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

                RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

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

                                    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

                                   ----------

                                OCTOBER 29, 2009

                                   ----------

                               Serial No. 111-78

                                   ----------

             Printed for the use of the Committee on the Judiciary

       Available via the World Wide Web: http://judiciary.house.govFOR
                                   SPINE deg.

               RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

                      RACIAL DISPARITIES IN THE CRIMINAL
                                 JUSTICE SYSTEM

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

                                    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

                                   __________

                                OCTOBER 29, 2009

                                   __________

                               Serial No. 111-78

                                   __________

             Printed for the use of the Committee on the Judiciary

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

                                   ----------
                             U.S. GOVERNMENT PRINTING OFFICE

    54-093 PDF                       WASHINGTON : 2010

    For sale by the Superintendent of Documents, U.S. Government Printing
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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
    JUDY CHU, California                 TOM ROONEY, Florida
    LUIS V. GUTIERREZ, Illinois          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

                                  ----------

                                OCTOBER 29, 2009

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     3
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Chairman, Committee on the
      Judiciary......................................................     6

                                   WITNESSES

    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee
      Oral Testimony.................................................     8
      Prepared Statement.............................................    11
    Mr. Barry Krisberg, President, National Council on Crime and
      Delinquency, Jacksonville, FL
      Oral Testimony.................................................    14
      Prepared Statement.............................................    17
    The Honorable James M. Reams, President-Elect, National District
      Attorneys Association, Alexandria, VA
      Oral Testimony.................................................    22
      Prepared Statement.............................................    24
    Mr. Wayne S. McKenzie, Director, Program on Prosecution and
      Racial Justice, New York, NY
      Oral Testimony.................................................    30
      Prepared Statement.............................................    32
    Mr. Marc Mauer, Executive Director, The Sentencing Project,
      Washington, DC
      Oral Testimony.................................................    55
      Prepared Statement.............................................    58

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Report entitled ``Created Equal: Racial and Ethnic Disparities in
      the US Criminal Justice System,'' submitted by Barry Krisberg,
      President, National Council on Crime and Delinquency,
      Jacksonville, FL...............................................    82
    Report entitled ``Report to Congress: Cocaine and Federal
      Sentencing Policy,'' submitted by the Honorable Robert C.
      ``Bobby'' Scott, a Representative in Congress from the State of
      Virginia, and Chairman, Subcommittee on Crime, Terrorism, and
      Homeland Security..............................................   125

               RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

                                  ----------

                           THURSDAY, OCTOBER 29, 2009

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

        The Subcommittee met, pursuant to notice, at 9:42 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Conyers, Cohen, Quigley,
    Gohmert, Goodlatte, and Lungren.
        Staff present: (Majority) Bobby Vassar, Subcommittee Chief
    Counsel; Jesselyn McCurdy, Counsel; Joe Graupensperger,
    Counsel; Veronica Eligan, Professional Staff Member; and Robert
    Woldt, Minority FBI Detailee.
        Mr. Scott. Good morning. I want to welcome you to today's
    Crime Subcommittee hearing on ``Racial Disparities in the
    Criminal Justice System.''
        Racial disparities exist when the percentage of a racial or
    ethnic group involved in the system is significantly greater
    than the representation in the general population. In the
    United States, Blacks, Hispanics, and Native Americans are
    significantly overrepresented at every stage of the criminal
    justice system, as compared to whites.
        There are many reasons why racial disparities exist.
    Disparities are often created when police focus more attention
    on African-American and Hispanic communities, which result in
    more people from these neighborhoods being arrested and
    processed through the system.
        Also, so-called tough-on-crime policies that direct more of
    law enforcement attention to certain crimes, as opposed to
    others, and decisions by prosecutors who have broad discretion
    can contribute to racial disparities. Even more troubling is
    when racial disparities are the result of conscious racial
    bias.
        Crack cocaine arrests and prosecutions are an example of
    how directing Federal attention to prosecuting a particular
    drug as opposed to other drug cases being left to the states
    can result in racial disparities. About 80 percent of those
    prosecuted in Federal court for crack cocaine offenses are
    Black, and some of those are for possession-only cases. Whites
    and Hispanics are more likely to be prosecuted for powder
    cocaine offenses.
        Crack cocaine is pharmacologically identical to powder
    cocaine, but because it is marketed in smaller doses and
    cheaper forms, the drug is more prevalent in low-income
    neighborhoods, particularly communities of color. Powder
    cocaine is usually distributed in higher volumes compared to
    crack cocaine. It is more often sold and used in wealthier
    neighborhoods.
        Now, if the objective of law enforcement is to reduce
    illegal drug use, the approach of concentrating enforcement
    efforts on the minority communities is not likely to be very
    effective. According to annual drug use data, there is no
    indication that Blacks are more prone to use cocaine than
    whites, nor that the prevalence in one community as opposed to
    the other, whether the form is crack or powder. Yet, for crack
    cocaine, almost all of the enforcement effort is concentrated
    in predominantly Black neighborhoods.
        Now, one reason for this is that sentences for crack
    cocaine are much longer than those for the same amount of
    power. Possession or distribution of five grams of crack
    cocaine result in a mandatory minimum sentence of 5 years,
    whereas it takes 500 grams of powder cocaine to get the same 5-
    year mandatory minimum sentence.
        Now, disparities often exist at every stage of the criminal
    justice system. Over-representation of people of color at each
    stage of the system is impacted by decisions and outcomes at
    various stages. Unfortunately, disparities tend to grow, rather
    than narrow, as defendants move through the system.
        For example, if people of color are routinely denied bail
    before trial as compared to whites being routinely granted
    bail, Blacks will also be at an advantage at trial and during
    sentence, because they are not able to assist with their
    defense, for example, locating witnesses, nor will they have
    access to community or treatment resources.
        Disparities are also made worse by tough-on-crime policies
    which tie the hands of judges to address the reason for the
    disparity at various points in the criminal justice system.
    Mandatory minimum sentencing, or truth in sentencing, where no
    credits for good behavior and other restrictions during
    discretion further exacerbate disparity treatment.
        And we see this impact in the prison population. We now
    have on an annual basis--or, excuse me, on a daily basis,
    approximately 2.3 million people locked up in our Nation's
    prisons and jails, a 500 percent increase over the last 30
    years. The United States is now the world's leading
    incarcerator by far, with an incarceration rate of about 700
    per 100,000. And the chart shows the disparity.
        You see the green bars, incarceration rates all over the
    world. The only bar rivaling the blue bar, which is the United
    States, is Russia, at about 600 and some per 100,000. The
    United States, number one in the world, at about 700 and some
    per 100,000. The first purple bar is African-American
    incarceration rate, about 2,200 per 100,000. The larger purple
    bar, African-American incarceration rate, top 10 states
    approaching 4,000 per 100,000, but 50 to 200 per 100,000 in
    most countries, up to 4,000 in the African-American community.
        Now, when we look at the impact of this, we find that it is
    also not free. The Pew Research Forum estimated that any
    incarceration rate over 500 per 100,000 was actually
    counterproductive. And when you look at the cost of that, you
    will find that the--we have a little chart showing the cost
    of--what happens if you could reduce the incarceration rate
    from 2,200 to 500, the maximum at which you get any value for
    incarceration, and just go through the arithmetic, you will
    find that cost in a community of 100,000 for providing that
    counterproductive incarceration, if divided by the number of
    children, would be about $1,600 per child, per year, or
    targeted to the one-third of the children that actually need
    the help to about $5,000 per child, per year, since on
    counterproductive incarceration.
        And in the next chart, in the top 10 states, where the
    incarceration rate is 4,000 per 100,000, if you reduce that by
    3,500 to 500 per 100,000, and go through the arithmetic per
    child, targeted to the one-third of the children most at risk,
    you will find that--one more--you will find that you are
    wasting approximately $10,000 per child, per year, in
    counterproductive incarceration because the rate is so high.
        Now, when you look at the racial impact of incarceration,
    we find that African-Americans make up about 13 percent of the
    general population, but 40 percent of the prison population,
    and that is a disparity that we are actually talking about.
        And the tragedy of spending all this money is that we could
    use that money for a more productive purpose, to keep people
    out of trouble. The Children's Defense Fund calls this system
    we have got now the cradle-to-prison pipeline and that one of
    every three Black boys born today, if we don't change things,
    can be expected to serve time in prison, and we could use this
    money to dismantle the cradle-to-prison pipeline and create a
    cradle-to-college or cradle-to-the-workforce pipeline.
        There is legislation pending that I introduced, the Youth
    PROMISE Act, which would help dismantle the cradle-to-prison
    pipeline, and hopefully it will be considered later today.
        We have several expert witnesses who will testify today
    during today's hearing about the growing racial disparities in
    the criminal justice system and ways that these disparities can
    be addressed.
        So at this time, I would like to recognize the Ranking
    Member of the Subcommittee, the distinguished gentleman from
    Texas' First Congressional District, Judge Gohmert.
        Mr. Gohmert. Thank you, Chairman Scott--prevention programs
    do play an important role in deterring our youth from
    committing crimes and joining gangs.
        Unfortunately, H.R. 1064, the ``Youth PROMISE Act,'' goes
    far beyond simply authorizing Federal assistance for community
    prevention programs. The bill proposes to--I am sorry. Sorry.
    Got the wrong statement.
        Mr. Scott. Now, you weren't going to speak against the
    Youth PROMISE, were you?
        Mr. Gohmert. I hate to. I hate to mess up a good surprise,
    but thank you, Chairman.
        Anyway--this part of the hearing focuses on H.R. 1412, the
    ``Justice Integrity Act of 2009,'' and March 2009 report issued
    by the National Council on Crime Delinquency, both of which
    address racial and ethnic disparities in the criminal justice
    system.
        At the outset, it is an important issue. It is a cause for
    great concern when groups from any race or ethnic group are
    greatly over-represented as a percentage of arrests,
    convictions, or some other objective measure within the
    criminal justice system.
        Congress should carefully examine any disparity at the
    Federal level and attempt to root out any problems without
    relying on any preconceived ideas about why disparities exist
    or how properly to address them. Statistics and percentage may
    tell us that there is a problem, but without proper, unbiased
    analysis, that problem may never be resolved.
        Additionally, we here in Congress should not be getting
    into the business of directing any state's criminal justice
    system based on what we think is the right thing for these
    states to do within the state. It would not be possible or
    advisable for Congress to adequately learn about all the
    disparities that exist in every state and formulate a one-size-
    fits-all approach from Washington that has been tried and
    failed.
        The states must work toward achieving fairness in their
    respective systems, and the Department of Justice can prosecute
    egregious abuses when necessary. Instances of true bias or
    prejudice in investigating or prosecuting criminal matters
    should be handled within the existing framework for civil
    rights violations.
        I appreciate the work of the witnesses that we are going to
    hear today and their respective organizations that do attempt
    to call these important issues to our attention. And we here in
    Congress understand that the missions don't necessarily need or
    desire to make the distinction between the Federal system and
    the various state systems.
        I know the Sentencing Project did a study earlier this year
    entitled ``The Changing Racial Dynamics of the War on Drugs,''
    noting that from 1999 to 2005, the number of whites
    incarcerated at the state level for drug offenses went up
    approximately 42 percent, and the number of African-Americans
    went down approximately 21 percent.
        That said, there still remains a significant over-
    representation of African-American inmates incarcerated for
    drug offenses at the state level. There are obviously a number
    of theories attempting to explain this phenomenon: increased
    enforcement of methamphetamine laws, the high numbers of
    African-Americans already incarcerated for drug offenses, and a
    host of others. What I have not seen is a lot of meaningful,
    data-driven analysis of those numbers.
        Just as each state should look at those numbers and attempt
    to analyze what part they play in them, we here in Congress
    should make sure that we take a look at disparities within the
    Federal criminal justice system and attempt to analyze them to
    discover the legitimate and illegitimate explanations for them.
    In doing so, Congress should be careful not to attempt to solve
    any disparities on the Federal level without a regard to the
    nature of the problem.
        Guideline rules that hamper the discretion of Federal
    agents and prosecutors without proper analysis without serve to
    create additional problems. We saw what happened in the 1980's
    when the Congressional Black Caucus came pushing in demanding
    that there had to be vast disparities in the difference in
    sentences for crack cocaine and powder cocaine, because crack
    cocaine had become an epidemic in the Black community, we were
    told, and therefore, if you did not vote for dramatically
    higher sentences for crack cocaine than powder cocaine, then it
    was tantamount to being racist, because you did not care about
    the African-American community.
        So Congress dutifully, not wanting to be racist, voted for
    these dramatic disparities in sentencing, following the lead of
    the Congressional Black Caucus back in the 1980's, and voted
    this huge disparity in crack cocaine versus powder cocaine. Now
    we are told to rush in and let's push things through to fix
    problems again.
        As a judge, I saw some disparities in a greater percentage
    of African-American population than the population overall of
    African-Americans in our area coming before me as a felony
    judge. But there was an even greater number of percentage of
    individuals who came before me who came from homes in which
    there was no father than there was any over-representation of
    any racial group.
        The greatest common denominator among the people that I had
    to sentence was the breakdown in their home. It seems like, if
    we are going to really study this issue, we shouldn't just look
    at the end result. One of our witnesses cites the Bureau of
    Justice statistics that points out that using rates per 1,000
    persons, a non-white person is twice as likely to be the victim
    of a crime of violence as a white person. A non-white person is
    more than four times as likely to be the victim of a rape or
    sexual assault as a white person. A non-white person is more
    than three times as likely to be the victim of a robbery as a
    white person.
        We have seen statistics that indicate non-white persons
    most often identify non-white defendants as being the
    perpetrator. Do we need to study whether there is prejudice
    among African-Americans in identifying African-Americans as the
    perpetrators of the crime against them?
        We need to look at the full picture, because if we just
    come in and look at the end effect, the fact that there are a
    disproportionate number of African-Americans going to jail as
    African-Americans in the population, we may never get to the
    root cause.
        And I think, if the truth be known and when an adequate
    study is done, we will come back to Congress--Congress in the
    1960's, with the most wonderful of intentions, and that is to
    help poor, unfortunate young women who have babies and the
    deadbeat father would not assist at all, so Congress, out of
    the greatest of intentions, the most wonderful of hope, said,
    ``Let's help them. Let's give them a check for every child they
    have out of wedlock.''
        And 40 years later, we have gotten what we have paid for. I
    sentenced young women--repeatedly were lured into a rut
    financially from which they had no way of getting out and how
    government gave them no way of getting out. Only if you will
    have another child, we will give you another check, until
    eventually some of them would get a job, not report it, hoping
    that that combined with their child support from the government
    would get them out of their hole, only to find they had
    committed a Federal crime of welfare fraud and have to come
    before me or resort to drug selling to try to get out of that
    rut that our government lured them into with no hope of getting
    out.
        I think there are greater problems here we need to be
    studying and not the end result, but get to the heart of the
    problem, so this government does not lure people into a rut
    with no hope. It gives them incentives to avoid the rut and, if
    they are in the rut, incentives to get out and reach their God-
    given potential, which I think Congress has helped eviscerate.
        And I appreciate the time, Mr. Chairman. I do look forward
    to the testimony today, and hopefully, we will do the right
    thing by the people here in this country.
        I yield back.
        Mr. Scott. Thank you very much.
        Our first witness is Congressman Steve Cohen from--I am
    sorry. The gentleman from Michigan, the Chairman of the
    Committee, Mr. Conyers?
        Mr. Conyers. Thank you, Mr. Chairman.
        This is a significant hearing. And I just wanted to thank
    Judge Gohmert for his concerned observations that grow out of
    his experience.
        Very important here today, we are going to have a hearing
    and a markup on the Youth PROMISE Act. And I think these things
    go together with things that are happening right around us. You
    see, last night, we were at the White House where the Hate
    Crimes Act was signed into law.
        I think Chairman Cohen was there, weren't you? Or that was
    another event. Okay, you weren't there.
        But Zoe Lofgren was there, and there were others on the
    Committee that were there. And the Hate Crimes Act started
    under President Bill Clinton. Well, how do you know that? Well,
    because I was invited to the White House when Clinton was
    President, where he called in the southern governors, because
    there was a rash of cross-burnings, mostly throughout the
    South, not entirely, and he said, ``This has got to end. We
    have been treating these as arson cases, and from now on, we
    are not. We are going to treat them as a hate crime. It is more
    than just burning something down. This is an act of violence
    motivated to intimidate people.''
        And you could have heard a pin drop. And shortly
    thereafter, I introduced the Hate Crimes Act. And it is grown
    over the years until yesterday at 4:30 p.m., the 44th President
    of the United States signed another extension of hate crimes,
    extending it into sex and gender and choice violations would
    now be criminalized, that is, enhanced penalties would be put
    onto whatever the basic crime was, because of hate crimes.
        I am sitting in front of a former criminal defense lawyer
    of many years. What Steve Cohen has done in his State of
    Tennessee as a legislator for a couple decades before he ever
    came to the Congress has a great deal to do with what propels
    him to want a comment before we start this hearing.
        And all I want to do, Chairman Scott and Judge Gohmert, is
    to indicate to you that we are dealing with a historical
    problem. We had a problem before we got into this disparate
    sentencing. We come out of a history that now has international
    significance, because of things we are doing and not doing in
    terms of the violence and oppression and the economic hardships
    that we make people face, the genocides that go on.
        All this is not unconnected. Only a few days ago, the
    courts in Texas determined that a young person should be
    executed even if there was no direct evidence, that his life
    should be--this is in the 21st century.
        After libraries of examination of social circumstances,
    crime and punishment, how to build a just society, we just
    executed a person, a young person, who there was no--we are
    still taking lives of people when there is no connection, no
    evidence that the prosecutor could produce to determine that he
    was guilty. We not only sanctioned that he would be found
    guilty, but he would give up his life in addition.
        And so this whole thing brings us to the Sentencing
    Project, and CURE, and the people that have followed the great
    work of this Committee.
        The only thing I want to be of assistance on with my close
    friend, Judge Gohmert, is his thoughts about the Congressional
    Black Caucus. Now, I was not only a founding member of the
    Black Caucus, I was one of the three people that said that
    there ought to be a Black Caucus for us to found. And it is
    true that we had--and I am trying to get back, Judge Gohmert,
    associate membership in the Congressional Black Caucus--so that
    race and color and previous dispositions will not be any bar.
        But I want to be the first to assure you that the
    Congressional Black Caucus has never advocated or supported or
    endorsed the disparate sentences that we have been trying to
    eliminate between crack, powder and cocaine, never.
        Well, how do you know that, Chairman Conyers? Because I was
    the first African-American in the history of this country to
    ever serve on the Judiciary Committee. And I was once the
    Chairman of the Crime Subcommittee. And I follow these matters
    very closely, even before there was a Congressional Black
    Caucus. And I just want----
        Mr. Gohmert. Will the gentleman yield for a question?
        Mr. Conyers. With pleasure.
        Mr. Gohmert. Has the gentleman seen the list of co-sponsors
    for the bill that created the disparate sentencing and the list
    of the members ultimately who were part of the Black Caucus?
        Mr. Conyers. Have I seen that list? No.
        Mr. Gohmert. Of the co-sponsors of that list.
        Mr. Conyers. No.
        Mr. Gohmert. Then I would suggest the gentleman might be
    surprised, but it is a who's-who.
        Mr. Conyers. Well, but----
        Mr. Gohmert. And Charlie Rangel was recognized by President
    Reagan as being a major leader and mover and shaker in helping
    that come about, but I appreciate the gentleman yielding.
        Mr. Conyers. Yes. Well, I will check that out, but it was
    not a Congressional Black Caucus position, I can assure you.
        Well, that is the thrust of my feelings about the
    importance of this hearing and this markup. And I am pleased
    that you gave me this time, Chairman Scott.
        Mr. Scott. Thank you. Thank you, Mr. Chairman.
        Our first witness is Congressman Steve Cohen.
    Representative Cohen will testify about H.R. 1412, the
    ``Justice Integrity Act of 2009,'' legislation which he
    introduced to address the racial disparities in the Federal
    criminal justice system.
        Chairman Cohen chairs the Judiciary Committee's
    Subcommittee on Commercial and Administrative Law and also sits
    on the Subcommittee on the Constitution, Civil Rights, and
    Civil Liberties Subcommittee. He is also a Member of the
    Transportation and Infrastructure Committee.
        Congressman Cohen?

      TESTIMONY OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF TENNESSEE

        Mr. Cohen. Thank you, Chairman Scott, Ranking Member
    Gohmert, and Chairman Conyers, and all the fellow Members of
    the Subcommittee.
        Thank you for holding this hearing today and providing me
    to testify. I appreciate the opportunity to be part of this
    crucial discussion on the real and perceived racial disparities
    that permeate the criminal justice system. Today, I would like
    to bring to the Subcommittee's attention a bill I have
    introduced that would further this discussion.
        Studies, reports, and case law from the last several years
    have documented racial disparities at many stages of the
    criminal justice system. This includes racial profiling of
    potential suspects, prosecutorial discretion over charging and
    plea bargaining decisions, mandatory minimum sentences, and
    countless other policies and decisions that may contribute to
    the disparities that we may see today.
        Even laws that are race-neutral on their face may lead to
    racially disparate outcomes. Our cocaine sentencing laws are
    one obvious example of this, and I commend Chairman Scott for
    his leadership in finally getting this issue properly
    addressed.
        The cannabis laws in this country are also similar. And
    they affect both African-Americans and Hispanics in a greatly
    disproportionate way. And my hometown of Memphis and the city
    of Virginia Beach are two cities where you see a great increase
    in arrests of African-Americans for cannabis over non-African-
    Americans.
        In addition, racial disparities are often the consequence
    of unconscious bias on the part of police, prosecutors, and
    others involved in the criminal justice system. That makes them
    no less real. Just like institutional racism exists in our
    country, it is racism whether it is there by tradition or not.
        It is important that we understand the extent of these
    racial disparities, the causes, and, most important, the
    solutions. We also need to determine whether our perception of
    these disparities is greater than the actual problem.
        That is why I introduced H.R. 1412, the ``Justice Integrity
    Act.'' This legislation would establish a pilot program to
    study the real and perceived racial and ethnic disparities in
    Federal law enforcement and the criminal justice system and
    make recommendations to address any disparities or perceptions
    of bias that are found as a result of this study.
        One of our witnesses today on another panel is going to say
    there is no deliberate racial discrimination or disparity. I
    would disagree with that decision or that thought. But
    regardless, if it is not deliberate, if it exists, it is still
    wrong. And if there is perception, it is wrong, too.
        The Justice Integrity Act would establish a 5-year pilot
    program to create an advisory group in 10 United States
    judicial districts headed by the U.S. attorney for those
    districts. The advisory groups would consist of Federal and
    state prosecutors, public defenders, private defense counsel,
    judges, correctional officers, victims' rights representatives,
    civil rights organizations, business reps, and faith-based
    organizations, the gamut.
        The advisory groups would be responsible for gathering data
    on the presence, cause and extent of racial and ethnic
    disparities at each stage of the criminal justice system. Each
    advisory group would then recommend a plan, specific to each
    district, to ensure progress toward racial and ethnic equality.
        The U.S. attorney would consider the recommendations of the
    group, adopt a plan, and submit a report to the attorney
    general. The bill would require the attorney general then to
    submit a comprehensive report to Congress at the end of the
    pilot program, outlining the results of all 10 districts and
    recommending best practices.
        I would like to emphasize two of the bill's most important
    elements. First, it envisions an inclusive process that brings
    together all of the relevant stakeholders, both sides of the
    bar, all people involved. Second, by establishing advisory
    groups throughout the country, it recognizes different
    communities may face different problems and require different
    solutions. Just as Justice Brandeis talked about the beauty of
    laboratories of democracy in different states, you get a
    representative sample of the Nation.
        I am pleased to be joined in this legislation by Chairman
    Conyers and nearly 30 other co-sponsors, including several
    Members of this Subcommittee and the full Judiciary Committee.
    Companion legislation has been introduced in the Senate by
    Senators Cardin and Specter. I would note the original Senate
    sponsor was the distinguished Vice President, the Honorable Joe
    Biden.
        The bill has also been endorsed by numerous organizations,
    including the American Bar Association, the NAACP, the American
    Civil Liberties Union, the Brennan Center for Justice, the
    Sentencing Project, among others.
        Racial disparities have engendered a crisis of public trust
    in the integrity of the criminal justice system and fueled
    community perception of bias. When the system is perceived to
    be unfair toward racial minorities, communities can become
    reluctant to report crimes or cooperate with law enforcement
    and prosecutors. This reluctance to work with law enforcement
    can make it more difficult to catch criminals and protect the
    very people who distrust the justice system, thereby
    perpetuating a mistrust of the system. We must do what we can
    to end this cycle of mistrust.
        The first step is to understand the full scope of the
    problem we are facing. This hearing is critical to that
    endeavor.
        I believe the Justice Integrity Act would expand upon
    today's important hearing. It would also undertake a systematic
    process to bring together all of the stakeholders and develop
    concrete solutions. It would help restore public confidence in
    the criminal justice system and ensure the fair and equitable
    treatment of all Americans.
        I understand that the deputy attorney general is currently
    leading a task force to examine many of these same issues we
    are talking about today, and I applaud Attorney General Holder
    and the President for their commitment to criminal justice
    issues. I think the Justice Integrity Act is a perfect
    complement to these efforts, and I would welcome the input of
    the Administration and Members of the Committee as we move
    forward.
        Mr. Chairman, I appreciate your holding this hearing today
    and giving me the opportunity to testify. As Mr. Conyers
    mentioned, I have 24 years' experience as a state senator,
    working on criminal justice issues on the Judiciary Committee
    in Tennessee and was a criminal defense attorney. All you have
    to do is go to my city in Memphis, Tennessee, at 201 Poplar,
    the criminal justice center, and you can't help but see that
    there is racial disparity. Whether intentional or
    unintentional, they exist. And the system has perpetuated it,
    and it is just as much a failing in this country's efforts to
    get a more perfect union as any problem we have today.
        The health care system is a problem. The criminal justice
    system is a sin.
        I look forward to the testimony of the witnesses in the
    next panel, and I thank you for the opportunity to testify.
        [The prepared statement of Mr. Cohen follows:]
               Prepared Statement of the Honorable Steve Cohen,
            a Representative in Congress from the State of Tennessee

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                                   __________
        Mr. Scott. Thank you.
        You have any questions? No question. We appreciate your
    testimony today.
        Mr. Gohmert. Unless he wants us to ask him questions.
        Mr. Scott. We will ask our next panel of witnesses to come.
    And as they come forward, I will begin introducing them.
        Our next witness will be Barry Krisberg, who is the
    president of the National Council on Crime and Delinquency. He
    has been president since 1983. He is known nationally for his
    research and expertise on juvenile justice and race and justice
    issues. He is currently a lecturer in the University of
    California-Berkeley School of Law and a visiting scholar at the
    Center for Race and Justice at John Jay College.
        After he testifies, we will hear from James Reams,
    president-elect of the National District Attorneys Association.
    He was first elected Rockingham County, New Hampshire, attorney
    in 1998. He began his legal career when he was appointed
    assistant Rockingham County attorney in 1977.
        And witnesses following will be Wayne McKenzie, who joined
    the Vera Institute for Justice in 2005 as director of the
    Prosecution and Racial Justice Project. Prior to joining Vera,
    he was a prosecutor in the Kings County district attorney's
    office, where he held several supervisory positions, including
    deputy bureau chief of the crimes against children bureau. He
    is a past president of the National Black Prosecutors
    Association.
        And our final witness will be Marc Mauer, who is one of the
    country's leading experts on sentencing policy, race, and the
    criminal justice system. He has directed programs under
    criminal justice policy reforms for 30 years and is the author
    of some of the most widely cited reports and publications in
    the field, including ``Young Black Men and the Criminal Justice
    System'' and ``The America Behind Bars'' theories. ``Race to
    Incarcerate,'' Marc Mauer's groundbreaking book on how
    sentencing policies led to the explosive expansion of the U.S.
    prison population, was a semi-finalist for the Robert F.
    Kennedy Book Award in 1999.
        Each of the witnesses' written statements will be entered
    into the record in its entirety. I ask that the witnesses
    summarize your testimony in 5 minutes or less. And to help stay
    within that time, there is a lighting device on the table which
    will start green when 1 minute is left in your time. It will
    turn yellow and turn red when your time is expired.
        Mr. Krisberg?

      TESTIMONY OF BARRY KRISBERG, PRESIDENT, NATIONAL COUNCIL ON
                CRIME AND DELINQUENCY, JACKSONVILLE, FL

        Mr. Krisberg. Thank you very much, Chairman Scott and
    Chairman Conyers. I am very honored to be invited at this very
    important hearing.
        The stakes of this hearing are very high. I would say that
    the very legitimacy of the justice system is at stake. And the
    effectiveness of our law enforcement system is certainly at
    stake if we cannot make progress on this issue of enormous
    racial disparity in the system.
        We read in the media about a so-called no-snitching
    culture, and we have had some tragic examples of that recently.
    When I talk to young people, a lot of what is wrapped up in the
    no-snitching concept is fundamental distrust of the fairness of
    the justice system. As the kids say to me, ``Justice means just
    us,'' and these are not white kids.
        Jury nullification, certainly we have had examples of where
    racial antagonisms and concerns have led juries to otherwise
    acquit people who look awfully guilty.
        And, more generally, the effectiveness of the system. Who
    comes forward? Who reports crimes? Who supports law enforcement
    in communities? These are all the issues at stake. So this is
    not a problem for minorities. This is a problem for our whole
    society.
        Now, I have included--and I will not go through it now--a
    report called ``Created Equal: Racial and Ethnic Disparities in
    the US Criminal Justice System.'' We produced it in March of
    this year with funding from the Open Society Institute and the
    Impact Fund. And it contains pretty much a straightforward
    analysis of the latest available Federal data on race and
    ethnic disparity at every stage in the system, including not
    only the African-American/White distinctions, but also issues
    relating to Latino Americans and Native Americans that also
    have disparate rates.
        The bottom line of this report is that disparity exists at
    every stage of the system. Racial disparity in the prison
    system in the U.S. is so extreme, oftentimes what is held out
    is the enlightenment and very low levels of incarceration that
    we find in Western Europe. Well, the fact of the matter is, if
    we only calculated white rates of incarceration, we would look
    like the Netherlands. We would look like Western Europe.
        The entire contribution to the very high rate of
    incarceration of the U.S.--highest in the world--is because of
    the incarceration of people of color. So I think we need to
    understand that.
        Others here will talk about other parts of the system, but
    I want to quickly address the front end of the system. We are
    becoming increasingly aware of an increasing legitimacy being
    raised about claims of racial profiling by police and others.
    And although there were years of resistance, police leadership
    across this country is acknowledging that this is a problem and
    beginning to raise more issues about it.
        Recently, I have been involved in situations in a number of
    states where police are literally targeting recipients of HUD
    Section 8 funding, which has direct racial impact and I think
    ought to be very concerning to the Federal Government, if we
    are trying to encourage people to move out of the housing
    projects and then what happens is the police decide they need
    to target folks. I could say more about that later.
        I am concerned about the impact of a change from community
    policing to other forms of policing that may have made racial
    disparity worse. And I think it is pretty clear that we need to
    go back and rediscover the true meaning of community policing.
    And some of the best and most progressive leadership in law
    enforcement in this country is, I think, heading back there.
        I will just give you a couple of examples. Well, one
    example. In the city of San Jose, California, in which there
    were huge amounts of persons arrested for public intoxication--
    now, under California law, there is no standard definition of
    public intoxication, so just about anybody could be stopped for
    this--85 percent of the people stopped by the San Jose police
    were Latino. And when the local newspaper raised issues about
    this, this policy is now being changed.
        So it is an example of how police department, maybe even
    well meaning, engages in a policy--in New York City, we have
    certainly seen that a huge number of arrests have occurred for
    the crime of marijuana in public view. And all of the people
    arrested for marijuana in public view in New York City are
    African-American or Latino.
        There is also research indicating that bench warrants and
    probation violations are disproportionately impacting and used
    for people of color. And we also know that when we implement
    alternatives to jail, very often the system separates them out
    and these end up being sort of set-asides for white defendants.
        Overall, the research on this issue would indicate that
    better decision-making, objective decision-making, improved
    legal representation, which in this tough financial situation
    is hard to accomplish, and more options than the traditional
    formal and expensive criminal justice system would help to
    reduce this disparity.
        Finally, in terms of a specific recommendation, I have two
    specific recommendations for the Federal Government. I applaud
    Congressman Cohen's bill. I would go you one up. I would
    recommend that, just like the Federal Juvenile Justice Act, we
    amend the Byrne grant act to require that any state receiving
    Federal funds have to conduct the kind of analysis that your
    laws suggest, a disparity analysis and, if they find disparity,
    submit good-faith plans.
        We have done that since 1980 in the Juvenile Justice Act.
    It has worked quite well. I don't know of anybody who is
    complaining about it. And I think what it is produced on the
    juvenile side is enormous research, demonstration projects,
    conferences, a lot of improvement that we haven't yet seen on
    the adult side. So, again, I applaud Congressman Cohen's act,
    and I think we ought to think about this as an amendment to the
    Byrne act.
        Finally, I just want to end with what Congressman Scott has
    sometimes called the law of holes. This was taught to me by my
    father, which is, when you find yourself deep in a hole, stop
    digging, he would say. And I think that is the other thing I
    would suggest is, I would urge you to consider current
    legislation pending in front of the Senate and the House,
    particularly the legislation that involves gangs, and I would
    urge you to scrutinize that legislation to ensure that some
    versions of those laws might make racial disparity worse.
    Others might actually lessen the problem.
        And I would suggest that you look very carefully that we
    don't do anything to make the situation even worse than it is
    right now. Thank you very much.
        [The prepared statement of Mr. Krisberg follows:]
                      Prepared Statement of Barry Krisberg

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                                   __________

        Mr. Scott. Thank you, Mr. Krisberg.
        Mr. Reams?

      TESTIMONY OF THE HONORABLE JAMES M. REAMS, PRESIDENT-ELECT,
        NATIONAL DISTRICT ATTORNEYS ASSOCIATION, ALEXANDRIA, VA

        Mr. Reams. Thank you, Chairman Scott and Ranking Member
    Gohmert, for having me here.
        Is that on? Okay.
        Thank you, Chairman Scott and Ranking Member Gohmert, for
    having me here representing the National District Attorneys
    Association. We appreciate the opportunity to have some input
    here in Congress. We represent almost 39,000 district
    attorneys, state's attorneys, attorneys general, city and local
    prosecutors, and we are the ones that are responsible for
    prosecuting 97 percent, 98 percent of the crimes that occurs in
    this country. The small remaining percentage is done by U.S.
    attorneys' offices at the Federal level.
        The National District Attorneys Association has been in the
    forefront of trying to deal with these issues. We have concerns
    about the Justice Integrity Act that we are talking about here
    today.
        I think part of our real concern is the lack of
    understanding of the victimization that goes on in these
    minority communities, as Ranking Member Gohmert talked about.
    The chances of being victimized if you are a person of color in
    this country is dramatically worse than your chances if you are
    white. There is something wrong with that statistic.
        We need to be looking at that statistic. We need to be
    looking at those victims of color, because it has a huge impact
    on our entire system.
        As was indicated, I am the Rockingham County attorney. I
    prosecute for roughly 25 percent of the population of the State
    of New Hampshire. We have two major interstates that go through
    my county, which are both drug pipelines. We have New Hampshire
    Route 101, which connects those two drug pipelines, so about
    roughly 40 percent of the cases that I prosecute in my office
    are drug-related in some fashion.
        When our state troopers stop somebody on Interstate 95 or
    93 or 101 at 3 o'clock in the morning, they have no idea of the
    color of the person driving that vehicle. It is the conduct of
    the vehicle that drives the state police to pull that vehicle
    over. It is not any ethnic information about that person.
        When my young prosecutors look at cases to decide whether
    we are going to file felony charges against them, the color of
    the victim and the color of the defendant do not enter into
    that decision-making. Frankly, most of the time, we don't know
    the answer to either of those questions, nor are we greatly
    concerned about it at that time. We are trying to decide
    whether the police have put together a case sufficiently
    documented that we can go ahead with that case.
        I got a call a couple of years ago of--in the middle of the
    night, a woman that had her throat slit. We hoped that she was
    going to live, and I was asked that--would I approve the
    extradition of the defendant, regardless of what state he went
    into? I said absolutely, yes, we would.
        I had no idea the color of the victim or the color of the
    defendant. It was a decision that had to be made for the victim
    for justice in my community.
        As it turns out, I signed all the extradition papers,
    applications to go to the governor. He was caught in West
    Virginia, thanks to the state police in West Virginia, who
    brought him back to New Hampshire. We tried him. It was only
    long after he was back in New Hampshire that anybody in my
    office have any idea of the race of the defendant, because it
    is not noted in any of the paperwork in any way that would jump
    out at us, and it doesn't figure into what we do on a day-to-
    day basis. As it turned out, he was Black, the victim was
    white, which is unusual, because the victimization studies show
    that it is usually one race upon the other.
        Bureau of Justice statistics obviously have lots of
    documentation that we are all talking about here today, but the
    thing that I think should be shocking to the Committee is the
    way in which the minority community suffers victimization. We
    need to be looking at that and figure out a way to impact that.
        My suggestions to you are, instead of spending this $3
    million that is indicated here on studies, particularly at the
    Federal level, on what is going on in our criminal justice
    system, you could take that same money, fund the National
    Advocacy Center, which is currently at about 3 percent of what
    it is authorized, and allow us to train people more about these
    issues and let us have a real impact on what happens in the
    community.
        Or you could fund the John R. Justice Act, which is a way
    to hire and retain minority prosecutors. All the prosecutors
    are coming out of law school with over $100,000 worth of debt.
    My office has a very difficult time competing with large law
    firms to trying to attract minority prosecutors, and that is an
    issue that is across this country.
        If we are lucky enough in the criminal justice system to
    hire minority prosecutors, we have a very difficult time
    keeping them there, because of the difference in salaries
    between what the private firms can offer and what we offer.
    This act, the John R. Justice Act, would really have a huge
    impact on our ability to compete with those firms who have a
    huge impact on our offices.
        I see that I have run out of time. I am available to answer
    any questions that the panel might wish.
        [The prepared statement of Mr. Reams follows:]
               Prepared Statement of the Honorable James M. Reams

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                                   __________

        Mr. Scott. Thank you, Mr. Reams.
        Mr. McKenzie?

         TESTIMONY OF WAYNE S. McKENZIE, DIRECTOR, PROGRAM ON
              PROSECUTION AND RACIAL JUSTICE, NEW YORK, NY

        Mr. McKenzie. I would like to thank Chairman Scott and the
    Members of the Subcommittee for giving me the opportunity to
    appear before you this morning.
        As was recognized, I am the director of the Prosecution and
    Racial Justice Program at the Vera Institute of New York, an
    independent, nonpartisan, nonprofit organization that works to
    make justice systems fairer and more effective through research
    and innovation, or, as I am fond of saying, a think-and-do-
    tank. Prior to arriving at Vera, I was also a management-level
    prosecutor in the Kings County district attorney's office in
    Brooklyn, New York, for 15 years.
        The overwhelming majority of prosecutors are motivated by a
    desire to enforce the law in ways that will produce justice for
    everyone in the communities they serve. In determining how best
    to follow and enforce the law in seeking punishment for alleged
    violations, prosecutors are often guided by little more than a
    code of ethics and an internal moral compass. Yet, prosecutors
    are expected to exercise their discretion in a manner that is
    free from racial bias or stereotyping.
        Given the discretion available to prosecutors and in light
    of their relative independence, one must wonder whether a good-
    faith belief that prosecutors will act without bias is
    sufficient to ensure that African-Americans, Latinos, and other
    minorities who come into contact with the criminal justice
    system in numbers that are far disproportionate to their
    representation in society will be treated fairly.
        The question of whether or how prosecutors may contribute
    to this disproportion is one that all prosecutors should strive
    to answer and to remedy whenever and wherever it exists. Since
    the creation of PRJ in 2005, a number of high-profile cases in
    which race and prosecutorial discretion collided, such as those
    involving the Duke University lacrosse team and those six
    students in Jena, Louisiana, have focused additional attention
    on this issue.
        Additionally, bipartisan reform has been proposed in
    Congress to address disparities in Federal prosecutions. And we
    have been talking about the Justice Integrity Act. In
    partnering with district attorneys in three major metropolitan
    cities--Milwaukee, Wisconsin; Mecklenburg, North Carolina; and
    San Diego, California--PRJ is piloting an internal oversight
    procedure designed to help prosecutors identify evidence of
    disparate effects and respond appropriately to unwarranted
    disparities or biased decision-making.
        PRJ does this by helping prosecutors collect data at the
    key discretion points in case processing so they can use this
    information to drive management reform. The early results of
    our work have confirmed that, in the initial screening of drug
    cases, for example, significant racial disparity is, indeed,
    injected at the front door of the prosecutorial process. We
    have also observed disparate outcomes in terms of how these
    cases are treated once they enter that door.
        More importantly, we have observed managers examine and
    question data findings and the decisions made in their offices
    and then take positive steps to remedy identified disparities.
    District Attorneys John Chisholm, Peter Gilchrist, and Bonnie
    Dumanis have made a commitment to sustaining the public's
    confidence. They have done so by assuming a leadership role in
    the investigation and ensuring that neither race nor ethnicity
    are intentionally or unintentionally producing unfair outcomes
    or inappropriate racial disparities.
        Our experience has shown, moreover, that even when a
    disparity is not racially motivated, PRJ's approach to internal
    oversight can enhance public confidence in the fairness of the
    prosecutorial function. It can therefore serve as an important
    model for prosecutors everywhere.
        Progressive prosecutors like Dumanis, Gilchrist and
    Chisholm, and many others, understand that as leaders in the
    criminal justice system, the perception of racial bias
    supported by disproportionate arrest and incarceration rates
    and the loss of confidence in the system requires that they
    take an active role in reducing racial disparities, while at
    the same time ensuring public safety. We need only to provide
    them with the tools to get the job done.
        Thank you.
        [The prepared statement of Mr. McKenzie follows:]
                    Prepared Statement of Wayne S. McKenzie

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                                  ATTACHMENT 1

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                                  ATTACHMENT 2

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                                   __________

        Mr. Scott. Thank you.
        Mr. Mauer?

             TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR,
                 THE SENTENCING PROJECT, WASHINGTON, DC

        Mr. Mauer. Thank you, Chairman Scott.
        We are here today to discuss racial disparities, I believe,
    for two reasons. One, because our justice system needs to be
    fair and perceived as fair. And, secondly, because I think we
    can't have public safety unless we have racial justice, and we
    want to keep that in mind.
        I want to just summarize what I think are four key areas to
    look at in assessing where racial disparities in the justice
    system come from. The first is a question of, to what extent
    does disproportionate involvement in crime produce racial
    disparities in incarceration?
        There has been a series of studies by leading
    criminologists--Alfred Blumstein, Michael Tonry--over some
    number of years, looking at this question. Originally, the
    first study of the 1979 Prison Population concluded that 80
    percent of the disparity in incarceration of African-Americans
    could be explained by greater involvement in crime. The most
    recent study, looking at the 2004 prison population found that
    the figure had declined to 61 percent.
        So nearly 40 percent, they find, could not be explained by
    differential involvement in crime. They attribute much of the
    difference, the unexplained variation, to policies related to
    the war on drugs and other social policies.
        The second area has to do with disparities in criminal
    justice processing. When we look at the area of law
    enforcement, it is certainly the case that many agencies are
    taking the issue of racial profiling very seriously. We would
    never say that all law enforcement officers or agencies engage
    in racial profiling, and yet it still remains the case to a
    troubling extent.
        Just this week, 20 police officers in Dallas, Texas, were
    cited for having given tickets for ``not speaking English'' to
    Latino motorists in the city of Dallas. The other major
    disparity, as we have discussed in criminal justice processing,
    is the impact of the war on drugs, and we see this coming about
    through two overlapping trends. First, the vast expansion of
    the drug war. We go from a point of having 40,000 people in
    prison or jail for a drug offense in 1980. Today, that figure
    is 500,000. And as that expansion has taken place, the vast
    majority of the resources going to prosecute the war on drugs
    have taken place in communities of color, to the point where
    two-thirds of the people incarcerated for drug offense are
    African-American or Latino, far out of proportion to the degree
    that those groups use or sell drugs.
        The third area that relates to disparity has to do with the
    overlap between issues of race and class in the justice system.
    And I think the key issue here is the quality of defense
    counsel.
        There are many very fine public defenders and assigned
    counsel around the country doing a very high-quality job for
    their clients. Unfortunately, there are far too many
    jurisdictions in which the quality of defense counsel in
    indigent cases is far from adequate, far from giving their
    clients a reasonable defense. This has been well documented by
    the American Bar Association and many other organizations, and
    it doesn't provide a fair system of justice. We also see
    differential outcomes in access to treatment programs and
    alternatives to incarceration that may be influenced by access
    to resources.
        A fourth area that contributes to the disparities we see
    has to do with the impact of what we view otherwise as race-
    neutral policies, sentencing policies in particular. We have
    had much discussion about the effects of Federal crack cocaine
    policies.
        We also see differential outcomes in the so-called school
    zone drug law policies that penalize drug offenses near a
    school zone, whether or not they take place during school hours
    or involve schoolchildren. Because they penalize laws in urban
    areas more harshly than suburban or rural areas, African-
    Americans and Latinos who commit a drug offense similar to one
    that may be committed by a white in the suburban or rural area
    are punished more severely. A recent study in the State of New
    Jersey found that 96 percent of the people sentenced under a
    school zone drug law were Black or Latino.
        In terms of what we can do to address some of these issues,
    four quick recommendations for consideration here. First, I
    think we should look at the example in some states that have
    begun to adopt racial impact statements for sentencing
    legislation. Just as we now routinely do fiscal impact
    statements for social policy, the states of Iowa and
    Connecticut last year adopted legislation that policymakers
    should have available information about the racial impact of
    proposed sentencing laws. It would not require that they vote
    against the law if there was undue racial impact, but it is
    information to consider as they look at the proposed effect of
    the law.
        The second area, as Representative Cohen said is the
    Justice Integrity Act. And let me just note here: There is
    nothing about the act or the process described that would not
    permit and, indeed, would require and encourage a full
    consideration of involvement in criminal activity that might
    explain disparities.
        I think the thrust of the legislation is to look at
    unwarranted disparities that are not caused by involvement in
    criminal behavior. Those are the issues that we need to
    surface.
        The third area to reconsider are drug policies. We can have
    better outcomes in substance abuse, better outcomes in how we
    use incarceration, and also reduce racial disparity if we shift
    the emphasis on drug policy toward prevention and treatment and
    away from harsh punishment.
        And, finally, I think we just need to level the playing
    field. The problem is not that we don't incarcerate enough
    white offenders in this country. The problem is we need equal
    access to justice, and we should have high-quality legal
    representation, we should have a broad array of sentencing
    options available to judges. If we can level the playing field,
    I think we would get better outcomes for all.
        Thank you.
        [The prepared statement of Mr. Mauer follows:]
                        Prepared Statement of Marc Mauer

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                                   __________

        Mr. Scott. Thank you.
        And I want to thank all of our witnesses.
        We will now take questions from the panel under the 5-
    minute rule. And I recognize myself to begin.
        Mr. Reams, in your printed testimony, you made reference to
    the Webb study, the legislation creating a study of the
    criminal justice system, but didn't indicate whether you
    necessarily supported it. It sounds like in your testimony that
    you would support to a study, as Senator Webb has suggested, so
    long as it is comprehensive and not just focused on one aspect
    or another of the criminal justice system. Is that right?
        Mr. Reams. Well, I don't think there is a real simple
    answer to that in some ways. The bill, as I understand it, is
    in flux. It is a little hard to commit to it in advance.
    Certainly, the findings that have been circulated by Senator
    Webb suggest to be that the outcome is predetermined, and that
    is probably one of the problems with this act, as well.
        It assumes that the system is somehow being driven by race.
    I don't think that is accurate, and so I am not prepared--I
    don't think the District Attorneys Association are yet prepared
    to take a position on that particular piece of legislation.
        Mr. Scott. Okay. You indicated that, in New Hampshire, race
    makes no difference to police stops.
        Mr. Reams. That is correct.
        Mr. Scott. Are you aware of the Maryland study that was
    ordered by a court that, on police stops and subsequent
    searches, it showed not only a disparity in stops, but a
    significant disparity in who got searched?
        Mr. Reams. I am aware of the Maryland studies. The most
    significant study I have seen is the one that was whether the
    death penalty is, you know, imposed on people of race more than
    whites. Down in Georgia, the court looked at that and did an
    extremely long opinion, the district court, about that and
    found that it wasn't race-based. That is one of the best
    summaries I have seen of the issue.
        Mr. Scott. That the race of the victim was not a factor?
        Mr. Reams. No, it was not. In most cases, the race of--I
    should back up. The race of the victim and the race of the
    defendant are usually the same. Cross-racial crime is the
    exception to the rule.
        Mr. Scott. Mr. Mauer, have you seen studies that show that
    the race of the victim is a significant factor in who gets the
    death penalty and who doesn't?
        Mr. Mauer. Well, I think there is a series of studies by
    David Baldus and others on the death penalty that shows that,
    in cases--the case that came before the Supreme Court,
    McCleskey from Georgia 20-odd years ago or so, showed that
    persons who killed a white person had a far greater chance of
    receiving the death penalty than persons who killed a Black
    person.
        And I am not an attorney, but my understanding of the
    Supreme Court ruling there was that Mr. McCleskey could not
    demonstrate direct racial bias on the part of anyone in the
    court process, which is a rather high threshold to----
        Mr. Scott. And the discrimination would have to be shown in
    his particular case?
        Mr. Mauer. Exactly.
        Mr. Scott. The fact that there is general discrimination
    was not relevant?
        Mr. Mauer. And the court did not dispute the findings of
    the research, broadly speaking.
        Mr. Scott. Mr. Krisberg, you indicated that you didn't want
    to make the situation worse and referred to pending gang
    legislation. Can you make a brief comment on what kinds of
    provisions would be counterproductive and which would be
    helpful in the racial disparity?
        Mr. Krisberg. Sure. There are a couple of bills going
    forward which purport to enhance punishment for people who are
    gang involved one way or the other. If you look at the existing
    enforcement of current statutes, they are, to my knowledge,
    exclusively applied to minority defendants in the Federal
    system. So a further expansion of that definition would make
    the situation worse.
        Also, any Federal expansions that would push forward gang
    injunctions beyond current local laws, I think, would create
    additional problems. A gang injunction defines as illegal
    simply the state of being in an area if someone defines you as
    a gang member.
        By the way, I have just seen legislation--I guess the
    Congress passed a bill as an amendment to the defense
    appropriation act which bars some gang members from
    participation in the military.
        I think the key issue here is, there are no objective
    standards for this. Getting labeled a gang member, getting into
    a gang, intelligence computer system is not subject to due
    process or equal protection of law. And once you are in it,
    there doesn't appear to be any way to get out of it.
        So if I get labeled a gang member and then it turns out I
    can convince people that I am really not one, there is really
    no mechanism to have these records purged.
        So those examples, gang injunctions, the use of alleged
    gang membership as opposed to proven gang membership, and
    increased penalties have almost always impacted young people of
    color.
        I can tell you, for example, that in California, where we
    enacted via ballot measure very tough penalties in terms of
    gang members, the enforcement of those tough penalties in terms
    of prosecuting juveniles as adults and so on has been
    exclusively used on minority defendants.
        Mr. Scott. Thank you. And I have other questions that we
    will go to in a second round.
        Mr. Gohmert?
        Mr. Gohmert. Thank you.
        Mr. Krisberg, are you proposing for, with regard to gang
    membership in the military, a ``don't ask/don't tell''-type
    policy? Is that what you are suggesting?
        Mr. Krisberg. No, what I am suggesting is that we follow
    the dictates of the Constitution of the United States and
    require due process of law when people are denied access to----
        Mr. Gohmert. But with regard to----
        Mr. Krisberg [continuing]. Federal benefits.
        Mr. Gohmert. With regard to the studies that have been done
    and the figures that we already have, you know, there are some
    problems, as you have pointed out. The NCCD had a report that
    indicated that African-Americans make up 13 percent of the
    general U.S. population, yet they constitute 28 percent of all
    arrests. That causes me tremendous concern. That seems so
    disproportionate to the representation within the general
    population, but then constitute 40 percent of inmates held in
    prison.
        But I haven't heard anybody talking about studies that
    indicate, could there be a disproportionate number of African-
    Americans arrested possibly partly because there are a
    disproportionate number of African-Americans that have
    committed the crimes? I mean, is anybody open to that
    possibility?
        Mr. Krisberg. Absolutely. And, again, what I would really
    urge is to pay attention to what we have accomplished by
    amending the Federal Juvenile Justice Act.
        Mr. Gohmert. Well, and you addressed that in your
    statement.
        Mr. Krisberg. Research on that----
        Mr. Gohmert. Right.
        Mr. Krisberg. I think the issue is----
        Mr. Gohmert. And you mentioned that in your statement. My
    time is so limited, let me just get to what my concern is.
        When you see that a non-white person is four times more
    likely to be a victim of rape or sexual assault than a white
    person, that a non-white person is three times as likely to be
    the victim of a robbery as a white person, you would have to be
    saying that those non-white people are unfairly accusing non-
    white people when you get down to the crux of those statistics.
        And my first job--you look confused. Let me tell you, my
    first job out of law school was as a prosecutor. And in a small
    town in east Texas, which I love very dearly, I was shocked
    when working for a D.A. who didn't care what race the victim
    was. If they were a victim, then we were going to prosecute the
    case.
        And I was shocked to find out in my home town people would
    ask, ``Why are you prosecuting these cases?'' When I would go
    out to get witnesses, ``This is Black on Black. They just have
    more violence. Why do you want to do that?'' And the response I
    gave was, ``Because they deserve to have the protection of the
    law like everyone else.''
        So my concern is, number one, when you have 28 percent of
    the rest being African-American and 40 percent of the inmates
    held in prisons are African-Americans, that indicates there may
    be a problem there within the justice system that needs to be
    addressed, but the difference between 13 percent and 28 percent
    of the arrests tells me there is likely a fundamental problem
    underlying that.
        What is causing more minorities to be victims and point to
    minorities as being the perpetrators? Possibly because they are
    the perpetrators. Then a concern I have is, if we push through
    some agenda that says you cannot arrest a disproportionate
    number of minorities, then we are back to fighting the battle I
    did when I came out of law school, saying a victim has a right
    to be protected with the full power of the law, no matter what
    their race is.
        And we would be saying, well, yes, you are a minority, and
    you are accusing a minority of attacking you, and we are
    arresting too many minorities, so we are going to have to let
    your attacker go.
        Mr. Scott. Would the gentleman yield?
        Mr. Gohmert. That is a concern I have, if we don't approach
    this the right way.
        I certainly would.
        Mr. Scott. I think, in Mr. Mauer's former testimony, he
    suggested that 60 percent of the disparity could, in fact, be
    attributable to crime rates. And could we have him expand on
    that to see----
        Mr. Gohmert. I would certainly invite that.
        Mr. Mauer. And let me just echo your concerns. Yes, this is
    not just a criminal justice problem we are talking about. This
    is a societal problem. You know, I would strongly encourage the
    Congress and state policymakers to address why some people are
    more likely to engage in criminal behavior. That is a
    critically important issue.
        At the same time, it seems to me the criminal justice
    system should not exacerbate any existing disparities. If there
    are processing issues that are based on involvement in crime,
    that is the job of practitioners in the system, but it is also
    the job of the practitioners and policymakers to make sure that
    people are treated fairly, regardless of the rate at which they
    come in the system. And I think that is what we are trying to
    address today.
        Mr. Gohmert. And I am pretty sure that we certainly agree
    on that. And I do appreciate the indulgence.
        Thank you, Chair.
        Mr. Scott. Mr. Chairman?
        Mr. Conyers. This is a fundamental discussion here. And I
    am impressed by the attempt of Judge Gohmert to be fair, in
    terms of analyzing questions of race. And how we get to when is
    it unfair or not is very fundamental.
        Now, I don't think anybody--I have never heard of anybody
    not wanting to protect people who suffered from violence or
    crime. That is one consideration.
        The other, Judge Gohmert, is that one explanation about
    these staggering figures that astounded you as a young man
    coming into the criminal justice system and astounds you now is
    that racism is a question that figures into all of this.
        Now, I would be very much more relieved if you tell me that
    a certain explanation, a certain amount of the explanation for
    these figures that shocked you as a young lawyer is due to
    racism.
        Remember, when I started my soliloquy earlier today, I said
    that we are studying about a question that is historical in
    nature. I mean, this isn't some new phenomenon. From the
    beginning of this country, those brought unwillingly to America
    from Africa had a different status. They were brought here in
    bondage.
        And this isn't a movie or a novel. This is what happened.
    They were brought here as indentured servants, but worse. They
    were brought here as slaves. This goes back to 1619, before the
    country was even formed.
        So put that into your intellectual processes and remember
    that out of that came an attitude about people that didn't come
    from Europe, that didn't come from England, were in a different
    category. They had no rights.
        And it wasn't just a view of some people. It was embedded
    into the law. Think about this with me. Many of the founders of
    our great country were slaveholders. When they wrote about the
    freedom and the importance of liberty, they were talking about
    their fellow white Americans. They weren't talking about the
    people that were held in chains and were producing some of the
    great things in this country. The agricultural system couldn't
    have existed. That is why the South had to go to the extent of
    breaking away from the union, because there was no way that
    their whole system could exist without somebody donating their
    labor and ultimately their life to sustain their economic
    circumstance.
        Then, to make it more complicated, the laws kicked in. What
    were the laws, Mauer? The law said, if you are a person of
    color, you have no rights. The courts kicked in. The courts
    said that you not only had no rights economically or socially,
    but you had no rights legally that anybody was bound to
    recognize or give cognizance to.
        So this was--we are talking about something deep. And there
    came a time in our great country when they said that, rather
    than even discuss this subject, we would be better off
    separating. Let's form two countries. All you folks that don't
    want to continue slavery on which this country was built, form
    another country.
        And up until World War II, that had cost more lives--that
    war took more lives and left more people, families, at one
    another. There were violent states of opinion.
        And then we went through this period of reconstruction
    after the war was won. And by the way, it was barely won. I
    mean, this wasn't any--like we went out and just the won the
    war and settled it. It was barely won. It took Lincoln every
    bit of his resources for us to emerge victorious.
        And so then the first people of color ever elected to serve
    in government came about during reconstruction, and they came
    out of the South, because that is where most people formally
    held in subjugation came from. And then you had the
    reconstruction. This is all legal now. Remember, no rights.
    Supreme Court, nobody has any responsibility to give any rights
    to anybody of color.
        And then after reconstruction, you had this great electoral
    contest in 1877. What happened then? Hayes and Tilden,
    deadlocked. There were so many irregularities on both sides
    that nobody could figure out who really won the election. They
    met in a hotel here in Washington. I think it was at Ninth and
    Eighth Street. I wasn't there, by the way. [Laughter.]
        But it was--the hotel has been removed for many
    generations. But they met in this hotel, and finally somebody
    said, if you will remove the troops from the South, we will
    give you the presidency. That is what one political party said
    to the other. That was as simple as that. Get the troops out of
    the South.
        And finally, the one party conceded and said, okay, we will
    do it. What happened then? Well, that was the end of
    reconstruction. They drove physically--anybody in elected
    office of color as driven out of the Senate, the Congress, any
    powerful positions that they may have accrued at the state or
    Federal level. And that was the end of it.
        The Klan emerged and the organizations that perpetuated
    violence. You have read about the fact that lynchings occurred
    with such frequency that they were family occasions. People
    would take their family to observe a lynching. It was an event.
    Little kids, they had pictures back then or paintings of people
    watching someone being lynched.
        And they went through this terrible period in American
    history where there weren't--now, all this is building up
    generation after generation. Understand why this is such a big
    problem now. It is much better understood and it has been
    corrected, but nowadays, what have we come through?
        I can remember--I mean, I wasn't here then, and I can't
    remember it, but I know in history when the first African-
    American came back to the Congress. Who was the first African-
    American? Who? The priest, yes, Chicago, right. One person
    was--was it 1919 or something like that? One person came in.
    And then, a little later on, you got Mitchell from Chicago and
    Adam Powell from New York. And then, finally, you got a few
    more started coming in.
        But this is an important part of our history that we have
    got to understand in speaking to the problem here of, why is
    there such a discrepancy? It is because color was a factor,
    regrettably, and that is what we have been looking at and
    examining and not always arriving at the same conclusion, but
    most people realize.
        And I do remember this, when Clarence Mitchell, as the head
    of the NAACP, used to have an anti-lynch law that he brought to
    make it a crime to lynch Black people. And I know who in the
    Senate would pocket it every time. His name was Lyndon Johnson.
    He was the leader of the Senate, and he said, ``No way.'' Year
    after year after year, they came there and made that plea.
        And so when you say, ``Why is there a disparity?'' There
    has always been a disparity. What we have been doing is
    examining the disparity, and it has been less. The disparity is
    less.
        We just signed a hate crimes bill last night at 4:30 one
    mile from here, on 1600 Pennsylvania Avenue, hate crimes. And
    so when we come here talking about why are more Blacks in
    prison, it is because the system is set up that way. Mauer and
    Krisberg and McKenzie and other organizations have been--their
    organizations have spent--that is all they have been doing.
        A kid was just executed, what was it, 2 days ago in Texas,
    a person of color, no direct evidence. His life was taken. They
    went up to the Supreme Court of the United States, and Scalia
    said, no, we don't care. The state has decided this. The state
    is not for it. And we are not giving him an appeal, and they
    executed him 2 hours after Scalia made that decision.
        So here we are today, still figuring this out. We have got
    a former attorney general from the State of California.
    Goodness knows what he has been through in his career, and a
    trial lawyer, as well. And what has Marc Mauer been doing all
    of his life? Charles Sullivan, CURE, he has been coming to
    these hearings as long as I can remember, almost.
        And I would like to, just in closing, have enough time to
    ask, with your indulgence, sir, that Marc Mauer have just a
    word about the historical relationship of the issue before this
    great Subcommittee.
        Mr. Mauer. Well, Congressman, I couldn't do anything nearly
    as eloquent as you do, so let me just say, briefly, you know,
    it strikes me, as I say in the opening of my written testimony,
    we are at a point today where, according to research from the
    Justice Department, one of every three Black males born today
    can expect to go to prison in his lifetime. One of every six
    Hispanic males can expect to go to prison in his lifetime, if
    current trends continue.
        It seems to me, regardless of whatever differences we may
    have and how we view the causes of that problem, that is a
    disgraceful situation that we are in. Some people may blame
    this on family functioning. Some people may think it is a
    racist criminal justice system. It seems to me we have an
    obligation to make sure that, in fact, does not become the
    future for children born today.
        Mr. Conyers. And all of it isn't intentional. After a
    system gets used to doing things these ways--what do you think
    driving while Black was all about? There were places that--in
    Detroit--I am born and raised in Detroit. We had a city that
    incidentally I now represent, in the suburb, that if you were
    in that city driving through it, you would expect to be stopped
    by the police. It was Ford Motor Company that hired a lot of
    people that came from the South to Detroit to work.
        And it got so that the people going to work, Dan, knew the
    police officer that pulled them over, and they would greet each
    other. You are just checking, because you did not come into
    that city unless you were going to work and going back out. You
    could come to work. You would go back.
        But if you got stopped by the police so frequently that the
    policemen know you and you knew the officer that was
    apprehending you, that was just the way it was then. That is
    not in the South. That wasn't Texas or Mississippi. That was a
    Detroit suburb of Michigan.
        And I would like Barry Krisberg to give me just one little
    thought that is going through his head now, as this discussion
    ends.
        Mr. Krisberg. Well, I would like to focus in on one
    statistic----
        Mr. Conyers. Push your button.
        Mr. Krisberg [continuing]. In this report--oh, I am sorry.
    I want to focus on one statistic in this report, which is that
    75 percent of all the persons under age 18 that we put in adult
    prison in this country are African-American males. That
    statistic breaks my heart, and I think it should break all our
    hearts.
        Mr. Conyers. What does that mean, when you say that, 75
    percent of the youngsters?
        Mr. Krisberg. Yes, of persons under age 18 who are sent to
    adult prisons are African-American males. And when we think
    about the consequences of adult incarceration for children and
    everything we know about that, that this would so
    overwhelmingly fall on one group in the population, it should
    give us great pause.
        And my mentor in the field a long time ago said, you know,
    that the fundamental principle was, if this was your kid, if
    this was your grandchild, what would you want? And I think when
    we look at these practices of very young children, you know, in
    Florida, 6-year-olds being arrested by the police and what have
    you, we can't imagine that these behaviors would go on if those
    young children were white kids.
        Mr. Conyers. But what does that prison sentence do? You
    know, there is nothing more criminalizing in our society than
    being in prison. I mean, when you go to--you can go to prison,
    and when you come out, you have been criminalized. You want
    revenge. You have been there with people that are bad. And that
    changes and starts a new life going down for you.
        Mr. Scott. If we are going to try to get in the other
    questioners before we have to go to vote, so the----
        Mr. Conyers. Thank you very much, Mr. Chairman.
        Mr. Scott. Have you got a--did you ask a question? Have we
    got a quick answer to it?
        Mr. Conyers. No, I am okay. Thanks.
        Mr. Scott. Thank you.
        We will go to the gentleman from California, Mr. Lungren.
        Mr. Lungren. Thank you very much, Mr. Chairman. And I
    appreciate your reflections on both your personal experience
    and historical experience of the United States.
        I would just like to mention in the record, I believe the
    first African-American Member of Congress was a Republican from
    South Carolina, Joseph Rainey. I hope that we don't forget
    that.
        And yesterday, we had the opportunity to honor Senator
    Brooke from Massachusetts, the first African-American senator
    since reconstruction, who was a Republican and someone that I
    worked with on a national committee.
        I am--I don't know--somewhat troubled by some of the
    testimony here today. When I was attorney general of
    California, we had the responsibility of handling all criminal
    appeals from the time the conviction came in, as long as it was
    a felony, and I can just tell you, if I had any evidence
    whatsoever of racial bias among any of my prosecutors, they
    would have been fired immediately, if not prosecuted.
        If we found that an office were operating in that way, we
    would have taken over the office, because I had the authority
    to do that. If we found that a case was infected by race, we
    felt duty bound to recognize that in our handling of the
    appeal.
        But one of the most emotional things that ever happened to
    me as attorney general was going to an inner-city school in Los
    Angeles and talking about a school safety program, which we
    were trying to promote, and when it was all over, having a
    young girl, African-American student at the high school, saying
    to me, ``Why is it that you folks don't show up until after
    someone has been killed?''
        Because a young man in her high school had been killed. And
    she wasn't looking at me as a white guy. She was looking at me
    as the attorney general of California and asking me why we
    weren't doing more to give security to her school.
        Mr. Mauer, you say that we have gone from 80 percent to 60
    percent now as a basis for why people are in prison by racial
    identification because of how it coincides with victimization.
    I mean, one of the things that bothers me about part of the
    discussion here is, for instance, we just had a major takedown
    of a major gang in Los Angeles. I believe there were a thousand
    officers involved in it. It was taking down--it happens to be a
    Mexican street gang in Los Angeles that is terrorizing a
    community.
        Every one of the people arrested, I believe, is a Mexican-
    American or Mexican national. And they are in the hundreds. And
    if you would then step back and look at it from a racial
    analysis, you are going to say, ``My god, they are
    overwhelmingly going after Mexican-American kids and young
    adults.'' But they are going after gangs.
        I just sometimes think, as we look at this--and I
    appreciate all the testimony we have had here--we do not give
    enough attention to the victimization rates. You now have law
    enforcement, starting with Bratton in New York and then coming
    to Los Angeles, and now other police departments, now use a
    computerized analysis on a daily basis to see where the
    hotspots are. I suppose, if you are talking about street crime,
    more of the hotspots take place in the inner cities and other
    places. That is unfortunate, but I think that is a fact.
        Are we saying that, because of the disproportionate impact
    of the people involved in the crimes there and, therefore, the
    arrests, if they are done on an objective basis, that somehow
    that is racial in nature? And so I just wonder what the
    implication is of some of the studies that you are suggesting
    we do and the analysis that we do.
        Would it be wrong for a police department to use that
    analysis as they do now, to try and go to the hotspots where
    the violent crime is taking place, number one? And, number two,
    violent crime visits minority victims far more than it does
    white victims. That happens to be an unfortunate fact in life.
        If I am a police chief, if I am a prosecutor, is it
    inappropriate for me to have an emphasis on dealing with
    violent crime over other crimes because in my judgment it has a
    more serious impact on the community that I serve? Or I will
    hear from a young girl at a high school saying, ``Why do you
    wait until someone is killed before you do it?'' And my
    response would be, ``Because I was focusing on white-collar
    crime instead of this.''
        I mean, I think there are judgments that are made that are
    not racial in intent, in motivation or anything else, except if
    you were saying you are responding to the legitimate concerns
    of a minority community. And that is one of the concerns I
    have.
        And, frankly, I will just say this. It is not a question;
    it is a statement. If we don't have the guts in this Congress
    to stand up to major unions who stop us from trying to answer
    to the people in the inner city who are crying out for better
    schools, and we don't give them options, like charter schools,
    and, frankly, we don't have the guts to say we will give you a
    voucher, you mother or father in the inner city, you don't have
    the income to be able to send your kid to a better school, we
    are going to give it to you, but if we don't have the guts to
    do that, frankly, I don't know how we can look those
    communities in the face and say, ``Yes, we are really concerned
    about the long-term interest of your communities. We are
    concerned about those people going to prison in
    disproportionate numbers.''
        When we are not concerned about them failing school in
    disproportionate numbers, going to lousy schools in
    disproportionate numbers, going to schools with violence in
    disproportionate numbers, how could I--I don't know how I could
    have learned going to school if I had to fear going into that
    classroom that somebody was going to have a knife or have a gun
    or I am going to walk out.
        Or in the city of Richmond this last weekend, a young girl
    gets raped for 2\1/2\ hours, a gang rape, and people sit there
    and do nothing. I know nothing of what the racial make-up of
    her attackers are, but, doggone it, that kind of thing that we
    are allowing to go on in our schools kills anybody. I don't
    care what race you are. And unless we get serious about that,
    we can do all the statistics we want, but we are not going to
    help that young child in the school.
        And I am sorry I get carried away on this----
        Mr. Conyers. Mr. Chairman----
        Mr. Lungren [continuing]. But I just hear these people
    talking to me personally about what they see. And I didn't
    think I was doing the wrong thing by saying, yes, we are going
    to send cops in there. Yes, we are going to prosecute those
    guys. And, yes, I am going to make sure they are put away.
        Mr. Scott. I don't mean to cut the gentleman off, but we
    are trying to get--as a courtesy to the gentleman from
    Tennessee, who also would like to ask questions before we have
    to adjourn, the gentleman from----
        Mr. Conyers. I just wanted to congratulate Dan Lungren for
    that exposition and think that these may be some matters that
    this Subcommittee that we are all on could begin to inquire in
    a way, Dan. Would you concur?
        Mr. Scott. And I would also point out that there are proven
    cost-effective alternatives to the disproportionate
    incarceration that not only reduce crime, but do some of the
    things that the gentleman from California suggested.
        The gentleman from Tennessee?
        Mr. Cohen. Thank you, Mr. Chairman.
        Mr. Mauer, in his testimony, mentioned that African-
    Americans constitute 14 percent of current drug users, but they
    constitute 34 percent of people arrested and 53 percent of
    people sentenced to prison for such drug offenses. There are
    other studies that are similar that I referred to in my
    testimony.
        Mr. Reams, you talked about victimization and Blacks being
    the victim of more crimes, African-Americans, et cetera. How
    about victimless crimes? Why is it that African-Americans and
    Hispanics are more likely to be arrested and incarcerated for
    victimless crimes? Why is that?
        Mr. Reams. Well, I could think it partially depends on what
    your definition of victim is.
        Mr. Cohen. Cannabis and crack and cocaine.
        Mr. Reams. Well, crack cocaine and the sale of drugs in the
    inner city wreaks havoc on those communities, so----
        Mr. Cohen. It doesn't wreak havoc on people elsewhere? Are
    we not protecting them from themselves so they--because they
    become dependent on these drugs?
        Mr. Reams. Well, I think what we are trying to accomplish--
    and I think more prosecution officers are trying to
    accomplish--is to protect the community. If that means
    arresting somebody who is selling crack cocaine----
        Mr. Cohen. Let me ask you this. How about cannabis? Are we
    protecting the Black community from people that are buying
    donuts?
        Mr. Reams. Well, I think we are. You know, if you talk to--
    I was in Arizona recently. And the drug task force and ICE put
    on a presentation in Arizona, and it is the importance of
    marijuana that pays for all other smuggling in that area,
    including the smuggling of human beings who are dragooned into
    bringing the drugs across. They think they are paying their way
    in the United States.
        Mr. Cohen. That is sale. That is not possession. We are
    talking about possession.
        Mr. Reams. Well, it is all related, you know, to the
    possession. You come into possession of it because you bought
    it from a dealer. The dealer is wreaking havoc on that
    community.
        Mr. Cohen. But whites possess it more than Blacks, but they
    don't get arrested more.
        Mr. Reams. I am not sure about that statistic, but we--you
    know, it is not a system where we go out and----
        Mr. Cohen. So, Mr. Reams, you are telling me that the
    reason we enforce these marijuana laws is because those are the
    way they make money to do other crimes?
        Mr. Reams. Well, that is part of it. And----
        Mr. Cohen. So why don't we decriminalize it? And then we
    will take the money away from them, and they can't do these
    other crimes, and then we will protect everybody.
        Mr. Reams. Well, you know, that is a judgment you will have
    to make. I mean, my obligation is to enforce the law that you
    write to protect the community as best I can. If you decide to
    decriminalize it, then that is a decision you make and we carry
    out.
        Mr. Cohen. But you make a decision on which crimes you
    prioritize in prosecuting, because you can't prosecute
    everything.
        Mr. Reams. Well, that is true.
        Mr. Cohen. That is right. And let me----
        Mr. Reams. We try to, obviously, prioritize the violent
    crimes in the community.
        Mr. Cohen. In your statement, you said that you were afraid
    that the Justice Act was predetermined what it was going to
    state. But in your statement, you say, ``State and local
    prosecutors are blind in matters of race, color, gender,
    nationality, and sexual orientation. They prosecute offenders
    under the rule of law only.''
        That is a pretty black-and-white statement. How do you know
    that every prosecutor, including those maybe in Selma, Alabama,
    or Americus, Georgia, are blind to sexual orientation, race,
    color, and gender?
        Mr. Reams. Well, I can tell you that that is their
    obligation to do that. Are there people in that system, any
    system in this country, that are racists? Probably,
    unfortunately, as Mr. Conyers pointed out----
        Mr. Cohen. In your statement, you agreed that the crack
    cocaine sentencing laws are wrong and they should be changed,
    but you also say, ``It is important to note that when the crack
    epidemic was at its peak, it was prominent Members of the
    Congressional Black Caucus, many of whom now are pushing for
    lighter punishments, who called for current sentencing
    guidelines.''
        What difference does it make who called for the changes in
    the laws? Isn't the only concern we have today to make the law
    right?
        Mr. Reams. Well, yes, that is your concern, to make the law
    right. But I think, you know, it is not lost on people that it
    is not static. You keep changing it. And, as Mr. Gohmert
    pointed out----
        Mr. Scott. You know, the 15 minutes is up.
        Mr. Cohen. Okay. Better go in. So I thank you for the time,
    and I thank you for the opportunity to question the gentleman.
        Mr. Scott. I apologize to the gentleman and would ask
    people to return quickly right after the votes for markup. And
    I would like to thank our witnesses for the testimony today.
    Members may have additional questions we will forward to you
    and ask that it may be answered as promptly as possible so that
    the answers can be made part of the record.
        I would ask unanimous consent that the report from the
    sentencing commission on crack and power disparity be made part
    of the record.
        The hearing record will remain open for 1 week for the
    submission of additional materials.
        And without objection, the Committee stands adjourned.
        [Whereupon, at 11:34 a.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

     Report entitled ``Created Equal: Racial and Ethnic Disparities in the
     US Criminal Justice System,'' submitted by Barry Krisberg, President,
          National Council on Crime and Delinquency, Jacksonville, FL

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     Report entitled ``Report to Congress: Cocaine and Federal Sentencing
       Policy,'' submitted by the Honorable Robert C. ``Bobby'' Scott, a
     Representative in Congress from the State of Virginia, and Chairman,
            Subcommittee on Crime, Terrorism, and Homeland Security

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]