[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


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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

                              ----------                              

                             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

                              ----------                              


                         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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