[House Hearing, 106 Congress]
[From the U.S. Government Printing 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


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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

                              ----------                              
                                                                   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:]

    [GRAPHIC] [TIFF OMITTED] T0887.001
    
    [GRAPHIC] [TIFF OMITTED] T0887.002
    
    [GRAPHIC] [TIFF OMITTED] T0887.003
    
    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:]

[GRAPHIC] [TIFF OMITTED] T0887.004

[GRAPHIC] [TIFF OMITTED] T0887.005

[GRAPHIC] [TIFF OMITTED] T0887.006

    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 
follows:]

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