[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
OCTOBER 29, 2009
----------
Serial No. 111-78
----------
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM
RACIAL DISPARITIES IN THE CRIMINAL
JUSTICE SYSTEM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 29, 2009
__________
Serial No. 111-78
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
54-093 PDF WASHINGTON : 2010
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Washington, DC 20402-0001
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
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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
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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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you, Mr. Reams.
Mr. McKenzie?
TESTIMONY OF WAYNE S. McKENZIE, DIRECTOR, PROGRAM ON
PROSECUTION AND RACIAL JUSTICE, NEW YORK, NY
Mr. McKenzie. I would like to thank Chairman Scott and the
Members of the Subcommittee for giving me the opportunity to
appear before you this morning.
As was recognized, I am the director of the Prosecution and
Racial Justice Program at the Vera Institute of New York, an
independent, nonpartisan, nonprofit organization that works to
make justice systems fairer and more effective through research
and innovation, or, as I am fond of saying, a think-and-do-
tank. Prior to arriving at Vera, I was also a management-level
prosecutor in the Kings County district attorney's office in
Brooklyn, New York, for 15 years.
The overwhelming majority of prosecutors are motivated by a
desire to enforce the law in ways that will produce justice for
everyone in the communities they serve. In determining how best
to follow and enforce the law in seeking punishment for alleged
violations, prosecutors are often guided by little more than a
code of ethics and an internal moral compass. Yet, prosecutors
are expected to exercise their discretion in a manner that is
free from racial bias or stereotyping.
Given the discretion available to prosecutors and in light
of their relative independence, one must wonder whether a good-
faith belief that prosecutors will act without bias is
sufficient to ensure that African-Americans, Latinos, and other
minorities who come into contact with the criminal justice
system in numbers that are far disproportionate to their
representation in society will be treated fairly.
The question of whether or how prosecutors may contribute
to this disproportion is one that all prosecutors should strive
to answer and to remedy whenever and wherever it exists. Since
the creation of PRJ in 2005, a number of high-profile cases in
which race and prosecutorial discretion collided, such as those
involving the Duke University lacrosse team and those six
students in Jena, Louisiana, have focused additional attention
on this issue.
Additionally, bipartisan reform has been proposed in
Congress to address disparities in Federal prosecutions. And we
have been talking about the Justice Integrity Act. In
partnering with district attorneys in three major metropolitan
cities--Milwaukee, Wisconsin; Mecklenburg, North Carolina; and
San Diego, California--PRJ is piloting an internal oversight
procedure designed to help prosecutors identify evidence of
disparate effects and respond appropriately to unwarranted
disparities or biased decision-making.
PRJ does this by helping prosecutors collect data at the
key discretion points in case processing so they can use this
information to drive management reform. The early results of
our work have confirmed that, in the initial screening of drug
cases, for example, significant racial disparity is, indeed,
injected at the front door of the prosecutorial process. We
have also observed disparate outcomes in terms of how these
cases are treated once they enter that door.
More importantly, we have observed managers examine and
question data findings and the decisions made in their offices
and then take positive steps to remedy identified disparities.
District Attorneys John Chisholm, Peter Gilchrist, and Bonnie
Dumanis have made a commitment to sustaining the public's
confidence. They have done so by assuming a leadership role in
the investigation and ensuring that neither race nor ethnicity
are intentionally or unintentionally producing unfair outcomes
or inappropriate racial disparities.
Our experience has shown, moreover, that even when a
disparity is not racially motivated, PRJ's approach to internal
oversight can enhance public confidence in the fairness of the
prosecutorial function. It can therefore serve as an important
model for prosecutors everywhere.
Progressive prosecutors like Dumanis, Gilchrist and
Chisholm, and many others, understand that as leaders in the
criminal justice system, the perception of racial bias
supported by disproportionate arrest and incarceration rates
and the loss of confidence in the system requires that they
take an active role in reducing racial disparities, while at
the same time ensuring public safety. We need only to provide
them with the tools to get the job done.
Thank you.
[The prepared statement of Mr. McKenzie follows:]
Prepared Statement of Wayne S. McKenzie
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ATTACHMENT 1
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ATTACHMENT 2
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Scott. Thank you.
And I want to thank all of our witnesses.
We will now take questions from the panel under the 5-
minute rule. And I recognize myself to begin.
Mr. Reams, in your printed testimony, you made reference to
the Webb study, the legislation creating a study of the
criminal justice system, but didn't indicate whether you
necessarily supported it. It sounds like in your testimony that
you would support to a study, as Senator Webb has suggested, so
long as it is comprehensive and not just focused on one aspect
or another of the criminal justice system. Is that right?
Mr. Reams. Well, I don't think there is a real simple
answer to that in some ways. The bill, as I understand it, is
in flux. It is a little hard to commit to it in advance.
Certainly, the findings that have been circulated by Senator
Webb suggest to be that the outcome is predetermined, and that
is probably one of the problems with this act, as well.
It assumes that the system is somehow being driven by race.
I don't think that is accurate, and so I am not prepared--I
don't think the District Attorneys Association are yet prepared
to take a position on that particular piece of legislation.
Mr. Scott. Okay. You indicated that, in New Hampshire, race
makes no difference to police stops.
Mr. Reams. That is correct.
Mr. Scott. Are you aware of the Maryland study that was
ordered by a court that, on police stops and subsequent
searches, it showed not only a disparity in stops, but a
significant disparity in who got searched?
Mr. Reams. I am aware of the Maryland studies. The most
significant study I have seen is the one that was whether the
death penalty is, you know, imposed on people of race more than
whites. Down in Georgia, the court looked at that and did an
extremely long opinion, the district court, about that and
found that it wasn't race-based. That is one of the best
summaries I have seen of the issue.
Mr. Scott. That the race of the victim was not a factor?
Mr. Reams. No, it was not. In most cases, the race of--I
should back up. The race of the victim and the race of the
defendant are usually the same. Cross-racial crime is the
exception to the rule.
Mr. Scott. Mr. Mauer, have you seen studies that show that
the race of the victim is a significant factor in who gets the
death penalty and who doesn't?
Mr. Mauer. Well, I think there is a series of studies by
David Baldus and others on the death penalty that shows that,
in cases--the case that came before the Supreme Court,
McCleskey from Georgia 20-odd years ago or so, showed that
persons who killed a white person had a far greater chance of
receiving the death penalty than persons who killed a Black
person.
And I am not an attorney, but my understanding of the
Supreme Court ruling there was that Mr. McCleskey could not
demonstrate direct racial bias on the part of anyone in the
court process, which is a rather high threshold to----
Mr. Scott. And the discrimination would have to be shown in
his particular case?
Mr. Mauer. Exactly.
Mr. Scott. The fact that there is general discrimination
was not relevant?
Mr. Mauer. And the court did not dispute the findings of
the research, broadly speaking.
Mr. Scott. Mr. Krisberg, you indicated that you didn't want
to make the situation worse and referred to pending gang
legislation. Can you make a brief comment on what kinds of
provisions would be counterproductive and which would be
helpful in the racial disparity?
Mr. Krisberg. Sure. There are a couple of bills going
forward which purport to enhance punishment for people who are
gang involved one way or the other. If you look at the existing
enforcement of current statutes, they are, to my knowledge,
exclusively applied to minority defendants in the Federal
system. So a further expansion of that definition would make
the situation worse.
Also, any Federal expansions that would push forward gang
injunctions beyond current local laws, I think, would create
additional problems. A gang injunction defines as illegal
simply the state of being in an area if someone defines you as
a gang member.
By the way, I have just seen legislation--I guess the
Congress passed a bill as an amendment to the defense
appropriation act which bars some gang members from
participation in the military.
I think the key issue here is, there are no objective
standards for this. Getting labeled a gang member, getting into
a gang, intelligence computer system is not subject to due
process or equal protection of law. And once you are in it,
there doesn't appear to be any way to get out of it.
So if I get labeled a gang member and then it turns out I
can convince people that I am really not one, there is really
no mechanism to have these records purged.
So those examples, gang injunctions, the use of alleged
gang membership as opposed to proven gang membership, and
increased penalties have almost always impacted young people of
color.
I can tell you, for example, that in California, where we
enacted via ballot measure very tough penalties in terms of
gang members, the enforcement of those tough penalties in terms
of prosecuting juveniles as adults and so on has been
exclusively used on minority defendants.
Mr. Scott. Thank you. And I have other questions that we
will go to in a second round.
Mr. Gohmert?
Mr. Gohmert. Thank you.
Mr. Krisberg, are you proposing for, with regard to gang
membership in the military, a ``don't ask/don't tell''-type
policy? Is that what you are suggesting?
Mr. Krisberg. No, what I am suggesting is that we follow
the dictates of the Constitution of the United States and
require due process of law when people are denied access to----
Mr. Gohmert. But with regard to----
Mr. Krisberg [continuing]. Federal benefits.
Mr. Gohmert. With regard to the studies that have been done
and the figures that we already have, you know, there are some
problems, as you have pointed out. The NCCD had a report that
indicated that African-Americans make up 13 percent of the
general U.S. population, yet they constitute 28 percent of all
arrests. That causes me tremendous concern. That seems so
disproportionate to the representation within the general
population, but then constitute 40 percent of inmates held in
prison.
But I haven't heard anybody talking about studies that
indicate, could there be a disproportionate number of African-
Americans arrested possibly partly because there are a
disproportionate number of African-Americans that have
committed the crimes? I mean, is anybody open to that
possibility?
Mr. Krisberg. Absolutely. And, again, what I would really
urge is to pay attention to what we have accomplished by
amending the Federal Juvenile Justice Act.
Mr. Gohmert. Well, and you addressed that in your
statement.
Mr. Krisberg. Research on that----
Mr. Gohmert. Right.
Mr. Krisberg. I think the issue is----
Mr. Gohmert. And you mentioned that in your statement. My
time is so limited, let me just get to what my concern is.
When you see that a non-white person is four times more
likely to be a victim of rape or sexual assault than a white
person, that a non-white person is three times as likely to be
the victim of a robbery as a white person, you would have to be
saying that those non-white people are unfairly accusing non-
white people when you get down to the crux of those statistics.
And my first job--you look confused. Let me tell you, my
first job out of law school was as a prosecutor. And in a small
town in east Texas, which I love very dearly, I was shocked
when working for a D.A. who didn't care what race the victim
was. If they were a victim, then we were going to prosecute the
case.
And I was shocked to find out in my home town people would
ask, ``Why are you prosecuting these cases?'' When I would go
out to get witnesses, ``This is Black on Black. They just have
more violence. Why do you want to do that?'' And the response I
gave was, ``Because they deserve to have the protection of the
law like everyone else.''
So my concern is, number one, when you have 28 percent of
the rest being African-American and 40 percent of the inmates
held in prisons are African-Americans, that indicates there may
be a problem there within the justice system that needs to be
addressed, but the difference between 13 percent and 28 percent
of the arrests tells me there is likely a fundamental problem
underlying that.
What is causing more minorities to be victims and point to
minorities as being the perpetrators? Possibly because they are
the perpetrators. Then a concern I have is, if we push through
some agenda that says you cannot arrest a disproportionate
number of minorities, then we are back to fighting the battle I
did when I came out of law school, saying a victim has a right
to be protected with the full power of the law, no matter what
their race is.
And we would be saying, well, yes, you are a minority, and
you are accusing a minority of attacking you, and we are
arresting too many minorities, so we are going to have to let
your attacker go.
Mr. Scott. Would the gentleman yield?
Mr. Gohmert. That is a concern I have, if we don't approach
this the right way.
I certainly would.
Mr. Scott. I think, in Mr. Mauer's former testimony, he
suggested that 60 percent of the disparity could, in fact, be
attributable to crime rates. And could we have him expand on
that to see----
Mr. Gohmert. I would certainly invite that.
Mr. Mauer. And let me just echo your concerns. Yes, this is
not just a criminal justice problem we are talking about. This
is a societal problem. You know, I would strongly encourage the
Congress and state policymakers to address why some people are
more likely to engage in criminal behavior. That is a
critically important issue.
At the same time, it seems to me the criminal justice
system should not exacerbate any existing disparities. If there
are processing issues that are based on involvement in crime,
that is the job of practitioners in the system, but it is also
the job of the practitioners and policymakers to make sure that
people are treated fairly, regardless of the rate at which they
come in the system. And I think that is what we are trying to
address today.
Mr. Gohmert. And I am pretty sure that we certainly agree
on that. And I do appreciate the indulgence.
Thank you, Chair.
Mr. Scott. Mr. Chairman?
Mr. Conyers. This is a fundamental discussion here. And I
am impressed by the attempt of Judge Gohmert to be fair, in
terms of analyzing questions of race. And how we get to when is
it unfair or not is very fundamental.
Now, I don't think anybody--I have never heard of anybody
not wanting to protect people who suffered from violence or
crime. That is one consideration.
The other, Judge Gohmert, is that one explanation about
these staggering figures that astounded you as a young man
coming into the criminal justice system and astounds you now is
that racism is a question that figures into all of this.
Now, I would be very much more relieved if you tell me that
a certain explanation, a certain amount of the explanation for
these figures that shocked you as a young lawyer is due to
racism.
Remember, when I started my soliloquy earlier today, I said
that we are studying about a question that is historical in
nature. I mean, this isn't some new phenomenon. From the
beginning of this country, those brought unwillingly to America
from Africa had a different status. They were brought here in
bondage.
And this isn't a movie or a novel. This is what happened.
They were brought here as indentured servants, but worse. They
were brought here as slaves. This goes back to 1619, before the
country was even formed.
So put that into your intellectual processes and remember
that out of that came an attitude about people that didn't come
from Europe, that didn't come from England, were in a different
category. They had no rights.
And it wasn't just a view of some people. It was embedded
into the law. Think about this with me. Many of the founders of
our great country were slaveholders. When they wrote about the
freedom and the importance of liberty, they were talking about
their fellow white Americans. They weren't talking about the
people that were held in chains and were producing some of the
great things in this country. The agricultural system couldn't
have existed. That is why the South had to go to the extent of
breaking away from the union, because there was no way that
their whole system could exist without somebody donating their
labor and ultimately their life to sustain their economic
circumstance.
Then, to make it more complicated, the laws kicked in. What
were the laws, Mauer? The law said, if you are a person of
color, you have no rights. The courts kicked in. The courts
said that you not only had no rights economically or socially,
but you had no rights legally that anybody was bound to
recognize or give cognizance to.
So this was--we are talking about something deep. And there
came a time in our great country when they said that, rather
than even discuss this subject, we would be better off
separating. Let's form two countries. All you folks that don't
want to continue slavery on which this country was built, form
another country.
And up until World War II, that had cost more lives--that
war took more lives and left more people, families, at one
another. There were violent states of opinion.
And then we went through this period of reconstruction
after the war was won. And by the way, it was barely won. I
mean, this wasn't any--like we went out and just the won the
war and settled it. It was barely won. It took Lincoln every
bit of his resources for us to emerge victorious.
And so then the first people of color ever elected to serve
in government came about during reconstruction, and they came
out of the South, because that is where most people formally
held in subjugation came from. And then you had the
reconstruction. This is all legal now. Remember, no rights.
Supreme Court, nobody has any responsibility to give any rights
to anybody of color.
And then after reconstruction, you had this great electoral
contest in 1877. What happened then? Hayes and Tilden,
deadlocked. There were so many irregularities on both sides
that nobody could figure out who really won the election. They
met in a hotel here in Washington. I think it was at Ninth and
Eighth Street. I wasn't there, by the way. [Laughter.]
But it was--the hotel has been removed for many
generations. But they met in this hotel, and finally somebody
said, if you will remove the troops from the South, we will
give you the presidency. That is what one political party said
to the other. That was as simple as that. Get the troops out of
the South.
And finally, the one party conceded and said, okay, we will
do it. What happened then? Well, that was the end of
reconstruction. They drove physically--anybody in elected
office of color as driven out of the Senate, the Congress, any
powerful positions that they may have accrued at the state or
Federal level. And that was the end of it.
The Klan emerged and the organizations that perpetuated
violence. You have read about the fact that lynchings occurred
with such frequency that they were family occasions. People
would take their family to observe a lynching. It was an event.
Little kids, they had pictures back then or paintings of people
watching someone being lynched.
And they went through this terrible period in American
history where there weren't--now, all this is building up
generation after generation. Understand why this is such a big
problem now. It is much better understood and it has been
corrected, but nowadays, what have we come through?
I can remember--I mean, I wasn't here then, and I can't
remember it, but I know in history when the first African-
American came back to the Congress. Who was the first African-
American? Who? The priest, yes, Chicago, right. One person
was--was it 1919 or something like that? One person came in.
And then, a little later on, you got Mitchell from Chicago and
Adam Powell from New York. And then, finally, you got a few
more started coming in.
But this is an important part of our history that we have
got to understand in speaking to the problem here of, why is
there such a discrepancy? It is because color was a factor,
regrettably, and that is what we have been looking at and
examining and not always arriving at the same conclusion, but
most people realize.
And I do remember this, when Clarence Mitchell, as the head
of the NAACP, used to have an anti-lynch law that he brought to
make it a crime to lynch Black people. And I know who in the
Senate would pocket it every time. His name was Lyndon Johnson.
He was the leader of the Senate, and he said, ``No way.'' Year
after year after year, they came there and made that plea.
And so when you say, ``Why is there a disparity?'' There
has always been a disparity. What we have been doing is
examining the disparity, and it has been less. The disparity is
less.
We just signed a hate crimes bill last night at 4:30 one
mile from here, on 1600 Pennsylvania Avenue, hate crimes. And
so when we come here talking about why are more Blacks in
prison, it is because the system is set up that way. Mauer and
Krisberg and McKenzie and other organizations have been--their
organizations have spent--that is all they have been doing.
A kid was just executed, what was it, 2 days ago in Texas,
a person of color, no direct evidence. His life was taken. They
went up to the Supreme Court of the United States, and Scalia
said, no, we don't care. The state has decided this. The state
is not for it. And we are not giving him an appeal, and they
executed him 2 hours after Scalia made that decision.
So here we are today, still figuring this out. We have got
a former attorney general from the State of California.
Goodness knows what he has been through in his career, and a
trial lawyer, as well. And what has Marc Mauer been doing all
of his life? Charles Sullivan, CURE, he has been coming to
these hearings as long as I can remember, almost.
And I would like to, just in closing, have enough time to
ask, with your indulgence, sir, that Marc Mauer have just a
word about the historical relationship of the issue before this
great Subcommittee.
Mr. Mauer. Well, Congressman, I couldn't do anything nearly
as eloquent as you do, so let me just say, briefly, you know,
it strikes me, as I say in the opening of my written testimony,
we are at a point today where, according to research from the
Justice Department, one of every three Black males born today
can expect to go to prison in his lifetime. One of every six
Hispanic males can expect to go to prison in his lifetime, if
current trends continue.
It seems to me, regardless of whatever differences we may
have and how we view the causes of that problem, that is a
disgraceful situation that we are in. Some people may blame
this on family functioning. Some people may think it is a
racist criminal justice system. It seems to me we have an
obligation to make sure that, in fact, does not become the
future for children born today.
Mr. Conyers. And all of it isn't intentional. After a
system gets used to doing things these ways--what do you think
driving while Black was all about? There were places that--in
Detroit--I am born and raised in Detroit. We had a city that
incidentally I now represent, in the suburb, that if you were
in that city driving through it, you would expect to be stopped
by the police. It was Ford Motor Company that hired a lot of
people that came from the South to Detroit to work.
And it got so that the people going to work, Dan, knew the
police officer that pulled them over, and they would greet each
other. You are just checking, because you did not come into
that city unless you were going to work and going back out. You
could come to work. You would go back.
But if you got stopped by the police so frequently that the
policemen know you and you knew the officer that was
apprehending you, that was just the way it was then. That is
not in the South. That wasn't Texas or Mississippi. That was a
Detroit suburb of Michigan.
And I would like Barry Krisberg to give me just one little
thought that is going through his head now, as this discussion
ends.
Mr. Krisberg. Well, I would like to focus in on one
statistic----
Mr. Conyers. Push your button.
Mr. Krisberg [continuing]. In this report--oh, I am sorry.
I want to focus on one statistic in this report, which is that
75 percent of all the persons under age 18 that we put in adult
prison in this country are African-American males. That
statistic breaks my heart, and I think it should break all our
hearts.
Mr. Conyers. What does that mean, when you say that, 75
percent of the youngsters?
Mr. Krisberg. Yes, of persons under age 18 who are sent to
adult prisons are African-American males. And when we think
about the consequences of adult incarceration for children and
everything we know about that, that this would so
overwhelmingly fall on one group in the population, it should
give us great pause.
And my mentor in the field a long time ago said, you know,
that the fundamental principle was, if this was your kid, if
this was your grandchild, what would you want? And I think when
we look at these practices of very young children, you know, in
Florida, 6-year-olds being arrested by the police and what have
you, we can't imagine that these behaviors would go on if those
young children were white kids.
Mr. Conyers. But what does that prison sentence do? You
know, there is nothing more criminalizing in our society than
being in prison. I mean, when you go to--you can go to prison,
and when you come out, you have been criminalized. You want
revenge. You have been there with people that are bad. And that
changes and starts a new life going down for you.
Mr. Scott. If we are going to try to get in the other
questioners before we have to go to vote, so the----
Mr. Conyers. Thank you very much, Mr. Chairman.
Mr. Scott. Have you got a--did you ask a question? Have we
got a quick answer to it?
Mr. Conyers. No, I am okay. Thanks.
Mr. Scott. Thank you.
We will go to the gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman. And I
appreciate your reflections on both your personal experience
and historical experience of the United States.
I would just like to mention in the record, I believe the
first African-American Member of Congress was a Republican from
South Carolina, Joseph Rainey. I hope that we don't forget
that.
And yesterday, we had the opportunity to honor Senator
Brooke from Massachusetts, the first African-American senator
since reconstruction, who was a Republican and someone that I
worked with on a national committee.
I am--I don't know--somewhat troubled by some of the
testimony here today. When I was attorney general of
California, we had the responsibility of handling all criminal
appeals from the time the conviction came in, as long as it was
a felony, and I can just tell you, if I had any evidence
whatsoever of racial bias among any of my prosecutors, they
would have been fired immediately, if not prosecuted.
If we found that an office were operating in that way, we
would have taken over the office, because I had the authority
to do that. If we found that a case was infected by race, we
felt duty bound to recognize that in our handling of the
appeal.
But one of the most emotional things that ever happened to
me as attorney general was going to an inner-city school in Los
Angeles and talking about a school safety program, which we
were trying to promote, and when it was all over, having a
young girl, African-American student at the high school, saying
to me, ``Why is it that you folks don't show up until after
someone has been killed?''
Because a young man in her high school had been killed. And
she wasn't looking at me as a white guy. She was looking at me
as the attorney general of California and asking me why we
weren't doing more to give security to her school.
Mr. Mauer, you say that we have gone from 80 percent to 60
percent now as a basis for why people are in prison by racial
identification because of how it coincides with victimization.
I mean, one of the things that bothers me about part of the
discussion here is, for instance, we just had a major takedown
of a major gang in Los Angeles. I believe there were a thousand
officers involved in it. It was taking down--it happens to be a
Mexican street gang in Los Angeles that is terrorizing a
community.
Every one of the people arrested, I believe, is a Mexican-
American or Mexican national. And they are in the hundreds. And
if you would then step back and look at it from a racial
analysis, you are going to say, ``My god, they are
overwhelmingly going after Mexican-American kids and young
adults.'' But they are going after gangs.
I just sometimes think, as we look at this--and I
appreciate all the testimony we have had here--we do not give
enough attention to the victimization rates. You now have law
enforcement, starting with Bratton in New York and then coming
to Los Angeles, and now other police departments, now use a
computerized analysis on a daily basis to see where the
hotspots are. I suppose, if you are talking about street crime,
more of the hotspots take place in the inner cities and other
places. That is unfortunate, but I think that is a fact.
Are we saying that, because of the disproportionate impact
of the people involved in the crimes there and, therefore, the
arrests, if they are done on an objective basis, that somehow
that is racial in nature? And so I just wonder what the
implication is of some of the studies that you are suggesting
we do and the analysis that we do.
Would it be wrong for a police department to use that
analysis as they do now, to try and go to the hotspots where
the violent crime is taking place, number one? And, number two,
violent crime visits minority victims far more than it does
white victims. That happens to be an unfortunate fact in life.
If I am a police chief, if I am a prosecutor, is it
inappropriate for me to have an emphasis on dealing with
violent crime over other crimes because in my judgment it has a
more serious impact on the community that I serve? Or I will
hear from a young girl at a high school saying, ``Why do you
wait until someone is killed before you do it?'' And my
response would be, ``Because I was focusing on white-collar
crime instead of this.''
I mean, I think there are judgments that are made that are
not racial in intent, in motivation or anything else, except if
you were saying you are responding to the legitimate concerns
of a minority community. And that is one of the concerns I
have.
And, frankly, I will just say this. It is not a question;
it is a statement. If we don't have the guts in this Congress
to stand up to major unions who stop us from trying to answer
to the people in the inner city who are crying out for better
schools, and we don't give them options, like charter schools,
and, frankly, we don't have the guts to say we will give you a
voucher, you mother or father in the inner city, you don't have
the income to be able to send your kid to a better school, we
are going to give it to you, but if we don't have the guts to
do that, frankly, I don't know how we can look those
communities in the face and say, ``Yes, we are really concerned
about the long-term interest of your communities. We are
concerned about those people going to prison in
disproportionate numbers.''
When we are not concerned about them failing school in
disproportionate numbers, going to lousy schools in
disproportionate numbers, going to schools with violence in
disproportionate numbers, how could I--I don't know how I could
have learned going to school if I had to fear going into that
classroom that somebody was going to have a knife or have a gun
or I am going to walk out.
Or in the city of Richmond this last weekend, a young girl
gets raped for 2\1/2\ hours, a gang rape, and people sit there
and do nothing. I know nothing of what the racial make-up of
her attackers are, but, doggone it, that kind of thing that we
are allowing to go on in our schools kills anybody. I don't
care what race you are. And unless we get serious about that,
we can do all the statistics we want, but we are not going to
help that young child in the school.
And I am sorry I get carried away on this----
Mr. Conyers. Mr. Chairman----
Mr. Lungren [continuing]. But I just hear these people
talking to me personally about what they see. And I didn't
think I was doing the wrong thing by saying, yes, we are going
to send cops in there. Yes, we are going to prosecute those
guys. And, yes, I am going to make sure they are put away.
Mr. Scott. I don't mean to cut the gentleman off, but we
are trying to get--as a courtesy to the gentleman from
Tennessee, who also would like to ask questions before we have
to adjourn, the gentleman from----
Mr. Conyers. I just wanted to congratulate Dan Lungren for
that exposition and think that these may be some matters that
this Subcommittee that we are all on could begin to inquire in
a way, Dan. Would you concur?
Mr. Scott. And I would also point out that there are proven
cost-effective alternatives to the disproportionate
incarceration that not only reduce crime, but do some of the
things that the gentleman from California suggested.
The gentleman from Tennessee?
Mr. Cohen. Thank you, Mr. Chairman.
Mr. Mauer, in his testimony, mentioned that African-
Americans constitute 14 percent of current drug users, but they
constitute 34 percent of people arrested and 53 percent of
people sentenced to prison for such drug offenses. There are
other studies that are similar that I referred to in my
testimony.
Mr. Reams, you talked about victimization and Blacks being
the victim of more crimes, African-Americans, et cetera. How
about victimless crimes? Why is it that African-Americans and
Hispanics are more likely to be arrested and incarcerated for
victimless crimes? Why is that?
Mr. Reams. Well, I could think it partially depends on what
your definition of victim is.
Mr. Cohen. Cannabis and crack and cocaine.
Mr. Reams. Well, crack cocaine and the sale of drugs in the
inner city wreaks havoc on those communities, so----
Mr. Cohen. It doesn't wreak havoc on people elsewhere? Are
we not protecting them from themselves so they--because they
become dependent on these drugs?
Mr. Reams. Well, I think what we are trying to accomplish--
and I think more prosecution officers are trying to
accomplish--is to protect the community. If that means
arresting somebody who is selling crack cocaine----
Mr. Cohen. Let me ask you this. How about cannabis? Are we
protecting the Black community from people that are buying
donuts?
Mr. Reams. Well, I think we are. You know, if you talk to--
I was in Arizona recently. And the drug task force and ICE put
on a presentation in Arizona, and it is the importance of
marijuana that pays for all other smuggling in that area,
including the smuggling of human beings who are dragooned into
bringing the drugs across. They think they are paying their way
in the United States.
Mr. Cohen. That is sale. That is not possession. We are
talking about possession.
Mr. Reams. Well, it is all related, you know, to the
possession. You come into possession of it because you bought
it from a dealer. The dealer is wreaking havoc on that
community.
Mr. Cohen. But whites possess it more than Blacks, but they
don't get arrested more.
Mr. Reams. I am not sure about that statistic, but we--you
know, it is not a system where we go out and----
Mr. Cohen. So, Mr. Reams, you are telling me that the
reason we enforce these marijuana laws is because those are the
way they make money to do other crimes?
Mr. Reams. Well, that is part of it. And----
Mr. Cohen. So why don't we decriminalize it? And then we
will take the money away from them, and they can't do these
other crimes, and then we will protect everybody.
Mr. Reams. Well, you know, that is a judgment you will have
to make. I mean, my obligation is to enforce the law that you
write to protect the community as best I can. If you decide to
decriminalize it, then that is a decision you make and we carry
out.
Mr. Cohen. But you make a decision on which crimes you
prioritize in prosecuting, because you can't prosecute
everything.
Mr. Reams. Well, that is true.
Mr. Cohen. That is right. And let me----
Mr. Reams. We try to, obviously, prioritize the violent
crimes in the community.
Mr. Cohen. In your statement, you said that you were afraid
that the Justice Act was predetermined what it was going to
state. But in your statement, you say, ``State and local
prosecutors are blind in matters of race, color, gender,
nationality, and sexual orientation. They prosecute offenders
under the rule of law only.''
That is a pretty black-and-white statement. How do you know
that every prosecutor, including those maybe in Selma, Alabama,
or Americus, Georgia, are blind to sexual orientation, race,
color, and gender?
Mr. Reams. Well, I can tell you that that is their
obligation to do that. Are there people in that system, any
system in this country, that are racists? Probably,
unfortunately, as Mr. Conyers pointed out----
Mr. Cohen. In your statement, you agreed that the crack
cocaine sentencing laws are wrong and they should be changed,
but you also say, ``It is important to note that when the crack
epidemic was at its peak, it was prominent Members of the
Congressional Black Caucus, many of whom now are pushing for
lighter punishments, who called for current sentencing
guidelines.''
What difference does it make who called for the changes in
the laws? Isn't the only concern we have today to make the law
right?
Mr. Reams. Well, yes, that is your concern, to make the law
right. But I think, you know, it is not lost on people that it
is not static. You keep changing it. And, as Mr. Gohmert
pointed out----
Mr. Scott. You know, the 15 minutes is up.
Mr. Cohen. Okay. Better go in. So I thank you for the time,
and I thank you for the opportunity to question the gentleman.
Mr. Scott. I apologize to the gentleman and would ask
people to return quickly right after the votes for markup. And
I would like to thank our witnesses for the testimony today.
Members may have additional questions we will forward to you
and ask that it may be answered as promptly as possible so that
the answers can be made part of the record.
I would ask unanimous consent that the report from the
sentencing commission on crack and power disparity be made part
of the record.
The hearing record will remain open for 1 week for the
submission of additional materials.
And without objection, the Committee stands adjourned.
[Whereupon, at 11:34 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Report entitled ``Created Equal: Racial and Ethnic Disparities in the
US Criminal Justice System,'' submitted by Barry Krisberg, President,
National Council on Crime and Delinquency, Jacksonville, FL
[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]