisonment shall be not less than two times
the minimum term specified in clause (i).
(iii) In the case of a violation of subparagraph (A) in
which the offense was done for the purpose of commercial
advantage or financial gain after 2 or more prior convictions
for any other such violations of subparagraph (A) have become
final, the minimum term of imprisonment shall be not less than
five times the minimum term specified in clause (i).
(D) In no case may any penalty for a violation of
subparagraph (A) be imposed on any person based on actions
taken by the person to render emergency assistance to an alien
found physically present in the United States in life
threatening circumstances.
* * * * * * *
----------
SECTION 924 OF TITLE 18, UNITED STATES CODE
Sec. 924. Penalties
(a) * * *
* * * * * * *
(c)(1)(A) Except to the extent that a greater minimum
sentence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that provides for
an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) or any violation of section
274(a)(1)(A) of the Immigration and Nationality Act for which
the person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence [or drug
trafficking crime], drug trafficking crime, or violation of
section 274(a)(1)(A) of the Immigration and Nationality Act--
(i) * * *
* * * * * * *
(D) Notwithstanding any other provision of law--
(i) a court shall not place on probation any person
convicted of a violation of this subsection; and
(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with any
other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the
crime of violence [or drug trafficking crime], drug
trafficking crime, or violation of section 274(a)(1)(A)
of the Immigration and Nationality Act during which the
firearm was used, carried, or possessed.
* * * * * * *
Dissenting Views
We dissent from the underlying bill because experience and
numerous studies have shown that mandatory minimum sentences
\1\ create unfairness and require judicial and correctional
expenditures that are disproportionate to any deterrent or
rehabilitative effect they might have. Studies have also
highlighted the very high costs of the unnecessary
incarceration resulting from mandatory minimums.
---------------------------------------------------------------------------
\1\ H.R. 238 requires a mandatory 1-year minimum sentence for
transporting or harboring smuggled aliens within the U.S., inducing
aliens to come to the U.S. illegally, or aiding and abetting alien
smuggling crimes. A 2-year mandatory minimum sentence is required for
illegally bringing aliens into the U.S., domestic transport or
harboring or inducement of smuggled aliens for commercial advantage or
financial gain, or engaging in an alien smuggling conspiracy. For alien
smuggling crimes causing serious bodily injuries or placing lives in
jeopardy, a minimum 5-year sentence is required, and the maximum is
raised from 20 to 25 years. For alien smuggling crimes resulting in
death, a minimum 20-year sentence is required. H.R. 238 also provides
that the mandatory minimums would be doubled for an individual's second
alien smuggling conviction and quintupled for a third or subsequent
conviction.
---------------------------------------------------------------------------
In fact, scientific study has found no empirical evidence
linking mandatory minimum sentences to reductions in crime.
Instead, we know that they distort the sentencing process,
discriminate against minorities in their application and waste
money. In a study report entitled ``Mandatory Minimum Drug
Sentences: Throwing Away the Key or the Tax Payers Money?,''
the Rand Commission concluded that mandatory minimum sentences
were less effective than either discretionary sentencing or
drug treatment in reducing drug related crime, and far more
costly than either. And in a March 17, 2000 letter to Judiciary
Committee Chairman Hyde, the Judicial Conference of the U.S.
reiterated its opposition to mandatory minimum sentencing
schemes for the 12th time, noting that they ``severely distort
and damage the Federal sentencing system, . . . undermine the
Sentencing Guideline regimen'' established by Congress to
promote fairness and proportionality, and ``destroy honesty in
sentencing by encouraging charge and fact plea bargains.'' \2\
---------------------------------------------------------------------------
\2\ Both the Judicial Center in its study report entitled ``The
General Effects of Mandatory Minimum Prison Terms: A longitudinal Study
of Federal Sentences Imposed,'' and the United States Sentencing
Commission in its study report entitled ``Mandatory Minimum Penalties
in the Federal Criminal Justice System,'' found that minorities were
substantially more likely than whites under comparable circumstances to
receive mandatory minimum sentences. The Sentencing Commission study
also reflected that mandatory minimum sentences increased disparity in
sentencing of like offenders because they were not applied in 40% of
the cases and, at the same time, increased costs as a result of the
rate of trials rising from 13% of defendants to 19% of defendants, with
no evidence that mandatory minimum sentencing had anymore crime
reduction impact than discretionary sentences.
---------------------------------------------------------------------------
Many conservatives have joined us in recognizing the policy
problems caused by mandatory minimums. Thus, for example, after
realizing the damage and ineffectiveness of mandatory minimums
at reducing crime, Democrats and Republicans, in a bi-partisan
effort repealed Federal mandatory minimum sentencing in 1970.
Speaking in support of the bill, then-congressman George Bush
noted that, ``[c]ontrary to what one might imagine, [the bill
repealing Federal mandatory minimums] will result in better
justice and more appropriate sentences . . .'' \3\
---------------------------------------------------------------------------
\3\ David Kopel, Cato Institute, ``Prison Blues: How America's
Foolish Sentencing Policies Endanger Public Safety,'' Policy Analysis,
No. 208 May 1994, p.12.
---------------------------------------------------------------------------
Similarly, Chief Justice Rehnquist, who is not known to be
lenient on crime, has observed that:
``Mandatory minimums are perhaps a good example of
the law of unintended consequences, There is a
respectable body of opinion which believes that these
mandatory minimums impose unduly harsh punishment for
first-time offenders', particularly for `mules' who
played only a minor role in a drug distribution scheme.
Be that as it may, the mandatory minimums have also led
to an inordinate increase in the Federal prison
population and will require huge expenditures to build
new prison space . . .''
``Mandatory minimums . . . are frequently the result
of floor amendments to demonstrate emphatically that
legislators want to `get tough on crime.' Just as
frequently they do not involve any careful
consideration of the effect they might have on the
sentencing guidelines as a whole . . .'' \4\
---------------------------------------------------------------------------
\4\ David Kopel, Cato Institute, ``Prison Blues: How America's
Foolish Sentencing Policies Endanger Public Safety,'' Policy Analysis,
No. 208 May 1994, p.19. (quoting William H. Rehnquist, ``Luncheon
Address,'' in U.S. Sentencing Commission, Drugs and Violence, pp. 286-
87.).
The proliferation of harsh mandatory sentencing policies
has also inhibited the ability of courts to sentence offenders
in a way that permits a more ``problem-solving'' approach to
crime, as is being demonstrated in the community policing and
drug court movements today. By eliminating any consideration of
the factors contributing to crime or to a range of responses,
as H.R. 238 does, such sentencing policies fail to provide
justice for either victims or offenders.
In light of these concerns, a less draconian approach than
H.R. 238 would be to increase sentences under the sentencing
guidelines or enact a legislative directive to the U.S.
Sentencing Commission to revise their existing sentencing
guidelines to increase sentences for alien smuggling offenses.
This would at least permit consideration of aggravating and
mitigating circumstances. Unfortunately, an amendment along
these lines offered by Rep. Scott (D-VA) was rejected by the
Majority.
Whatever the political benefits of mandatory minimums, as a
substantive matter it is clear that mandatory minimum sentences
are ineffectual. They simply do not do what they purport to
do--deter criminal behavior by guaranteeing that a particular
penalty will be imposed for a particular crime. Instead they
impose unfair and harsh results and unnecessarily increase
prison costs.
John Conyers, Jr.
Robert C. Scott.
William D. Delahunt.
Tammy Baldwin.