[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.govFOR 
                               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

                               ----------
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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 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

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               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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 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]

                                 
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