[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
MANDATORY MINIMUM SENTENCING LAWS--
THE ISSUES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JUNE 26, 2007
__________
Serial No. 110-110
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ```BOBBY'' SCOTT, HOWARD COBLE, North Carolina
Virginia ELTON GALLEGLY, California
MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia
ZOE LOFGREN, California STEVE CHABOT, Ohio
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California CHRIS CANNON, Utah
MARTIN T. MEEHAN, Massachusetts RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts DARRELL ISSA, California
ROBERT WEXLER, Florida MIKE PENCE, Indiana
LINDA T. SANCHEZ, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HANK JOHNSON, Georgia TOM FEENEY, Florida
LUIS V. GUTIERREZ, Illinois TRENT FRANKS, Arizona
BRAD SHERMAN, California LOUIE GOHMERT, Texas
TAMMY BALDWIN, Wisconsin JIM JORDAN, Ohio
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
MAXINE WATERS, California J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts LOUIE GOHMERT, Texas
JERROLD NADLER, New York F. JAMES SENSENBRENNER, Jr.,
HANK JOHNSON, Georgia Wisconsin
ANTHONY D. WEINER, New York HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MARTIN T. MEEHAN, Massachusetts DANIEL E. LUNGREN, California
ARTUR DAVIS, Alabama
TAMMY BALDWIN, Wisconsin
Bobby Vassar, Chief Counsel
Michael Volkov, Minority Counsel
C O N T E N T S
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JUNE 26, 2007
Page
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Walter Jones, a Representative in Congress from the
State of North Carolina........................................ 1
The Honorable J. Randy Forbes, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 4
WITNESSES
Mr. Ricardo H. Hinojosa, Chair, United States Sentencing
Commission, Washington, DC
Oral Testimony................................................. 6
Prepared Statement............................................. 9
Paul G. Cassell, Judge, Judicial Conference of the United States,
Washington, DC
Oral Testimony................................................. 43
Prepared Statement............................................. 45
Mr. Richard B. Roper, III, United States Attorney, Northern
District of Texas, Dallas, TX
Oral Testimony................................................. 102
Prepared Statement............................................. 104
Mr. Marc Mauer, Executive Director, The Sentencing Project
Oral Testimony................................................. 114
Prepared Statement............................................. 116
Mr. T.J. Bonner, President, National Border Patrol Council
(AFGE), Campo, CA
Oral Testimony................................................. 128
Prepared Statement............................................. 130
Ms. Serena Nunn, J.D., Ann Arbor, MI
Oral Testimony................................................. 140
Prepared Statement............................................. 141
APPENDIX
Material Submitted for the Hearing Record........................ 165
MANDATORY MINIMUM SENTENCING LAWS--THE ISSUES
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TUESDAY, JUNE 26, 2007
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:30 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Robert
C. Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Johnson, Jackson Lee,
Davis, Forbes, Gohmert, Coble and Lungren.
Also present: Representatives Conyers, Ellison and Jones of
North Carolina.
Staff Present: Bobby Vassar, Subcommittee Chief Counsel;
Rachel King, Majority Counsel; Veronica Eligan, Professional
Staff Member; Michael Volkov, Minority Counsel; Caroline Lynch,
Minority Counsel; and Kelsey Whitlock, Minority Staff
Assistant.
Mr. Scott. Thank you. I would like to call the meeting of
the Subcommittee on Crime, Terrorism, and Homeland Security to
order. We have many excellent witnesses today. We will get to
them as soon as possible, so I will keep my statement brief.
But in the meanwhile we have the gentleman from North Carolina,
Walter Jones, with us today who wanted to drop in. He is in the
middle of another hearing and has to leave, but he wanted to
greet us.
Mr. Jones. Mr. Chairman, I want to thank you and the
Judiciary Committee Chairman, Mr. Conyers, for holding this
hearing. And the reason that I am here and my involvement is
that for the last--since August of last year I have joined many
of my colleagues in the United States Congress who have been
concerned about the indictment of Border Agents Ramos and
Compean and feel that they should never have been brought to
trial. So therefore I hope that this hearing today will bring
many, many sunshine to many aspects of the law itself, as well
as the fact that these men, in our opinion, should not have
been prosecuted by the Federal D.A. In west Texas. And thank
you for letting me say thank you.
Mr. Scott. Thank you. And thank you for being with us
today.
One of the motivations for today's hearing, as has just
been stated, is the conviction and sentencing of the two Border
Patrol agents, Ramos and Compean, who were sentenced to 11
years and 1 day and 12 years of incarceration respectively.
Regardless of what you think of these two agents or whether
they were rightfully prosecuted, the fact remains that the U.S.
District court was restrained when it came to sentencing the
two men. The judge had to sentence them to at least 10-year
minimum sentences.
Mandatory minimum sentences have been studied extensively
and have been shown to be ineffective in preventing crime. They
have been effective in distorting the sentencing process. They
discriminate against minorities in their application, and they
have been shown to waste the taxpayers' money. In a study, a
report entitled, quote, Mandatory Minimum Drug Sentences:
Throwing Away the Key or the Taxpayers' Money, the RAND
Corporation concluded that mandatory minimum sentences were
less effective than either discretionary sentencing or drug
treatment in reducing drug-related crime and far more costly
than either.
And the Judicial Conference of the United States has
reiterated its opposition to mandatory minimum sentencing over
a dozen times to this Congress, and noting that they severely
distort and damage the Federal sentencing system, undermine the
sentencing guideline regiment established by Congress to
promote fairness and proportionality, and destroy honesty in
sentencing by encouraging charge and fact plea bargains.
The Judicial Center, in its report entitled General Effects
of Mandatory Minimum Prison Terms: A Longitudinal Study of
Federal Sentences Imposed, and the Sentencing Commission,
United States Sentencing Commission, in its study entitled
Mandatory Minimum Penalties in the Federal Criminal Justice
System, found that minorities were substantially more likely
than Whites under comparable circumstances to receive mandatory
minimum sentences. The Sentencing Commission also reflected
that mandatory minimum sentences increased the disparity in
sentencing of like defendants because they were not applied in
40 percent of the cases, and at the same time increased the
cost as a result of the rate of trials rising from 13 percent
of the defendants to 19 percent of the defendants with no
evidence that mandatory minimum sentencing had more crime
reduction impact than discretionary sentences.
Former Chief Justice Rehnquist spoke often and loudly about
these wasteful cost increases, and he said mandatory minimums
are perhaps a good example of the law of unintended
consequences. There is a respectable body of opinion which
believes that these mandatory minimums impose unduly harsh
punishment for first-time offenders, particularly for mules who
played only a minor role in drug distribution in a drug
distribution scheme. Be that as it may, the mandatory minimums
have also led to an inordinate increase in the prison
population and will require huge expenditures to build new
prison space.
He went on to say that mandatory minimums are frequently
the result of floor amendments to demonstrate emphatically that
legislators want to get tough on crime just as frequently as
they do not involve any careful consideration of the effect
they might have on the sentencing guidelines as a whole.
The Federal Judicial Conference has studied mandatory
minimums and has written the House Judiciary Committee over a
dozen times in the last 10 years urging us not to adopt the
mandatory minimum sentences, stating that they distort attempts
to enforce an orderly and proportionate sentencing regimen in
the Federal system, and they violate common sense by requiring
vastly different defendants to get identical sentences simply
because they technically violated the same section of the
criminal code. And we know that the title of the offense often
is not a good description of the seriousness of the crime.
It also creates a bizarre situation where the decision of
when to release a defendant is made not at a parole hearing
just before the person is released and you can review the
sentence, what he has done to better himself, where he is going
to go and what he is going to do. It is not even made at the
sentencing where the judge makes a decision based on the
seriousness of the crime and the particular defendant before
him and all the facts in evidence in that case. But it is made
when the legislature passes the criminal code. That is of the
three opportunities, I guess, about the worst time to make that
decision.
With that thought I would lead to my distinguished
colleague, my colleague from Virginia, the Ranking Member of
the Subcommittee, Mr. Forbes from the Fourth Congressional
District of Virginia.
Mr. Forbes. Thank you, Chairman Scott. And I appreciate
your scheduling this hearing so that we can fairly assess the
importance of mandatory minimum sentences in the criminal
justice system.
Mandatory minimum penalties are an effective means to
ensure consistency in sentencing and to promote the public
safety by deterring others from committing crimes and
preventing recidivism. The need for mandatory minimum penalties
has taken on a greater significance given the advisory nature
of the Federal sentencing guidelines. The Supreme Court's 2005
decision in United States v. Booker invalidated the mandatory
sentencing requirement of the sentencing guidelines. The U.S.
Sentencing Commission's March 13, 2006, report on Booker's
impact identified substantial concerns about unrestrained
judicial discretion. Such discretion undermines the very
purpose of the Sentencing Reform Act to provide certainty and
fairness in meeting the purposes of sentencing and avoiding
unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar criminal
conduct.
The Sentencing Commission's data updated through the second
quarter of 2007 shows continuing sentencing disparities,
including a steady rate of nongovernment-sponsored below-
guideline sentences for defendants; geographic disparities
among the judicial circuits; and sentencing reductions in a
significant number of drug-trafficking cases, immigration
cases, firearms offenses, pornography and prostitution offenses
and white collar. Advisory sentencing guidelines that result in
lower penalties for the worst offenders only increase the
significance of mandatory minimum sentences.
Beginning in 1984, Democrat Congresses passed important
mandatory minimums, along with other sentencing reforms,
including the Federal sentencing guidelines. Prior to the 1984
Sentencing Reform Act, Federal judges had unfettered discretion
to sentence a criminal defendant as they pleased. This
unbridled discretion resulted in enormous disparity in
sentences for similarly situated defendants. Senator Kennedy,
one of the principal advocates of the Federal sentencing
guidelines, stated that the existing sentencing disparity was a
national scandal. He noted that the Federal Criminal Code
invites disparity by conferring unlimited discretion on the
sentencing judge.
The shameful disparity in criminal sentences imposed in the
Federal courts is a major flaw which encourages the potential
criminal to play the odds and beat the sentence. Sentencing
disparity is unfair. Aside from ensuring consistency in
sentencing, mandatory minimum penalties provide prosecutors the
tools to secure the cooperation of criminals to dismantle
criminal enterprises, gangs and other organizations. Without
such a penalty, for example, gang members will not cooperate
with law enforcement. They will simply turn their back on
cooperation, do the time, and gang violence will continue to
expand and threaten our communities.
While some complain about mandatory sentencing schemes
there is research to show that such penalties have been a
significant factor in the reduction of violent crime over the
last 30 years. Some would say that is coincidence. Statistical
researchers have shown to the contrary. Increases in prison
population have incapacitated recidivists and deterred others
from committing crime. Professor Steven Levitt conducted a
study to show that a significant part of the decline in violent
crime is attributable to increased incarceration. In a more
recent study, Joanna Shepherd demonstrated that truth-in-
sentencing laws have a dramatic impact on reducing serious
violent crimes. Other studies confirmed the obvious point.
Incarcerating an offender prevents him from repeating his
crimes while he is in prison.
Balanced against these reductions in crime from deterrence
and incapacity, there is significant cost savings to society
from reducing the occurrence of crime. Mandatory minimum
penalties, however, need to be specifically tailored and fairly
applied. The Sentencing Commission's recent study on the
disparity between crack cocaine and powder cocaine demonstrated
again the need for reform in this area. And I commend the
Commission for its study and look forward to hearing more about
it and possible solutions.
I am also glad that we are taking the time to examine the
Government's prosecution of the Border Patrol agents' case. The
controversy surrounded this prosecution is significant. I have
many questions and concerns about the manner in which the
Government conducted this prosecution. To me the question is
not the penalties that were imposed in that case, but rather
whether the case should have been brought at all.
Mr. Chairman, I look forward to hearing from today's
witnesses, and I yield back the balance of my time.
Mr. Scott. Thank you.
Do any of the other panelists have a statement?
Mr. Conyers. Mr. Chairman.
Mr. Scott. I recognize the Chairman of the full Committee
Mr. Conyers.
Mr. Conyers. Thank you so much. I want to commend you and
the Ranking Member, both from Virginia, for bringing us
together and to bring such a distinguished set of panelists. We
don't usually have two judges, a U.S. attorney and a future
attorney all with us at the same time.
Marc Mauer is well known in his work here. He has been
before the Committee perhaps more than anyone else. This is a--
of all cases, I can't understand--we could have a hearing on
this case, and I know it is on appeal, but there are
circumstances in it that are so incredible that I find it
breathtaking.
I suppose the main reason we are here is because we have
been trying to get mandatory minimum sentences in some kind of
a different position, and so I just can't fathom why Border
Patrol agents working for the Government, doing their job, end
up being charged and prosecuted under a law that to me seems to
be very inspecific. And, of course, the case is under appeal.
But since it is before us, I think that it is something that we
really have to deal with.
I find that mandatory sentences--and I join both the
Chairman and the Subcommittee Ranking Member--that during
mandatory minimums we have witnessed a fivefold increase in the
number of women currently entangled in our criminal justice
system as a result of their minimal involvement in some drug-
related crime. In two States we have almost 20 percent of the
people incarcerated are serving mandatory minimum terms. We are
incarcerating people at a rate higher than any other Nation on
the planet. And so this brings together some very important
considerations.
I want to thank our colleague from North Carolina,
Congressman Jones, for having brought this matter to the
attention of the Committee. Walter Jones has been unrelenting
in his support for hearings in this Committee. He is chairing
another meeting, and he will be back shortly, I'm sure. And so
I thank the Committee for allowing me to welcome all of the
witnesses and ask unanimous consent that my remarks be included
in the record.
Mr. Scott. Thank you. We have a distinguished panel of
witnesses here to help us consider the important issues before
us. And we have been joined by the gentleman from Georgia Mr.
Johnson. I thank you.
Our first witness will be the Honorable Ricardo H.
Hinojosa, Chair of the U.S. Sentencing Commission since 2003
and judge of the U.S. District Court in the Southern District
of Texas since 1983. He is a graduate of Harvard Law School.
And before becoming appointed judge, he was in private practice
in McAllen, Texas.
Our second witness is the Honorable Paul C. Cassell, judge
of the U.S. District Court for the District of Utah since May
2002. He is a graduate of Stanford Law School. Prior to that he
was a professor at the Utah College of Law where he worked in
many cases, and particularly well known for his work with the
National Victims Constitutional Amendment Network.
Our next witness is Richard B. Roper, III, U.S. District
Attorney, Northern District of Texas. In Dallas, Texas, he
served as the assistant U.S. attorney since 1987 until he was
sworn in as interim U.S. attorney on June 29, 2004. Prior to
that he served as the Tarrant County assistant district
attorney for 5 years. He received his law degree from Texas
Tech.
Our fourth witness is Marc Mauer, executive director of the
Sentencing Project, a national nonprofit organization engaged
in research and advocacy on criminal justice issues. He has
been engaged in this work for 30 years and has authored two
books and many journal articles on various aspects of crime
policy. He received his B.A. From the State University of New
York in Stony Brook, and has a master's in social work from the
University of Michigan.
Next is T.J. Bonner, who is the national president of the
National Border Patrol Council of the American Federation of
Government Employees of the AFL-CIO. He represents the concerns
of approximately 11,000 front-line Border Patrol employees.
And lastly we have Serena Nunn. She served more than a
decade in Federal prison for her participation as a low-level
nonviolent conspirator in a cocaine sale organized by her
boyfriend. Her case received attention in the Minneapolis Star
Tribune, which featured her in an article about mandatory
minimum sentencing. A young lawyer brought her case to the
attention of President Clinton, who commuted her sentence on
July 7, 2000. After being released from prison after more than
a decade, she has finished her bachelor's degree at Arizona
State University and then was accepted at the University of
Michigan Law School, from which she graduated last year.
Each of the witnesses' written statements will be made part
of the record in its entirety. I would ask that each witness
summarize his or her testimony in 5 minutes or less. To help
stay within that time, there is a timing device at your table.
When 1 minute is left, the light will switch from green to
yellow and then finally to red when your 5 minutes are up.
We will now begin with our witnesses. Judge Hinojosa.
TESTIMONY OF RICARDO H. HINOJOSA, CHAIR, UNITED STATES
SENTENCING COMMISSION, WASHINGTON, DC
Judge Hinojosa. Chairman Scott, Ranking Member Forbes and
Members of the Subcommittee, I appreciate the opportunity to
testify before you today on behalf of the United States
Sentencing Commission regarding mandatory minimum sentencings
generally and Federal cocaine sentencing policy specifically.
My written testimony provides information on Federal statutory
mandatory minimum sentencing compiled from the Commission's
fiscal year 2006 data file. My testimony does not focus on any
particular case. The Commission does not generally comment on
individual cases, particularly when pending appeal.
The Commission firmly believes that the sentencing
guideline system remains the best mechanism for assuring that
the statutory purposes of sentencing as set forth in 18 U.S.C.
Section 3553(a) are met, and it has worked consistently with
Congress to identify alternatives within the guideline system
in lieu of mandatory minimums.
The Sentencing Reform Act of 1984 specifically directed the
Commission to develop guidelines that would achieve those
statutory purposes. And as the Supreme Court last week
recognized in Rita v. United States, `the result is a set of
guidelines that seek to embody the Section 3553(a)
considerations both in principle and in practice.''
The Commission identified at least 171 mandatory minimum
provisions in Federal criminal statutes. In fiscal year 2006,
of the 60,627 Federal offenders for which the Commission
received sufficient documentation to conduct this analysis,
20,737 offenders or 29.8 percent, were convicted of a statute
carrying a mandatory minimum penalty. Of the 33,636 counts of
conviction that carried a mandatory minimum, 94.4 percent were
for drug offenses and firearms offenses. Offenders other than
Whites comprise 74.0 percent of offenders convicted of a
statutory mandatory minimum penalty compared to 70.9 percent of
those offenders in the overall offender population. Black
offenders were the only racial or ethnic group that comprised a
greater percentage of offenders convicted of a statutory
mandatory minimum penalty, which was 32.9 percent, than the
percentage in the overall offender population, which was 23.8
percent.
To gauge the demographic impact of mandatory minimums,
however, it proved helpful to extract the Federal immigration
caseload from the analysis. Immigration offenders comprise 23.8
percent of offenders in the overall caseload, but only 0.8
percent of the offenders convicted of a statute carrying a
mandatory minimum sentence. The demographic data excluding
immigration cases shows that Hispanic offenders comprise 38.1
percent of the nonimmigration offenders convicted of a
statutory mandatory minimum penalty, but 29.7 percent of the
overall offender population. And Black offenders comprise 33
percent of the nonimmigration offenders convicted of a
statutory mandatory minimum penalty, but 29.8 percent of the
overall offender population.
Many offenders convicted of a statute carrying a mandatory
minimum are being sentenced without regard to and below the
mandatory minimum because of a substantial assistance provision
under 18 U.S.C. Section 3553(a) and, for drug offenders,
because of the substantial assistance provision and/or the
safety valve provision under 18 U.S.C. Section 3553(f). Of the
18,987 mandatory minimum offenders for whom the Commission had
sufficient information for the analysis, 13.6 percent, or 2,591
offenders, were sentenced without regard to and below the
mandatory minimum because of the statutory substantial
assistance provision. Of the 16,334 drug mandatory minimum
offenders for whom the Commission had sufficient information
for the analysis, 7,812 offenders, or 47.8 percent, were
sentenced without regard to and below the mandatory minimum
because of the substantial assistance provision and/or the
safety valve provision; 84.2 percent of the offenders convicted
of statutes carrying a mandatory minimum sentence were drug
offenders.
The impact of drug mandatory minimum penalties on Black
offenders is largely driven by crack cocaine offenses. Black
offenders comprise 32 percent of offenders convicted of drug
mandatory minimum statutes, but 29.2 percent of the overall
drug offender population. If crack cocaine cases are excluded
from the analysis, Black offenders comprise 14.4 percent of the
remaining drug cases in which a drug mandatory minimum applied
and 14.8 percent of the remaining drug cases overall.
I would like to address briefly the issue of Federal
cocaine sentencing policy. This past year the Commission
undertook an extensive review of the issues associated with
Federal cocaine sentencing policy. The Commission received
public comment showing almost universal criticism of current
cocaine sentencing policy. The Commission's efforts culminated
in the issuance of its fourth report to Congress on the subject
in which the Commission again unanimously and strongly urged
Congress to act promptly to address the problem of unwarranted
crack cocaine sentencing disparity.
On May 1, the Commission submitted to Congress an amendment
to the drug trafficking guideline that would reduce the base
offense level for all crack cocaine offenders by two levels.
The Commission firmly believes this is only a partial remedy
and that a comprehensive solution to the problem of Federal
cocaine sentencing policy must be legislated by Congress.
The Commission stands ready to work with Congress as it
continues to study the issues of mandatory minimums and Federal
cocaine sentencing policy. The Commission is committed to
working with Congress to maintain a just and effective national
sentencing policy in a manner that preserves the bipartisan
principles of the Sentencing Reform Act of 1984.
Thank you for the opportunity to testify so quickly before
you today. I look forward to answering your questions, and I
appreciate your letting me have a little bit of extra time, but
that is about the fastest I have ever talked.
Mr. Scott. Thank you, Judge.
[The prepared statement of Judge Hinojosa follows:]
Prepared Statement of Ricardo H. Hinojosa
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Scott. Judge Cassell.
TESTIMONY OF PAUL G. CASSELL, JUDGE, JUDICIAL CONFERENCE OF THE
UNITED STATES, WASHINGTON, DC
Judge Cassell. Chairman Scott, Ranking Member Forbes and
distinguished Members of the Subcommittee, I am pleased to be
here today to explain the Judicial Conference's long-standing
opposition to mandatory minimum sentencing schemes. The
Judicial Conference opposes mandatory minimum sentences because
they block judges from considering the individual circumstances
of particular cases. Mandatory minimum sentencing schemes
create a one-size-fits-all system that requires Federal judges
to ignore individual differences in particular cases.
Testimony in today's hearing illustrates the wide range of
cases that come before Federal judges. You will hear testimony
from Ms. Serena Nunn, a first-time offender who was a minor
participant in a drug distribution scheme organized by her
boyfriend. You will hear a representative from the Border
Patrol Union talking about Ignacio Ramos and Jose Compean,
convicted of discharging a firearm while arresting a drug
smuggler on the Texas border. And I will talk about Mr. Weldon
Angelos, a record producer from Utah who carried a firearm to
several marijuana deals.
Obviously these are different cases that require different
approaches. They require something other than a cookie-cutter
approach to justice. But mandatory minimum sentences force
judges to treat cases such as these as essentially
indistinguishable.
When Federal judges are forced to follow mandatory minimum
sentencing schemes, truly bizarre sentences result, which can
seriously undermine public confidence in the system. In my
written testimony I talk at length about the 55-year prison
sentence I was required to hand down to Mr. Weldon Angelos. His
crimes were possessing a firearm during several drug deals, and
he certainly deserved to be punished for that. But it made no
sense for me to give a sentence to him that was far longer than
he would have received for such heinous crimes as aircraft
hijacking, terrorist bombing, second degree murder, espionage,
kidnapping, aggravated assault, sexual assault on a child and
rape.
These are not just hypothetical illustrations. The same day
that I sentenced Mr. Angelos to 55 years in prison, I also had
before me Mr. Cruz Visinaiz. He was convicted of murder for
beating Clara Jenkins, a 68-year-old woman, repeatedly over the
head with a log. I gave Mr. Visinaiz the maximum sentence
recommended by the guidelines, 22 years in prison. It was hard
for me then and remains hard for me to this day to explain to
Ms. Jenkins' family and to members of the public why that
murderer received a far shorter sentence than a drug dealer who
simply carried a firearm to several drug deals. Unfortunately
the implicit message to crime victims with such bizarre
sentences is that their suffering does not count for as much as
the abstract war on drugs.
The public, too, will wonder about whether their hard-
earned tax dollars are well spent to imprison Mr. Angelos for
essentially the rest of his life. The cost will be in the
neighborhood of $1.3 million, and probably much more, as the
taxpayers will be required to subsidize his geriatric medical
treatment in prison. Every empirical study with which I am
familiar strongly suggests that the taxpayers will get far more
bang for their buck by not imprisoning Mr. Angelos while he is
a senior citizen and using the money saved to put additional
law enforcement officers on the street or extra prosecutors
into the Department of Justice.
Because of problems like these, the public favors allowing
judges to make the final decision about what sentence should
ultimately be imposed. A recent poll shows that three-quarters
of all Americans support allowing judges to set aside mandatory
sentences if another sentence would be, in their judgment, more
appropriate.
On behalf of the Judicial Conference, I urge the
Subcommittee to start the legislative process to eliminate
inflexible mandatory minimum sentencing schemes. A good place
to start would be by unstacking the 924(c) mandatory minimums
that produced the irrational 55-year sentence for Mr. Angelos,
that I have just discussed, as well as the 159-year sentence
for Marian Hungerford, plus we shouldn't forget 3 years of
supervised release after that, that I review in my testimony. A
more general solution would be to allow judges to go below
mandatory minimum sentences whenever the sentencing guidelines
advise a lower sentence. The guidelines represent the
considered judgment of a congressionally created agency, the
Sentencing Commission, about what sentence is usually
appropriate and could serve as a signal that a lower sentence
is necessary in a particular case.
No doubt there are other solutions that are possible as
well, but in closing I urge the Subcommittee to pass something
that will allow Federal judges to impose fair and appropriate
sentences in each individual case. Unfortunately mandatory
minimum sentences require Federal judges to ignore obvious
differences in the cases that come before them, to impose
absurdly long sentences that lack any connection to a logical
system of punishment, and to waste taxpayer dollars by
incarcerating offenders for decades when the money could be
better spent to fight crime elsewhere. I urge this Subcommittee
to start the process which will end mandatory minimum
injustices.
Thank you, Mr. Chairman.
Mr. Scott. Thank you.
[The prepared statement of Judge Cassell follows:]
Prepared Statement of Paul G. Cassell
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Scott. Mr. Roper.
TESTIMONY OF RICHARD B. ROPER, III, UNITED STATES ATTORNEY,
NORTHERN DISTRICT OF TEXAS, DALLAS, TX
Mr. Roper. Good morning, Chairman Scott and Ranking Member
Forbes. It is an honor to appear before this distinguished
Committee and with these fine witnesses to discuss the
Department of Justice's views regarding the continued use of
mandatory minimum sentences as a part of an overall strategy to
reduce crime in our country. I hope to give a perspective of a
25-year prosecutor who has worked at both the State and Federal
levels.
Petrified neighbors, concerned parents, tragic victims,
frustrated police officers and our fellow citizens look to us
to make our community safer. I believe that tough Federal
sentencing laws, including the application of mandatory minimum
sentences, when combined with prevention and prisoner reentry
programs, can effectively reduce crime. Essentially our tough
Federal sentencing laws have allowed Federal and local law
enforcement to selectively target violent criminal
organizations and impact communities.
If time permitted, I would highlight many successful
initiatives in my district, the Northern District of Texas in
the Dallas-Fort Worth area, where strong Federal statutes have
been used to rid neighborhoods of entrenched drug-trafficking
organizations and gangs ruining the community. My colleagues
across the country could give many more examples. One
initiative in Dallas resulted in a 47 percent reduction in the
crime rate in that community. A neighbor in that area came up
to me at a local weed-and-seed meeting and thanked me for
giving her the opportunity to come outside her house without
fear for the first time in a long time.
There is a common theme in all of these initiatives. These
organizations were involved in the commission of violent crimes
in addition to significant drug-trafficking activity. Prior
efforts at the State level were unsuccessful, resulting in
defendants receiving little or no time. Our Federal statutes
allowed law enforcement to garner the cooperation of lower-
level gang members, allowing them to climb the hierarchical
ladder to bring down the leaders, dismantling the
organizations. Those statutes ensured that those outlaws would
not quickly return to these communities and again wreak havoc.
On the other hand, those deserving defendants received a safety
valve reduction tempering the application of the mandatory
minimum provisions.
Importantly, those Federal statutes sent a clear message of
deterrence, echoed in the lyrics of a local Dallas rap artist
later convicted in one of our initiatives when he said,
``better call the Feds; DPD, the Dallas Police Department,
ain't enough.''
While I can provide several examples of the deterrent
effect of these sentencing provisions, especially in Texas,
that I have observed over the last 25 years as a prosecutor, I
offer the success we have had in Dallas. Since 2002, newly
released parolees and probationers are required to attend a
reentry program where they are educated about the severe
Federal penalties associated with firearm possession and use.
Federal, State and local law enforcement heads, including
myself, meet with these people and convey to these former
prisoners their commitment to vigorously enforce the Federal
firearm laws. A study conducted by the University of Texas in
Arlington found that since the institution of this program,
there has been nearly a 50 percent reduction in the incidence
of gun crimes in Dallas County. The threat of severe
confinement no doubt contributed to this reduction.
And may I add a footnote. If you think the word is not out
about the possibility of significant time for carrying firearms
during drug crimes, I had a defendant myself when I was an
AUSA, a meth lab cook, who took an informant and told an
informant not to bring a firearm to the lab because I don't
want--he said this--``I don't want that firearm enhancement on
me if I am busted by the Feds.''
Finally, I respectfully suggest that it would be imprudent
to quickly dismiss the thoughtful deliberations of Members of
Congress which resulted in the Sentencing Reform Act and the
inclusion of selected statutes for mandatory minimums. As a
young Federal prosecutor in the 1980's, I witnessed a dramatic
difference in sentencing Federal defendants received depending
on where in the country they were sentenced or even who sat as
a judge.
Those tough Federal statutes, including selected provisions
with mandatory minimums, when used as a part of an overall
strategy, including prevention and reentry initiatives, can
reduce crime, bettering our communities. I ask that Congress
should carefully consider whether to retreat from this
effective sentencing structure.
Mr. Scott. Thank you, Mr. Roper.
[The prepared statement of Mr. Roper follows:]
Prepared Statement of Richard B. Roper
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Scott. Mr. Mauer.
TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR,
THE SENTENCING PROJECT
Mr. Mauer. Thank you so much, Congressman Scott.
In my testimony I want to address three key themes that
address Federal mandatory sentencing, and these are, first,
that the Federal mandatory penalties adopted in the 1980's were
essentially based on false premises about their ability to
reduce crime; secondly, mandatory sentencing has not, in fact,
achieved its stated objectives; and thirdly, that alternative
policies could produce more fair and more effective sentencing.
Now, the first theme is that mandatory sentencing was based
on false premises. Mandatory sentencing, as we have learned
through many years, is not, in fact, mandatory; it is not, in
fact, consistent. As far back as 1991, in the report by the
Sentencing Commission, a comprehensive report on mandatory
sentencing, we learned that in about a third of the cases that
a mandatory sentence might have applied, in fact, the defendant
was permitted to plead to a charge below the mandatory
sentence. Now, there are a variety of reasons why that took
place. There are also racial and ethnic disparities that
resulted from those plea negotiations. But in terms of
mandatory sentencing, somehow sending a message that if you do
the crime, you do the time, we know that in a third of the
cases that was not the case. These people went to prison, but
for varying degrees of time.
Mandatory sentencing is also premised or has also been
promoted as having a strong deterrent effect on potential
offenders. And here I think we have a very serious problem in
that the research on deterrence in criminal penalties for a
very long period of time has shown us that deterrence is much
more a function of the certainty of punishment rather than the
severity of punishment. In other words, if a person believes
that he or she will be caught for a crime, if there is more law
enforcement out there or something like that, then they may
think twice about committing a crime. But merely increasing the
amount of punishment that someone is subject to for people who
generally do not believe they will be caught does not add very
much to any kind of deterrent value.
We see the mandatory penalties, as we know, in the Federal
system have been overwhelmingly applied to drug offenses. This
is the area where they are also least likely to be effective,
and that is because drug offenders, low-level sellers on the
street, are easily replaced. As soon as we snatch up a few on
the street corner, there is an almost endless supply, as we
have seen through the war on drugs and the record number of
arrests and incarceration and an endless supply of people who
are willing to take their place for a chance to make a quick
buck or so. And so their replacement, in fact, diminishes any
impact that the mandatories may have.
In terms of the level of success, we now have 20 years of
experience with Federal mandatory penalties. Some proponents
claim that the decline in crime in the 1990's is evidence of
the success of mandatory penalties in particular. If we look at
the research to date on why crime declined in the 1990's, the
best research seems to suggest that at most about 25 percent of
the decline in violent crime was due to rising incarceration.
Some researchers believe it is as little as 10 or 15 percent.
But we are talking here about incarceration in general. Of all
the convictions in the U.S. every year, approximately 1
million, only 6 percent take place in Federal court. Of those,
only a small fraction are mandatory penalties. So essentially
we are looking at perhaps 1 or 2 percent of all the convictions
involving Federal mandatory penalties. It is possible that has
had an effect on crime, but we certainly have no idea from any
of the research or any of the data, so it is extremely
speculative to assume that that is a factor there.
Secondly, in terms of the level of success, as we have
heard very clearly from the Sentencing Commission and many
others, the drug quantity levels established in mandatory
penalties, particularly for crack cocaine, not only are not
effective but they encourage prosecution of lower-level
offenders by setting the crack cocaine threshold at 5 grams.
The Sentencing Commission data shows us that more than 60
percent of the people prosecuted for crack cocaine offenses are
low-level offenders. This is not exactly what Federal resources
should be doing, and we have seen as well, of course, the
disproportionate impact of communities of color.
Thirdly what can we do to develop more effective and more
fair sentencing policies? Well, since the Booker decision by
the Supreme Court, we now have an even greater chasm between
mandatory penalties, particularly for drugs, and all other
Federal crimes. The sort of disruption in the sentencing grid
or the sentencing proportions is even greater now that Federal
judges have more discretion in nonmandatory cases. And it calls
into question the whole structure much more severely.
What can we do? It seems to me Congress might want to
request that the Sentencing Commission conduct an updated
assessment of mandatory penalties. It has been 16 years now
since the Sentencing Commission first did that.
Secondly, we want to review the drug quantities,
particularly for crack cocaine, and raise that to the level of
powder cocaine certainly.
It seems to me we should consider the expansion of the
safety valve. This is used in approximately a third of the
relevant drug cases. Judges are finding significant numbers of
cases where it is appropriate. It may be time to see if judges
should have more discretion in this regard as well.
Finally we see that the experience in the States over the
last several years is one that is very much moving toward
reform, reconsideration of sentencing policies. I think we have
much to learn from that experience in the States. I think the
States are moving in an interesting direction that suggests
that maybe it is time to reconsider some of these policies.
Thank you.
Mr. Scott. Thank you.
[The prepared statement of Mr. Mauer follows:]
Prepared Statement of March Mauer
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Scott. Mr. Bonner.
TESTIMONY OF T.J. BONNER, PRESIDENT, NATIONAL
BORDER PATROL COUNCIL (AFGE), CAMPO, CA
Mr. Bonner. Thank you, Chairman Scott, Ranking Member
Forbes, other distinguished Members of the Subcommittee, for
the opportunity to try and put a human face on one of these
cases. I represent 11,000 front-line Border Patrol agents. This
agency has a long, proud history dating back 83 years. In that
span of time--and bear in mind, when I entered on duty 29 years
ago, there were about 2,500 Border Patrol agents, a relatively
small agency. In that short span of time, more than 100
officers have given their lives in the line of duty. As we
speak, every 8 hours a Border Patrol agent is assaulted in the
line of duty. It is a very dangerous job. It is a testament to
the high-quality training that in almost every circumstance
when these agents are confronted with danger, that they respond
correctly according to their training.
The incident that occurred on February 17, 2005, in Fabens,
Texas, was no different. Ignacio Ramos and Jose Compean, when
confronted with an armed drug smuggler who wielded on them with
a gun, responded properly when they opened fire to defend
themselves.
Now, how they ended up in Federal prison is a mystery to me
because I have examined facts there. And let us be clear about
one thing: There were only three eye witnesses, the two agents
and the drug smuggler. Everyone else who was near that area had
their vision completely obstructed by an 11-foot-high levee
road, so they could not see what happened. And we have physical
evidence that was taken from the body of the smuggler about a
month later by a U.S. Army colonel, and this colonel testified
in court. And also his statement as part of the investigative
record shows that the smuggler's body was turned at the moment
of impact, indicating that the agents were telling the truth
when they said that the smuggler was running dead away from
them and turned with his left arm and pointed something at
them. Now, they had a split second to determine what that
object might have been. Many of us have had the benefit of
months to ponder what someone could have possibly been pointing
at law enforcement officers as he was fleeing from them. I
can't come up with a different answer. It was a gun. Someone
who is carrying $1 million worth of marijuana, in my experience
as a Federal law enforcement agent, is going to be armed, and
that is borne out by the experience of many of my colleagues.
The fact of the matter is this person absconded. He got
back across the border, so we will never know with certainty.
The real mystery is why did the U.S. attorney choose to believe
a drug smuggler over the word of two sworn Federal law
enforcement officers?
This case is very troublesome, it is troublesome to the
public; it is troublesome to not just Border Patrol agents, but
other law enforcement officers who are sitting back wondering
how this could have happened in the United States of America.
I realize that the focus of this hearing is on mandatory
minimum sentences, but you can't get to a sentencing phase if
you don't have a prosecution. Why were these agents prosecuted
in the first place is a question that simply has not been
answered to my satisfaction.
With respect to the mandatory minimum sentences, it bears
noting that U.S. attorneys have great discretion as to whether
or not to bring those charges in the first place. There was an
incident in January of this year down in Del Rio, Texas, where
Border Patrol agents, State and local law enforcement officers
were fired upon by an individual with a high-powered .30-06
hunting rifle. When he was arrested, he stated that the only
reason he stopped firing at the law enforcement officers was
because he ran out of ammunition.
The same U.S. attorney who prosecuted Ignacio Ramos and
Jose Compean, Johnny Sutton, did not bring charges of 18 U.S.C.
924(c), use of a firearm in the commission of a crime of
violence. He merely charged him with assault against a law
enforcement officer, which carries a 20-year maximum penalty,
no minimum penalty.
This case cries out for an investigation. I am not asking
for a decision on the spot, but I am asking that this case be
fully investigated. It is quite obvious that the Administration
is not going to lift a finger to investigate itself, so it
falls upon the Congress to take that action, to appoint someone
who is impartial and empowered to go in, subpoena people, and
get to the heart of this matter, because with each passing day
that these agents are allowed to rot in solitary confinement in
prison, the public confidence goes down. The confidence of
hundreds of thousands of law enforcement officers around the
country is declining. This is a crisis of confidence that needs
to be addressed now. Thank you.
Mr. Scott. Thank you.
[The prepared statement of Mr. Bonner follows:]
Prepared Statement of T.J. Bonner
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Scott. And I just remind you, you indicated that this
hearing is on mandatory minimums. Many of the issues that you
have and the questions you have asked are being considered now
on appeal, and we don't want to inject ourselves in that
process. The impact of that case, though, for this hearing is
on the fact that the judge had to sentence at sentencing and
could not consider anything other than the mandatory minimum
when they were sentencing. And that is what we want to make
sure we focus the attention on.
Ms. Nunn.
TESTIMONY OF SERENA NUNN, J.D., ANN ARBOR, MI
Ms. Nunn. Initially I would like to thank this Committee
and FAMM for affording me this opportunity to share my
experiences and opinions regarding mandatory sentencing
provisions affecting thousands across the country. Also I would
like to emphasize that nothing I say today should be
interpreted as my failure to recognize the far-reaching
negative consequences that illegal drugs has had on communities
across the country. To the contrary, I understand how the
illegal drug trade has ravaged communities and individuals
across the country. Moreover, I fully accept responsibility for
my actions and understand that I deserved punishment. However,
I will state unconditionally to this Committee that the wide
net cast in the effort to remove major drug traffickers from
the community has taken many potentially first-time offenders
out of the community for lengthy periods of time.
With that being said, I will briefly discuss how mandatory
minimums affected me. I was raised in a single-parent home in
the inner city of Minneapolis. I was the eldest of three. In
high school I wrote for the school yearbook and newspaper. I
was also homecoming queen and a cheerleader.
I graduated from high school in 1987. After graduation I
attended Morris Brown, an Historically Black College in
Atlanta, Georgia. While in college I experienced financial
difficulties. In the summer after my first year, I returned
home. I planned to work, save money and return to Morris Brown
College, but that never happened. I met a guy named Monty
during the summer after my first year in college. After we
began dating, it was obvious that he dealt drugs.
In May 1989, Monty and several others were arrested for
attempting to purchase 20 kilos from a Government informant.
Within a month of his arrest, at age 19 I was indicted on three
Federal felony counts involving the distribution of cocaine.
Our trial lasted 5 weeks. Then on December 22, 1989, a jury
returned a guilty verdict, and I was taken into custody. In May
1990, the sentencing judge wanted to give me a lenient sentence
due to my age, limited role in the conspiracy and the fact that
I had no prior criminal record, but Federal mandatory minimums
forced the judge to sentence me to 15 years and 8 months.
In December 1997, the Minneapolis Star Tribune newspaper in
Minnesota featured me in an article about mandatory minimums
thanks to FAMm. And in December 1997, I received a letter from
an attorney who was willing to review my case on a pro bono
basis. After he reviewed my case, he decided that we should
file a Presidential commutation of sentence. The commutation
was filed in March of 2000 with the support of the Federal
sentencing judge in my case, the Governor of Minnesota, the
State attorney general in Minnesota, the Federal prosecutor in
my case and our congressional Representative in Minnesota.
On July 7, 2000, I received a Presidential commutation and
was released from prison that day. Since my release I received
a bachelor of arts degree, I received a law degree. I currently
work as a law clerk for a criminal defense attorney, and I
cohost a radio talk show.
I would just like to add that my lengthy sentence due to
mandatory minimums placed a severe strain on my family, it made
my transition into society extremely difficult, and had it not
been for a strong support system, it would have diminished all
of my hope in becoming a successful, productive citizen back
into society.
Simply put, I feel that mandatory minimums should be
abolished, and they should allow judges to regain their
discretion. Thank you.
Mr. Scott. Thank you.
[The prepared statement of Ms. Nunn follows:]
Prepared Statement of Serena Nunn
I was raised by a single parent in the inner city of Minneapolis,
and I had a good childhood. I did well in high school, writing for the
yearbook and school newspaper while juggling cheerleader duties, and
was elected Homecoming Queen. In 1987, I graduated from high school.
After graduation, I attended Morris Brown College in the fall of 1987,
and I became the first person in my family to attend college.
My mother had planned on subsidizing my college costs but was
unable to do so due to personal and financial problems. Unable to
support myself at school, I returned to the inner-city environment that
I had tried so hard to leave. My plan was to work, save money and
return to Morris Brown, but that never happened.
After returning to Minneapolis, I began dating a young man named
Monty, who seemed to do well for himself. After moving in with him, it
became evident that he was dealing drugs. Stupidity, naivete and love
kept me in the relationship.
On May 17, 1989, Monty and several others were arrested for
attempting to purchase twenty kilograms of cocaine form a government
informant. Within a month of his arrest, at age nineteen, I was
indicted on three federal felony counts involving the distribution of
cocaine. While living with Monty, my voice was recorded through
wiretaps, answering our phone and passing messages between him and his
drug associates.
I was convicted of the three charges against me at a trial that
included twenty-four co-defendants. The judge wanted to give me a
lenient sentence due to my age, limited role in the conspiracy and the
fact that I had no prior criminal record. But the federal mandatory-
minimum sentencing laws forced the judge to sentence me to fifteen
years and eight months.
In December 1997, after eight years in prison, The Minneapolis Star
Tribune featured me in an article about mandatory-minimums. Soon after,
I received a letter from a young attorney whom only a week earlier had
been sworn to practice law. He reviewed my case on a pro bono basis and
determined that my only hope of an early release was if President
Clinton commuted my sentence. At the time, President Clinton had
commuted fewer than five sentences. My attorney devoted a great deal of
time to my case, and in March 2000, he submitted my clemency petition.
On July 7, 2000, President Clinton commuted my sentence and I was
released that day.
A decade in prison taught me many invaluable lessons about life.
Shock was my immediate reaction to daily confinement. I could not
fathom living the next fifteen years without privacy, and constantly
being told when to wake, eat and sleep. I ultimately survived the
mental tribulations by refusing to lose sight of my future, telling
myself that my early dreams of earning a college degree were not
quashed, just postponed. I also realized that my actions in Monty's
conspiracy contributed to my community's degradation and punishment was
warranted. However, a fifteen year eight month sentence seemed
extremely unfair considering I was a first-time, nonviolent offender.
After five years in prison, I had laid the foundation for my future
by completing several college and self-improvement courses. Eight years
into my sentence, however, I began to feel depressed as a result of
spending most of my twenties in prison, and I still had several more
years left, which would stretch into my thirties. I survived depression
through prayer, the support of my family and friends, by hardening my
determination, and telling myself that despite bleak circumstances,
nothing could prevent me from reaching my goals.
After my release I attended college full-time at Arizona State
University (``ASU'') and worked twenty-hours a week in the political
science department. While working on my bachelors degree at ASU, I
devoted a significant amount of time to traveling the country, speaking
with members of Congress, law students, undergraduate students and
special interest groups about the impact of federal mandatory-minimum
sentencing laws. In 2002, I graduated from ASU with a degree in
Political Science.
In 2003, I began attended the University of Michigan Law School.
During law school, I worked at the Public Defenders Service in
Washington, D.C. In 2006, I graduated from the University of Michigan
Law School.
Currently, I work as a law clerk for a criminal defense attorney in
Detroit, Michigan. Additionally, I co-host a Public Affairs Program on
one of Detroit's radio stations.
Mandatory-minimums negatively affected my life in many ways. They
stole many of my productive years in life because I went to prison at
age 20 and was not due for release until age 34. Fortunately, I
received a Presidential Commutation so I had the opportunity to redeem
myself. However, there are hundreds of women, and men, serving lengthy
sentences under mandatory-minimums who will not receive a Presidential
Commutation and will serve each day of their sentence.
Mandatory-minimums placed a severe strain on my family members.
After my incarceration my immediate family fell apart. My mother fell
into a deeper depression. My sister, with whom I share a very close
relationship, moved away to another state, and my younger brother, who
was 13-years old, felt alone and hopeless. Approximately six years into
my incarceration, my younger brother was convicted of murder. My
grandmother, who was a pillar of strength in my life, developed health
problems during my incarceration. Unfortunately, ten years into my
incarceration she passed away.
As a result of the mandatory-minimum sentence I received, I was
removed from society for almost eleven years. Once I was released,
technology was a major obstacle in my life. I did not know how to
operate items that are a part of everyday use. For instance, I did not
know how to properly operate a computer, use a debit card at the
grocery store or gas station, or know that public bathrooms had self-
flushing toilets. Technology continues to evolve and when a person is
removed from society for such a long period in life it makes the
transition back into society extremely difficult.
After many years of my incarceration, I felt that I was a different
person, mentally and spiritually. All I wanted was a second chance to
try again in life, to show everyone that I could be a productive
citizen, and that I did not need fifteen years of incarceration to
become a better person. However, as the years droned on it became
harder to believe that my future would be successful because I felt as
though I was ready to be released, yet I was still incarcerated wasting
away. If I did not receive a commutation, then mandatory-minimums would
have robbed me of my hope that I would get another chance in life.
Simply put, mandatory-minimums should be abolished to allow judges
to regain their sentencing discretion.
Mr. Scott. And I thank all of the witnesses for your
testimony.
We will now have questions, and I will begin recognizing
myself for 5 minutes. We have been joined by the gentleman from
North Carolina Mr. Coble and the gentlelady from Texas Ms.
Sheila Jackson Lee. And Mr. Davis has been in.
First, Mr. Mauer, is there any evidence that mandatory
minimums reduce recidivism?
Mr. Mauer. No, there is no evidence that shows that. And
keeping people in prison longer does not reduce recidivism.
People are going to make it or not make it based on their
family and community support when they get out and what we do
that is constructive in prison, but mandatory sentencing has no
effect. And, if anything, one can argue that it is
counterproductive. In States where you have a chance to earn
some good time or parole release, there may be some incentive
built in to participate in programming in prison which is taken
away when you have a mandatory sentence.
Mr. Scott. You indicated that there was little deterrent
involved in the longer mandatory minimums. Do you have research
to support that?
Mr. Mauer. Well, we do know that the research, as I
indicated before, on sort of certainty versus severity, is very
compelling in showing that potential offenders will respond
somewhat to greater law enforcement. The example I always think
of is if we are traveling on a highway, some of us have been
known to go above the speed limit from time to time. If it is a
holiday weekend and there are more State troopers out, most of
us will go at the speed limit. So the certainty has changed,
and it changes our behavior. But most of us don't know whether
the penalty for speeding is $50 or $100 or whatever, and so we
are not really paying attention to the severity of the penalty
because we don't expect to get caught. It is only when that
chance of certainty changes that we may change our behavior.
I think if there is anything in terms of research on
mandatories, the most obvious cases, just the impact of the war
on drugs, we have increased the drug offender population in our
prisons and jails from about 40,000 people in 1980 to nearly a
half million today, and one would think that if the idea of
mandatory sentencing and massive incarceration was a way to
send a message to drug users and drug sellers, we should have
sent that message with great force by now, and certainly drug
abuse remains a problem in many communities.
Mr. Scott. Let me ask Judge Hinojosa, the punishment for--
along the same lines, the punishment for crack is substantially
different than the sentencing for powder; that for 5 grams of
crack, you get 5 years mandatory minimum, and you can get
probation for the same amount of powder. Is there any evidence
that the more severe punishment has encouraged people to use
powder rather than crack?
Judge Hinojosa. We don't have any evidence of that. As you
know, we are again urging Congress to revisit this issue,
because as our report points out, the 100 to 1 ratio has
created and continues to create problems with regards to the
type of individual who might be punished under the mandatory
minimum ratio of 100 to 1 between crack and powder. And the
Commission itself has taken some action with regards to the
guidelines which we consider a very partial remedy to a problem
that needs to be seriously addressed by Congress, and we again
urge that action by the Congress.
Mr. Scott. You talk about the safety valve and why that--
let me ask Judge Cassell, because you mentioned the case where
you had to sentence somebody to 55 years. Why was that person
not entitled to a safety valve consideration?
Judge Cassell. The safety valve didn't apply to his kind of
case. It is not applicable in 924(c) cases. It wouldn't be
applicable in the case of the Border Patrol agents that has
been discussed.
Mr. Scott. Where it is applicable, why doesn't it remove
the manifest injustice in the kinds of sentences that have to
be imposed? I have talked to a number of judges who have
indicated similar same-day sentences for someone with an
obviously much more severe crime got much less of a sentence
because of the mandatory minimums. Why doesn't the safety valve
solve most of those problems?
Judge Cassell. Well, the safety valve is a step forward,
but it doesn't apply in all cases. There are five requirements
that people have to meet to satisfy the safety valve exception,
and some cases simply don't fit into those five criteria. The
basic problem here is that judges aren't given the opportunity
to assess individual circumstances of individual cases.
Mr. Scott. Thank you.
Mr. Roper, you indicated that you had a significant
reduction in crime because you were able to impose long
sentences. Why couldn't you have achieved that result with
traditional long sentences rather than mandatory minimum long
sentences?
Mr. Roper. Well, I think the reason is, it is that threat
of going to jail. It could be under the guidelines. Sure, you
could do it just like that if the guidelines were mandatory,
but the problem is, you know, a lot of people don't want to
cooperate against drug trafficking organizations just because
they have a sense of public--of duty. They do it because they
are in a position where they have to do it. And I think we need
those tools to be able to garner the cooperation of these
lower-level drug dealers, give them a break.
That is one reason that many times 924(c)s don't apply, the
mandatory minimums don't apply. People do choose to cooperate.
And being somebody that is right on the front lines, we need
that.
People call us, Chairman, to rid these communities of
problems, and we have to have the tools to do it. We can't do
it just from wiretaps or just from the sense of waiting for
people to come forward. We need to infiltrate those
organizations, and if we don't have the tools to do it, we
can't do that.
Mr. Scott. My time has expired.
Mr. Forbes.
Mr. Forbes. Thank you, Mr. Chairman. First of all, let me
thank all of our witnesses for being here. We are on a limited
time period, so I may have to cut you off because I want to get
as many questions in as I can.
I want to set the stage first of all, because one of the
things we do in these hearings, we bring in six witnesses and
we tend to blend apples and oranges, and we listen to testimony
and we are trying to say, who is talking about this? Is that
the issue we are really looking at?
Part of our job is to make sure we get the apples in the
right basket, the oranges in the right basket and so forth. And
one of the things that I am looking at here, let's look at,
first of all, procedure, how we change this.
We have today the Chairman of the Crime Subcommittee who is
here, who has said this violates common sense, mandatory
sentencing laws are ineffective in stopping crime, it is
wasting taxpayer money, no careful consideration by Members of
these bills.
We have the Chairman of the full Committee; at any time we
could bring a bill before the full Committee saying, do away
with mandatory sentences, and let's vote on it, and let's have
a debate on it and see if the Members agree with all these
things.
And I encourage them. If that is the route we need to go,
bring the bill up. We don't have to have any more hearings on
it. Let's just do it.
The second thing that we look at is, we blend State and
Federal issues. We talk about, sometimes, what is happening in
the State system, what is happening in the Federal. But then I
heard the Chairman raise this argument today. He said--didn't
understand why border agents doing their job end up being
prosecuted under the law.
Mr. Bonner, that is exactly what you are saying. It doesn't
have anything to do with whether it is a mandatory minimum or
not.
What your big issue is today, they should never have been
prosecuted at all. If we went to the Nifong case with the
prosecution of the Duke lacrosse players, and let's say not
only was he able to get an indictment by a grand jury, but he
somehow got a conviction, we wouldn't be in here arguing that
we ought to do away with the rape laws in North Carolina. We
would be saying it should never have been prosecuted.
Mr. Bonner, I want to ask you--you raised a good point in
your testimony. You said, why did U.S. attorneys choose to
believe the word of a drug smuggler over two sworn officers?
And I agree with you. But that prosecutor had the discretion of
whether to bring that charge in the first place, and he also
had the discretion of whether simply to bring it with assault,
with serious bodily injury, which was the underlying offense.
If those agents had gotten 8 years instead of 10 years,
would that have been any less egregious in your eyes?
Mr. Bonner. No, it wouldn't have. If they had received 1
second, it would have still been a gross miscarriage of
justice.
Mr. Forbes. So your major concern today--and it is a
rightful concern--was why they were prosecuted in the first
place. Is that a fair----
Mr. Bonner. That is a fair characterization.
Mr. Forbes. And Judge Cassell, I listen to you and have the
utmost respect for you and appreciate your being here.
You talked about the message that came to crime victims, of
disparity with mandatory sentences. But there is also a message
that goes to crime victims for judges who have that discretion
and abuse it by releasing individuals with slaps on the wrist
when they commit serious crimes.
We talked about the message to taxpayers when mandatory
sentences result in unfair sentences. But there is also a
message to taxpayers from judges that release people without
giving them adequate sentences. Talking about the message to
criminals that they get, it is also a message if we say to
criminals, if you do the crime, you are going to do the time.
We had a hearing in New Orleans that just astounded me
because the reason we went down there was because we hoped
that--somebody hoped, I think, that we were going to find out
that there were all kinds of problems after Katrina. In
reality, what we found out was New Orleans had a lot of
problems before Katrina and after Katrina; and one of the major
reasons--look at these statistics, 7 percent of the individuals
arrested ever went to jail and 12 percent, including the ones
for violent felonies and murders, ever went to jail. And we had
people coming in testifying; it was creating huge problems with
morale for police officers, huge problems in corruption down
there.
My question to you is, we are always trying to strike a
balance, and balances aren't easy. When President Clinton
signed the law that you had to impose that sentence, when he
signed the law on the case with--in Mr. Bonner's case, I know
he didn't intend that these results were going to take place.
And we always have to modify and get the law; it just doesn't
mean we throw the baby out with the bath water.
In the case of New Orleans, for example, I know it is
egregious, but what should we do in those situations, Judge?
Should we still give them unfettered discretion in how they
continue to hand down their sentences?
Judge Cassell. I think you are exactly right. We have a
balance here. Somewhere between a 55 years for somebody like
Mr. Angelo--let me suggest the perfect balance here is what the
Sentencing Commission has come up. They have put together
guidelines that cover every single case----
Mr. Forbes. Mr. Cassell, with all due respect, I have got
cases right here where the judges aren't doing that. They are
given sometimes 46 percent, 50-some percent and these are in
serious rape cases and pornography cases that are tough cases.
And from our position on the legislature, sometimes you sit
back and you just say, I don't know how we are going to get
those judges to do it. And one of the methods we have are
mandatory sentences.
Mr. Roper, you have lived this. You see it on the streets.
It is not theory to you. How important are these mandatory
sentences to you in dealing with the crime you have to stop
every single day?
Mr. Roper. Well, like I said, it allows us to get
cooperation from folks at a lower level, to work up the food
chain, so to speak. And it also allows us to take these people
out of the community that are violent.
Many of the--what you would consider maybe midlevel drug
dealers, sometimes those are the most violent offenders that we
deal with that--in addition to being gang members, drug
trafficking organizations, that they also are very violent.
Mr. Forbes. And if you don't get them off the streets, then
they take good people like Ms. Nunn sometimes and they bring
them into those crime networks, too. Is that not a fair
statement?
Mr. Roper. Yes sir, they do. That is the sad thing about
it. It ruins communities.
Mr. Forbes. Thank you.
Mr. Chairman, my time has expired.
Mr. Scott. Thank you.
Mr. Conyers.
Mr. Conyers. This is so important, this hearing. I know
Marc Mauer is sitting to your left, Mr. U.S. Attorney, and I
think he is entitled to make some comments about the discussion
that has gone on, that my good friend, the Ranking Member who,
I am sorry, is leaving us now----
Mr. Forbes. Temporarily. I will stay to hear----
Mr. Conyers. Because I am going to talk about you, my man,
and I don't want you----
Mr. Forbes. I will stay.
Mr. Conyers [continuing]. I don't want you to leave and
say, Wow.
As Chairman, I am working overtime and breeding
bipartisanship in the Judiciary Committee. And it is long
overdue, and I want to do it.
But what my colleague--who, if I remember his track record
on these matters, is still a proponent of mandatory minimums
and the death penalty and the gang bills. And then he invites
us to vote it out of Committee and bring it up for a vote.
Well, let's work on that together, Mr. Forbes. And I would
be willing to--and yes, I will yield.
Mr. Forbes. Mr. Chairman, first of all, I will proudly say
I am very much in favor of the gang bills. I think we have
enormous gang problems in this country. I am proud--I will
continue to work on that.
And I still remember the first----
Mr. Conyers. But what about mandatory minimums?
Mr. Forbes. I will get to that. And I am sure the Chairman
will give you as much time as you will need, if you don't mind
yielding to me since you are the Chairman.
When we first brought the gang bills before this Committee,
your question to me was, do we have a gang problem in the
United States? I don't see a gang problem.
Today everybody acknowledges the gang problem. The question
is, what do we do about it? The death penalty, I believe in the
death penalty. I don't mind saying today that I think the death
penalty cures crime.
The final thing, let me just answer your question on
mandatory minimums. I don't believe in mandatory minimums
across the board. I think we have an egregious case, and what
Judge Cassell said, we have got to look at that situation, what
Mr. Bonner's case is; I think we have to examine those
situations. We don't get it right every time. We don't always
hit the mark.
But what I also do is, I know what Mr. Roper says is echoed
by law enforcement agents across----
Mr. Conyers. Well, I don't know if I shouldn't have let you
leave the room since you are using all my time. But I do this
in the spirit of bipartisanship because we are going to get to
the bottom of this for the first time in 12 years in the House
of Representatives.
And now I want to turn to Marc Mauer, who has been before
this Judiciary Committee more times than I can recall, to help
us put this in perspective.
And remember, Mr. Mauer, I am trying to win over
Republicans to support this. So that is why I am being very
deferential.
Mr. Forbes. Chairman, with all due respect, you have got
the majority. We are riding along here.
Mr. Conyers. Yeah. I have got the majority for 6 months. As
a matter of fact, 6 months and--well, it is 5 months and 25
days, so--and it is a pretty thin majority, as I get reminded
almost every day around here.
Mr. Mauer.
Mr. Mauer. I will stay away from political discussion. You
can work that out.
But thank you, Mr. Forbes, for being here.
A couple points on this, first, in terms of looking at
sentences of incarceration. As you point out, the New Orleans
system, I think by all accounts the New Orleans system, as
everybody recognizes, was a mess before Katrina and certainly
very much afterwards.
I think the problem we have in any system, not just New
Orleans, if we look at who was sentenced to a period of
incarceration, rarely is this solely a function of what the
judge has done. Much more often it is a question of the
strength of the evidence the prosecutor has. It has to do with
plea negotiations; 90 percent of our convictions are results of
plea negotiations, the strength of the case, the quality of the
defense attorney. And so the judge may or may not be
influential on any given case.
Often, I think the prosecutor would say, I am glad I got a
conviction even though they don't get much time because it is
better than nothing. So we have to look very carefully at what
is going on there.
On the question of controlling judges, I don't know who all
these so-called ``soft judges'' are these days. I really don't
see much evidence. Certainly, in the Federal system, we have,
you know, excellent data pre- and post-Booker, and judges are
behaving, I think, quite responsibly overall and taking these
very seriously, as are State judges.
The broad picture, of course, over the last 30 years we
have increased our prison population by over 500 percent. So,
somehow, somebody is sending many people to prison and keeping
them there for a long time.
Now, whether or not we think that is a good idea, I would
point out one of the things that has happened is, we have had I
think a very severe imbalance in resources that has developed.
The more money we have put into the prison system, the less we
have on the front end of probation and parole supervision; and
so probation and parole officials will tell you over and over
again that their caseloads have mushroomed, they can't provide
effective supervision.
So I think we have got into a very vicious cycle now
whereby offenders who could be managed appropriately in the
community with services and supervision, now judges and
probation officials are often unwilling to take a chance on
that because they don't feel they have the proper supervision,
and so prison becomes the option. That is why the whole reentry
problem has been recognized so significantly.
So I think this imbalance, inappropriate incarceration of
far too many low-level offenders, has put the system
considerably out of balance and, I think, done a disservice to
what everybody would agree is that prison should be used for
violent, dangerous offenders that we need to be protected from.
Other people can be supervised in the community.
Mr. Conyers. Mr. Chairman, based on your promised
generosity, I ask for 1 additional minute.
Mr. Scott. Without objection. But pending that, I would
like to recognize the presence of the gentleman from Texas, Mr.
Gohmert.
Mr. Conyers. Thank you very much.
We are in a very complicated situation here, and I am just
happy that Howard Coble is here and Judge Gohmert is here,
because these are the folks that are going to help us move
toward some kind of conclusion on this mandatory minimum.
We have got some more hearings that we will probably have
to reach, and I would like to ask Mr. Bonner in terms of his
feelings about--not about the case, about these two Border
Patrol agents, which I think deserves an investigation and a
discussion with U.S. Attorney Sutton at another time. But how
do you see us moving into a more realistic version of criminal
justice?
We are fighting gangs, we are fighting drug dealers. In
what direction should we be moving from your experience and
perspective?
Mr. Bonner. Well, that is a very broad question, Mr.
Chairman. We are clearly losing the war on drugs. Our borders
are out of control. Many of our cities have crime problems that
are completely unacceptable. So I think we need to rethink some
of the strategies that we have been pursuing.
Clearly, when the cost of drugs is cheaper today than it
was 10 or 20 years ago, and when our agents on the frontlines
at the border estimate that we seize perhaps 5 percent of all
the narcotics coming across the border, we are not winning the
war on drugs.
We are not securing our borders. We are not stopping
illegal immigration. And I could go on for a long time about
ways to improve the system, but I think it requires a
fundamental rethinking of some of the aspects.
I mean, for example--and I know that I am taking up
precious time, but you opened the door here. So, you know, for
example, on the issue of why do 3 or 4 million people come
across our borders illegally every year? They are coming
looking for work, and they can find work, and as long as that
happens, they will come across.
And the drug smugglers are using them as a shield, as a
diversion; and that explains why it is so easy to get anything,
whether it is drugs, terrorists or weapons of mass destruction
across our borders.
Mr. Conyers. Thank you so much.
And I thank the Chairman for his generosity. I have a lot
of questions for the judges, and we will hopefully get back.
Thank you, Mr. Scott.
Mr. Scott. Thank you.
The gentleman from North Carolina.
Mr. Coble. Thank you, Mr. Chairman. Mr. Chairman, I
apologize to you and the Ranking Member. I had two other
meetings and I arrived belatedly. I came in just as Mr. Bonner
was speaking. Good to have you all with us.
Mr. Bonner, most of us are not unfamiliar with the Border
Patrol case about which you testified. What other prosecutions
against law enforcement or Border Patrol officers have been
initiated by U.S. Attorney Sutton?
Mr. Bonner. Mr. Sutton?
Mr. Coble. Several?
Mr. Bonner. Several. The Deputy Sheriff out of Rock
Springs, Texas, Gilmer Hernandez; Border Patrol Agent Gary
Brugman out of Del Rio, Texas; you had Border Patrol Agent Noe
Aleman out of El Paso; you had FBI Special Agent in Charge
Hardrick Crawford.
Mr. Coble. Do you have concerns about the way those matters
were handled?
Mr. Bonner. I do. I think we need to open up an
investigation and relook at all of those cases because the
conduct of the U.S. attorney there--and this is not a universal
slam against the U.S. attorneys because we have many, many fine
U.S. attorneys in this country who get it right consistently.
But when you have one who is exhibiting a pattern of going
after the wrong people and giving immunity to drug smugglers,
then I think you have to reopen those cases and take a long,
hard look at them.
Mr. Coble. Well, I don't want the tone or tenor of my
question to imply that I am trying to slam-dunk Mr. Sutton. I
don't even know him. But let me ask you this--pardon?
Mr. Gohmert. Go ahead.
Mr. Coble. Thank you, Tex.
But, Mr. Bonner, let me ask you this: What specific
concerns, if any, do you have concerning the prosecutor's
decision to immunize the victim in the Border Patrol case about
which you testified?
Mr. Bonner. Well, I bristle at the use of your word
``victim'' because the two victims here were the Border Patrol
agents.
Mr. Coble. Yeah. I don't disagree with that.
Mr. Bonner. The drug smuggler was immunized. And out of
gratitude for that, he continued in his nefarious ways and was
caught in October of that same year, another load in Clint,
Texas, very near the same area where he was shot by Border
Patrol agents when he pointed a weapon at them.
A van containing 752 pounds of marijuana was discovered,
and the occupant of that house pointed him out, pulled him out
of a photo lineup, named him by name, physical description. And
his brother, who was in Mexico corroborated that. His brother
said that he couldn't come back because he had been convicted
on drug charges in the U.S. and would be incarcerated if he
came back. But he said, he is the guy that the Border Patrol
agent shot about 6 months ago, taking it back to February of
that year.
Mr. Coble. Well, as I said, Mr. Bonner, none of us is
unfamiliar with that case. We all are very familiar with it.
And, Mr. Chairman, this may not be for me to say but I think
serious consideration should be commuting those sentences, if
not pardoning. But that will be for another day.
I yield back, Mr. Chairman.
Mr. Davis. Mr. Chairman, can I make a parliamentary
inquiry?
Mr. Scott. The gentleman is recognized.
Mr. Davis. Simply for a parliamentary inquiry, I don't want
to waste my questions on this. But there has been a lot of
testimony about a particular U.S. attorney and a particular
U.S. case, and I wonder if the record could be opened to give
him a chance to respond.
Mr. Scott. It could be. People can send in whatever they
want. The testimony here is not on the case itself or the
prosecution, but the impact of mandatory minimums. People can
ask questions, I guess, about whatever they want to ask.
Mr. Davis. I am just simply troubled, Mr. Chairman. There
has been significant commentary about a case that is under way,
and the opposite point of view has not been represented.
Mr. Scott. And on appeal--it is presently on appeal. The
point is well taken. And if the gentleman submits any response,
without objection, it will be accepted.
The gentleman from Georgia.
Mr. Johnson. Thank you, Mr. Chairman. I am concerned about
the case involving agents Ramos and Compean, and I appreciate
the opportunity that you have taken, Mr. Bonner, to let the
Nation know about what happened. And it was in the context of
this hearing, which happens to be on mandatory minimums, that
you did that. And you did it because these two individuals,
Agents Ramos and Compean, have been victimized by the mandatory
sentencing scheme that we have enacted into law here. And that
is something that Mr. Roper, the former DA and current U.S.
attorney, feels very passionately about in terms of the
propriety of our maintenance of the mandatory minimums because
he feels like they go far toward enabling crime to be
addressed, and crime rates would go down as a result.
But, nevertheless, what has happened here with Agents Ramos
and Compean is, after they were charged and convicted of
assault with a dangerous weapon and aiding and abetting each
other, I suppose, in that offense and also deprivation of
rights under color of law--and I don't know what the
particulars of the case were, but it does appear from your
testimony that someone was shot in the buttocks, but they were
shot from a side angle; and they were a fleeing felon with $1
million worth of marijuana.
And so I guess an argument could be made that these Border
Patrol agents were simply doing their job.
However, a prosecutor decided to charge them, and he
charged them with a violation of 924(c), which is discharging a
firearm during the commission of the assault or during the
commission of the deprivation of rights, whichever the case may
have been. And that was a prosecutorial decision that was made
by U.S. Attorney Sutton who, by the way, did not make that same
decision in a case involving a fleeing felon who used a weapon
and unloaded it and stopped firing only because he had no more
ammunition.
That is what you have testified to, correct, Mr. Bonner?
Mr. Bonner. That is correct.
Mr. Johnson. And so the prosecutor is exercising his
discretion, and that discretion translates into what kind of
mandatory sentence, if any, would be applicable.
And so Compean and Ramos got charged with 924(c), Mr.
Roper, but the other gentleman did not, prosecutorial
discretion, and the judges don't have the ability once the
prosecutor makes the call as to who--as to what to charge with.
Then you are locking the judges into what they can sentence the
individual for, not the facts of the case, but the charge that
he was convicted of.
So what we have done is shifted discretion away from the
judges to exercise discretion, and hoisted it upon the
prosecution which--by the way, Mr. Roper, I am very impressed
with you and, in terms of your desire, your strong desire to
enforce the law. And I would say that you probably would be
biased in favor of prosecution as opposed to defense. And I
would think that the judges, after hearing the evidence, would
be less biased toward one group or one arm versus the other; in
other words, prosecution, defense, the judges sitting up there
and making the decision would be able to weigh all the evidence
and decide without bias what the proper sentence was.
I believe that is the reason why you are here today, Mr.
Bonner, is because the case of the Border Patrol agents
illustrates this shift of power from the judges to the
prosecutor. What do you say about that, Mr. Roper?
Mr. Roper. Well, if I understand your question right----
Mr. Johnson. My question is, isn't it true that mandatory
minimums shift discretion, sentencing discretion, ultimately
away from judges and into the hands of prosecutors?
Mr. Roper. I think to some degree that is true, yes.
Mr. Johnson. Let me ask you, Judge Cassell and Judge
Hinojosa, what are your thoughts on that?
Judge Cassell. I think you have hit the nail on the head
when you transferred discretion into the arms of the
prosecutor, they are a biased party in the sense that they are
representing one side. They are representing the prosecution.
Our job as judges is to try to balance the competing concerns;
and I think from an institutional perspective, we are better
able to exercise discretion, better able to make the
individualized judgments that are required in sentencing
decisions and is one of the parties in the case.
Mr. Johnson. Judge?
Judge Hinojosa. Congressman, we have a system in this
country basically where the prosecutors do have discretion.
When we get stopped for speeding, it is the policeman who
decides if we are going to be given a ticket or not. That is
just the way the system is set up. However, it does lead to
situations where a prosecutor can bring something before a
court based on particular charges and therefore deprive the
Court of the opportunity to view a range of sentences.
That is why I, as a judge and certainly as the Chair of the
Sentencing Commission, believe strongly that the sentencing
guidelines try to do away with that prosecutorial discretion to
some extent with regards to the modified real offense conduct
that is used by a judge to determine what the sentence should
be; and it goes beyond just the particular charges, but the
actual conduct in commission of an offense as well as all the
other factors that would be considered.
So that is one way that the sentencing guidelines system
that was set up by the Sentencing Reform Act was supposed to
bring this into the judges to, overall, look at the picture of
an offense as opposed to whatever particular charges were
brought.
Mr. Johnson. Thank you. I have run out of time.
Mr. Scott. Thank you. The gentleman's time has expired.
The gentleman from Texas.
Mr. Gohmert. Thank you, Mr. Chairman. I appreciate that.
And we had a parliamentary inquiry on the propriety of having
hearings with ongoing litigation. I didn't know if that was
talking about something today or the EPA hearings yesterday
with ongoing litigation.
Mr. Davis. I was talking about the events today.
Mr. Gohmert. Not about the----
Mr. Davis. Yes. Clarity was needed on that.
Mr. Gohmert. Okay. Well, I will mention, yesterday was also
regarding a matter that is involved in pending litigation.
But you know, the mandatory sentencing issue has really
surprised me as a former district judge and briefly in the
court of appeals in the State system. Every felony that we
undertook had a range of punishment; there was a minimum and
there was a maximum, and as a judge, I had discretion to go
anywhere within that range. That was the legislative
prerogative, to make a range of punishment, and I never thought
much about that being this horrible thing called a mandatory
minimum. I had the range of punishment.
And I appreciate the judges' comments about their
sentencing guidelines. Some of us remember when the guidelines
took place, some of our Federal judge friends were just going
nuts about how horrible they were, how they could usurp control
and discretion of the Federal judges. And then it seemed, as
time went on--kind of like the frog you put in cool water and
eventually warm it up--the judges got quite comfortable with
their discretion having been taken away. And then to the point
that it seemed, in the last year or two I have been in
Congress, we heard judges saying, we haven't had that much
problem with the guidelines because they took their discretion
away, so they didn't have to stand as much heat for sentences.
But I just have difficulty understanding why there is so
much problem with the legislature setting a low end and a high
end and, Judge, you have got the middle.
Judge Hinojosa, do you have a problem with having a low
end, or is it that the low end is sometimes too high?
Judge Hinojosa. I guess the question is on the issue of
mandatory minimums. I guess what mandatory minimums do do is,
they treat everybody exactly the same. What the Commission has
always felt is that the guidelines and the individual
considerations that get taken into effect, whether it is a
mitigating role or an aggravating role, whether it is the use
of a firearm or not the use of a firearm, in the sense that if
there is no firearm, there is no potential difference in the
sentence. And so the point that is made on the Commission's
part is that the 35-50-3a factors talk about the background in
the offense conduct of the individual defendants as well as all
these other factors that are to be considered. The guidelines
that take those into effect in that, that system is different
from a system that automatically starts treating everybody
exactly the same and where you have some cliffs where you might
end up with just a very small amount with regards to drugs, for
example, putting you over the top, as opposed to somebody who
has just got slightly less.
Mr. Gohmert. But that is the minimum, right, Judge? That is
not the maximum that you can do. That is just the low end;
isn't that correct?
Judge Hinojosa. Right.
Mr. Gohmert. So I am not sure from your answer--well, my
question was, do you have a problem with the mandatory minimum
not being low enough or just having a mandatory minimum at all?
And I am still not sure where we stand on that.
But I would also point out--I am not--I think McCain-
Feingold was one of the biggest constitutional blunders we had
at Congress that said, Gee, we want to sound like we are
toughening up on this, and as I understand it, it provides for
a mandatory prison sentence; and the President said, Well, gee,
just be aware I am going to sign it if it comes up here; I will
let the Supreme Court take care of it.
The Supreme Court said, Don't count on us to be
constitutional. So--they punted too, so we ended up with a law
that I think has serious constitutional issues. So it is
important that we take a good look at these issues and not punt
to another body because we can't count on anybody else.
And I do appreciate the hearing, and I appreciate the
Chairman of the Subcommittee and the Committee of the whole
indicating that this is an important issue. But it seems like
the focus ought to be more on, are the mandatory minimums too
high and what should those be, rather than should we have them
at all, leaving absolutely complete discretion to the judge.
And my time has obviously expired.
Mr. Scott. Thank you.
The gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the Chairman and the Ranking
Member, the Chairman of the full Committee. This is a hearing
long overdue and an important, instructive hearing by the
witnesses' testimony to give us guidance for what I think is
the chief responsibility of this Committee in particular--but
the Congress, Congress first of all, oversight and legislative
reform to the extent that it works for the American people and
certainly protecting the Constitution.
And I do include in the Constitution the issue of the
rights of victims and their families, and the rights of those,
of course, who have been before the judicial system. So I hope
that in my questioning--and I would ask the witnesses if they
would give me brief ``yes'' or ``no'' answers.
And, Judge Hinojosa, I am very aware of how fast you spoke
the first time around. But if I could start with you, and just
be as brief as you possibly can be. Do you think it is possible
to have a legislative fix for this issue dealing with mandatory
sentencing? Can we analyze the facts and come up with a balance
that might be responsive to your testimony?
Judge Hinojosa. I would hope so. And that is a quick
answer. However, you know, at the very least, Congress needs to
revisit this issue and at least start looking at it. Certainly
in crack, something needs to be done. The issue of the safety
valve applies in drug cases. It doesn't seem to apply--it
doesn't apply in other cases.
There are a lot of situations where I think that it is time
for Congress to start looking at this.
Ms. Jackson Lee. We should get involved?
Judge Hinojosa. And I think from the Commission's
standpoint, it is true, our last review was 16 years old. There
is a changing docket in the Federal system. We are up to 37
percent of defendants in Federal court are noncitizens of the
United States. We are up to about 24 percent of the docket is
immigration. So this is a very different docket from what it
was in 1991.
Ms. Jackson Lee. Thank you.
Let me just point out the statistic in your Table One,
demographics, which I find appalling. All mandatory cases, you
have a percentage of 32.9 percent African American, 38.2
percent Hispanic. Do you include the Hispanics as immigration
cases?
Judge Hinojosa. In that table we do.
Ms. Jackson Lee. And so if we were to look at this from an
issue that really faces America on a regular basis, we have got
a lopsided, almost seemingly discriminatory approach here where
we have over 60 percent almost--in fact, 70 percent, it looks
like, of the defendants are mandatory--happen to be minorities.
Is that accurate from your table?
Judge Hinojosa. It is on this table.
Ms. Jackson Lee. The one I am looking at. I know there are
further explanations, but I just want to get that on the
record.
Judge Hinojosa. We also have to realize that up to 43
percent of the docket is Hispanic, which is a big difference
from 10 or 15 years ago, because of the growth of the
immigration docket, as both of us know living in the Southern
District of Texas.
Ms. Jackson Lee. Absolutely. Which clearly points to your
issue of, let's review this, let's have the oversight of
Congress. Thank you.
Judge Cassell, you were very clear on the fact that the
Judicial Conference wants to get back in the business of being
judges. What is the single most important element of that
message that you are getting? Why is it so important? Because
some people are concerned that the abuse was going the other
way, that you will--a judge, a southern judge of the 1960's,
will throw the book at somebody who happens to be African
American, let someone else walk.
How do you respond to that?
Judge Cassell. I think we want judges to be able to make
the punishment fit the crime. The only way to do that is to
give the judges the opportunity to assess an individual case,
an individual crime, an individual offender.
Now, you mentioned there may be some problems. We have in
this country an appellate court system that, as the Supreme
Court told us just a couple of days ago, can review the
substantive decisions judges make at sentencing. I am a trial
judge; if I make a mistake----
Ms. Jackson Lee. That appeal process. Let me go to Mr.
Bonner very quickly.
Mr. Bonner, your case is an outrage. I asked the President
to pardon these individuals. But I think we want to get back on
track. Let's focus on that judge. That judge could have done
something different.
You were not in the courthouse. Do you know from family
members--and this would be hearsay if you were under oath--but
do you know from family members whether the judge wanted to do
something else?
Mr. Bonner. I actually was at the sentencing, and the
judge's hands were tied.
And let me just quickly add that----
Ms. Jackson Lee. We want to make this a sentencing issue so
I want you to be able to say that. Do you believe the judge
might have wanted to be more lenient?
Mr. Bonner. I think the judge was as lenient as she could
be, given the constraints of the mandatory minimums. On the
other charges, she downward--departed dramatically because she
could have, I believe, in one case levied a 120-year prison
sentence; and what we saw were 11 and 12 years, of course the
10-year mandatory.
I don't believe that Congress ever intended that people who
carry firearms in the performance of their official duties be
considered under that law when they are acting reasonably
within of scope of those duties.
Ms. Jackson Lee. Thank you. May I get just this last
question from Mr. Mauer, please?
We have got incarcerated persons in under the mandatory
sentence, many of them under light drug cases. Do you think
part of our oversight should consider the aging incarcerated
persons--nonviolent crimes, nonviolent, inside for something--
such as a good-time, early-release program that might speak to
prisoners 40, 45, 50 years old that complements this whole
review of the sentencing process?
Mr. Mauer. Absolutely. And if you talk to corrections
officials, they will tell you that is one of their biggest
concerns, the cost of an aging prison population, the health
care costs, and the fact that everyone knows after the age of
35 or 40, recidivism rates decline dramatically. So, in terms
of any risk to the public, obviously this is a very low-risk
population we are talking about.
Ms. Jackson Lee. I thank you.
Ms. Nunn, I thank you so very much. Your story obviously--
and I close on this note: You were very fortunate.
Look at what you have done. And I guess you would say--and
I can't get the answer probably that you were very fortunate,
but how many others are languishing that didn't get the
opportunity? Is that a ``yes'' or ``no''?
Ms. Nunn. Yes.
Ms. Jackson Lee. I yield back. I thank the Chairman for his
indulgence.
Mr. Scott. Thank you.
I recognize the gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman. I
appreciate that.
Judge Cassell, I know you have done a tremendous amount of
work in a number of different capacities for victims of crime.
And I have always admired your work, and I know that many in
those organizations appreciate it.
Let me just ask you this: What, if anything, do victims of
crime or victims' family members, in your experience, feel
about mandatory minimums? When I was on this Committee in my
first life, one of the reasons we set up the Sentencing
Commission and one of the reasons that many of us supported
some mandatory minimums was the tremendous disparity across the
board in Federal sentencing.
I specifically remember a case where I had a woman in my
district from southern California who had received an enormous
prison sentence on the Federal level for a certain drug offense
when she happened to be down in Texas, from a particular judge
at that time; and virtually every other judge in the Federal
system didn't sentence that way. And the disparity just seemed
to be so obvious. So I saw it from that standpoint.
But what about from the standpoint of victims who would
say, wait a second? In this case, the person who assaulted me
or killed my brother got this sentence. But someone over here
got a far greater sentence. Same crime.
I know we tried to take care of that with the Sentencing
Commission. The Supreme Court gave us a little more guidance on
that, where it seemed to me, take the Sentencing Commission
very seriously, but if you take it too seriously, it is
unconstitutional. Kind of an interesting concept.
But--I understand what they were trying to do, but from the
victim's perspective on mandatory minimum sentencing, can you
give us any guidance on that?
Judge Cassell. I think the interesting question is, why are
some crimes subject to mandatory minimums and others not?
We mentioned the case just a year or two ago where the same
day I sentenced Weldon Angelos to 55 years for carrying a gun
to several marijuana deals, I had a murderer who had beaten an
elderly woman over the head with a log. No mandatory minimum
sentence in that case and the murderer got a shorter sentence
than the man who carried a gun to a drug deal.
There are no mandatory minimum sentences for kidnapping,
for rape, for sexual assault on a child. These crimes are
covered in general by the sentencing guidelines. We have
created a system where we have mandatory sentences for some
situations, not for others.
I think the solution is to go with the guidelines across
the board. I am with you on that. I think the guidelines
deserve very serious consideration in all cases. We put in
place an appellate system so that if a judge deviates from the
guidelines without a good reason, that can be reviewed.
Mr. Lungren. Both above the guidelines and below the
guidelines and either side could appeal even though that was a
controversy at the time?
Judge Cassell. Yes.
Mr. Lungren. So would you say that, in your opinion, we
ought to get rid of all mandatory minimums, or we ought to go
back and review those mandatory minimums that exist? I mean, do
a full review and see how they comport with sentencing
guidelines and see if they may be still necessary in some cases
and not others? Or would you argue that mandatory minimum
sentences, as a rule, are not good?
Judge Cassell. I think, as a rule, they are not good. But I
certainly understand you are going to need to prioritize your
attention, and I would suggest you prioritize situations where
you see the mandatory minimum being one place and the
guidelines somewhere else. I think that is your clue that you
have got a serious problem.
When you see my case, Weldon Angelos, who was supposed to
get 9 years or something like that under the sentencing
guidelines, he ended up getting 55 years. That is an indication
that you have got a difference between what the expert agency
is recommending in a particular situation and what Congress has
required.
Mr. Lungren. So you are suggesting we are not the expert
agency?
Judge Cassell. Well, I am suggesting--I am suggesting----
Mr. Lungren. The darn Constitution always gets in the way,
tries to tell us what we are supposed to do.
Judge Cassell. I am a strong believer in the guidelines.
Mr. Lungren. And the Constitution?
Judge Cassell. And the Constitution, absolutely.
But you have created two voices. You want us to listen to
the Sentencing Commission, and in that case they told me 9
years, and obviously you want me to listen to the mandatory
minimum sentencing scheme. It is hard for us to follow two
masters.
We certainly want to do the right thing. But we think there
ought to be one clear message as to what should be done in
particular cases. And the guidelines are the one thing that
speak across the criminal code, across all crimes, across all
offenders, across all circumstances. And so it seems to me they
should be taking the lead in most of the cases.
Mr. Lungren. And Judge Hinojosa, I know the Sentencing
Commission released that report on the disparities between
powder and crack cocaine sentencing. And I recall when we
started that disparity back in the 1980's; it was a response to
the cries of certain communities in this country that they were
being overwhelmed by this. And it was the powerful force that
seemed to be upsetting their communities and hitting them in
ways that weren't being felt in other communities.
Our response in the Congress was to say, well, one of the
ways to do that is to create a real deterrent. So in those
cases where we saw the presence of a particular type of cocaine
really impacted the community, we were going to give tougher
sentences there. I was one of those who went along with it at
the time, thought it made some sense.
Is your suggestion that we find in retrospect that that
disparity of impact in the community, based on the different
types of cocaine, doesn't exist or did exist and no longer
exists? Did we just make a mistake in Congress? What would you
say on that?
Judge Hinojosa. Since you invited the commenting, I think I
will.
I think that situation explains to us how we sometimes in
our country react to a specific situation and jump full steam
ahead without seriously studying the issue. And as it turns
out, 100-to-1 was not the correct ratio in the minds of
anybody, or very few people, today; but emotionally, at the
time, there was the additional factor of an additional incident
that occurred that led everybody down this path.
And so my thoughts on that are, when we have these things
happen in a particular case, we need to look at the overall big
picture and study it.
The Commission has studied this particular issue for a long
time; as you well know, we have sent the fourth report on this
issue to Congress. And in our last hearing it was very hard to
find anyone from all political spectrums, viewpoints, that
would come up with the idea that a 100-to-1 ratio was the
correct ratio.
Mr. Lungren. I know you are referring to the Len Bias case,
I believe that occurred at that time. I will say that that did
add impetus to the effort. But I will say that at that time we
were receiving reports from all over the country, and it was a
bipartisan--and I actually think it was a Member of the other
party who brought that forward. And we thought we were
responding to the request from the communities at that time.
I thank you for your comment.
Judge Hinojosa. And I don't disagree with that. I just
think that things change and when we find out more information,
I think it is okay to revisit issues.
Mr. Lungren. Sure. Thank you.
Thank you, Mr. Chairman.
Mr. Scott. Thank you.
The gentleman from Alabama.
Mr. Davis. Ms. Nunn, your case is a paradigm for what I
think Judge Cassell was talking about earlier. It is the way
that the guidelines interact with mandatory minimums to create
results that frankly don't make a lot of sense on paper.
In your case, what triggered the 10-year minimum in the
first place was that the judge decided to hold you accountable
for a certain amount of cocaine and then what pushed you to the
upper end of the guidelines was, he held you accountable for
even more than that. So I want to focus my questions on the
provisions of the sentencing guidelines that operate that,
frankly, give judges and prosecutors so much power and give
juries, frankly, so little power.
It is the relevant conduct provisions; and let's take drug
cases, for example. A jury may hear a case of, say, 10 or 15
accounts alleging a variety of transactions over a period of
time. A jury can find the defendant not guilty of 14 of those
counts and they can find him guilty of 1 count, say, of
possession with intent to distribute of 25 grams if I am not
guilty of all the rest of the conspiracy.
When the judge gets to sentencing, she is able to take into
account, if she wishes, all of the conduct that was the basis
of the acquittal, conduct that was never presented to the jury,
conduct on which there is very little evidence, and to base the
sentence on a finding; and her standard is only a preponderance
of the evidence, not beyond a reasonable doubt.
I prosecuted as an AUSA for 4 years. It didn't matter what
the jury did as long as there was a threshold conviction. The
whole heart of the case where someone got a lot of time or
virtually no time came down to what the prosecutor wanted to
put on as relevant conduct and how the judge wanted to evaluate
that.
That strikes me as a significant problem in its own right.
It undoes the congressional intent for consistency in these
cases. It undoes the effectiveness of the guidelines because
here is how it works: If the prosecutor decides, I don't want
to tell the judge about the extra 3 kilos of cocaine that was
seized in Miami, he doesn't have to do it. So it gives an
enormous amount of influence to prosecutors.
And the Supreme Court has tried to weigh into this, and I
would like your reaction to this, Judge Cassell and Judge
Hinojosa. It strikes me that, frankly, they have left as many
questions as they have clarified. The Booker case several years
ago, the U.S. Supreme Court said, well, we are bothered by the
massive transfer of authority to judges and prosecutors.
Judge Stevens said, there may be some seventh amendment
implications, it may undercut the right to a jury trial, so
therefore, we are going to unanchor the guidelines from their
mandatory character. So wait several years, another Supreme
Court case. Last week the same Supreme Court which raised
questions about the guidelines and said they are not mandatory
says, well, they are not mandatory, but if you follow them, you
are presuming to be acting correctly on appeal.
Now, in the real world where judges don't want to get
reversed and try to figure out how to avoid being reversed
because they like good win-loss records too, a judge says,
well, I know I don't have to follow the guidelines, but if I
follow them, I will almost certainly be upheld and appealed.
So the Court giveth with one hand and taketh away with the
other; and frankly, the Court several years ago invited
Congress to come back and revisit this issue. The Court said,
Congress, you have had now 20 years to look at how these
guidelines operate; go back and tell us if you are content with
this system. And unfortunately, the Congress said, well, we
would rather have the Court tell us what is constitutional. We
don't want to even accept the Court's invitation to act.
But I would like to get the judges to comment on what you
think if you are comfortable with commenting on it, what you
think of the Supreme Court jurisprudence and the inconsistency
of the jurisprudence in the last several years of the
guidelines.
Judge Cassell. I think, rather than criticize the Supreme
Court, let me just hit this particular point which is, I have
already criticized some of the things Congress has done. I
think the real problem with mandatory minimum sentences is that
they are one-dimensional.
Take Ms. Nunn's case, the only what kind of drugs were
involved and what was the quantity? Once he knew what the
quantity was, that was the end of the story; that was the
sentence that had to be imposed.
The advantage of the guidelines is that they are
multidimensional. They allow not only consideration of quality,
but the role in offense, any other mitigating or aggravating
circumstances. And that is what we have to do.
You mentioned judges worried about win-loss records, I
think we are not so much worried about win-loss records as we
are about doing the right thing in particular cases. We have
defendants. We have their family members. We have victims, as
Mr. Lungren mentioned. We have prosecutors and defense
attorneys.
We have those sentencing hearings with everyone there, and
yet our hands are tied in these mandatory minimum sentencing
cases; we can't do what we think is the right thing.
Mr. Davis. Judge, this is the concern. I am not impugning
judges.
The point that I am making is, the way that the system
works does not have the transparency that I think the Congress
wanted or the transparency that the Sentencing Commission
intended, Judge Hinojosa. The way the guidelines work as a
practical matter is the most important part of whether someone
gets the fate that Ms. Nunn has, or if someone walks out in a
few years is not what the jury decides; it is what a given AUSA
decides, what a judge decides.
And I will make this final point. In my experience on both
the prosecution's side and the defense side, here is what
drives whether or not prosecutors bring in particular relevant
conduct. Did the defendant cooperate? If the defendant didn't
cooperate, we will throw the book at him. If we got ticked off
because the jury gave us a ``not guilty'' verdict on some
counts, we will really come back and make a fourth relevant
conduct stage? If the defendant files a motion that is too
obnoxious, maybe we will come back and decide to bring an even
more relevant conduct?
Some of those considerations are blatantly impermissible,
some of those are borderline; but in all instances, they give
an enormous amount of power to judges as opposed to the
prosecutors to put facts in front of judges or not to do so.
And I can't imagine that that is what Congress intended 20
years ago. And I hope it is not what the Supreme Court intends
either.
Judge Hinojosa. Could I answer?
Mr. Scott. Certainly.
Judge Hinojosa. Congressman Davis, I guess I am one of the
few judges left who has done sentencing without the guideline
system and before the Sentencing Reform Act. I did it for about
4-1/2 years and then have done it since 1987 with the
sentencing guidelines.
I will say that the guideline system did bring transparency
and due process that we did not have. As you all know,
beforehand, I would just go on the bench and say, zero to 20
years, and pick out whatever sentence it was. I did not have to
give the defense nor the prosecution to go ahead and explain to
me why I might be wrong.
I considered acquitted conduct without ever telling anyone,
because it made sense to me to treat somebody differently who
might have heard evidence, might have committed another crime,
as opposed to somebody who had not committed, in my mind,
another crime. So the transparency, the due process, has been
brought about by the Sentencing Reform Act through the
guidelines.
The other thing that the statute actually says under Title
18, section 1661, no limitation shall be placed on the
information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing an
appropriate sentence. And so what we do have is, we do have the
relevant conduct.
We do have--the Supreme Court in Watts said that acquitting
conduct based on the discretion of the judge could be
considered. The guidelines themselves say it has to be a
reliable indicia of evidence in order for you to be able to
proceed with regards to relevant conduct.
My impression has been that prosecutors try to give us too
much relevant conduct. My role as a judge is to try to figure
out exactly what some informant may have said is really true,
or not, with regards to the amount of the drugs. So I guess it
depends on the prosecutor to some extent. But we, as judges,
have this role of trying to determine the facts and then
determine the appropriate sentence. It is a difficult job. And
I know it is difficult for Congress to deal with these issues
also, but it is about the hardest thing that we do in the
courtroom.
Mr. Davis. Chairman, if you would indulge me 15 seconds, I
would simply make this comment. I would like to see us move to
a world where, frankly, just as in civil cases, juries are
asked to make a range of factual findings in addition to
liability. I would like to see us move toward a world where
juries made factual determinations of whether or not the person
was accountable for 500-to-1.5 kilos, whatever the other ranges
are. I would like to see us move to the point where those
determinations were made by juries so we didn't have, in
effect, trials happening at the sentencing phase with a much
lower standard of evidence when it happens with a real jury.
Mr. Roper. Mr. Chairman, if I could just be recognized for
a second.
I would hate to give the impression that prosecutors across
the country are engaged in hiding relevant conduct from a
judge. I don't permit that in my office. I never did that in
the years that I served as the prosecutor, trying to manipulate
the guidelines.
I think there is a responsibility prosecutors have to
provide evidence so that the court will have the ability to
consider the full options under the guidelines, and my fear is,
if we do away with the guideline sentences, we will go back to
what I saw as a prosecutor when I had a defendant brought in to
testify that received 15 years in Texas for a bank robbery,
pre-guidelines, and he was complaining because he had a
defendant in his cell in prison that received 2 years in
Federal prison for a similar type bank robbery.
Mr. Scott. Thank you. I would like to thank all of the
witnesses for their testimony.
Excuse me. The gentleman from Texas.
Mr. Gohmert. Could I ask unanimous consent to comment on
Mr. Davis' good suggestion? Just 1 minute?
Mr. Scott. The gentleman is recognized.
Mr. Gohmert. I think Mr. Davis makes a good comment. That
might be of great assistance if we did require those.
In some limited cases in Texas State law we have started
doing that. It is an enormous help. If the jury makes the
finding, it takes us out of some unknown or unelected or
unappointed person back there, who is just hired to make these
determinations; and I think that would be very helpful.
And it does sound like, though, the mandatory minimum is
not so much objectionable as it is the way they are enhanced
up. And if there were a way to look at that and maybe make
incremental increases so it is not just a huge jump up to some
55-year sentence when it should be a 9-year; and the suggestion
of Judge Cassell that maybe we look at that in terms of where
are the discrepancies between the Sentencing Commission's
recommendation and what the law requires and possibly make
those areas where we could clean up with legislation.
I appreciate the gentleman's suggestion.
Mr. Davis. I thank the gentleman.
Mr. Scott. Thank you. I think we have to differentiate
between the guidelines and what is permissible to ratchet
things up, according to the guidelines, and a statutory
mandatory minimum that ignores the guidelines; and if the
statutory mandatory minimum is above what the guidelines would
say, you would start off at the mandatory minimum regardless of
mitigating circumstances and everything else.
So I think the comment was considering for the purpose of
guidelines whether or not you meet the mandatory minimums. That
is one question.
The other is--excuse me--for the purpose of guidelines
whether you ratchet up the sentence, whether you can consider
behavior for which you were found not guilty.
The mandatory minimums, you don't even get to the
guidelines; you are stuck by statute with a minimum sentence.
So they are slightly different situations, but they are, as you
have suggested, very much overlapped. So that is something that
we need to look at.
And we appreciate your comments. If there are no further
comments, I would like to thank the witnesses for their
testimony.
Members will have additional--who have additional questions
will forward them, and we will forward them to the witnesses
and ask that you answer them as promptly as possible for the
record. Without objection, the hearing record will remain open
for 1 week for the submission of additional materials.
Without objection, the Committee stands adjourned.
[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Louis J. Freeh
I support House Bill 71 and the repeal of Delaware's mandatory
minimum drug sentencing laws. When these laws were first passed,
lawmakers hoped that these ``tough on crime'' sentences would catch
those at the top of the drug trade and deter others from entering it.
More than two decades later, we know better. Drugs are cheaper, purer
and more available than ever before, and America's prison population
has tripled to more than 2.1 million. Today, Delaware houses 7,000
inmates at a cost of $230 million per year. Delaware's prison and jail
population has more than quadrupled in the last 25 years and our
correction expenditures have soared. Still, drug use has not declined
and our communities are not safer. We don't need any more evidence to
know that these laws do not work.
As a former FBI agent, federal prosecutor, and federal judge, I
have first hand experience in law enforcement, in prosecution, and on
the bench, and I see clearly that Delaware's mandatory minimum drug
sentencing laws should be repealed. Without question, drug dealers
belong off our streets and in prison, but Delaware's mandatory minimum
drug sentences do not apply only to dealers or violent offenders.
Delaware's mandatory minimum drug sentencing laws are based solely on
the type and weight of the drug involved. The equivalent of a few
packets of artificial sweetener can be enough to trigger a mandatory
minimum sentence. Take one away and no mandatory minimum applies. Add
one and an addict faces a long term of imprisonment.
I have the greatest respect for law enforcement officers and the
vital role they play in our criminal justice system. The hours are long
and the work dangerous, and law enforcement officials should be given
all of the tools necessary to do their jobs. However, we cannot arrest
our way out of our nation's drug problem. With the repeal of mandatory
minimum drug sentencing laws, Delaware's judges would again be able to
consider fully all the aggravating and mitigating circumstances of each
case, factors including physical and mental impairment, mental
retardation and duress. With such discretion, judges will be equipped
to identify drug dealers and imprison them; to recognize those in need
of drug treatment and treat them; and to handle all offenders as unique
individuals and sentence them appropriately. Delaware's sentencing
guidelines and Truth-in-Sentencing Law would remain in force, helping
to guide judges in their decisions and ensuring that offenders complete
their sentences.
Research has shown that imprisonment alone does not guarantee
public safety and there is no evidence that mandatory minimum drug
sentencing laws are effective in deterring drug crime. With
incarceration rates so high in Delaware, and without a corresponding
drop in drug crimes or improvement in public safety, it is a matter of
necessity that we explore effective means of reducing our expanded
prison population through solutions that will help our state to focus
its resources on violent offenders and on programs that will revitalize
communities, reduce recidivism, and promote the successful reentry of
ex-offenders back into society. It is time for Delaware to follow the
growing momentum within our state and across the nation and join the
many states including New York, Michigan, and most recently our
neighbor Maryland, that have recognized the need for reform and
repealed or restructured mandatory minimum drug sentencing laws. We
need to do away with the short-term, flawed solution to drug crime
posed by these sentences and focus our resources on proven alternatives
to incarceration.
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