[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



                        MANDATORY MINIMUMS AND 
                        UNINTENDED CONSEQUENCES

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

                   H.R. 2934, H.R. 834 and H.R. 1466

                               __________

                             JULY 14, 2009

                               __________

                           Serial No. 111-48

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel








                            C O N T E N T S

                              ----------                              

                             JULY 14, 2009

                                                                   Page

                               THE BILLS

H.R. 2934, the ``Common Sense in Sentencing Act of 2009''........     4

H.R. 834, the ``Ramos and Compean Justice Act of 2009''..........     6

H.R. 1466, the ``Major Drug Trafficking Prosecution Act of 2009''     8

                           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 Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................    19
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.    20
The Honorable Maxine Waters, a Representative in Congress from 
  the State of California, and Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................    22
The Honorable Ted Poe, a Representative in Congress from the 
  State of Texas, and Member, Subcommittee on Crime, Terrorism, 
  and Homeland Security..........................................    31

                               WITNESSES

The Honorable Julie E. Carnes, Chair, Criminal Law Committee of 
  the Judicial Conference of the United States, Washington, DC
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36
Mr. Grover G. Norquist, President, Americans for Tax Reform, 
  Washington, DC
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68
Mr. Michael J. Sullivan, Partner, Ashcroft Sullivan, LLC, Boston, 
  MA
  Oral Testimony.................................................    71
  Prepared Statement.............................................    73
Mr. T.J. Bonner, President, National Border Patrol Council, 
  Campo, CA
  Oral Testimony.................................................    79
  Prepared Statement.............................................    81
Ms. Julie Stewart, President and Founder, Families Against 
  Mandatory Minimums Foundation, Washington, DC
  Oral Testimony.................................................    87
  Prepared Statement.............................................    90

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on Crime, Terrorism, and Homeland Security    23
Material submitted by the Honorable Ted Poe, a Representative in 
  Congress from the State of Texas, and Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................    32
Prepared Statement of Eric E. Sterling, President, The Criminal 
  Justice Policy Foundation, Adjunct Lecturer in Sociology, The 
  George Washington University...................................   114

                                APPENDIX

Material Submitted for the Hearing Record........................   117

 
                        MANDATORY MINIMUMS AND 
                        UNINTENDED CONSEQUENCES

                              ----------                              


                         TUESDAY, JULY 14, 2009

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:34 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Lofgren, Waters, Wasserman 
Schultz, Quigley, Gohmert, and Poe.
    Also present: Representative Smith.
    Staff present: (Majority) Bobby Vassar, Chief Counsel; 
Jesselyn McCurdy, Counsel; Karen Wilkinson, (Fellow) Federal 
Public Defender Office Detailee; Ron LeGrand, Counsel; Joe 
Graupensperger, Counsel; Veronica Eligan, Professional Staff 
Member; (Minority) Caroline Lynch, Counsel; Robert Woldt, FBI 
Detailee; and Kelsey Whitlock, Staff Assistant.
    Mr. Scott. The Subcommittee will now come to order. I am 
pleased to welcome you today to the hearing before the 
Subcommittee on crime, terrorism, and homeland security on 
mandatory minimums and unintended consequences.
    We have over 170 mandatory minimum penalties in the Federal 
Criminal Code. In fiscal year 2008, over 28 percent of Federal 
defendants were convicted of crimes carrying a mandatory 
minimum penalty. These mandatory minimum sentences are a 
misnomer because they are typical, not minimal sentences, but 
involve sentences exceeding 5, 10, even 25 years.
    These mandatory sentences are part of a larger trend of 
increasingly long sentences. The result is that the United 
States now incarcerates more people than any country in the 
world, both in absolute numbers and on a per capita basis with 
an incarceration rate of over 700 inmates per 100,000 
population.
    Among industrialized nations to which we are most similar, 
the United States locks up people at a rate 5 to 12 times that 
of others. When we look at the racial impact of incarceration 
in the United States, we find that while African Americans make 
up about 13 percent of the general population, they make up 
about 50 percent of the prison population.
    According to a recent sentencing project study the Blacks 
in this country are incarcerated at an average rate of 2,290 
per 100,000 compared to 412 for Whites, 747 for Hispanics. In 
some communities the rate for incarceration for Blacks exceeds 
4,000.
    In fact, 10 States have rates approaching 4,000 per 
100,000. The Federal prison population has quadrupled since the 
Sentencing Reform Act of 1984. At the end of last year, the 
Bureau of Prisons was 36 percent over capacity. Federal 
corrections costs have soared in the last 25 years, increasing 
925 percent between 1982 and 2007 to over $5.4 billion. That is 
just Federal alone.
    Federal mandatory minimum sentence laws also unfairly 
impact minorities. Studies over the last 25 years by groups 
such as the U.S. Sentencing Commission and the Federal Judicial 
Center repeatedly have shown that these mandatory minimum 
penalties disproportionately affect minorities.
    For example, just last year, Black defendants in 2008 
comprised 24 percent of the total Federal offenders, yet they 
comprised almost 36 percent of offenders convicted under 
mandatory minimum sentences.
    Not only are the mandatory minimum penalty schemes costly 
and discriminatory, they make no sense. A defendant's sentence 
should reflect the seriousness of the crime, the defendant's 
role in the crime, his history and any future danger to 
society.
    The best point in time to make this determination is when 
someone is deciding whether it is appropriate at that time to 
release the offender, historically a decision made by a parole 
officer or a parole board.
    At that point the decision maker has the most information 
about both the crime and the defendant. Unfortunately, we 
abolished parole decades ago and we no longer have this option.
    The next most logical place for the decision to be made is 
by the judge at the time of sentencing. At that time, the judge 
can consider the seriousness of the offense, the role of the 
defendant in the offense and the defendant's history and can 
make an assessment as to when the defendant will be less likely 
to pose a further threat to the community if released.
    His sentence and reasoning is placed on the record, open 
for public scrutiny. Unfortunately, by passing mandatory 
minimums we place ourselves at the least logical place to make 
a decision and that is when Congress passes a statute.
    Congress knows nothing about the specific offense or the 
defendant and sets a sentence based solely on the name of the 
crime, which seldom tells you much about the facts or 
seriousness of the particular offense, and nothing about the 
role or the background of the offender.
    And yet this is a system we end up with, with mandatory 
minimum sentences based solely on the name of the code. 
Determining a sentence based only on code section often results 
in irrational and even cruel sentences.
    We get girlfriend cases like Kemba Smith where a young 
woman with no criminal history is sentenced to spend over 25 
years in prison because as a 19-year-old college student she 
fell in love with someone who turned out to be an abusive drug 
dealing boyfriend.
    Although the evidence shows she never handled or used drugs 
and was not directly involved in any drug dealing, she ended up 
getting a totally irrational sentence. Even worse, there are 
cases where such minor role defendants actually get higher 
sentences than the principals because unlike the drug dealer 
they have no information to trade for below mandatory minimum 
sentences.
    Another example of the ridiculous sentences result from the 
mandatory minimums that Marion Hungerford, a mentally ill 52-
year-old woman with no prior criminal history, ended up with a 
159-year sentence.
    After 26 years of marriage her husband left her, because of 
her mental illness, with no job or money. She began living with 
another man who began to rob stores with a gun. Mrs. Hungerford 
never touched the gun, was never present at any of the 
robberies, but she did know about them and benefited from the 
proceeds.
    Because of this association she was at the mercy, first, of 
the prosecutor's charging decision made behind closed doors, 
then, of mandatory sentencing laws, which precluded the 
sentencing judge from considering her mental illness, or any 
other mitigating factors at the time of her sentencing. She got 
the sentence of 159 years. The boyfriend, who actually 
committed the robberies, cooperated with the government and got 
32 years.
    Finally, you will hear about the Ramos and Compean cases, 
where two Border Patrol agents were convicted of shooting a 
suspected drug dealer during their work. Again, because of a 
prosecutor's charging decision made behind closed doors and 
mandatory sentencing laws, the judge's hands were tied and 
could not even consider anything about the agents' years of 
service as law enforcement officers, particular circumstances 
of the shooting or any other mitigating factors.
    The judge had no choice but to sentence each man to 10 
years on their gun convictions. And this is not a partisan 
issue, and this is not a liberal or conservative issue. It is a 
common sense issue, and I hope that we can work together to 
begin to address some of the unjust and unintended consequences 
of mandatory minimum sentences.
    There are many approaches to this problem. The bill that I 
have introduced, the Common Sense in Sentencing Act of 2009, is 
one approach that is simple and seeks to address the most 
egregious and unfair consequences of mandatory minimum 
sentences.
    I believe that we should eliminate all mandatory minimum 
sentences, but the bill does not do that. Rather, in cases 
where mandatory minimum sentences result in clearly unintended 
or absurd consequences it allows the judge to impose a below 
mandatory minimum sentence.
    You will hear about two other bills that address the same 
problem. You take different approaches and carving out 
exceptions to eliminating mandatory minimum sentencing laws. We 
have known for years that our costly experiment in mandatory 
minimums do not work.
    It has not resulted in predictable or fair sentences. It 
has not reduced disparity in sentencing. It has not reduced 
crime. States are starting to realize this and are changing the 
sentencing laws and practices, and it is time for Congress to 
do the same.
    I look forward to hearing from this panel about the 
unintended consequences of mandatory minimum sentences and how 
Congress can address the problem.
    [The bills follow:]
    
    
    
    
    Mr. Scott. It is my pleasure now to recognize the esteemed 
Ranking Member of the Subcommittee, the gentlemen from Texas, 
Judge Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman, and I do appreciate 
your comments and your opinion, and I do thank the witnesses 
for all being here.
    Crime has gone down overall the last 20 years. When you 
look at areas like Texas where sentences have gotten tougher, 
bad people have been locked up for longer periods of time and 
fewer people have been killed by recidivist defendants.
    But since the start of the 111th Congress, there has been a 
concerted effort to eliminate or severely weaken certain 
mandatory minimum penalties. Both H.R. 2934 and H.R. 1466 seek 
to do so by either allowing Federal judges to sentence without 
regard to the mandatory minimum applicable to any crime or by 
eliminating drug related mandatory minimums altogether.
    As a former judge I support the need and the importance of 
judicial discretion. I always had a problem with the Federal 
sentencing guidelines being mandatory, but the discretion 
should not be completely unfettered.
    Judges should not be free to sentence felonies as 
misdemeanors, particularly when such a sentence directly 
contradicts the legislature's prerogative.
    In Texas, for felonies, we have a range. A minimum of 2 
years, a maximum of 10 years for third degree felonies, minimum 
of 2 years, maximum to 20 years for second degree felonies, 
minimum of 5 years, maximum of life for first degree felonies.
    I would hate to ever see the minimum withdrawn. A mandatory 
minimum is the bottom of the range. There are some mandatory 
minimums or bottoms of the range that should be readdressed and 
discussed and legislatively changed, but I would hate to see no 
bottom restraints on judges.
    In light of the Supreme Court's 2005 Booker decision, which 
made the Federal sentencing guidelines advisory, the role of 
mandatory minimums has become even more important in ensuring 
that appropriate penalties are prescribed.
    The evisceration of all mandatory penalties from our 
current advisory sentencing structure will undoubtedly return 
us to where we were 25 years ago; a system of indeterminate and 
unequal penalties across the Federal circuits.
    In December 2007, the Congressional Research Service 
conducted a study that documented 239 mandatory minimums 
applicable to some of the most far-reaching and acute crime 
problems we have in this country, including drug trafficking, 
crimes against children, recidivist offenders and use of 
weapons in crimes of violence.
    When Congress are cognizant that mandatory minimums are 
not, and should not be a one-size-fits-all approach to 
sentencing, there should be wide discretion, but not 
misdemeanor discretion for felonies.
    On the contrary, there are any number of Federal statutes 
that do not contain mandated minimum criminal sentences. 
Anecdotal cases of light sentences that allowed a defendant out 
only to kill innocent people are abundant.
    If there is no bottom to the range, then there will be more 
innocents who will be killed or harmed because of light 
sentences. As a judge I saw it repeatedly, and some judges do 
not have the heart to make tough sentences in appropriate 
cases.
    By contrast, 1466 would remove the mandatory minimums from 
drug-related crimes altogether and return to drug sentencing 
where judges are free to sentence without regard to any floor, 
regardless of the nature of the crimes committed, the quantity 
of drugs involved, or the role the offender played in 
trafficking them.
    Mandatory minimums are one end of the range. The range 
gives the judge discretion within the range to sentence. 
Setting the discretionary range is a legislative job. It would 
be hard to imagine any judge in Texas campaigning for judge or 
being appointed to judge while advocating there be no bottom 
limit to the range of punishment.
    While there is definitely legitimate job for judges in 
fashioning sentences appropriate to the particular defendant in 
the courtroom, there is also a legitimate role for Congress to 
play in deciding the appropriate range of the sentence for the 
most egregious crimes and those that do the most harm to 
individuals and society.
    H.R. 1466 doesn't seem to me to provide the amount of 
balance between those two roles that is needed. It eliminates 
the bottom end of the range of punishment. If a minimum is too 
high, it should be lowered.
    Normally in striving for protection in laws, we should 
continue to tweak those laws to their greatest propriety. 
Swinging the laws wildly from extreme to another in each 
direction is not healthy legislative discretion.
    We are better served with moderation. This course of action 
contemplated will beg for a wild political swing back to even 
higher mandatory minimums when the political winds reverse. We 
should be loathe to invite such dramatic changes in either 
direction. When the thermostat is swung from one extreme 
temperature to another, people in that environment get sick.
    We just came out from sentencing guidelines that severely 
limited judicial discretion. Now this contemplated action will 
remove the bottom restraint. There are top restraints. There 
should be bottom restraints on sentencing depending on the 
seriousness of the crime, because some judges do not have the 
good discretion of someone like Judge Poe for example who is 
known for good sentences in Houston.
    And since the Federal judges are not ever voted out, those 
judges in the Federal system are there for life with no 
mandatory maximum on their service. Maybe we need one of those 
mandatory maximums on Federal judicial service, but with that I 
yield back.
    Mr. Scott. Thank you, Mr. Gohmert.
    We have the Ranking Member of the full Committee with us 
today, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman. The lessons of the 
greatly reduced crime rates of the last 15 years apparently 
have been forgotten. Putting criminals in jail works. It keeps 
them off the streets and out of our homes. The Democratic Party 
continues to treat criminals as victims and then ignores the 
real victims.
    Let me mention a few bills that reduced penalties on 
criminals while endangering innocent Americans. Earlier this 
year, this Subcommittee held a hearing on legislation that 
would require States to give parole hearings to juveniles 
sentenced to life without parole, regardless of the fact that 
most of the offenders are serving time for violent, dangerous 
offenses.
    Today this Subcommittee was scheduled to mark up H.R. 1064, 
a bill that removes crack cocaine from our Federal drug laws 
and eliminates mandatory minimums for cocaine trafficking. And 
then there are literally dozens of other bills in Congress this 
year to release felons from prison and weaken our criminal 
justice system.
    For example, this hearing considers H.R. 1466, a bill that 
eliminates all Federal mandatory penalties for drug 
trafficking. I have news. The drug trafficking problem in 
America has not disappeared. We still need tough criminal 
penalties to fight Mexican drug cartels and dangerous drug 
organizations.
    Also alarming is H.R. 2934, legislation to allow Federal 
judges to ignore all mandatory penalties in the Federal system 
including penalties for crimes against children and illegal 
firearms trafficking.
    Twenty-five years ago Congress rightly responded to the 
huge disparities in sentences and passed bipartisan legislation 
to address runaway judicial discretion in Federal courtrooms. 
Republicans and Democrats alike supported the Sentencing Reform 
Act, which created the U.S. Sentencing Commission and provided 
consistency and fairness in Federal sentencing.
    Congress also imposed mandatory minimum penalties to ensure 
that similar sentences were given for similar offenses. This is 
common sense fairness. Most of these penalties apply to crimes 
that represent the greatest threats to those who live in a 
civilized society.
    The proponents of H.R. 2934, the so-called Common Sense in 
Sentencing Act of 2009, would return to a system in which 
Federal judges once again would be free to disregard the laws 
enacted by Congress, and ignore the statutory mandatory minimum 
sentences.
    Such a system will result in different sentences for 
similar crimes and the manifest unfairness that brings. It also 
will cause a rise in overall crime rates because penalties will 
be weakened and more criminals will do less time.
    Another bill we consider today, H.R. 1466, does away with 
drug-related mandatory minimums that impose tough sentences on 
drug traffickers. In the past, critics have complained that 
sentences were too long for low level drug offenders and those 
with no criminal history.
    In response to such criticisms Congress passed a safety 
valve exemption to drug trafficking mandatory minimums in 1994. 
The safety valve provides an opportunity for non-violent 
offenders with little or no criminal history to be sentenced 
without regard to mandatory minimums as long as they are not 
the leader of the criminal enterprise.
    So Congress has already created a way for non-violent, 
first time offenders to be exempted from drug related mandatory 
minimums. H.R. 1466's attempt to eliminate them altogether is 
both extreme and dangerous.
    No Congress or Administration has ever advocated mandatory 
minimums as a blanket proposal for all crimes. Every Congress 
and every Administration for the last 25 years has supported 
mandatory minimum sentences for the most serious offenses as a 
way to create uniform, consistent sentences and reduce crime.
    As a result the violent crime rate is down. While there are 
many reasons for this, surely the incarceration of the worst 
offenders because of mandatory minimums, is one of them. If 
there are occasional problems with mandatory minimums, we 
should look to deal with them in a targeted fashion as we did 
in enacting the safety valve.
    But empowering judges to ignore minimum penalties means 
fewer criminals in jail, and more crimes on the streets. Thank 
you, Mr. Chairman, for your indulgence and I will yield back.
    Mr. Scott. Thank you. And without objection, we will have 
comments from the gentlelady from Texas and the gentleman from 
Texas--excuse me--the gentlelady from California and gentleman 
from Texas. I was looking over here, and I didn't see anything 
but Texas. [Laughter.]
    I am sorry. The gentlelady from California is the sponsor 
of one of the bills we are considering today.
    Ms. Waters?
    Ms. Waters. Thank you very much, Chairman Scott, and 
Ranking Member Gohmert. I thank both of you for your work, 
holding today's hearing on mandatory minimum sentences, and 
legislative proposals from both sides of the aisle that will 
address this issue.
    I very much appreciate that my bill, H.R. 1466, the Major 
Drug Traffic and Prosecution Act, is one of the bills being 
considered today. The Major Drug Traffic and Prosecution Act 
would eliminate mandatory minimum sentences for drug offenses 
and redirect Federal prosecutorial resources toward major drug 
traffickers.
    I first introduced this proposal 10 years ago in the 106th 
Congress and since that time I have held town hall meetings 
ever year at the Congressional Black Caucus legislative 
weekend, and traveled throughout this country listening to the 
stories of families who had relatives who were first time 
offenders convicted under mandatory minimum sentencing laws, 
some of whom were college students who got caught at the wrong 
place at the wrong time and basically convicted under 
conspiracy laws.
    I sincerely hope that today's hearing will help us pass the 
legislation that will end sentencing disparities so that we can 
begin to refocus Federal resources to lock up the major drug 
traffickers.
    Today's hearing is so important because the evidence is 
growing irrefutable. The current sentencing requirements have 
failed to accomplish the legislative intent of the 1986 Anti-
Drug Abuse Act. We are wasting precious government resources on 
low level drug offenders.
    Moreover the act has had a disparate impact on the African 
American community, resulting in the incarceration of a 
disproportionate number of African Americans often for many, 
many years.
    Mr. Chairman, I have a longer statement on the history of 
mandatory minimum sentences, that in the interest of time, that 
I would like to enter into the record today with unanimous 
consent.
    [The prepared statement of Ms. Waters follows:]
Prepared Statement of the Honorable Maxine Waters, a Representative in 
  Congress from the State of California, and Member, Subcommittee on 
                Crime, Terrorism, and Homeland Security




                               __________

    Ms. Waters. I am still awaiting statistics requested from 
the Department of Justice, but from data published for funding 
year 2008, there were 16,932 individuals. Of the 25,000, 337 
sentenced for drugs who received mandatory minimum drug 
sentences in funding year 2008.
    That is about 6.8 percent of all individuals sentenced for 
drug crimes that year. I have also seen figures showing Federal 
prosecution against approximately 19,000 drug defendants that 
were not described as major or organized crime drug enforcement 
cases.
    That is why on March 12, 2009, I reintroduced the Major 
Drug Trafficking Prosecution Act, H.R. 1466, to end mandatory 
minimum sentences for drug offenses, and refocus scarce Federal 
sources to prosecute major drug kingpins.
    This bill will eliminate all mandatory minimum sentences 
for drug offenses, curb Federal prosecutions of low level drug 
offenders, and give courts and judges greater discretion to 
place drug users on probation or, when appropriate, to suspend 
the sentence entirely.
    This bill restores discretion to judges and allows them to 
make individualized determinations that take into account a 
defendant's individual and unique circumstances instead of 
being forced to apply stringent sentencing requirements that 
don't necessary fit the crime.
    The Major Drug Trafficking Prosecution Act of 2009 goes to 
the root of the problem by creating a more just system that 
will apply penalties actually warranted by the crime instead of 
mandating sentences, regardless of individual circumstances, as 
required under current mandatory minimum laws.
    It does so by eliminating the mandatory minimum sentences 
for simple possession including the notorious 5-year mandatory 
for possession of five grams of crack cocaine, distribution, 
manufacturing, importation and other drug related offenses, and 
allows the United States Sentencing Commission to set 
appropriate proportionate sentences with respect to the nature 
and the seriousness of the offense and the role and background 
of the offender.
    My bill also addresses other problems relating to the use 
of mandatory minimum sentences by curbing prosecutions of low 
level drug offenders in Federal court and by allowing Federal 
prosecutors to focus on the major drug pins and other high 
level offenders.
    Additionally, my bill would strip current statutory 
language that limits the courts' ability to place a person on 
probation or suspend the sentence, thus allowing for discretion 
as appropriate under certain circumstances.
    Twenty years later the so-called war on drugs has not been 
won, and mandatory drug sentences have utterly failed to 
achieve these congressional objectives. Mandatory minimum 
sentences are not stopping major drug traffickers.
    There are, however, resulting in the incarceration of 
thousands of low level sellers and addicts. Moreover, these 
lengthened drug sentences have increased the need for more 
taxpayer dollars to build more prisons.
    Finally, these sentences are disproportionately impacting 
African Americans. While African Americans compromise only 12 
percent of the U.S. population and 14 percent of drug users, 
they are 20 percent more likely to be sentenced to prison than 
White defendants.
    Much of this disparity is due to the severe penalties for 
crack cocaine. The Federal judiciary, along with experts in 
criminal justice, has long argued against mandatory minimums, 
especially those for crack cocaine. They point out that the 
current system requires the courts to sentence defendants with 
differing levels of culpability to identical prison terms.
    I am very pleased that we will hear testimony today from 
Judge Carnes, representing the Judicial Conference of the 
United States, and from Julie Stewart, the founder and 
president of Families Against Mandatory Minimum Sentences.
    Julie, I must say to you publicly what I have said 
privately. The long, hard work you and FAMM have done over the 
years has been invaluable and I thank you so much for your hard 
work.
    And although Nkechi Taifa is not testifying today, she is 
the leader of the Open Society Institute. She is here, and I 
have to thank her again for her tireless efforts to help make 
today's hearing a reality.
    Mr. Chairman, again, I thank you for today's hearing on our 
legislation to address mandatory amendment sentences, and I am 
looking forward to working with my colleagues, especially those 
on the Crime Subcommittee and with the Obama administration to 
pass legislation that finally ends mandatory amendment 
sentences and rightfully restores discretion to judges.
    I thank you, and I yield back.
    Mr. Scott. Thank you, very much.
    Gentleman from Texas, Judge Poe.
    Mr. Poe. Thank you, Mr. Chairman. Everybody has heard of 
two people by the name of Ramos and Compean, two Border Patrol 
agents who were doing their job on the Texas border, and they 
were prosecuted for doing that.
    They were sent to prison for 11 and 12 years. Part of the 
reason was a mandatory requirement that, because they had a gun 
and discharged it, they got an extra 10 years, even though 
peace officers, by law, must carry guns.
    The prosecution in that case, in my opinion, was vindictive 
and prosecuted them for various reasons other than seeking 
justice because they even admitted that their own witness lied 
on the witness stand, a drug dealer who was given a deal, a 
back room deal.
    Be that as it may, after all the smoke cleared, even the 
prosecution said the sentence was over the top. And the reason, 
of course, they had to get a mandatory extra 10 years for 
carrying a weapon.
    The United States House of Representatives, by voice vote 
last year, or in the last Congress, passed legislation that 
would prohibit any Federal funding going to incarcerate those 
two Border Patrol agents. The Senate never took the case up, or 
the bill up, so it died.
    But this is a case of injustice and it cannot be remedied. 
The only thing that happened was the last President commuted 
the sentence of these two individuals, even though they spent 2 
years of their lives in prison, most of that time in solitary 
confinement.
    I do believe in judicial discretion. I was on the bench 22 
years and I tried only felonies. I heard over 25,000 felony 
cases, and I have been accused of a lot of things, but being 
soft on crime was not one of them. I even thought that the 
maximum sometimes was not near high enough in the cases that I 
heard.
    But even Texas, with its hard-nosed reputation across the 
country, does have a remedy that allows for judges in felony 
cases to allow the person to be sentenced as a misdemeanor 
offender even though he is convicted of a felony.
    And for the record, Mr. Chairman, I would like to submit 
section 12.44 A and B of the Texas penal code into the record--
--
    Mr. Scott. Without objection that will be introduced, and I 
believe the gentlelady from California had also made a 
unanimous consent and without objection the material she wanted 
in the record will also be introduced.
    [The information referred to follows:]
   Material submitted by the Honorable Ted Poe, a Representative in 
 Congress from the State of Texas, and Member, Subcommittee on Crime, 
                    Terrorism, and Homeland Security


                               __________

    Mr. Poe [continuing]. Which allows the judge, in his or her 
discretion, a person convicted of what is called a State jail 
felony to sentence the person as a misdemeanor offender. I did 
that as a judge because justice demanded that that occur in 
cases because the system that we have, although it is not 
perfect, it allows for some discretion needs to be imposed by 
the sentencing judge.
    And in those cases where justice demands that a person be 
sentenced to something less than the statutory minimum, I think 
judges should have the discretion, when they can justify it 
under Federal rules of why they would reduce the sentence to a 
lesser sentence, and of course allow the prosecution in 
appropriate cases to appeal that sentence.
    So for the reasons of Ramos and Compean, and many other 
cases down the road, judicial discretion is something that we 
should be interested in. Congress cannot, even in its great 
wisdom, pass appropriate legislation to cover every type of 
criminal case that there is because there are no two cases 
alike.
    And the facts must be weighed and justice must be imposed 
in every case, not just in most of the cases, and one remedy to 
do that is to allow, in certain rare cases, for the sentencing 
judge in Federal court to sentence something less than the 
statutory minimum if that can be justified.
    And I would hope that, in the future, that border agents 
and all peace officers in the country who are doing their job 
would not be subject to arbitrary decisions based on 
legislation that Congress has passed because it does prevent or 
does provide, unfortunately, unintended consequences and forces 
individuals who, as Ramos and Compean were doing what I thought 
was a noble job on the Texas border in arresting a drug 
smuggler, and they go to jail for just doing what they were 
sworn to do.
    I will reserve the rest of my comments to the questions I 
have of the witness, and I yield back my time.
    Mr. Scott. Thank you. We have a distinguished panel of 
witnesses here today to help us consider the important issues. 
We currently have before us, and ask each of the witnesses to 
complete his or her statement within 5 minutes as the timing 
device in front you at the table. It will start green and turn 
to yellow when 1 minute is left. The light will turn red when 
your 5 minutes has expired.
    All of the witnesses' statements will be entered into the 
record in its entirety. Our first panelist is Chief Judge Julie 
Carnes. She is testifying on behalf of the Judicial Conference 
of The United States, the policymaking body for the Federal 
judicial branch.
    She has served on the Conference's committee on criminal 
law since 2005, and was selected by Chief Justice Roberts to 
chair the committee in 2007. Chief Judge Carnes was appointed 
to the district court bench for the Northern District of 
Georgia in 1992 and became Chief Judge of that district in 
January 2009.
    She is also a member of the U. S. Sentencing Commission. 
She was also a member of the U.S. Sentencing Commission from 
1990 to 1996, and prior to serving on the bench she was an 
Assistant U.S. Attorney, an Appellate Chief in the Northern 
District of Georgia for 12 years.
    Our next panelist will be Grover Norquist. He is the 
president of Americans for Tax Reform, a coalition of taxpayer 
groups, individuals and businesses opposed to higher taxes at 
the Federal, State and local levels.
    He serves on the board of directors for the National Rifle 
Association of America and the American Conservative Union. He 
has authored the book, ``Leave Us Alone: Getting the 
Government's Hand Off Our Money, Our Guns, Our Lives.''
    He has worked with the U. S. Chamber of Commerce, served as 
a campaign staff for various Republican platform committees and 
served as executive director for both the National Taxpayers 
Union and the College Republicans. He holds a Master's of 
business administration and Bachelor of Arts degree in 
economics, both from Harvard University.
    Our next panelist is Michael Sullivan, currently practices 
with the Ashcroft Law Group, specializing in health care, 
government fraud, corporate compliance and ethics, corruption 
and corporate security.
    In 2001, he was appointed U.S. Attorney for the district of 
Massachusetts. While there, he served on the attorney general's 
advisory committee and was chair of the Health Care Fraud 
Working Group, as well as serving on other crime subcommittees 
including Sentencing, Violent Crime and Drugs.
    In 2006, President Bush also appointed him as acting 
director of the Bureau of Alcohol, Tobacco and Firearms. He was 
nominated director in 2007 and served until January 2009. He 
was Plymouth County District Attorney between 1995 and 2001 and 
prior to that served in the Massachusetts House of 
Representatives.
    Our next panelist will be T.J. Bonner, who is testifying on 
behalf of the National Border Control Council of the American 
Federal Government Employees Union, the labor organization that 
represents approximately 17,000 non-supervisory Border Patrol 
employees.
    He is president of the council, and has held that position 
since 1989. He has been a Border Patrol agent in San Diego 
since 1978. He has testified before Congress on numerous 
occasions concerning a variety of related issues. He has made 
numerous appearances on various network and cable news 
programs, and is an expert on immigration, border and homeland 
security issues.
    And our final panelist will be Julie Stewart, who is the 
president of Families Against Mandatory Minimums, known as 
FAMM. She started FAMM in 1991 after her brother was sentenced 
to 5 years in Federal prison for growing marijuana.
    FAMM now has over 20,000 individual and organizational 
members. Ms. Stewart has testified before Congress and the U.S. 
Sentencing Commission about mandatory minimum sentences and has 
discussed these issues on countless television and radio shows.
    She is a graduate from Mills College with a B.A. in 
international relations and has worked at the Cato Institute 
for 3 years as director of public affairs.
    We will begin now with Judge Carnes.

TESTIMONY OF THE HONORABLE JULIE E. CARNES, CHAIR, CRIMINAL LAW 
  COMMITTEE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, 
                         WASHINGTON, DC

    Judge Carnes. Good morning. Mr. Chairman and distinguished 
Members of the Committee, I am pleased to testify on behalf of 
the Judicial Conference and the Criminal Law Committee and to 
offer you a judicial perspective on mandatory minimum laws and 
the harm that we judges firsthand have seen them bring to our 
system.
    I begin by attributing no bad purpose to any congressional 
member who may have supported these kinds of statutes in the 
past. To the contrary, many of them were enacted out of a 
sincere effort to effectively combat serious crimes that 
undermine a safe society.
    Yet as well-intentioned as the proponents of this 
legislation may have been, these kinds of statutes have created 
what the late Chief Justice Rehnquist aptly termed ``unintended 
consequences.'' Specifically, these mandatory provisions 
typically focus on one factor only, to the exclusion of other 
potentially relevant factors.
    And because of this, they sweep broadly, sweeping in both 
the egregious offender as well as other less culpable offenders 
who may have violated the statute. Necessarily, the sentence 
that may be appropriate for the most egregious offender will 
often be excessive for this less culpable person.
    Now the Conference has opposed mandatory sentencing for the 
last 50 years. Nevertheless, we know that with over 170 such 
statutes on the books, a repeal of all of them may not be the 
first step some in Congress would wish to take.
    For that reason, while we applaud a comprehensive 
assessment of these statutes, we note that there are some 
mandatory statutes that are indefensibly harsh, and we hope 
Congress will act quickly to repeal them.
    One of these statutes, the enhanced penalty section of 
section 924(c), is so draconian that the Conference has taken a 
specific position against it. Section 924(c) prohibits the 
possession of a firearm during a drug crime or a crime of 
violence, and it calls for a mandatory 5-year sentence for the 
first such occurrence.
    But it also states that a second or subsequent such event 
receive a 25-year mandatory consecutive sentence for each 
subsequent occurrence. My predecessor chair of this committee, 
Judge Paul Cassell, testified about this and he testified about 
a real case that he had had.
    In his case, a defendant named Weldon Angelos was a 24-
year-old first offender who was involved in three undercover 
sales of marijuana to undercover agents. That would have called 
for a 6-to 8-year sentence under the guidelines.
    But because Mr. Angelos also possessed a firearm during two 
of the sales and because the agents found some guns in his home 
during a subsequent search, he was subject to a 5-year 
consecutive sentence on the first gun count, a 25-year 
consecutive sentence on the second gun count and another 25-
year consecutive on the third.
    Mr. Angelos, a 24-year-old first offender who never fired 
his gun received a 55-year sentence. Now that sentence was 
greater by many years than the guideline sentence for an 
airline hijacker, a terrorist who detonates a bomb in a public 
place, or a hate crime in which the victim receives permanent 
injury.
    There can be no persuasive justification for this sentence. 
Congress could easily make this statute a true recidivist 
statute, if not rescinding it all together. Yet as it now 
stands, a young man has effectively had his life taken away for 
an offense that did not merit this punishment.
    We hope that Congress will act expeditiously to correct 
this and other similarly unsupportable statutes. We greatly 
appreciate your efforts and thank you.
    [The prepared statement of Judge Carnes follows:]
          Prepared Statement of the Honorable Julie E. Carnes




    Mr. Scott. Thank you.
    Mr. Norquist?

 TESTIMONY OF GROVER G. NORQUIST, PRESIDENT, AMERICANS FOR TAX 
                     REFORM, WASHINGTON, DC

    Mr. Norquist. Okay. Thank you. My written testimony was 
skillfully written by my wonderful staff. It is worth reading 
repeatedly, and I commend it to everyone as holiday gifts for 
loved ones. I would like to make three observations today.
    The first is that all government costs money. Nothing is 
for free. Those of us who try and limit the cost and 
destructiveness of government sometimes divide government 
between the things that are vaguely mentioned in the 
Constitution, and we don't focus on those, and those things 
that are silly and destructive and we focus only on the cost 
there.
    But even the worthwhile, important parts of government, 
national defense and the judicial system, cost money. And if we 
are going to focus on the cost of government, that means we 
should also keep an eye on cost of the legitimate functions of 
government.
    Those people who defended the Bush spending legacy, both of 
them, would sometimes say well, if you don't count Iraq he 
didn't spend all that much. But Iraq wasn't free. However 
useful you thought it was, it wasn't for free. It cost money. 
The French weren't paying for it.
    And the same thing is true for our prison system. It costs 
money and we need to look at how to keep these costs down. I 
have two suggestions, and I think mandatory minimums sometimes 
run up the costs of incarceration.
    And my two suggestions are one, sunsetting those laws that 
force government spending and mandatory minimums that force 
other parts of the government to spend a lot of money. If we 
would revisit these every 4 years, say they lapse, and unless 
we look at them it would at least mean that they don't continue 
year after year without being looked at, debated and refocused.
    After September 11, I testified on the Senate side, the 
Judiciary Committee on the PATRIOT Act, and they had this 300-
page Patriot Act they were going to pass, and I said, ``I am 
not a lawyer, but my suggestion is that you all read this first 
before voting on it,'' which the Senators all politely laughed. 
They had no intention of reading it and every intention of 
passing it. I said, ``I understand that. Then sunset it at 4 
years.''
    So we are passing it now as a political statement. Let us 
look in 4 years and see which were the useful bits and which 
were not useful and which were dangerous. And the same thing I 
think should be done with mandatory minimums.
    When heads are cool, when we are not in front of TV cameras 
saying that we are against a particular crime and proving it by 
putting a mandatory minimum in, let us take a look at it in 4 
years again and again and again. Some of them you may want to 
keep, but some may want to reduce, some may want to eliminate.
    And the last thought is that one of the questions to ask is 
not whether there should be a mandatory minimum for certain 
Federal crimes, but whether certain crimes should be dealt with 
by the Federal Government. Should they perhaps be State crimes?
    There is always the temptation for elected officials to go 
in front of the cameras and make something that the States are 
handling perfectly well a Federal crime for political reasons, 
and I would argue for sunsetting Federal crimes in the first 
place, because a lot of what is listed in the mandatory 
minimums could perfectly well be handled at the State level if 
they wanted to have mandatory minimums. They could or they 
couldn't.
    So there is a separate question of which crimes actually 
need to be Federal crimes, national crimes, as opposed to local 
and State crimes. Thank you.
    [The prepared statement of Mr. Norquist follows:]
                Prepared Statement of Grover G. Norquist



                               __________

    Mr. Scott. Thank you.
    Mr. Sullivan?

          TESTIMONY OF MICHAEL J. SULLIVAN, PARTNER, 
               ASHCROFT SULLIVAN, LLC, BOSTON, MA

    Mr. Sullivan. Good morning, Mr. Chairman. Thank you for 
giving me an opportunity, and honorable Members of the 
Committee, to share with you some of my professional 
experiences dealing with crime and punishment, and the role 
that minimum mandatory sentencing has played in our pursuit of 
justice in crime reduction efforts.
    Minimum mandatories have been around since the beginning of 
sentencing, with death and life sentences being imposed for the 
most serious offenses. Congress and State legislators have 
listened to the concerns of law abiding citizens about 
escalating violence, a perceived lenient judiciary and a 
perceived revolving door of the criminal justice system.
    The response, both in our Nation's capital and throughout 
our State capitals have been to impose greater certainty and 
uniformity in punishment, with minimum mandatory sentencing 
playing a greater role and a more important role in addressing 
recidivism through longer incarcerations, especially for those 
crimes that pose the greatest risk to society and thus to your 
constituents.
    With the rising tide of violent crime, Congress passed 
major initiatives, including sentencing reform and the 
establishment of the United States Sentencing Commission. With 
that as a backdrop, since the passage, prison population has 
increased and crime rates have dropped.
    There should be no doubt there is a correlation between 
prison population and crime rates. Criminals oftentimes commit 
multiple offenses, most of which they are never caught for or 
charged with. By convicting them of a particular crime and 
incapacitating them for the offense, scores of people avoid 
being victimized and crime rates are affected.
    So instead of asking the question if crime rates are down, 
why are prisons overcrowded, one could simply State crime rates 
are down because prisons are overcrowded. While the early goals 
of the passage of minimum mandatory offenses dealt with 
uniformity, just punishment and deterrents, collateral benefits 
have emerged over the last 20 years in the use of cooperators 
to achieve even greater results for the government and, thus, 
for the American people.
    Lower level drug dealing offenders faced with serious 
prison time, seek cooperation with the government as an 
opportunity to shave time off of their sentences, and the 
government is able to use lower level drug dealers to open up 
much larger investigations, targeting the organization in its 
highest Ranking Members.
    Without minimum mandatories, especially in our post-Booker 
world, there would be little or no incentive for these 
defendants to cooperate with the government. Without their 
cooperation, the government would be at a distinct disadvantage 
in developing investigations against these regional, national 
and international organizations.
    The critics of mandatory minimums, especially for drug 
crimes, argue that users, low level and first time offenders 
are filling up our prisons at a great cost and with little 
benefit. While that sounds compelling, and has been repeated so 
many times, many take it as a fact, the numbers just don't bear 
it out.
    A review of the Massachusetts State prison population a few 
years ago yielded some contrary data when it showed that the 
profile of the drug dealer sentenced to the State prison had a 
long criminal history.
    Over 20 adult arraignments, over 20 juvenile arraignments 
and multiple convictions, including, oftentimes, multiple drug-
related charges. In most instances, they will be viewed, if not 
by a strict reading of the statutes, certainly by the public as 
career offenders who have spent the better part of their adult 
life committing crimes and victimizing people in the greater 
community.
    Recently, I heard that a district attorney in Massachusetts 
was quoted as saying, ``fewer than 3 percent of the 
Massachusetts State prison population was there only due to a 
drug dealing conviction.'' A closer examination of the Federal 
prison population yields similar results and allows the 
informed to reach the conclusion, ``You have to earn your way 
into Federal prison.''
    As you look at ways to strengthen the criminal justice 
system and reduce recidivism, I would encourage you to avoid 
the rhetoric from both sides. Review the history of the Federal 
prison population.
    Begin looking at and collecting sentencing trends in this 
post-Booker environment, examine crime statistics and the 
impact that crime reduction has on victimization, and when you 
do, I am confident you will come to a conclusion that mandatory 
minimum sentencing has a role to play in Congress' sentencing 
scheme.
    I know that members of law enforcement and prosecutor's 
offices see it as a very valuable tool. As long as recidivism 
continues to pose such an insurmountable challenge within our 
criminal justice system, longer prison sentences for violent 
offenders provide the best tool to protect our law abiding 
citizens.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Sullivan follows:]
               Prepared Statement of Michael J. Sullivan



                               __________

    Mr. Scott. Thank you.
    Mr. Bonner?

             TESTIMONY OF T.J. BONNER, PRESIDENT, 
           NATIONAL BORDER PATROL COUNCIL, CAMPO, CA

    Mr. Bonner. Chairman Scott, Ranking Member Gohmert, other 
distinguished Members of the Subcommittee, thank you for the 
opportunity to present the views of the 17,000 Border Patrol 
agents, frontline agents.
    I want to focus today on one aspect of mandatory minimum 
sentencing, its application to law enforcement officers who are 
acting in good faith in the scope of their authority. Everyone 
is familiar with the case of Border Patrol agents Ignacio Ramos 
and Jose Compean and the unfortunate fallout of that 
prosecution, which resulted in the incarceration of two 
innocent men for lengthy periods, 11 and 12 years in Federal 
prison.
    Although their sentences were ultimately commuted after 
they served 25 months in prison, the adverse effects continue 
to this day. They are convicted felons. Their hopes of gaining 
any type of employment that pays more than minimum wage are 
minimal. The damage done to those families can never be 
repaired.
    But more importantly, I want to focus on what it has done 
to the law enforcement community in general, not just the 
Border Patrol, but other law enforcement agencies. A number of 
people have confided in me and other members of my 
organization, that they did not join the Border Patrol, and 
bear in mind the Border Patrol is engaged in the most 
aggressive recruiting campaign of its history, these people 
have confided that they ultimately turned down the job because 
of what happened to those two agents.
    Others who did join have confided to us that it was a very 
difficult decision because of that prosecution. Some of these 
young men and women, while being trained at the Border Patrol 
Academy have pulled their instructors aside and said, ``What 
exactly are the rules of engagement?''
    And the instructor says, ``Well you are entitled to defend 
yourself if somebody threatens your life.'' They say, ``That is 
all good and fine on paper, but I look at the facts of the case 
involving agents Ramos and Compean, and that is exactly what 
they did, and they ended up being prosecuted.''
    And there is no good answer to tell those young men and 
women. Perhaps even more disturbing is the fact that you have a 
number of experienced officers out there who have quietly 
confided that they are not going to chase that person.
    They will seize that load of narcotics, but they are not 
going to put their livelihood, their freedom on the line by 
chasing that person and engaging in a fire fight, because they 
fear the consequences of using justifiable deadly force, 
fearing that the provisions of 18 U.S.C. 924(c) are going to be 
turned against them.
    And I realize that in a perfect world, that prosecution 
never would have happened. But obviously we do not live in a 
perfect world. The prosecution decided that they were going to 
levy this charge and the prosecutors have great discretion as 
to whether or not they are going to levy those charges.
    In this case, it was a serious mistake to use that charge 
against those two agents. It happened. It tied the hands of the 
judge. This is a problem that needs to be addressed. As I said 
from the outset, I am focusing on the effect on law 
enforcement. I realize that there are injustices that occur at 
both ends of the spectrum.
    I am not an expert in criminal law. I am not an attorney, 
and I don't feel qualified to address all of the ramifications, 
but as a law enforcement officer who represents thousands of 
other law enforcement officers, I can certainly see the effects 
of having these mandatory minimum sentences apply to law 
enforcement officers who are presumed to be acting in good 
faith, and the overwhelming majority of them act in good faith.
    Allowing judges to downwardly depart would not result in 
rogue officers being given a pass because judges could still 
throw the book at them, and I would strongly encourage judges 
to throw the book at law enforcement officers who abuse their 
authority.
    If someone wakes up in the morning and decides that they 
are going to rob a 7-11 while in uniform using their service 
weapon, I have absolutely no sympathy for that individual.
    But someone who goes out there and makes a split second 
decision, which is later Monday-morning quarterbacked, and the 
U.S. attorney decides that they are going to stack on a charge 
against them, that, to me, is unconscionable.
    And it has affected not just the morale, but it has 
affected the ability of our law enforcement officers across the 
country to do their jobs effectively and safely, and it needs 
to be corrected. Thank you.
    [The prepared statement of Mr. Bonner follows:]
                   Prepared Statement of T.J. Bonner



                               __________

    Mr. Scott. Thank you.
    Ms. Stewart?

  TESTIMONY OF JULIE STEWART, PRESIDENT AND FOUNDER, FAMILIES 
     AGAINST MANDATORY MINIMUMS FOUNDATION, WASHINGTON, DC

    Ms. Stewart. Good morning, Chairman Scott and distinguished 
Members of the Committee. Thank you for inviting me to be here 
today, and thank you for your commitment to sentencing reform.
    As stated, I am here representing the 20,000 of FAMM. We 
are a national nonprofit organization, whose mission is to 
promote fair and proportionate sentencing policies. We don't 
oppose prisons, but we do want the punishment to fit the crime.
    I did start FAMM 18 years ago after my brother was arrested 
for growing marijuana in his garage. He was guilty. He deserved 
to be punished, and I don't even mind that he was sentenced to 
some prison time, but 5 years seemed excessive to me then, and 
it seems excessive to me today.
    It is a long time, a lot of missed birthdays and family 
holidays and, unfortunately, my dad died while he was in 
prison, while Jeff was in prison, and it is hard to grieve for 
someone, while you are behind bars.
    But what motivated me to start an organization to repeal 
mandatory minimum sentences was not the length of Jeff's 
sentence, but the fact that his judge was unable to give him 
the sentence that he wanted to. His hands were tied.
    And when I learned this, it seemed so counter-intuitive to 
me that the person who had all the information about his case, 
and knew all the facts, could not deliver the sentence that was 
appropriate.
    I thought in this country that we sentence individuals, not 
crimes. I thought courts imposed the sentences, not lawmakers 
miles away in Washington who have never laid eyes on my brother 
or any other defendant. It seemed utterly un-American to me 
then and it still does today.
    This is not the first time I have testified before this 
Committee or this Subcommittee. Sixteen years ago there was a 
hearing on mandatory minimums chaired by Charles Schumer, and I 
was sitting here testifying pretty much the same as I am today.
    And beside me was a young woman who was in a prison jump 
suit. They had brought her from prison. Her name was Nicole 
Richardson. She was serving a 10-year prison sentence. She was 
there because her boyfriend was an LSD dealer, and she had 
taken a phone call for him, to tell this undercover agent--she 
didn't realize that, of course--where they could find her 
boyfriend to pay him for some LSD.
    That linked her into the conspiracy. She was charged as a 
conspirator and sentenced to 10 years in prison. Her boyfriend, 
who had information to give the prosecution, got a 5-year 
sentence. She, of course, didn't have anything of value, so 
hers was a classic ``girlfriend case,'' and her judge at the 
time did not want to sentence her to that much time in prison, 
but he had no choice.
    At that same 1993 Subcommittee hearing, Judge Carnes' 
predecessor, Judge Vincent Broderick testified--he was the 
chair of the Criminal Law Committee at that time--and he said 
that Nicole's case was not an isolated horror story. Rather, 
Judge Broderick said, ``I respectfully submit that the 
mandatory minimum system in place is itself the horror story.''
    Thankfully, the upshot of that hearing was the passage of 
the safety valve the following year. The safety valve does 
allow the courts to sentence below the mandatory minimum, for a 
narrow band of drug defendants only.
    It was a great first step, but it does not go far enough. 
Since its passage, over 210,000 people have been sentenced 
federally to 5- or 10-year mandatory prison sentences. That is 
an enormous number of families devastated by one-size-fits-all 
sentences.
    Now, it is time to take the next step, and today's hearing 
sets us on that path toward passing a bill that will, in fact, 
allow judges to sentence individually.
    We are here today in part because of the border agents' 
cases, Ramos and Compean. Their sentence angered many 
Americans, as we have just heard, in addition to the border 
agents, who saw them as heroes and feared that the decision and 
the sentence would have a chilling effect on those who work on 
the border, and it sounds like it has.
    Whatever your thoughts about the border agents' case, those 
of us who have been fighting against mandatory minimum 
sentences for years, almost decades, would caution Members of 
this Committee and Congress against seeing their case as an 
anomaly. In reality, it is one more of the all too common 
features of one-size-fits-all sentencing.
    First, to briefly say why that is true, that you had a 
prosecutor who was following instructions of his supervisors. 
In this case, it was Attorney General Ashcroft's memo from 2003 
that said to prosecute. The prosecutors ``must bring the most 
serious, readily provable chargeable offense and to oppose 
downward departures at sentencing.''
    Second, a jury of peers found them guilty, and finally, you 
had a judge whose discretion was extinguished by mandatory 
sentencing laws passed by Congress.
    Mr. Chairman, this happens everyday in Federal courtrooms 
all across the country. FAMM's files are filled with cases that 
reflect the same rigid process and result in sentences that 
over-punish.
    As Mr. Poe has already said, it would be impossible for 
this Committee to draft a bill listing all of the defendants 
deserving to have a carve-out from the mandatory minimum 
sentence, the single mothers, the Vietnam vets, the drug 
addicts.
    You would probably capture some of the right people, but 
you could never capture all of them because every case is 
different, every defendant is different, and the judge should 
have the ability to sentence differently for each one under the 
circumstances for each defendant, and that would be subject, of 
course, to appellate review. Judges would not have unfettered 
discretion.
    In the interest of time, I am not going to give you the 25 
cases I brought that show you how this is always working 
badly--just kidding--but I will say just one quick case. I know 
my time is up, but I do want to point out that the safety value 
was a wonderful thing that passed in 1994, but it did not go 
far enough.
    And one of the reasons it didn't go far enough because it 
does not allow defendants who have a gun in their offense to 
receive a safety valve, and so for instance Jesus Esparza, who 
was sentenced in 2007 for driving with a friend of his to 
Seattle where the friend picked up a kilo of cocaine, driving 
back through Wyoming they are stopped by State troopers.
    The troopers find the cocaine. They find a loaded pistol 
under the friend's seat. So they are both charged, they both 
are convicted. Jesus pleads guilty. He accepts his 
responsibility for the role in his offense.
    His guideline sentence would have been between 4 and 5 
years, but the judge must give him 5 years for the cocaine, 5 
years for the gun, even though it was his friend's gun. He got 
10 years in prison. He was not able to benefit from the safety 
valve.
    So I will close by just saying I believe as fervently today 
as I did 16 years ago, that the time is ready right now to 
repeal mandatory minimums. It has been done before, as we have 
pointed out in our ``Correcting Course'' report, which is 
available on the table.
    A bipartisan Congress in 1970 repealed mandatory minimums 
for drug offenses. The sky didn't fall, drug and crime rates 
didn't soar, judges didn't turn squishy and let everybody go. 
So please, I hope that this hearing will lead up to the next 
step of repealing mandatory minimum sentences again. Thank you.
    [The prepared statement of Ms. Stewart follows:]
                  Prepared Statement of Julie Stewart



                               __________

    Mr. Scott. Thank you.
    Ms. Stewart. Also, may I say that I would like my written 
statement to be included in the record.
    Mr. Scott. Yes. It will. Thank you. Thank you. We will now 
recognize Members under the 5 minute rule, and I recognize 
myself first.
    Judge Carnes, there is a code section about adults having 
sex with minors that has a 40-year-old having sex with a 13-
year-old. It is also covered a 19-year-old having consensual 
sex with a 15-year-old. What is wrong with applying the same 
mandatory minimum to both of those cases?
    Judge Carnes. I think your question suggests the answer. 
What it indicates is that there are certain kind of crimes that 
sound--both of those are bad situations, but we tend to 
envision the worst case scenario when we hear a description of 
a crime, and your scenario indicates that there also are less 
culpable iterations.
    For example, a teenager having sex with someone that he may 
have dated in a high school setting or whatever, and clearly, I 
don't think anyone could reasonably disagree that in your 
second example, there is a much more culpable situation in the 
first instance. As Ms. Stewart said, the one-size-fits-all 
creates these problems.
    Mr. Scott. Now, what discretion would a judge have, with 
the person--both were found guilty, what discretion would a 
judge have under the mandatory minimum sentencing scheme to 
apply an appropriate sentence for both cases?
    Judge Carnes. Well, assuming, as you stated it, that the 
mandatory applies regardless of the age or the circumstances of 
the offense, you would have no discretion.
    Mr. Scott. There has to be a 4-year difference in age, 
the----
    Judge Carnes. Right.
    Mr. Scott.--19 and 15.
    Judge Carnes. Right. There would be--as long as the age 
disparity was reached it could be 5 years of disparity. Then 
the judge would have no discretion at that point. The judge 
would be stuck.
    Mr. Scott. Now, Mr. Norquist, you indicated that there is a 
false choice between mandatory minimums and public safety. Can 
you tell us what you meant by that?
    Mr. Norquist. Well, I think my argument was that you ought 
to look at them periodically to see whether they are necessary 
and how expensive they are, and to keep in mind that these 
mandatory minimums force government spending, and it is not 
free. It is not something that just happens.
    The other question is whether Federal mandatory minimums 
are necessary, if the law shouldn't be a Federal law in the 
first place. If you reduced the Federal mandatory minimum for 
any of these crimes that are mentioned, there is nothing that 
prevents the State from having a State rule that says, ``No, 
no, no. In our State we really think this is serious, and we 
want to make it a more serious crime in terms of time spent.''
    However, I would argue that if we don't examine these every 
once in a while, when the mandatory is passed because the TV 
cameras are there and every elected official wants to say, ``I 
am really, really against this.''
    It is just an expensive way to get a photo op if the 
taxpayers are paying for it forever and ever and ever. Let us 
look at it every few years and see whether some of those ought 
to come down, or whether they should be Federal crimes in the 
first place.
    Mr. Scott. Thank you.
    Mr. Sullivan, you indicated that a profile of most people 
in jail under mandatory minimums are appropriately there. Are 
you suggesting that there are no people serving bizarre 
sentences because of mandatory minimums?
    Mr. Sullivan. No, I am not suggesting that at all, Mr. 
Chairman. I suspect that we would be able to identify some 
anecdotal examples where you would wonder whether or not the 
sentence was necessary in order to accomplish the goals of 
sentencing.
    But my suggestion is when you look at the larger profile of 
the prison population at the Federal and at the State level----
    Mr. Scott. Well----
    Mr. Sullivan [continuing]. You will find that the vast 
majority of people are there because they----
    Mr. Scott [continuing]. How does it reduce recidivism to 
have people serving that you would admit are bizarre under the 
individual circumstances?
    Mr. Sullivan. Well, I am suggesting that most of them, the 
vast majority of them have sentences that are appropriate under 
the present sentencing scheme.
    Mr. Scott. And for the----
    Mr. Sullivan. We have--I am sorry.
    Mr. Scott. And for the others?
    Mr. Sullivan. Well, again, I am not sure how many of that 
population is for the others, but we do know that criminals 
commit crimes, and while they are incarcerated, their 
opportunities to commit additional crimes are substantially 
reduced. They don't stop committing crimes; they even commit 
crimes in prison. So there is a constant recidivism----
    Mr. Scott. Well, if you locked up people randomly, you 
would have the same result.
    Ms. Stewart, are you familiar with the RAND study that 
concluded that mandatory minimums was the least cost effective 
way of reducing recidivism?
    Ms. Stewart. Yes, for drug crimes, that it is something 
like eight or nine times more effective to use treatment.
    Mr. Scott. And even more effective to use traditional 
sentencing rather than mandatory minimums?
    Ms. Stewart. Yes. I would also point out, just because it 
has come up a couple of times here, that crime rates that have 
been mentioned--crime rates in this country do not include drug 
crimes. When they are calculating crime rates they do not 
include drug crimes, and certainly in the Federal system, the 
majority of people in prison there are serving drug offenses.
    Mr. Scott. Thank you.
    Judge Carnes, much has been said about the safety valve. 
How often is it used, and how effective is it?
    Judge Carnes. Well, the incidents that it is used in 
depends on exercise of the prosecutorial discretion, the kinds 
of people that are being prosecuted. In Atlanta, it is used a 
decent amount of time. As Ms. Stewart says, it has helped a 
great deal, and it was something Congress did and we appreciate 
it.
    But it does still cover the person that has the gun, and it 
also still covers the person that has more than one criminal 
history point and who might have one misdemeanor or two. So it 
still has offered some help, but a lot of people still get 
covered under the mandatory law.
    Mr. Scott. Now, how does the safety valve work? Does the 
prosecution have to agree to it?
    Judge Carnes. Not technically. It should be self-executing. 
If you have only one criminal history point, you don't have a 
gun, you are not a leader, essentially you are a first 
offender, the only interaction of the prosecution is that the 
defendant has to tell the prosecutor everything about his 
offense, and that is where you get some problems.
    Sometimes the prosecutor will indicate, ``Well, judge, I 
don't think he told everything.'' But at that point, I am the 
judge, and I have discretion, and if I say, ``It sounds to me 
like he told you everything,'' I still have discretion to 
accept the vow.
    Mr. Scott. And does it apply to things other than drug 
offenses?
    Judge Carnes. I am not aware that it applies to anything 
but drug offenses, sir.
    Mr. Scott. So if you are stuck with a mandatory minimum on 
some other basis you are just stuck, whether it is bizarre or 
not?
    Judge Carnes. Correct.
    Mr. Scott. Thank you.
    Okay, Judge Poe.
    Mr. Poe. Thank you, Mr. Chairman. Thank you once again for 
all of you being here.
    Mr. Norquist, do you have any idea how many Federal laws 
there are?
    Mr. Norquist. Yes, I actually was working with some think 
tanks on that, and we came up with estimates of about 2,000 
that you could get in trouble for. I would be very interested 
in a list of the Federal laws, and would actually recommend a 
base-closing commission approach to try to cull them out 
because nobody is going to want to legalize carjacking, but I 
do think at some point that is something that most of the 50 
States are perfectly capable of handling without Federal 
supervision.
    So I don't know. I have asked around, and I am told 2,000 
but I am also told nobody knows. So if that is not right and 
there is list, I would love to see it.
    Mr. Poe. I think it is at least 2,000, maybe closer to 
3,000 or 4,000. And used to be, under our system in this 
country, criminal law was punished by the States and the rarer 
cases were prosecuted under Federal law, but we have moved a 
long way from that.
    Mr. Bonner, I want to ask you a couple of questions about 
your comments. I agree with everything you said. The case of, 
you know, Ramos and Compean had not just unintended 
consequences for their families, but other border agents.
    But would you agree, also, that it has consequences for, 
for example, the sheriffs that work on the border when they 
hesitate to pull a firearm because they are afraid they are 
going to be prosecuted by the feds, local police, and not just 
on the border but just throughout the country?
    Mr. Bonner. Well, absolutely. You had the case of Gilmer 
Hernandez down in Rocksprings, Texas, which is a classic 
example of a deputy sheriff being prosecuted by the Federal 
Government, but I have heard from a number of other law 
enforcement officers throughout the country, not isolated to 
the border, expressing the same fears.
    Mr. Poe. Gilmer Hernandez's case, was it not that he was--
the first time he ever used his weapon a van is coming at him. 
He turned to fire at the van, shot out the tire, like they do 
in the movies, and then he was prosecuted for firing his gun 
and went to jail for that, sent there by the Federal 
Government. Is that basically the facts of his case?
    Mr. Bonner. That is basically the facts. I would only add 
that that case was investigated by the Texas Rangers, and they 
found no basis for prosecution. So the State of Texas declined 
to prosecute, and the U.S. Attorneys Office jumped in.
    Mr. Poe. Luis Aguilar, are you familiar with that name?
    Mr. Bonner. Yes.
    Mr. Poe. Was he not a Border Patrol agent who was assigned 
to the Tucson sector, two vehicles come into the United States, 
a Humvee and a pickup truck. The Border Patrol gives chase. 
They then head back to Mexico with their load of drugs. He, 
rather than pull his firearm, throws spikes in the road, gets 
off the road, and the Humvee goes off the road and runs over 
and kills him. Was that the facts of his case?
    Mr. Bonner. That is correct. He was actually assigned to 
the Yuma, Arizona sector, and the incident happened right 
across in the California side of their area of responsibility.
    But again, it highlights how violent some of these drug 
offenders are, that they have absolutely no regard for human 
life, and in that drug smuggler's quest to get back into Mexico 
without being caught, he was willing to take another human 
life.
    Mr. Poe. And he did get back to Mexico, and the Mexican 
government arrested him, and our U.S. Attorneys Office never 
requested extradition, and they let him go after 6 months 
incarceration in Mexico. Isn't that the rest of the story?
    Mr. Bonner. He was finally recaptured, and I believe that 
they are still trying to work out the details for extradition, 
so that story is far from over.
    Mr. Poe. Well, I am just--the point being that Luis 
Aguilar, since we don't know his state of mind, maybe 
hesitated, threw out the spikes rather than defend himself with 
his weapon, all because of this problem of mandatory sentencing 
of additional time for using a firearm or possession of 
firearms, at the time of the offense. Is that correct?
    Mr. Bonner. That is a distinct possibility. I mean, as you 
said, we will never know what went through his mind in those 
last few seconds of his life.
    Mr. Poe. Last question, Judge Carnes, thank you for being 
here. If judges, under the Federal system, could have the 
discretion to go below the minimum and use the same guidelines 
and justify it, allow the appeal by the State or the Federal 
Government rather, in appropriate cases, do you think that that 
would be an abuse of power of judges?
    Judge Carnes. Abuse of power for--I am sorry, I don't 
understand
    Mr. Poe. For judges to do that?
    Judge Carnes. If that was the system under which we were 
operating?
    Mr. Poe. Yes. Do you think judges would abuse that 
authority?
    Judge Carnes. Oh, would judges abuse the power? We have 
hundred of judges in the country, and they will exercise 
discretion in different ways. That is obvious. But we are 
accustomed, at this point, from many years of having judges' 
departures examined by courts of appeals, we have now had 
variances examined since Booker, and it is something we are 
familiar with, and it is something the courts of appeal are 
familiar with, and I think it is a system that we could all 
adjust to quite readily.
    Mr. Poe. All right. Thank you, Mr. Chairman. I am out of 
time, but not out of questions.
    Mr. Scott. Thank you.
    Ms. Waters?
    Ms. Waters. Thank you very much, Mr. Chairman. I would 
like, Judge Carnes, to understand, if there is such a thing, 
the profile of these low level offenders who have five grams of 
crack cocaine and end up with 5 years mandatory minimums.
    And despite the safety valve, we still appear to have the 
sentencing of what appears to be young, first time offenders, 
oftentimes silly enough to believe that maybe they can get away 
with selling crack cocaine or they are users of crack. Could 
you discuss what this profile is of the minimum possession 
person, who ends up getting 5 years mandatory sentence?
    Judge Carnes. Well, I think, again, it is if one size 
doesn't fit all, that is because there are a myriad of 
circumstances, so there are all sorts of low level offenders. I 
couldn't list all of them for you today.
    There is the young person who is dealing small quantities. 
There is my example, in the written testimony, the off-loader, 
who is offloading a big boat full of drugs, and the quantity is 
going to kick him up high, in my example because he had a small 
marijuana prior conviction, he is looking at 20 years in 
prison. That is an example.
    But I think your example with crack and--the crack 
penalties are so askew and so out of whack I think with what is 
appropriate that you almost have to set that aside from 
everything, and as you know, the Conference has for a long time 
indicated our belief that the disproportion between powder 
cocaine and crack is not supportable. And before we deal with 
anything else, I think that one is one we have to attack.
    Ms. Waters. The other question that I have is this business 
of the so-called distrust of judges to make good decisions, 
judges who have been elected, appointed and whose discretion, 
obviously, is taken away with mandatory minimums. Do you have 
any suggestions about what we should be doing about that?
    I mean--and I think it was alluded to here today, that 
perhaps this is political posturing, taking away the discretion 
of judges, saying that judges are too lenient. There needs to 
be, in my estimation, some kind of movement to deal with that 
issue. Have you thought about that?
    Judge Carnes. Well, again, there are hundreds of judges in 
the country. There are some judges whose decisions I don't 
agree with, and they don't agree with mine. When you have 
discretion, you are going to have difference of opinion.
    But the question is because you may have a handful of 
outlier judges who sentence in a way that creates an uproar now 
and then, do you create this whole unwieldy system, this 
wooden, inflexible system that we have seen now for many years 
which create such harsh and sometimes irrational consequences, 
and my answer is no, you don't.
    Ms. Waters. And judges on the Federal bench are all 
determined to be competent or incompetent, what have you----
    Judge Carnes. We hope competent most of the time. 
[Laughter.]
    Ms. Waters. We hope competent. But in the assessment of 
judges prior to appointment is this ever discussed, whether or 
not they can be trusted to use discretion on the bench once 
they are appointed to the bench?
    Judge Carnes. Well, I think you know each appointment is 
different, and I can't say what has been discussed with every 
judge who has been appointed. I don't believe it was discussed 
with me, but many people knew that I had a background in 
sentencing, so I don't know that I can really answer that 
question.
    Ms. Waters. Thank you very much. I yield back.
    Mr. Scott. Do you yield back?
    Ms. Waters. Yes.
    Mr. Scott. Thank you.
    Mr. Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman, and sorry I had to 
step out for a moment, but I really appreciate the input 
everyone has had here and had a chance to review statements 
before the hearing today as well.
    The comment ``mandatory minimums are the least effective 
way to reduce drug crimes,'' it doesn't mean you will 
necessarily eliminate a bottom threshold for what drugs are. I 
appreciate what Mr. Norquist said, when he said, ``Let us look 
at some of these sentence ranges, and see if they should come 
down.'' He said, ``Let us look at some of them and see if they 
should come down.''
    And that is my thought. Let us look at ones that are too 
high and bring them down. You all--I don't know if it was 
mentioned but you may be pleased to learn that there is one 
effort where Mr. Scott, Chairman Scott, and I are working 
together, the Heritage Foundation and ACLU is working together, 
and it is on this issue of over-criminalization and Federal 
laws.
    I would--and I have talked to Chairman Scott about it--I 
would love to bring all the criminal laws into one code where 
we can start cleaning the mess up, but apparently there is no 
political appetite for doing something that big.
    But it has been a matter--and I hope the gentlelady from 
California was not referring down this way on political 
posturing to take away discretion of judging. To me, it is not 
an issue of political posturing. I have seen sentences that I 
just thought were outrageous.
    And judges should have discretion and just as the Congress 
should never say, ``Oh, here, Mr. Secretary of the Treasury, 
here is $700 billion, do what you want with it.'' We should 
also not say, ``Oh, here, Mr. or Ms. Judge, here is the, you 
know, keys to the prison, just do or not do.'' There ought to 
be a range. That is a legislative function, and that is my 
point. Have a range. Adjust them if necessary, but don't throw 
the whole system out.
    Mr. Sullivan, in your experience, what extent did mandatory 
minimums help prosecutors in securing cooperation of lower 
level criminals though?
    Mr. Sullivan. They are used on a regular basis, especially 
at the Federal level, for some of the low level drug dealers 
that Ms. Waters was talking about, to try to go up the 
organization. So not only are they safety valve eligible, but 
then they would also be eligible for their cooperation and get 
a substantial reduction.
    And without the minimum mandatory, a lot of the regional, 
national, international drug investigations would stall as you 
are trying to develop evidence against the organization itself.
    Mr. Gohmert. You get the little guys, but you could never 
get up and get the big guys.
    Mr. Sullivan. The little guys are the easiest ones to get, 
quite candidly. I think everybody recognizes that.
    Mr. Gohmert. Right.
    Mr. Sullivan. They are the ones that are most visible. they 
are the ones that typically are caught with the drugs and the 
guns, and they are looking at some very substantial sentences.
    Congress has built in a real incentive for those folks to 
cooperate with the government to take a look at a much bigger 
organization, so many Federal investigations have been launched 
as a result of cooperation at the lowest level.
    Mr. Gohmert. Oh, and I appreciate Mr. Bonner's point about 
the abuses previously in previous testimony about the major 
problem is the misapplication by law enforcement personnel 
using the mandatory minimums within the scope of their duties. 
That appears exactly what happened with Ramos and Compean.
    You had somebody that I think used the law that was never 
ever intended to be used against law enforcement to raise the 
bottom floor there for their sentence. It just seemed 
outrageous.
    And I did want to make one note for the record. My friend 
from Texas had pointed out that there are felonies that could 
be reduced to misdemeanors, and for those of you that don't he 
mentioned there are State jail felonies.
    It is a hybrid between felony and misdemeanors created, I 
think, in 1992, and so it is basically misdemeanors but they 
can be treated as misdemeanor or as State jail, but it doesn't 
allow you to go to prison. There is no way to bring down in the 
State system of Texas a true felony down to a misdemeanor, and 
that was my point there.
    But anyway, we do need to do something about over-
criminalization. It does get handled better most often at the 
State level, and that is what the tenth amendment and ninth 
amendment were talking about.
    And I did want to make the point, there is so much 
discussion about the disparity between the sentencing ranges of 
crack and powder. And our friend Dan Lungren was here when that 
sentencing range came into being and the disparity was created, 
and I have gone back and looked at the testimony of Congressman 
now Chairman Rangel.
    He was the one pushing it and he said if you care--
basically I am paraphrasing--if you care about at all the 
African American community, you will help us end this blight, 
this crack cocaine.
    And I can understand why he would feel that way and that 
maybe the harsher sentences, dramatically harsher sentences, 
might help clean up the drugs in the African American 
community. It didn't work.
    We do need to take a new look at it, but it certainly 
wasn't done for racial reasons but because of proponents trying 
to clean up the African American community. Otherwise I can't 
imagine Congress ever having that big a disparity.
    So anyway, let me ask one other thing. Judge Carnes, 
wouldn't the safety valve provision, the minimal participant 
provision, the substantial assistant provision, be an 
appropriate solution rather than completely eliminating the 
floor of a range?
    Judge Carnes. Are you talking just about drug cases?
    Mr. Gohmert. Well, actually it could be applied to lots of 
cases but particularly drug; that is the focus more today.
    Judge Carnes. Well, as we indicated, the safety valve still 
covers some people that perhaps shouldn't be covered. The 
example Ms. Stewart gave about the fellow that had the gun in 
the car, more than one criminal history point, and so you still 
get some injustice.
    To do that you would have to expand the safety valve, and 
then I would have to hear how the legislation would be written. 
How would you do a safety valve, for example? some of the other 
offenses that have nothing to do with drugs, what would your 
standards be.
    If it is an offense that is committed by only one person 
how would calling them a minor person really be applicable, but 
I understand what----
    Mr. Gohmert. Well, you can imagine scenarios whether it is 
the guy that is with the robbers and things like that, and the 
Chairman had pointed out some anecdotal situations.
    Judge Carnes. Right.
    Mr. Gohmert. But there again, before we pass laws, though, 
we are supposed to listen to people like you with the 
experience before we tailor that legislation. So I would hope 
that we would have your help in doing that.
    Judge Carnes. Well, certainly and, you know, we call for 
the repeal of these laws. We understand, again, there are 170, 
and that might not be something that happens immediately.
    We hope that whatever ameliorating effect you can give to 
them is something that Congress will consider, and it sounds as 
if you all are thinking about that, and we appreciate it.
    Mr. Gohmert. Thanks. Thank you, Judge.
    Thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    Gentlelady from California.
    Ms. Lofgren. Thank you, Mr. Chairman, and thanks for this 
hearing, which I think is timely and important. Now, I was 
struck by your testimony, Judge Carnes, and the young man, the 
24-year-old first time offender, who ended up with a 61\1/2\-
year sentence for marijuana trafficking.
    And I am equally attentive, Mr. Sullivan, to your testimony 
that the role in your view of mandatory sentencing. Do you 
think, just based on what you heard the judge say that that was 
a just sentence for that 24-year-old kid?
    Mr. Sullivan. Well, just based on the facts as relayed by 
the judge, it seems extremely excessive even to me as a 
proponent in support of mandatory minimum sentencing. I don't 
know what the underlying facts are that would warrant the 
prosecutor to charge multiple offenses relating to a firearm, 
what appears to be almost a single incident.
    So it does seem awfully extreme, but I think that there is 
enough flexibility and discretion in the system to avoid those 
outliers with folks making reasonable determinations at the 
beginning.
    Ms. Lofgren. Let me just try out something because I think 
that we have ended up in the situation we are in--I wasn't in 
the Congress when most of the mandatory sentencing acts were 
initiated. Certainly, I have been here to observe their 
expansions at times, and you end up with a situation.
    Here we are and you have got crime victims who did nothing 
wrong and there is nothing more appealing to, you know, 
legislators than a citizen who was so treated so unfairly and 
to be a crime victim, and our heart goes out to that person.
    And we want to do something about it, and I think that has 
led to these statutes that end up with unjust results, and I 
also think it has led up to an intrusion of the Federal 
Government in two areas of the law that have always been the 
sole purview of State law. And it is not bad motives. It is 
good motives, but it ends up in a place where we are today that 
is dysfunctional in many ways.
    And I think it is very difficult to change because this is 
an area where if anything is done to allow judges to judge, 
somebody will say it is soft on crime. Soft on crime and that 
is something that nobody in the legislative body wants to be 
accused of.
    So Mr. Norquist, this question I guess is directly to you. 
To step forward in this political environment we are going to 
need a broad bipartisan effort willing to take the heat to say 
no, it is not soft on crime to allow judges to judge and 
legislators to legislate. Are you willing to be part of that?
    Mr. Norquist. Yes, I think it is an important step forward 
and, again, I had suggested the base closing commission concept 
as a way to take a look at letting you do the same thing with 
mandatory minimums, but also with Federal crimes in general, 
what needs to be a Federal crime, and to cease having something 
be a Federal crime is not an endorsement of the activity. It 
may very well deserve to be a very serious State crime, but it 
doesn't have to be a Federal crime.
    Ms. Lofgren. Let me ask you this, and maybe it is an unfair 
question and if it is you, obviously, won't answer it. But if 
the papers are correct, you lead a group of thought leaders on 
the conservative side of the political spectrum on a regular 
basis to come forward on various issues. Would you be willing 
to take that position in the leadership group that you have?
    Mr. Norquist. Well, these issues have come up in Center-
Right Coalition meetings and there is a working group of 
conservatives that are concerned about judicial issues, which 
is something that, frankly, some of the folks on the center-
right have not focused on. My opening comments were we tend to 
focus on those parts of government that we think shouldn't be 
there at all because you want to focus on tamping down the 
damage done.
    But there is a whole bunch of government that is necessary 
and useful and is actually mentioned from time to time in the 
Constitution that we need to focus on more and make sure that 
that is done competently and less expensively and less 
intrusively.
    So I think it is my hope that you see a number of different 
groups that are more interested and looking at criminal justice 
reform and how conservatives can play a role in that, and it 
provides cover from the argument that its all just a bunch of 
softies being soft on crime.
    That is not the case, but I think this is one of those 
things that in a nonpartisan bipartisan way we can actually 
make some progress if we don't try and do everything at once 
and take some bites of the apple.
    And again, I like the base closing commission because that 
was one where we closed down some military bases, which saved 
money and nobody got accused of being anti-defense and yet real 
resources were saved and the government became more effective 
and less expensive.
    Ms. Lofgren. Let me ask the judge this. One of the things, 
you know, we are the legislative body and we are going to pass 
statutes from time to time and with sentences attached.
    I have never really thought--the guidelines should do it in 
most cases, but let us say we do what Mr. Gohmert has suggested 
and we have, you know, your 5-to 10-year sentence like you 
have. And yet in a case that the judge is seeing that a 
downward departure seems warranted.
    Wouldn't it be a real deterrent for a judge to have to 
articulate in writing in the sentence why that departure 
downward was required? Wouldn't that be a sufficient protection 
for the public against wild and crazy Federal judges doing 
sentencing?
    Judge Carnes. Well, I will leave it to others to decide 
about the protection against we wild and crazy judges.
    Ms. Lofgren. Most of mine, though, are pretty conservative 
and pretty staid.
    Judge Carnes. But what you suggest is something that is 
actually we have been doing for a long time with the guidelines 
system. When we departed downward or upward we were expected to 
articulate a reason. Now, since Booker with variances, or even 
with no variances, we are expected to articulate a reason. It 
is what we do. We know how to do that, and I think we would be 
very comfortable with that process.
    Ms. Lofgren. I know my time is up. I was just struck 
thinking about this 24-year-old still in prison for marijuana 
at a time when the governor of California is now asking the 
State to consider legalizing and taxing that very same product. 
It is kind of ironic.
    So I yield back, Mr. Chairman.
    Mr. Scott. Thank you.
    Mr. Norquist. I would just speak on the record against the 
idea of taxing marijuana. [Laughter.]
    Mr. Scott. Gentlelady from Florida, Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr. 
Chairman, I am going to be brief, but I do want to commend you 
for convening this hearing. I know this is an issue about which 
you have been passionate for a very long time, as has my 
colleague, Ms. Waters, and I want to thank all the witnesses 
for sharing their point of view today.
    My point of view is that I believe and always have, in 
judicial discretion, and our Committee and this Subcommittee in 
particular is fortunate to have the experience of a number of 
judges.
    One of our Members who is not here with us in the meeting 
any longer, but my good friend from Texas, Judge Poe, was--how 
do I put this, renowned for his creativity in sentencing.
    And I have heard him speak about some of his more 
unorthodox sentences, particularly in domestic violence cases, 
and it impressed upon me just how important it is to give trial 
judges the latitude that they believe they need to make an 
impact on criminal defendants.
    And I also want to note that his bill, the Ramos and 
Compean Justice Act, recognizes that there are indeed some 
cases in which he believes tying judges' hands at sentencing is 
inappropriate.
    And I think that provides us with a foundation to continue 
to build common ground, and I want to thank him for his 
leadership and my colleague, Ms. Waters from California's 
leadership on this as well.
    Regardless of how mandatory minimums first started in the 
past, mandatory minimums basically whether they made sense or 
not have now, as Mr. Norquist said, become politically popular 
and they are the hot button on whether you are too soft or 
going to be hard on crime.
    And this whole idea came out of the fact that there was a 
belief, I think a misguided one, that we had judges that were 
too soft on crime. We should note that at this point after a 
Republican president about 60 percent of district court judges 
have now been appointed by a Republican president and are 
presumably tough on crime as the definition is written.
    So I would hope that we would let these judges be judges. 
If we look up the word judge in the dictionary, discretion is 
in there in that definition somewhere. And having said all 
that, Mr. Norquist, I do have to tell you that it was 
surprising to see your name on the witness list today and, 
obviously, you are not someone that I would normally agree 
with, nor you with me.
    But I am pleased to see that you have stepped up on this 
issue. We agree on this one. My State of Florida, like many, is 
really in the throws of a desperate budgetary situation. We 
have had decades of tough on crime legislation, some of which 
in the legislature I voted for, and I consider myself not 
someone on the left on these issues.
    But mandatory minimums have basically left the taxpayers 
holding the bag, and I think we have to move away from whether 
we are tough on crime or soft on crime and focus on whether we 
are smart on crime. But a one-size-fits-all approach is not 
working and it is breaking the bank.
    And so I think I would like to hear a little bit more from 
you on your perspective--from your fiscally conservative 
perspective on how you reached this conclusion, because 
normally your organization I don't think would take a position 
on this, and so I was glad to see you did. And you know, just 
as an aside if you could also make sure you score this one that 
would be great, too.
    Mr. Norquist. I wouldn't overstate my position. I think I 
am calling for and my recommendation was sunsetting each of the 
mandatory minimums so that they would be revisited every 4 
years.
    It is not necessary to say that every 4 years you decide to 
toss them all out, but you may want to look at whether they are 
too high or whether they need to exist, but I feel the same way 
about Federal laws that have criminal implications period.
    I mean, I think they ought to be sunsetted as a way to thin 
out the over federalization of law. A lot of things can be 
perfectly well handled by local governments. This idea that we 
passed laws in the 1930's because States weren't able to deal 
with bank robbers, you know, we have gone past that.
    A lot of States are very capable of handling these issues 
and a lot of the crimes that are Federal crimes are not more 
competently handled by the Federal Government, and it would be 
fine to have them handled at the State level.
    And we ought to be looking, as I said in my opening 
comment, all government has costs including the good bits, 
including the let us lock up bad people. It is not free. You 
may want to do it, but every time you decide to do it there are 
costs imposed on taxpayers who are kind of by definition 
victims, you know, they didn't do anything. They are going to 
be paying for it.
    So how much cost do you impose on them? And are there other 
ways to reduce crime that are less expensive? And there is a 
whole bunch of stuff done with bracelets and other ideas that 
people have put forward or different States are trying, I 
guess. I like 50 States because that is 50 experiments in what 
works. Really silly ideas can only be imposed at the national 
level.
    Ms. Wasserman Schultz. So would you agree with President 
Obama then on focusing on being smart on crime as opposed to 
being soft or tough?
    Mr. Norquist. I don't know what he said on that. I would be 
stepping into perhaps endorsing something I wasn't aware of. I 
assume Obama has good intentions and will help us work on 
reducing both crime and the costs of keeping crime down. But I 
think the legislature here is the starting point and, again, 
starting to thin out the number of Federal crimes we have.
    It is easier to manage a smaller number of crimes. We are 
talking 2,000, 3,000 Federal crimes. You know, we make fun of 
legislatures for voting for legislation they haven't read, but 
we put people in prison for series of 3,000 laws they can't 
possibly be aware of. Perhaps we should thin those down.
    Ms. Wasserman Schultz. Mr. Chairman, just as a historical 
note my State in the 1990's had, under Democratic leadership in 
the legislature, had a specific category of legislation that 
allowed us to file bills but we had a bill limit in our 
legislature in the House side.
    But what didn't count against our limit is when we filed 
legislation that repealed silly laws. So perhaps we could speak 
to the speaker and the Republican leadership as well about we 
don't have bill limits, but perhaps as a way of reviewing some 
of those laws that we all know are antiquated and don't belong 
there and shouldn't be law at the Federal level. Again, 
allowing States to utilize their discretion. Maybe we could 
make that suggestion.
    I yield back the balance of my time.
    Mr. Scott. Thank you. The gentleman from Texas and I were 
just discussing a mechanism, trying to figure out a mechanism 
for going through what is under our jurisdiction the criminal 
code, and we will be continuing those discussions. We are going 
to have a very brief second round, but I just wanted to comment 
on Mr. Norquist's comment about over-federalization.
    If you are a victim of a carjacking, you don't call the 
FBI. You call the local police, and so some of these things I 
think would be appropriate for letting the locals deal with it. 
And one of the problems with mandatory minimums is the sentence 
is essentially imposed by the prosecutor without any checks and 
balances.
    When a judge imposes a sentence, it is reviewable by 
appellate courts, and I would like Judge Carnes to briefly 
comment on the legislation that I have introduced, which is a 
fairly straightforward statement. It says, ``The authority to 
impose a sentence below a statutory minimum to prevent an 
unjust sentence.''
    And says, ``notwithstanding any other provisional law, the 
court may impose a sentence below a statutory minimum if the 
court finds it necessary to do so in order to avoid violating 
the requirements of subsection A of 53--excuse me 3553(a), 
which goes into deterrents, protecting the public, seriousness 
of the offense, role of the defendant and whatnot.
    If this does not repeal a mandatory minimum, and I am going 
to ask you to kind of comment. If you would rather reflect and 
comment in writing I can understand that, but if this were to 
pass, we do not remove any mandatory minimums, would the 
mandatory minimum be presumed under those circumstances?
    Judge Carnes. Well, it is an interesting question. Let me 
start by saying as you well know from having had Conference 
witnesses before, I have a client and I am not free to take a 
position on something that the Conference has not taken. The 
Conference opposes mandatory minimums. It hasn't taken a 
position on any of these particular bills so it wouldn't be 
appropriate for me sitting here to take that position.
    But the notion behind the opposition of mandatory minimums 
is that it is a straightjacket, and that more discretion is 
called for. So obviously, as Judge Gohmert was saying, as you 
were saying, anything that helps give us more discretion is 
something that I sense the Conference would not be adverse to.
    Now, as to whether there would be problems with that 
standard, that presumption, the only thing I could articulate 
from a legal point of view would be that right now post-Booker, 
post-Gall and Kimbrough, the case law indicated that the 
guidelines are not presumptively correct. In other words you 
have to calculate them. You have to calculate them correctly 
but when you sentence, they are not the presumption. You are 
going now to 3553 and what is reasonable.
    If you have a statute that says this is the mandatory 
minimum, unless you think 3553 would call for a lower sentence, 
you could go through that same sort of analysis, but I am not 
sure right now that you would.
    I am not sure that some courts would say well, maybe there 
is more of a presumption to the mandatory minimum, which may be 
something I guess that might argue in its favor and that it has 
got a little more heft to it than a guideline. But it is 
something that the courts would work through or either you all 
can make our lives easier by saying very clearly in the 
legislation what your intent was.
    Mr. Scott. And if you sentenced under the mandatory minimum 
that would be reviewable as reversible error by an appellate 
court?
    Judge Carnes. It would be under whatever standards there 
are now and we are still developing. We are now developing 
these standards to review 3553 that is evolving now and I would 
imagine the same standards would control for this.
    Mr. Scott. Thank you.
    Judge Gohmert?
    Mr. Gohmert. Just briefly along those lines, that is my 
concern. If you completely wipe out the mandatory minimum then 
you don't have the enforcement or as much power on review to 
knock out really inappropriate downward departures, than if it 
is just a guideline that is now, as we know from Booker, really 
just a guideline.
    So that is my concern about knocking it out completely. 
Maybe if the adequate, and my friend, Ms. Lofgren is gone, but 
if you can have adequate justification then do it. But if the 
mandatory minimum is there, which, you know, I just always 
called it the bottom of the range before I got here to 
Congress, but that is my concern.
    Judges, you would most of the time use very good 
discretion, but there are some that don't, and we just went 
through the process of impeaching one here whose judgment was 
not so good.
    And I love the comment, ``Really silly ideas can only be 
done effectively at the Federal level,'' and we have. But as 
Chairman Scott was indicating I had leaned over to him and I 
said, ``You know, what do you think? Could we work on something 
like that?'' And he is open to the idea because we really do 
need to do some cleaning up and there are some archaic clause, 
and I think we could do the whole country a favor in cleaning 
that up.
    One of the things--and Attorney General Ed Meese was really 
kind of a driving force behind this over-criminalization idea. 
We have got all these different Federal agencies now who want 
to have their own arresting authority, their own SWAT team 
because it is deemed fun to turn on your siren and go slam 
somebody to the ground and arrest them, and we really need to 
isolate that to just the law enforcement personnel.
    We don't need every Federal agency out there arresting, 
which is one of the impetus for wanting to combine them in a 
criminal code, but it would probably take a base closing type 
commission to get that done. So thank you, and I appreciate the 
ideas.
    And Ms. Stewart, I haven't really talked to you in this 
hearing but I know the wonderful efforts you have made and what 
the impetus was, and I appreciate your efforts. Thank you, 
ma'am.
    Ms. Stewart. Thank you.
    Mr. Scott. Gentlelady from California.
    Ms. Waters. Thank you very much. I would like to ask Ms. 
Stewart about what she, what she has seen happen over the past, 
you know, 10, 15 years you have worked on this issue. Do you 
sense that there is a growing consensus of folks who now 
understand what they are, what mandatory minimums are and what 
they are not, and want to get rid of them? What have you 
learned about all of this?
    Ms. Stewart. Yes, I do think that there is a much better 
understanding nationally of what sentencing is, how it applies, 
and that something needs to be done about it.
    Certainly, when my brother was arrested no one had ever 
heard of mandatory minimums. It took me a long time to get 
information about it. Of course, that was 20 years ago and 
technology today makes it so much easier to get that kind of 
information. So yes, I think that the public is ready for this.
    We actually petitioned a poll a couple of years ago to ask 
last summer, to ask whether or not the public supported the 
idea of the courts sentencing or legislators sentencing. And 
overwhelmingly something like, now I have forgotten the 
numbers, 70 percent or something said that the courts should 
sentence people not legislatures.
    I also wanted to just make a couple of comments to some of 
the things I have heard here today. One, I like the idea of 
sunsets, although I will say we have had mandatory minimums for 
20 years so I don't want to wait another 4 years for another 
sunset review. Could we start that review right now?
    And also, the base closing idea is a good one, but also 
many of those bases, as you may know, were turned into prisons. 
So let us be careful what we wish for here. [Laughter.]
    And thirdly, just one thing we often hear usually from U.S. 
attorneys and prosecutors that they need mandatory minimums 
because they are a tool to get people to cooperate. I would 
simply say that there are a lot of very complicated white-
collar cases that are not subject to mandatory minimums.
    And most other cases in the Federal system that judges 
somehow manage to get--prosecutors get convictions and the 
sentences are very stiff, and so there are ways to bring 
convictions without mandatory minimum sentences. The guidelines 
have been proving that for nearly two decades. And that is it. 
Thank you so much.
    Ms. Waters. Well, let me just thank you very much, again. 
And I would like to just speak a little bit to Mr. Gohmert's 
reference to Congressman Rangel and his involvement in helping 
to give support to mandatory minimums. Let me just say all of 
that has changed.
    Mr. Gohmert. Will the gentlelady yield?
    Ms. Waters. Yes, I will yield.
    Mr. Gohmert. I wasn't saying that he supported mandatory 
minimums necessarily, just the harsher sentencing range for 
crack cocaine.
    Ms. Waters. Well, yes, I guess I can speak to that too. I 
think that for those people who want to help the African 
American community, I don't think it is done with 
unconstitutional measures where those who are considered 
committing crimes that would fall into mandatory minimums 
somehow should be sought out, prosecuted and jailed 
disproportionately.
    Julie Stewart alluded to the white-collar type crimes that 
are involved with cocaine, crack cocaine, et cetera that are 
treated differently or may not even be, you know, considered 
because they are not apprehended, et cetera. But the African 
American community has been so devastated by college students--
in one case that I met with Julie Stewart we have twins who are 
still serving time.
    Ms. Stewart. One of them.
    Ms. Waters. One of them is still--what were they sentenced 
to, if I may ask?
    Ms. Stewart. I think one was 15, and one was 19 years.
    Ms. Waters. And the mother is a big volunteer with FAMM. 
And she has worked hard for years because, again, it was a case 
of what appeared to be young folks who were not drug dealers at 
all just stupid, but not drug dealers who got caught up in the 
system and ended up with these extraordinary number of years 
that were given to them.
    So I don't want anybody to think that they help the African 
American community by being tougher somehow. We don't need to 
have the discretion taken away from judges to be able to 
determine who this individual is.
    Is this a person with a first time offense? Is this a 
person who, you know, comes from a family that, you know, has 
contributed mightily to our society who, you know, should be 
given consideration for the kind of leadership that they could 
provide once they discover that maybe their child made a 
mistake, et cetera.
    I just want to dispel the notion that any community is 
being helped by being treated differently.
    Mr. Scott. Thank you. Let me ask one final question for any 
of the witnesses that might want to respond. What does it do to 
public respect for the law if people look up and see someone 
given what everybody knows is a bizarre sentence under the 
circumstances?
    Mr. Norquist. Doesn't help.
    Judge Carnes. My answer is the same. Obviously, it does not 
help.
    Mr. Scott. Thank you. Gentleman from Texas.
    Mr. Gohmert. Just in response to make sure that my friend 
from California understands I wasn't attempting to indicate 
that the tougher sentences had assisted the African American 
community because I certainly was not indicating that.
    I hope my friend agrees because I have gone back and looked 
at who the proponents were of the tougher sentencing. I agree 
it does not appear to have helped the African American 
community.
    But those who are in Congress having talked to them, having 
looked at who the proponents were and who President Reagan 
thanked for their work and really being the driving force, it 
was African American Members of Congress that pushed the 
disparate sentencing for crack versus powder cocaine.
    And so the law clearly was not passed with the disparate 
treatment as a result of any type of racist notion. It was done 
believing those who said this will help the community, but I 
agree with my friend. It does not appear to have helped the 
African American community at all.
    Ms. Waters. Well, if the gentleman will yield.
    Mr. Gohmert. Certainly.
    Ms. Waters. Let me just say this. I love the idea that the 
Congress of the United States and even the President at that 
time would take leadership from the African American community, 
if that was the case. Now, we want them to take leadership 
again from the African American community.
    We are saying that it has been destructive. It has not 
helped and now listen to us, and listen to what we are saying. 
We want discretion given back to the judges and mandatory 
minimums destroyed. Thank you.
    Mr. Gohmert. I yield back.
    Mr. Scott. Thank you and I would point out that whatever 
the rationale was when it passed, we have more information now, 
and we should legislate on what we know now. I would like to 
thank all of our witnesses for their testimony.
    Members may have additional written questions for the 
witnesses, which we would ask that you respond to as promptly 
as possible so that the responses could be made part of the 
record.
    Without objection, the record will include an updated 
report on mandatory minimums that we received from the U.S. 
Sentencing Commission on July 10 in a statement from Eric 
Sterling on behalf of the Criminal Justice Policy Foundation.
    [The prepared statement of Mr. Sterling follows:]
Prepared Statement of Eric E. Sterling, President, The Criminal Justice 
Policy Foundation, Adjunct Lecturer in Sociology, The George Washington 
                               University



                               __________
    Mr. Scott. Without objection, the hearing record will 
remain open for 1 week for the submission of additional 
materials, and without objection the Subcommittee stands 
adjourned.
    [Whereupon, at 12:30 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

            Prepared Statement of David A. Keene, Chairman, 
                      American Conservative Union
    Thank you Chairman Scott and Ranking Member Gohmert for inviting me 
to submit this statement for the record of your July 14 hearing, 
``Mandatory Minimums: Unintended Consequences.'' This is an important 
issue to me and not solely because mandatory sentencing offends my 
notion of sound criminal justice policy.
    I am the chairman of The American Conservative Union, the nation's 
oldest and largest grassroots conservative lobbying organization. I 
have served as chairman for the past 25 years. ACU is a multi-issue 
umbrella organization devoted to communicating and advancing the goals 
and principles of conservatism.
    As grateful as I am to serve as head of the ACU and as passionate 
as I am about promoting the conservative cause in Washington, DC, that 
is not why I am here today. Rather, I am here today as a father; the 
father of a young man serving too much time in a federal prison because 
of a mandatory minimum.
    My son was arrested and pled guilty to a federal offense carrying a 
ten year mandatory minimum sentence nearly eight years ago. The line 
prosecutors handling the case wanted to charge him under a different 
statute that would have carried a five year mandatory sentence, but 
their superior rejected this and demanded that he plead to the offense 
carrying the heavier penalty.
    He had no choice but to accept the ``deal'' because he had, in 
fact, violated the law. Neither he nor his mother and I could afford 
the expense of a trial that would probably result in a conviction 
despite the fact that various medical experts were convinced and were 
willing to testify that they believed the loss of control resulting in 
his offense was the result of a chemical imbalance that could be 
corrected medically.
    It turns out that they were right. The court had no choice as to 
his sentence, but ordered that he have access to the medication needed 
to alleviate the problem. It's worked, but he's still in prison.
    Before this happened to my family, I was aware of the debate over 
mandatory minimums but was not a participant. My instinct then as 
always was that one-size-fits-all policies rarely work, and so I was 
inclined to believe the adoption of mandatory sentencing laws was well-
intentioned but ultimately unwise.
    Since all this happened, I have taken the time to study the issue 
more closely and concluded that my instinct was correct: mandatory 
minimum sentences are unwise.
    And, Mr. Chairman, though I am not speaking on behalf of the ACU, 
my opposition to mandatory minimums, while informed by my family's 
loss, is rooted in conservative principles; namely, reverence for the 
Constitution and contempt for government action that ignores the 
differences among individuals.
    Mandatory minimums won support for the best of reasons. Sentences 
of different lawbreakers for the same offense differed widely not just 
on a state by state basis which is acceptable on federalist principles, 
but within the same state and across the country in the case of federal 
crimes.
    There was a popular belief in the seventies, eighties and nineties 
that some judges were simply too lenient and that disparate sentencing 
policies from jurisdiction to jurisdiction did an injustice to many. In 
some cases this was true, but, as is often the case, the attempt to 
solve one problem created new problems.
    I believe the United States Constitution is the greatest charter 
for self-government ever devised. Committed to protecting individual 
freedom, the Founders ingeniously designed a government of co-equal 
branches with separate powers.
    James Madison, for one, believed that a clear separation of powers 
was more vital to protecting freedom than the Bill of Rights. Yet 
mandatory minimums undermine this important protector of liberty by 
allowing the legislature to steal jurisdiction over sentencing, which 
has historically been a judicial function. The attempt by legislatures 
and the Congress to address perceived problems in the justice system by 
transferring power from judges to prosecutors and the executive branch 
violate these principles and have, in the process, given prosecutors 
unreviewable authority to influence sentences through their charging 
decisions and plea bargaining power.
    Admittedly, the letter of the Constitution does not prohibit the 
legislative branch from usurping sentencing authority, but its spirit 
and common sense should. My conservative brethren and I have long 
argued that responsibilities should be shouldered by the branch of 
government, and the level of government, that is closest to the 
problem.
    Former Senator Phil Gramm (R-TX) used to tell a story about an 
argument he had with a bureaucrat from the Department of Education in 
Washington, DC. The senator told the women from the agency that her 
office was imposing too many federal rules on local schools. He said 
that teachers in his local schools and the children's parents knew 
better what their children needed than some bureaucrat in Washington.
    The bureaucrat wouldn't budge. She argued that the government just 
wanted to do what was best for all children. Exasperated, the senator 
said, ``I know what my kids need more than you do because I love them 
more than you do.'' In an apparent attempt to show her dedication, the 
official replied, ``No, you don't, Senator, I care about your children 
as much as you do.'' The Senator stood upright, cocked his head, and 
said, ``Oh yeah? Then tell me their names.''
    It was an effective story because the American public seems to 
agree that many problems are best addressed by the people on the ground 
closest to the source. What's true for many issues is certainly true 
for sentencing, and the American people get it. A poll taken last year 
revealed that nearly 80 percent of Americans believe that courts and 
judges--not politicians in Washington, DC (or in state capitals)--
should determine sentences in individual cases.
    This reflects common sense. Because of the cases and defendants 
that come before them, local judges (including nearby federal judges) 
are the first to know when a new crime wave is forming or a new drug 
has gained favor. These judges see first the arrival of new gangs and 
usually know who controls them. And, after presiding over trials and 
pleas, local judges know better than anyone the motivations of the 
defendants who commit certain crimes and of the prosecutors who charge 
them.
    Those of us on the right have been most skeptical of wasteful 
government spending and inefficient regulation. Perhaps the most 
successful weapon in the budget hawk's arsenal is cost-benefit 
analysis. We might agree with our friends on the left that we could 
have cleaner air if we impose massive regulations on emissions but we 
have always insisted that government must consider the economic and 
social costs of such regulations. Oddly, we have not always insisted on 
such analysis in criminal justice matters, including sentencing.
    We need to start. It's time to realize that we could lock up 
everyone and throw away the key--and, according to a recent Pew 
Foundation finding that one out of every hundred Americans is in jail, 
it seems we are well on our way to doing just that--but who is 
measuring the social and economic costs of this policy? We know 
something of the economic cost; from 1982 to 2008, federal corrections 
spending rose from $641 million to $5.4 billion, and state spending 
rose from $6 billion to $50 billion. Spending on corrections is rising 
faster across the states than spending on education, transportation and 
every other budget category except Medicaid. These are just the direct 
economic costs. There are high social costs, as well. I know the 
anguish and hardship of living without a son nearby. I can't fathom the 
effects on society of the more than 1.5 million children being raised 
without mothers or fathers.
    And what do we get for it? Research has shown no direct correlation 
between incarceration rates and crime rates. We know, for example, that 
while our prison and jail populations are five times what they were in 
the 1960s, crime rates today, averaged across major crime categories, 
are about 250 percent of 1962 rates. Indeed, between 1985 and 1993, 
when harsh mandatory minimums were reinstated, that murder and robbery 
rates increased by 25 percent. Mandatory minimums do not make us safer.
    There are some criminals any sane American would classify as 
habitually dangerous. Such individuals, depending on the crimes they 
commit, deserve the harshest of sentences if only to protect the rest 
of us from them, but not everyone who breaks even our criminal laws 
falls into this category. Judges should make distinctions based on 
individual circumstances and those who officials believe have been 
truly rehabilitated prior to the expiration of a sentence should be 
eligible for early release.
    There is an old Tom T. Hall song in which the singer urges the 
townspeople to ``hang 'em all'' because that way they'll be sure to get 
the guilty, but the song made it clear that doing so would be neither 
fair to the town nor those who were innocent and didn't deserve 
hanging.
    The idea of the mandatory minimum while originally adopted for the 
best of reasons is the non lethal equivalent of hanging 'em all.
    Put simply, Mr. Chairman, there is nothing conservative about 
mandatory minimum sentences. They represent a radical departure from 
the traditional conservative approach to criminal justice--an approach 
that said if you commit the crime, you will do the time.
    The argument that mandatory minimums have solved the problem they 
were meant to address is laughable. To be sure, many Americans were 
frightened about escalating drug use and drug-induced violence in the 
mid-1980s. But the last-minute addition of mandatory minimums to the 
legislative response was anything but considered. There was not a 
single hearing on mandatory sentences in either chamber. No expert 
testimony was sought, no debates were held.
    Years later, the late Chief Justice William Rehnquist commented on 
the lack of legislative forethought. In the same speech in which he 
famously described mandatory minimums as ``a good example of the law of 
unintended consequences,'' Rehnquist noted the following: ``Mandatory 
minimums . . . are frequently the result of floor amendments to 
demonstrate emphatically that legislators want to `get tough on crime.' 
Just as frequently they do not involve any careful consideration of the 
effect they might have on the sentencing guidelines as a whole.''
    As I mentioned, I have taken more time since my son's sentencing to 
better understand the evidence regarding mandatory minimums. During 
this period, I have also come to realize that my skepticism is shared 
by like-minded friends. Indeed, it seems that opposition to mandatory 
minimums among conservatives is growing. The committee heard directly 
from my friend and fellow conservative Grover Norquist about his 
concerns with mandatory sentences.
    There are other voices on the right speaking out. The ACU hosts the 
premier annual gathering of conservative leaders in Washington, the 
Conservative Political Action Conference (CPAC). This year's CPAC 
included a panel discussion entitled ``How Many Crimes Did You Commit 
Today?'' The impetus for the panel was the growing concern among many 
conservatives about mass federalization of crime. Two of the speakers, 
constitutional scholar Tim Lynch of the Cato Institute and Pat Nolan of 
Prison Fellowship Ministries, strongly oppose mandatory minimums.
    On July 22nd, this subcommittee will examine the same issue ``Over-
Criminalization of Conduct/Over-Federalization of Criminal Law'' and 
hear testimony from experts on the right and left. Clearly, there is 
growing consensus that we are federalizing too many crimes easily 
handled by the states, including small-time drug and gun cases subject 
to stiff federal mandatory minimum sentences.
    Lawmakers in Washington, like the education department bureaucrat 
who Senator Gramm confronted, did not know my son's name. But they 
presumed nonetheless to sentence him. I believe in punishment. I 
believe that there should be consequences when someone breaks the law. 
But depriving an individual of his freedom is the ultimate power of the 
state and it must be done judiciously. The punishment must be meted, 
based on all the factors of the crime, the defendant's role in it, and 
the unique circumstances of the individual.
    Above all, punishment should be imposed, not by Washington 
lawmakers, but by judges doing the job we gave them in the 
constitution.




                               APPENDIX A



                               APPENDIX B


                                 
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