[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]





                               PENALTIES

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


                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2014

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 30, 2014

                               __________

                           Serial No. 113-113

                               __________

         Printed for the use of the Committee on the Judiciary


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

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho                JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

                Over-Criminalization Task Force of 2014

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

SPENCER BACHUS, Alabama              ROBERT C. ``BOBBY'' SCOTT, 
RAUUL LABRADOR, Idaho                Virginia
GEORGE HOLDING, North Carolina       JERROLD NADLER, New York
                                     STEVE COHEN, Tennessee
                                     KAREN BASS, California
                                     HAKEEM JEFFRIES, New York

                     Caroline Lynch, Chief Counsel
                     
                            C O N T E N T S

                              ----------                              

                              MAY 30, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Vice-Chairman, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law................     1

The Honorable George Holding, a Representative in Congress from 
  the State of North Carolina, and Member, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law................     1

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, Over-
  Criminalization Task Force of 2014.............................     4

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     6

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary    10

                               WITNESSES

William G. Otis, Adjunct Professor of Law, Georgetown University 
  Law Center
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13

Eric Evenson, National Association of Assistant United States 
  Attorneys
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29

Marc Levin, Esq., Policy Director, Right on Crime Initiative at 
  the Texas Public Policy Foundation
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37

Bryan Stevenson, Professor of Clinical Law, New York University 
  School of Law, Founder and Executive Director, Equal Justice 
  Initiative
  Oral Testimony.................................................    45
  Prepared Statement.............................................    47

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Over-Criminalization Task Force of 2014..............     3

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     8

Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2014........    93

Material submitted by the Honorable Spencer Bachus, a 
  Representative in Congress from the State of Alabama, and 
  Member, Over-Criminalization Task Force of 2014................   160

Additional Material submitted by the Honorable Spencer Bachus, a 
  Representative in Congress from the State of Alabama, and 
  Member, Over-Criminalization Task Force of 2014................   162

                                APPENDIX
               Material Submitted for the Hearing Record

Supplemental Material submitted by Eric Evenson, National 
  Association of Assistant United States Attorneys...............   168

Material submitted by William G. Otis, Adjunct Professor of Law, 
  Georgetown University Law Center...............................   171

Letter to the Honorable Harry Reid, Majority Leader, and the 
  Honorable Mitch McConnell, Minority Leader, United States 
  Senate.........................................................   172

Questions for the Record submitted to the Witnesses..............   176

 
                               PENALTIES

                              ----------                              


                          FRIDAY, MAY 30, 2014

                        House of Representatives

                Over-Criminalization Task Force of 2014

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 9:01 a.m., in room 
2237, Rayburn House Office Building, the Honorable Louie 
Gohmert (Vice-Chairman of the Subcommittee) presiding.
    Present: Representatives Gohmert, Goodlatte, Bachus, 
Holding, Scott, Conyers, Cohen, and Jeffries.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
    Mr. Gohmert. The Over-Criminalization Task Force hearing 
will come to order. Without objection, the Chair is authorized 
to declare recesses of the Task Force at any time.
    We will welcome our witnesses today.
    Mr. William G. ``Bill'' Otis an adjunct professor at 
Georgetown Law. He has held a number of positions in the 
Federal Government: Chief of the Appellate Division, U.S. 
Attorney's Office for the Eastern District of Virginia, 
Counselor to the Administrator, Drug Enforcement 
Administration, and Special Counsel to President George H.W. 
Bush. He has written several op-ed pieces on criminal law for 
USA Today, Forbes, The Washington Post, and U.S. News & World 
Report; has been interviewed and quoted by The New York Times 
and The Wall Street Journal; has testified as an expert witness 
before Congress; has appeared on various network programs and 
as a contributor to the blogs Crime and Consequences and Power 
Line. Mr. Otis obtained his undergraduate degree at the 
University of North Carolina and his juris doctorate at 
Stanford Law School.
    The Chair will now recognize the gentleman from North 
Carolina, Mr. Holding, to introduce our second witness.
    Mr. Holding. Mr. Chairman, it is my pleasure today to 
introduce a leader in this battle fighting against drug crimes, 
former Assistant United States Eric Evenson, who is here today. 
Mr. Evenson retired December of last year after more than two 
decades as a Federal prosecutor and after significant 
experience as a prosecutor in the State courts of North 
Carolina. He served as an assistant district attorney for a 
number of years in both Greensboro and Durham. His perspective 
as a frontline Federal prosecutor I think will be invaluable, 
Mr. Chairman, to the Task Force consideration of Federal 
penalties.
    I came to know Eric when I served as First Assistant United 
States Attorney in the Eastern District of North Carolina. When 
I joined the office in 2002, Eric was already leading our 
Organized Crime Drug Enforcement Task Force, as you know, 
OCDETF, Mr. Chairman, task force, coordinating Federal 
investigations and prosecutions of high-level interstate and 
international drug trafficking.
    Throughout his tenure, Eric believed strongly and 
demonstrated clearly that tough, cooperative, and sustained 
pressure on drug-trafficking organizations could reduce the 
flow of drugs, could remove the worst offenders, and could 
drive down the crime rate and make our communities safer. Under 
Eric's leadership, our OCDETF unit pursued large numbers of 
serious drug traffickers and gained the cooperation of 
defendants whose information was critical to our ability to 
infiltrate, disrupt, and dismantle these organizations.
    During his tenure, Eric received two Director's Awards from 
the United States Department of Justice for outstanding 
prosecutions and one from Attorney General Janet Reno and one 
from Attorney General Eric Holder before retiring from the 
Department of Justice in November of 2013.
    Mr. Chairman, I think Eric's expertise and his deep 
knowledge of what works and what doesn't work will aid this 
Committee as it considers issues currently facing our country 
in the area of drug control and sentencing policy. So I am 
pleased to welcome my friend and colleague here today. And I 
hope that all the Members of the Task Force will benefit from 
his perspective. Thank you.
    Mr. Gohmert. Thank you very much.
    Our next witness, Mr. Marc Levin. Marc A. Levin is director 
of the Center for Effective Justice at the Texas Public Policy 
Foundation and policy director of its Right on Crime 
Initiative, which he led the effort to develop in 2010.
    Mr. Levin helped develop the Right on Crime Initiative, 
which was launched by the Texas Public Policy Foundation at the 
end of the 2010. Right on Crime has become the national 
clearinghouse for conservative criminal justice reforms, 
receiving coverage in outlets such as The Wall Street Journal, 
National Review, New York Times, Fox Business News, and The 
Washington Post. Mr. Levin has testified on sentencing reform 
and solitary confinement at separate hearings before the Senate 
Judiciary Committee, and has testified before State 
legislatures. Mr. Levin served as a law clerk to Judge Will 
Garwood on the U.S. Court of Appeals for the Fifth Circuit, and 
staff attorney at the Texas Supreme Court.
    Our next witness, Mr. Bryan Stevenson. Mr. Stevenson 
represents the Equal Justice Initiative. He is also clinical 
faculty at New York University School of Law. Mr. Stevenson has 
represented capital defendants and death row prisoners since 
1985, when he was a staff attorney with the Southern Center for 
Human Rights in Atlanta, Georgia. Since 1989, he has been 
executive director of the Equal Justice Initiative, a private, 
nonprofit law organization he founded.
    The focus is on social justice and human rights in the 
context of criminal justice reform in the United States. EJI 
litigates on behalf of condemned prisoners, juvenile offenders, 
people wrongly convicted or charged, poor people denied 
effective representation, and others whose trials are marked by 
racial bias or prosecutorial misconduct.
    Mr. Stevenson has served as a visiting professor of law at 
the University of Michigan School of Law. He has also published 
several widely disseminated manuals on capital litigation and 
written extensively on criminal justice, capital punishment, 
and civil rights issues. Mr. Stevenson is a graduate of 
Harvard, with both a master's in public policy from the Kennedy 
School of Government and a JD from the School of Law.
    So the witnesses' written statements will be entered into 
the record in their entirety. I will ask the witnesses to 
summarize each testimony in 5 minutes or less. To help you stay 
within that time, there is a timing light in front of you 
there. The light will switch from green to yellow, indicating 
you have 1 minute to conclude your testimony; when the light 
turns red, it indicates the witness' 5 minutes have expired.
    At this time, unless there is objection, I want to offer 
the statement of our Chairman, James Sensenbrenner, Jr., for 
the Over-Criminalization Task Force. Know that our thoughts and 
prayers are for Chairman Sensenbrenner and his wife with the 
health issues that she has had for a week or so. And so hearts 
and prayers go out for both of them. And I have a statement 
here that I would enter into the record. If there is no 
objection, hearing no objection, that will be so order.
    [The prepared statement of Mr. Sensenbrenner follows:]
  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
                Over-Criminalization Task Force of 2014
    Good morning and welcome to the seventh hearing of the Judiciary 
Committee's Over-Criminalization Task Force. Over its first six months 
of existence, the Task Force conducted an in-depth evaluation of the 
over-criminalization problem. This year, the Task Force has held two 
hearings, focusing on Criminal Code Reform and the Over-federalization 
of criminal law.
    These hearings have followed a logical progression. The Task Force 
began its work by analyzing whether the mens rea, or intent 
requirements, in the federal criminal code are appropriate and 
sufficient to ensure that, except in very specific circumstances, 
nobody is convicted of a crime without the intent to do something that 
the law forbids. The Task Force next engaged in an examination of 
regulatory crimes, where the lack of an adequate intent requirement is 
often an issue. I firmly believe that, if the regulated conduct is 
important enough to carry a criminal penalty, it is something Congress 
should vote upon, rather than leaving it to a regulator to implement. 
For example, we heard testimony from a witness who unknowingly violated 
the Clean Water Act by re-routing sewage in an emergency, and found 
himself facing up to five years in federal prison. The Department of 
Justice informed us that the statute they used to prosecute this 
individual was the same one used to prosecute BP for dumping millions 
of gallons of oil into the Gulf of Mexico. Clearly there is a 
significant problem here.
    The Task Force then held hearings on the need for reform of the 
federal Criminal Code, which we know contains over 4,500 criminal 
statutes, and the related issue of the over-federalization of the 
criminal law. Our work continues today, as the Task Force will take the 
next logical step by analyzing the penalties associated with the over-
criminalization of federal law.
    As our previous hearings have illustrated, one of the most 
important issues facing this Task Force is whether certain conduct--
even conduct which we all agree should be regulated by the federal 
government--should subject violators to criminal penalties, including 
incarceration. I think we can all agree, for example, that American 
citizens should be strongly discouraged from polluting our lakes, 
rivers and oceans. But should doing so--particularly unknowingly--rise 
to the level of a federal criminal conviction? Should Americans face 
prison time for mistakenly checking the wrong box on a form? What about 
for violating the laws of a foreign country? Alarmingly, as we know 
from our previous hearings, these are not hypothetical situations.
    The issue of federal criminal penalties has received significant 
attention on Capitol Hill over the past year, and not just from this 
Task Force. In particular, many Members have advocated for cutting 
mandatory minimum penalties, especially those that apply to drug 
trafficking crimes. Proponents of this approach have asserted that it 
would serve to reduce the federal budget, trim the prison population, 
and ensure that federal judges have greater discretion and flexibility 
when sentencing drug traffickers. However, as I have stated in previous 
hearings, I am a strong proponent of determinate sentencing--
particularly that an individual who violates the law should receive the 
same sentence in Springfield, Virginia, as he would in Springfield, 
Illinois. Congress is the branch of government responsible for 
assigning culpability to criminal conduct, including culpability for 
offenses that we determine are so significant as to require mandatory 
incarceration.
    Additionally, even Attorney General Holder has admitted that the 
nation currently faces a ``serious public health crisis'' with respect 
to heroin. This is a rare instance where I agree with the Attorney 
General. Given that we are facing a heroin epidemic in this country, I 
have significant concerns with any legislative proposal to cut 
penalties for those who are bringing significant quantities of this 
poison into our communities.
    I look forward to hearing from our distinguished panel about these 
and other issues associated with federal over-criminalization 
penalties.
    I want to thank the witnesses for appearing today, and look forward 
to hearing your perspectives on this important issue.
                               __________

    Mr. Gohmert. With that, we will turn to the Ranking Member, 
Mr. Scott, for his statement.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, even though the United States represents only 
5 percent of the world's population, we account for over 25 
percent of the world's prisoners. Since 1980, our Federal 
prison population has increased 1,000 percent, the average 
Federal sentence has doubled, and drug sentences have actually 
tripled. Drug convictions alone make up two-thirds of the 
increase in the Federal prison population. The so-called war on 
drugs has been waged almost exclusively in poor communities of 
color, even though data shows that minorities are no more 
likely to use or sell illegal drugs or commit crime. These 
excessive and discriminatory sentences are driven up by 
mandatory minimums, enhancements, and consecutive counts. In 
fiscal year 2012, 60 percent of convicted Federal drug 
defendants were convicted of offenses carrying a mandatory 
minimum penalty.
    These defendants are not the ones for whom the harsh 
penalties were intended. They are not the kingpins, they are 
not the leaders, and they are not organizers of criminal 
syndicates. Rather, data from the U.S. Sentencing Commission 
tells us that the vast majority are couriers, street-level 
dealers, and addicts. More than half of them have the lowest 
criminal history category and as a result 93 percent of Federal 
inmates are nonviolent offenders.
    Mandatory minimums are the worst-of-the-worst sound bites 
masquerading as crime policy. They sentence people before they 
are even charged or convicted, based solely on the name or the 
code section of the crime. No consideration is given to the 
seriousness of the crime or how minor a role one may have 
played in the crime or whether one is a first offender, a young 
person, or an abused girlfriend under the control of a 
boyfriend. The same code section, for example, that prohibits 
sex between a 40-year-old and a 13-year-old also prohibits sex 
between a 19-year-old and 15-year-old high school students. 
Obviously, they should not be given the same sentence, but 
mandatory minimums often require judges to impose sentences 
that violate common sense.
    The United States already locks up a higher portion of its 
population than any country on Earth. The Pew Center on the 
States estimates that any ratio of over 350 per 100,000 in jail 
today, anything above that, the crime-reduction value of 
increased incarceration begins to diminish. They also tell us 
that any ratio above 500 becomes actually counterproductive, 
that you have got so many people locked up that you are 
actually adding to crime rather than diminishing crime because 
you have messed up so many families, you have wasted so much 
money, you have got so many felons wandering around that can't 
find jobs that you are actually adding to crime.
    But the data shows that in the United States our ratio is 
not only above 500, but above 700, leading the world. Some 
minority communities have incarceration rates over 4,000 per 
100,000, creating what the Children's Defense Fund calls the 
cradle-to-prison pipeline.
    Since 1992, the annual prison costs have gone from $9 
billion to over $65 billion a year, and the rate of increase 
for prison costs was six times greater than the increased 
spending for higher education. The rates of incarceration we 
have in this country, looking at crime and simply suggesting 
that the main problem is we are not locking up enough people, 
doesn't comport with science, data, or common sense.
    All research shows that when compared to traditional 
proportional sentencing, mandatory minimums waste money, 
disrupt rational sentencing considerations, discriminate 
against minorities, and often require judges again to impose 
sentences that violate common sense. Even when a prosecutor, a 
judge, defense counsel, and probation officers, even the 
victim, all agree, after having heard all the evidence, that 
the mandatory minimum is too severe for a particular case, 
there is no choice. The judge's hands are tied and the judge 
must apply the mandatory minimum as a matter of law.
    Despite all the problems with mandatory minimums, Congress 
is still trying to pass more, even though there are at least 
195 mandatory minimums already on the books. I believe in what 
they call the first law of holes: When you find yourself in a 
hole, the first thing you ought to do is stop digging. So if we 
are going to get rid of mandatory minimums, we have to stop 
passing new ones. Unfortunately, we are violating that rule; in 
fact, we passed a new mandatory minimum just last week in the 
House.
    Granting Federal judges more discretion in sentencing is 
the smart and right thing to do. They are the ones closest to 
the facts and the players in each case. But we also have to 
confront the fact that over the past 40 years, Congress has 
been playing politics rather than working to reduce crime in a 
smart way.
    We have seen alternative strategies that could be used, 
like the Youth PROMISE Act that I have introduced, which takes 
a proactive approach. It puts evidence-based, cost-effective 
approaches in crime reduction into play at the community level 
with full community involvement. This strategy has not only 
been shown to reduce crime, but also to save money. It will 
essentially dismantle the cradle-to-prison pipeline and create 
a cradle-to-college- and-career pipeline.
    In terms of criminal justice reform, we need to focus our 
efforts on distinctly Federal interests and ensure that the 
sentences of a correct length are being legislated and imposed. 
We need to ensure that Federal collateral consequences of 
convictions do not serve as a continuing punishment and burden 
on individuals who have already served their time and paid 
their debt to society. But most of all, we have to oppose 
mandatory minimums, enhancements, and consecutive counts so 
that we can eliminate the overincarceration that violates 
common sense and increases rather than decreases crime.
    Thank you, Mr. Chairman.
    Mr. Gohmert. Thank you, Mr. Scott.
    The Chair would ask Mr. Conyers, do you wish to make an 
opening statement?
    Mr. Conyers. Yes, Mr. Chairman, I would, please, if it 
meets with your approval.
    Mr. Gohmert. The Gentleman is recognized for 5 minutes.
    Mr. Conyers. Thank you. This is so important. And I welcome 
the witnesses and look forward to their testimony.
    But the Over-Criminalization Task Force finally focuses 
today on what is the most critical failing of our Nation's 
criminal justice system: The continuing prevalence of racism as 
evidenced by a Federal charging and sentencing regime that 
clearly discriminates against people of color.
    Now, racism has permeated our Nation's history since the 
beginning. The Constitution of course referred to slaves as 
three-fifths of a man. The Civil War was fought to abolish 
slavery. And then Jim Crow raised its ugly head, and the 
segregation and tactics that followed are a matter of fact.
    We are now approaching the 60th anniversary of Brown v. The 
Board of Education, which of struck down separate but equal as 
the law of the land. And just last year, we celebrated the 50th 
anniversary of the March on Washington and the passage of the 
Civil Rights Act.
    As a Nation, we have come so far. We like now to think that 
our justice is color blind, that our system is race-neutral. 
But whether overt or subconscious, the vestiges of racism are 
still reflected in our Federal criminal justice system, and it 
is all the more insidious for it. That is because criminal 
justice is meted out by human beings with human failings, 
including bias. No longer does Jim Crow and overt racism rule 
the day, but rather coded phrases, such as policing high crime 
areas and stop-and-frisk policies, are the norm, and combined 
with mandatory minimums so expertly referred to by our 
colleague Mr. Scott, and stacking and enhancement penalties, 
and the so-called three-strikes statutes. It is these concepts 
that disproportionately affect communities of color, drawing 
more and more people into an antagonistic and unforgiving 
criminal justice system.
    To provide some perspective regarding this problem, I just 
want to breeze through this. In the last 40 years the United 
States prison population has grown by 700 percent and now 
accounts for 25 percent of the world's prisoners. The number of 
Federal prisoners alone grew by nearly 50 percent from 2001 to 
2010. While only 4 percent of the Federal crimes carry 
mandatory sentences, 34 percent of those in Federal prison are 
serving mandatory sentences.
    Moreover, the racial impact of the Federal penalty system 
is wildly disproportionate. One in nine Black men between the 
ages of 20 and 34 are incarcerated. One in 3 Black men and 1 in 
6 Latinos will spend some part of their lives in prison, 
compared to one 1 in 23 White men. Blacks represent 12 percent 
of total drug users in the country, but account for nearly 40 
percent of drug-related arrests.
    Now, these numbers are far worse in segregated and 
impoverished communities. In addition to the devastating 
societal costs of mass incarceration, it also results in a 
massive economic cost. The so-called war on drugs has cost $1 
trillion since its beginning, and the cost to run our Federal 
prisons cost $6.9 billion in fiscal year 2014.
    So before we identify solutions, we must recognize how we 
institutionalize and normalize racism today. That is what makes 
this discussion this morning so important. I want to focus on 
how racism, unconscious or not, has a disproportionate impact 
on criminal penalties on minority communities. Bias can begin 
with a decision of where and what offenses are investigated. 
With enough time and officers in a certain location, it is only 
a matter of time before they find reasonable suspicion to stop, 
detain, and arrest someone or many people.
    At the prosecutorial phase, this bias can be magnified 
through decisions about what charges to bring, what plea deal 
to offer, and whether mandatory minimums and enhancements 
apply. People from poor communities of color are more likely to 
receive harsher charges and mandatory penalties.
    The mandatory minimums and statutory enhancements so 
ingrained in the code that were intended to target so-called 
kingpins and violent criminals do no such thing. Their use is 
now propagated against low-level, nonviolent offenders who are 
disproportionately poor people of color. The threat of these 
staggering mandatory de facto life sentences coerces defendants 
into pleading guilty. They impose a trial penalty on those who 
use their constitutional right to a jury trial.
    I am almost there, Mr. Chairman, and I thank you for your 
indulgence.
    Finally, at sentencing people of color receive harsher 
sentences than would Whites for the same conduct through 
mandatory minimums and other sentencing enhancements.
    Racism in America has for the most part ceased to be overt. 
But the prevalence of institutionalizing discrimination by 
writing it into law is just as present today as it was 100 
years ago.
    The question that stands is this: What can we as a Congress 
do about these pressing issues? Finding solutions to 
unconsciously institutionalized racism in the criminal justice 
system and writ large on our society is not an easy task, but 
there are steps we can take. We can begin by rolling back 
mandatory minimums and stacking and enhancement sentencing 
penalties that result in cruel and unusual punishment for what 
are too often low-level offenses. We can revest the judiciary 
with discretion in sentencing. We can reinvest the judiciary 
with discretion in sentencing. Not all judges are immune to 
bias, but in doing so we allow the possibility of proportional 
sentencing and the ability to overturn unduly harsh sentences 
due to abuse of discretion.
    I conclude on this point, Chairman.
    Mr. Gohmert. You are double your time. And if we do that, 
we're not going to get through because of votes that are 
coming.
    Mr. Conyers. All right. Then I will just submit the rest of 
my statement. Thank you, Chairman.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    The Over-Criminalization Task Force finally focuses today on what 
is the most critical failing of our Nation's criminal justice system: 
the continuing prevalence of racism as evidenced by a federal charging 
and sentencing regime that clearly discriminates against people of 
color.
    Racism has permeated our nation's history since the beginning. The 
Constitution referred to slaves as three-fifths of a man. The Civil War 
was fought to abolish slavery, and then Jim Crow raised his ugly head.
    We are fast approaching the sixtieth anniversary of Brown v. Board 
of Education, which struck down ``separate but equal'' as the law of 
the land.
    And just last year, we celebrated the fiftieth anniversary of the 
March on Washington, and the passage of the Civil Rights Act.
    As a nation, we have come so far. We like to now think that justice 
is colorblind; that the system is race neutral. But, whether overt or 
subconscious, the vestiges of racism are still reflected in our federal 
criminal justice system, and it is all the more insidious for it. That 
is because criminal justice is meted out by human beings with real 
human failings, including bias.
    No longer does Jim Crow and overt racism rule the day, but rather 
coded phrases such as ``policing high crime areas'' and ``stop and 
frisk'' policies are the norm. And combined with mandatory minimums, 
stacking and enhancement penalties, and so-called ``three strikes'' 
statutes, it is these concepts that disproportionately affect 
communities of color, drawing more and more people into an antagonistic 
and unforgiving criminal justice system.

          To provide some perspective regarding this problem, 
        let's begin with a few facts:In the last 40 years, the U.S. 
        prison population has grown by 700%, and now accounts for 25% 
        of the world's prisoners. The number of federal prisoners alone 
        grew by nearly 50% from 2001 to 2010.

          While only 4% of federal crimes carry mandatory 
        minimum sentences, 34% of those in federal prison are serving 
        mandatory sentences.

    Moreover, the racial impact of the federal penalty system is wildly 
disproportionate:

          1-in-9 black men between ages 20 and 34 are 
        incarcerated.

          1-in-3 black men, and 1-in-6 Latinos will spend some 
        part of their lives in prison, compared to 1-in-23 white men.

          Blacks represent 12% of total drug users in the 
        country, but account for nearly 40% of drug related arrests.

    These numbers are far worse in segregated and impoverished 
communities.
    In addition to the devastating societal cost of mass incarceration, 
it also results in a massive economic cost. The so-called ``war on 
drugs'' has cost $1 trillion since its beginning, and the cost to run 
our federal prisons cost $6.9 billion in FY 2014.
    Before we identify solutions, we must recognize how we 
institutionalize and normalize racism today.
    First, I want to focus on how racism, unconscious or not, has a 
disproportionate impact on criminal penalties on minority communities. 
Bias can begin with the decision of where and what offenses are 
investigated. With enough time and officers in a certain location, it 
is only a matter of time before they find ``reasonable suspicion'' to 
stop, detain, and arrest someone.
    At the prosecutorial phase, this bias can be magnified through 
decisions about what charges to bring, what plea deal to offer, and 
whether mandatory minimums and enhancements apply. People from poor 
communities of color are more likely to receive harsher charges and 
mandatory penalties.
    The mandatory minimums and statutory enhancements so ingrained in 
the Code that were intended to target so-called ``kingpins'' and 
violent criminals do no such thing. Their use is now propagated against 
low-level, non-violent offenders who are disproportionately poor people 
of color.
    The threat of these staggering mandatory de facto life sentences 
coerces defendants into pleading guilty. They impose a trial penalty on 
those who their constitutional right to a jury trial.
    Finally, at sentencing, people of color receive harsher sentences 
than would whites for the same conduct through mandatory minimums and 
other sentencing enhancements.
    Racism in American has, for the most part, ceased to be overt, but 
the prevalence of institutionalizing discrimination by writing it into 
law is just as present today as it was 100 years ago.
    The question that stands is: What can we, as a Congress, do about 
these pressing issues?
    Finding solutions to unconsciously institutionalized racism in the 
criminal justice system, and writ large on society, is not an easy 
task. But there are steps we can take.
    We can begin by rolling back mandatory minimums and stacking and 
enhancement sentencing penalties that result in cruel and unusual 
punishment for what are too often low-level offenses.
    We can revest the federal judiciary with discretion in sentencing. 
Not all judges are immune to bias, but in doing so we allow for the 
possibility of proportional sentencing, and the ability to overturn 
unduly harsh sentences due to abuse of discretion.
    We can recognize that Congress can and should defer to States in 
matters that the States can--and already do--investigate, prosecute and 
sentence, rather than engage in wasteful duplicative federal 
prosecutions allowing United States Attorneys to focus on uniquely 
federal concerns.
    Criminal justice is just one symptom of the underlying problem, and 
I hope to work with my colleagues in the future to hold a more in-depth 
forum to explore the issues of systemic racism and its impacts on 
society at large that will include a look at education, public 
services, voting rights, drug and mental health treatment, and 
employment.
    For today, I am hopeful that our witnesses today can shed light on 
the issues of the disparate racial impact of the criminal justice 
system, the economic and societal impact of these policies, and propose 
potential solutions and I look forward to their testimony.
                               __________

    Mr. Gohmert. I had waived giving my statement and offered 
Mr. Sensenbrenner's for the record. But with all the discussion 
about racism, let me just make this one point. I was a judge 
for 10 years. I tried three capital murder cases in Tyler, 
Texas. Two were of Anglos, one was an African American. The two 
Anglos got the death penalty, the African American got life. So 
I don't always have the appreciation for racism entering into 
every aspect.
    Someone had raised an issue of, well, gee, since the judge 
appoints the grand jury foremen, who had the leadership role in 
the grand juries. So I was attacked before they checked my 
record. I never, ever considered race in appointing foremen for 
my grand juries. Once they got the facts and found out that I 
had a much higher percentage of African Americans, as it turned 
out, who were grand jury foremen, not because of race, they 
were just the best leaders on the grand jury. And so, anyway, I 
didn't find race an issue in my courtroom at all.
    I would ask the Chairman of the full Committee, do you wish 
to make a full statement.
    Mr. Goodlatte. Yes. Thank you, Mr. Chairman. I am very 
pleased to be here at the third hearing of the Over-
Criminalization Task Force following its reauthorization 
earlier this year.
    This hearing will focus on the penalties imposed for 
violations of Federal law. As others have already noted, the 
subject of penalties is a very broad topic, covering a wide 
array of complex legal and policy issues. Many of these issues 
have already been covered in detail by this Task Force, 
including the need for an adequate intent requirement in the 
Federal criminal law, the problems with regulatory crime, the 
overfederalization of criminal law, and the need for criminal 
code reform.
    The issue of adequate mens rea is of particular interest to 
me, and it is especially significant when considering the 
penalties associated with violations of Federal law. As I and 
other Members of this Task Force have stated repeatedly, no 
American citizens should be subjected to a Federal criminal 
penalty without the intent to do something the law forbids.
    Today I expect to hear from our panel about these and many 
other issues associated with Federal penalties. Obviously, 
mandatory minimum sentences are a significant part of this. 
Advocates for reform to mandatory minimums have argued that 
these reforms are necessary to ensure low-level, nonviolent 
offenders, particularly in drug cases, are not serving long 
prison sentences.
    While I have some concerns about many of the proposals to 
reform the Federal sentencing scheme in this way, I am open to 
hearing arguments on both sides of this issue. However, one 
ever-present hurdle to reform in this and other areas is the 
repeated actions by this Administration to circumvent Congress' 
constitutional role in drafting, considering, and passing 
legislation important to the American people.
    At the Judiciary Committee's DOJ oversight hearing last 
month, I and other Members of the Committee questioned the 
Attorney General at length about the Holder Justice 
Department's persistent attempts to change the law by executive 
fiat. I do not believe that any of us received satisfactory 
answers. It will be difficult to find support for reform if 
Congress cannot trust that the Administration will abide by 
these reforms.
    I can assure everyone that under my leadership the House 
Judiciary Committee will continue to closely monitor and 
analyze this and other issues associated with the imposition of 
Federal criminal penalties, and I am confident that the Task 
Force will continue its outstanding work. And I want to thank 
our distinguished panel of witnesses today, and I look forward 
to their testimony.
    Thank you, Mr. Chairman.
    Mr. Gohmert. Thank you, Mr. Chairman.
    With that, we are ready to proceed under the 5-minute rule 
with questions.
    At this time, Mr. Otis, you may proceed in your 5 minutes.

    TESTIMONY OF WILLIAM G. OTIS, ADJUNCT PROFESSOR OF LAW, 
                GEORGETOWN UNIVERSITY LAW CENTER

    Mr. Otis. Mr. Chairman, Ranking Member Scott, and Members 
of the Committee, I am honored that you have invited me here 
today to talk with you----
    Mr. Gohmert. Is the green light on your microphone?
    Mr. Otis. Can you hear me better now?
    Mr. Gohmert. Yeah. If you would move that a little closer 
so we can make sure everybody here can hear. You spent too much 
time getting here for people not to hear what you have to say. 
Thank you.
    Mr. Otis. Again, Mr. Chairman, Mr. Ranking Member, 
reMembers of the Committee, I am honored that you invited me to 
talk with you today about this extremely important subject of 
Federal criminal penalties.
    The Task Force is rightly concerned about 
overcriminalization, and in particular about the proliferation 
of statutes that impose criminal liability without the 
traditional requirement that the defendant harbor bad intent. 
Such statutes undermine the very legitimacy of criminal law, 
which is understood by ordinary people to forbid only behavior 
the average person would recognize as wrong.
    I am happy to take questions on this subject and have 
written a few articles about it. However, I want to focus for 
the moment on a different topic: mandatory minimum penalties. 
Serious mandatory minimums continue to be needed. Under current 
law, sentencing judges have wide discretion, as they should. 
But judges and the judicial branch can make breathtaking 
mistakes. Some of you view Citizens United as one of them. 
Others view Kelo as another. All of us view Plessy v. Ferguson 
as a drastic mistake in American history.
    Judges are not infallible. The Framers recognized in 
adopting the separation of power that no one person and no one 
branch should have 100 percent discretion 100 percent of the 
time. Congress is fully warranted in directing that for some 
appalling crimes a strong, rock-bottom sentence must be 
imposed.
    Criticism of mandatory minimum sentencing is often at the 
heart of the charge that the Federal criminal justice system is 
broken or failing. It certainly looks broken to a heroin 
trafficker facing long incarceration. But the health of the 
system is properly measured not by the incarceration rate, but 
by the crime rate. By that standard, it is anything but broken. 
Crime is down 50 percent over the last 20 years in the era of 
mandatory and longer sentencing. Would that some of our other, 
vastly more expensive domestic initiatives have had anything 
like that success.
    Much of the debate now seems to be driven by two 
misconceptions. The first is that mandatory minimums require 
Federal judges to imprison for years some high school kid who 
has been caught smoking a joint. That is simply false. 
Mandatory minimums apply overwhelmingly to trafficking, 
trafficking in deadly drugs like heroin, methamphetamine, and 
PCP.
    The second misconception is that having a larger prison 
population is per se a bad thing. One might as well say that 
having more criminals in jail rather than in your neighborhood 
is a bad thing. When criminals are not imprisoned, they don't 
just disappear. Five-year recidivism figures show that more 
than three-quarters of drug offenders return to crime after 
they are released. If we go back to the naive, failed policies 
of the 1960's and 1970's, we will get the failed, crime-ridden 
results of the 1960's and 1970's.
    Finally, a number of recent developments tell us that 
lighter sentencing at the Federal level is, for good or ill, 
already largely the new norm. The prudent thing for Congress to 
do is to assess over the next few years whether those 
developments and their promise of big cost savings and no 
increase in crime turn out to be true.
    Last summer, for example, the Attorney General himself 
directed that, for roughly the set of drug defendants for whom 
some pending legislation would apply, Federal prosecutors are 
no longer to seek mandatory minimum sentences. This new policy 
has effectively mooted a large body of mandatory minimums and 
has shifted discretion back to judges. The Sentencing 
Commission has adopted the two-level reductions in Guidelines 
offense levels for almost all nonviolent drug offenders, 
producing notably shorter sentences, and has announced just 
recently that for the first time ever more sentences are being 
given below the guidelines range than within it.
    Perhaps most stunning is the Administration's announcement 
of impending clemency for hundreds and more likely thousands of 
offenders serving what it views as excessive sentences. In an 
unprecedented move, the defense bar has been given a broad and 
proactive role in proposing clemency candidates. With these 
proposals already in train, Congress has the opportunity to see 
for itself whether more discretion and lighter sentences keep 
their promise of frugality and low crime. Maybe they will. 
Maybe they won't. It is only common sense for Congress to find 
out before weakening a system we know has helped keep us safe.
    Mr. Gohmert. Thank you very much.
    [The prepared statement of Mr. Otis follows:]
    
    
    
    
                               __________
    Mr. Gohmert. We will hear from our next witness, Mr. 
Evenson.
    You are recognized for 5 minutes.

 TESTIMONY OF ERIC EVENSON, NATIONAL ASSOCIATION OF ASSISTANT 
                    UNITED STATES ATTORNEYS

    Mr. Evenson. Thank you, sir. Chairman Gohmert, Ranking 
Member Scott, and Members of the Task Force, I am honored to 
appear before you on behalf of the National Association of 
Assistant United States Attorneys. I would like to thank 
Congressman Holding for his kind introduction. NAAUSA shares 
strong concern over legislative proposals to reduce minimum 
mandatory sentences.
    In the 1980's, I was a State prosecutor, and when we would 
do drug cases in front of a court, we would often hear the 
complaint that you are only getting the little guy, you are not 
getting the big fish. And, unfortunately, because of weak State 
laws and diminished resources, there was a lot of truth to that 
complaint.
    State prosecutions are based on two things. You either have 
to catch the drug dealer in possession of drugs or you have to 
catch him selling it. And as a result, what ends up happening 
is you oftentimes don't get the source of supply. The State 
laws are just too weak. The resources are too minimal. What 
happens is that the leader of the drug organization is largely 
untouchable for years. We all live in communities where people 
say, why don't they get that big drug dealer, and all the 
neighbors know that. This is why. Because the State laws don't 
have the leverage that is needed.
    In 1990, I became an Assistant United States Attorney. I 
quickly realized that we focused on a different set of 
defendants, ones that were selling significant quantities of 
drugs, enough to trigger what are called minimum mandatory 
sentences. Congress mandated that we pursue these organizations 
and provided us with the tools, including minimum mandatory 
sentences, that we needed.
    Now, here is the key difference between State prosecution 
and Federal prosecution. Sometimes the average man on the 
street just doesn't understand what we are doing. It is this: 
It is called conspiracy. Conspiracy law. If you don't remember 
anything else, I hope you remember that. I am going to explain 
how it works on a day-to-day basis, and I am going to show you 
where the rubber meets the road.
    In order for us to charge the leader of an organization, we 
generally do it with conspiracy law, because they don't sell to 
undercover officers; they are too clever. They sell it to their 
conspirators who sell it on the street at the retail level.
    Now, what do we need to charge conspiracy in Federal court? 
Simple. We need co-conspirator testimony. That is how we do it. 
To go after the big fish, we have to have the cooperation of 
the smaller fish. And every Assistant United States Attorney 
worth his salt knows this.
    I will tell you that securing their cooperation is no easy 
task. They don't want to cooperate. This is hard, mean 
business. If the sentence they face is too low, they will tell 
you they can do their time standing on their head. I have 
debriefed personally hundreds of arrested drug dealers and 
explained to them, in the presence of their attorney, the need 
for them to assist and testify truthfully.
    Congress provided their sentence could be reduced by the 
judge if they substantially assisted. You see, their attorney 
has already explained to them that they are facing a strong 
minimum mandatory sentence, and the only way that they are 
going to get a sentence reduction is to substantially assist. 
They have to be willing to testify.
    Now, this straightforward choice of options, designed by 
Congress and enforced by the Department of Justice, has led to 
the dismantling of numerous drug organizations in every 
district, city, and town in America. But without the 
cooperation of these co-conspirators, Federal law enforcement 
will be unable to charge and arrest these leaders and sources 
of supply. Without minimum mandatory sentences, many, if not 
most, would simply refuse to testify.
    Minimum mandatory sentences and the presumption of pretrial 
detention have given Assistant U.S. Attorneys the leverage they 
need to garner these witnesses and to stop drug organizations. 
If this leverage is removed or weakened, then vital witnesses 
will become unavailable. It is really very simple.
    In essence, reducing the minimum mandatories will 
substantially cut down on our witnesses. Fewer of the big drug 
dealers will be arrested, and we will revert back to convicting 
only the lower level dealers we can buy directly from or we 
find in possession of drugs. We won't be able to convict the 
sources of supply.
    Mr. Gohmert. Thank you very much, Mr. Evenson.
    Mr. Evenson. Your Honor, may I have just a few more 
minutes? I still have some time.
    Mr. Gohmert. Well, actually, your time is----
    Mr. Evenson. Okay.
    Mr. Gohmert [continuing]. Five minutes is up.
    Mr. Evenson. I am sorry. I didn't see the yellow light.
    Mr. Gohmert. It did come on with a minute to go.
    Mr. Evenson. I am very sorry, Your Honor. Thank you.
    [The prepared statement of Mr. Evenson follows:]
    
    
    
                  __________
                  
    Mr. Gohmert. Thank you.
    At this time, we will proceed with Mr. Levin.
    You are recognized for 5 minutes.

TESTIMONY OF MARC LEVIN, ESQ., POLICY DIRECTOR, RIGHT ON CRIME 
        INITIATIVE AT THE TEXAS PUBLIC POLICY FOUNDATION

    Mr. Levin. Well, thank you for having me. We at Right on 
Crime are very pleased that Congress is examining various 
options for reining in unnecessary Federal criminal laws that 
are properly the province of State governments, ensuring, as 
Chairman Goodlatte said, that there is a culpable mental state 
required for conviction, reexamining mandatory minimums for 
nonviolent offenses, implementing evidence-based practices and 
community supervision, improving programming in Federal 
prisons, and strengthening reentry so we can reduce that high 
recidivism rate that Mr. Otis talked about.
    We are committed to the 10th Amendment and to making sure 
that criminal justice matters. The garden variety street crimes 
are the province of State and local governments. We recognize 
that although there has been a sixfold increase in 
incarceration rates from the early 1970's to today, that some 
of that was necessary, particularly to incarcerate violent and 
dangerous offenders for long periods of time. But we believe 
that the pendulum has swung too far, and now we have too many 
nonviolent and low-risk offenders behind bars; and that through 
developments and new technologies and techniques, whether their 
drug courts, electronic monitoring, risk and needs assessments, 
we have a better ability to supervise more nonviolent offenders 
in the community.
    Over the past several years, we have worked with 
conservative governors, conservative lawmakers across the 
country to enact successful reforms, including many dealing 
with mandatory minimums that we are discussing today. As an 
example, 29 States in the last decade have reduced mandatory 
minimums relating to nonviolent offenses, and crime has 
continued to decline. One example is South Carolina reduced 
mandatory minimums as part of a comprehensive reform in 2010, 
and crime has declined dramatically in South Carolina, 14 
percent, since reducing those drug mandatory minimums.
    So we would argue that we need to reexamine mandatory 
minimums for several reasons, and simply those of course 
relating to nonviolent offenses.
    Number one, of course, they can result in excessive prison 
terms. And the reality is the vast majority of those affected 
by it are not supervisors, leaders, kingpins. That is only 7 
percent of those cases. And so instead what we need to do is 
look at the fact that most individuals affected by Federal drug 
mandatory minimums are, in fact, nonviolent. More than half had 
no prior criminal record; 84 percent no weapon involved.
    Now, certainly we can also see even outside of the drug 
issue. Another example is when somebody has ever had an 
offense, even decades ago, they can't have a gun, or they are 
subject to Federal mandatory minimums. There was a gentleman in 
Tennessee hunting a turkey with a rifle and had a minor offense 
decades ago, ended up with a 15-year mandatory minimum. And the 
Federal judge in that case, like many other Federal judges, 
including many conservative ones, like Judge Cassell, have 
said, the sentence I am being forced to hand down by this 
mandatory minimum is excessive.
    Now, of course mandatory minimums are supposed to produce 
uniformity, but they have not done that. And part of that is 
because of the enhancements, the 851, the 924 enhancements that 
prosecutors can file. And what we have seen is across various 
districts the rate at which those enhancements are filed varies 
dramatically. One district was 3,994 percent more likely to 
file enhancement than another.
    And another question is really we have to look at 
essentially the main reason mandatory minimums for nonviolent 
offenses came into being was the concern that judges were 
exercising excessive discretion. But, interestingly, in fiscal 
year 2013 only 17.8 percent of the below-guideline sentences 
were as a result of judicial departures; more than 38 percent, 
and this is drug offenders, came from urging of prosecutors for 
substantial compliance and other reasons. So judges are 
actually adhering very closely to the sentencing guidelines in 
more than 80 percent of the cases.
    Now, it has also been argued mandatory minimums are 
necessary to encourage defendants to plead guilty. Ninety-seven 
percent of Federal cases are resolved by guilty plea. And in 
fact, the Sentencing Commission found a greater percentage of 
those Federal criminal charges that don't apply to mandatory 
minimums resulted in a guilty plea, compared to those where 
mandatory minimums do apply.
    Now, we certainly don't want to have unlimited discretion. 
In Texas, for example, we have sentencing ranges for various 
crimes; 18 States have sentencing guidelines. There does need 
to be some constraint on judges. So I think it is a false 
dichotomy to say we have to just go back to where judges can 
decide on any sentence willy-nilly.
    Now, let me just address a couple of other issues. One is 
that we are still talking about people going to prison for a 
long time. When the crack powder disparity was narrowed in 
2010, those who have subsequently been convicted of crack cases 
have received an average Federal prison term of 97 months. That 
is real time.
    And let me just also conclude by saying we would urge 
Congress to rein in overcriminalization by consolidating all 
the Federal criminal laws in one code; adopting a rule of 
construction that applies a strong mens rea protection when the 
underlying statute is unclear; codifying the rule of lenity, 
which says that when there are two objectively reasonable 
interpretations of a statute, the one favoring the defendant 
should prevail; and finally, making sure that agencies cannot 
unilaterally enact criminal penalties on regulations without 
the express approval of Congress.
    Mr. Gohmert. Gentleman's time has expired. Thank you very 
much.
    [The prepared statement of Mr. Levin follows:]
    
    
    
                               __________
    Mr. Gohmert. Mr. Stevenson, you are recognized for 5 
minutes.

 TESTIMONY OF BRYAN STEVENSON, PROFESSOR OF CLINICAL LAW, NEW 
YORK UNIVERSITY SCHOOL OF LAW, FOUNDER AND EXECUTIVE DIRECTOR, 
                    EQUAL JUSTICE INITIATIVE

    Mr. Stevenson. Thank you. I am going to express my 
gratitude to this Task Force for the opportunity to appear 
before you today.
    I want to contextualize a little bit just how serious the 
problem of overcriminalization and overincarceration is. There 
are new reports, one published by the National Law Employment 
Project and one by the Brennan Center, that now estimate that 
68 million Americans--68 million--have criminal records. That 
is, they have been arrested, fingerprinted, and are subject to 
all of the restrictions that come with having a criminal 
record.
    Most of this dramatic increase is a consequence of a policy 
choice we made 30 years ago to treat drug addiction and drug 
possession as a crime problem rather than a healthcare problem. 
Many of our allies across the globe have actually made a 
different choice and have seen dramatic reduction in drug 
addiction and drug abuse. We have seen the opposite.
    The consequence of that choice is what has put States in 
great crisis. And I would like to urge this Task Force to look 
to the States for some leadership on these issues. As my 
colleague has mentioned, States have had to deal with the 
consequences of overincarceration, the costs, $6 billion in 
jails and prisons in 1980, $80 billion today. Many States 
governments found themselves seeing their State budgets 
bankrupt by the spending that is being directed to jails and 
prisons. They couldn't spend on public safety, they couldn't 
spend on health and human services.
    And so they have made the difficult decision to retreat 
from mandatory minimum sentencing, from overincarceration. And 
what I think is important about what they can teach us is that, 
as was indicated, 29 States have now eliminated these laws or 
restricted these laws and seen their crime rates fall, seen 
their budgets improve. And I think that lesson is an important 
lesson for this Task Force.
    There are a bunch of concerns that need to be addressed. 
Number one, when we have mandatory minimum sentences, we do not 
eliminate discretion. There is this theory that we were going 
to solve inequality in sentencing by taking discretion away 
from judges. What we do with mandatory minimum sentencing is 
actually take the discretion, shift it from the judge, and give 
it to the prosecutor.
    I have a great deal of respect for my friends, men and 
women, who work as U.S. Attorneys across this country. But all 
of us bring biases into this process. And to empower any 
agent--any agent--to exercise the kind of power that now 
exists, with no transparency, no accountability, I think 
creates the kind of disruption that we have seen.
    I want to emphasize that the overwhelming majority of 
people in the Federal system serving long sentences for 
mandatory minimum sentences are not the kingpins. I agree with 
the colleagues here. If we want to go after these kingpins, I 
don't have any concerns with that. But the U.S. Sentencing 
Commission estimates that two-thirds of the people serving 
these sentences are low-level or mid-level offenders. It is 
that consequence that I think we can address by reform.
    There are particular problems that I think are reflected by 
what we are doing beyond the costs, beyond the challenges that 
are being created, and one is the effect that we are having on 
communities. I am deeply disturbed by the fact that I go into 
communities where I talk to 13- and 14-year-old kids who expect 
to go to jail or prison. You can't have the kind of data that 
we have--for example, one in three Black kids is expected to go 
to jail--you can't have that data without it having very 
serious collateral consequences.
    And many of the data suggest that we are actually pushing 
people into crime lifestyles, into drug lifestyles, into 
criminogenic lifestyles because there is this hopelessness that 
I think comes from these excessive, extreme, misguided 
sentences.
    There are vulnerable groups that I also want to emphasize. 
The rate of women going to prison in the Federal system has 
increased 700 percent. Children. We actually have Federal 
statutes that allow the prosecution of children as young as 13 
years of age to be subject to life sentences, some for 
behaviors that do not reflect serious crime categories. And 
veterans. We have a growing population of men and women who 
served abroad who come back with trauma, who come back with 
drug addiction, who come back with a lot of disabilities, and 
because of our mandatory minimum schemes, we are not authorized 
to account for their service. We don't have the discretion to 
account for that. That creates very, very disparate outcomes, 
unfair outcomes, unjust outcomes.
    I want to emphasize two things. One, there are 17 States 
that have reduced these mandatory minimum statutes that have 
seen their crime rates fall. I think we should look to those 
States for the kinds of reductions and the kinds of adjustments 
that need to be made.
    And the last thing I want to emphasize is that we are at a 
moment in American history where we have unparalleled, 
widespread consensus that this is the thing that we need to do, 
eliminate these mandatory minimums. When the American 
Legislative Exchange Council was making this recommendation, as 
is the American Civil Liberties Union, when people on the right 
and on the left recognize that we are spending too much money, 
wasting too much money on incarcerating people who are not a 
threat to public safety, I think it creates an opportunity for 
this Task Force to lead this Congress.
    In 2012--and the last point I will make--the voters of 
California in a referendum, in every county voted to eliminate 
three-strikes laws and mandatory minimum sentencing. I think 
that signal is the signal this Task Force needs to move forward 
on this important issue.
    Mr. Gohmert. Thank you. We will hear more.
    [The prepared statement of Mr. Stevenson follows:]
    
    
    
                               __________
    Mr. Gohmert. At this time, we will begin the 5-minute 
questioning. I will reserve, since I have got to be here till 
the end, and go ahead and recognize the Chairman of the full 
Committee for 5 minutes.
    Mr. Goodlatte. Well, thank you, Mr. Chairman.
    And first let me commend all four of these witnesses. I 
think you have made great presentations and you have focused 
this discussion and the debate.
    First, Mr. Otis, let me start with you. In many 
communities, including many in my congressional district in the 
Shenandoah Valley, western Virginia, there has been a spike in 
deaths associated with heroin, including among young people. Do 
you believe it could send a bad message to young people to have 
the Federal Government reduce penalties across all drug 
categories, including for heroin?
    Mr. Otis. I could hardly imagine a worse message. I was 
appalled the other day when, I think it was on a Monday, I saw 
the Attorney General give a talk recommending some legislation 
currently pending in the Senate that would substantially cut 
back on mandatory minimums without ever mentioning the specific 
drugs, including heroin, to which mandatory minimums apply. And 
the very next day, I saw him announce that there was a heroin 
crisis going on in many communities in this country. The idea--
--
    Mr. Goodlatte. Let me cut you short just because I want to 
give some other people the opportunity, and I have got a few 
questions I want to ask.
    Let me let Mr. Stevenson respond to the same question.
    Mr. Stevenson. Yes. I actually think that we are not going 
to affect use of heroin, use of some of these very serious 
drugs by creating harsher penalties. When you have an 
addiction, when you have a disability, when you have a 
disorder, the last thing you are thinking about is, what kind 
of sentence am I going to serve? I think we are going to 
disrupt the heroin epidemics that we have identified in these 
communities with interventions that recognize what works to get 
people off heroin. And that is healthcare models. We have got a 
lot of very successful models that will help us achieve that. 
But we are not going to do it through sentencing.
    Mr. Goodlatte. Mr. Otis, back to you. If you are not 
enamored with the present reform proposals, do you have any 
suggestions or are you simply standing pat on the current law?
    Mr. Otis. I do, Mr. Chairman. I would actually support 
stronger reform than is currently being proposed, but it would 
be reform in a different direction.
    For example, I would retain the requirement currently 
pending in some Senate legislation that the Attorney General 
list all non-mens rea statutes. I would require, in addition, 
the Attorney General to explain as to each how criminal 
penalties can be squared with the traditional notion of blame 
and culpability. Such explanations would have to include a 
discussion of why regulatory violations could not more 
effectively and fairly be processed as civil matters.
    I would eliminate incarceration as a potential punishment 
for non-mens rea crimes. I would require that enforcement be 
undertaken only by the three agencies that have professional 
experience with this. That is----
    Mr. Goodlatte. Let me cut you short because I am mainly 
interested in reforms. I am interested in those reforms very 
much, and I would like you to submit those to us.
    But I am mainly interested at this hearing today about 
mandatory minimums and alternatives to those.
    But because my time will run short, let me turn next to Mr. 
Levin. You state that a primary focus of the Right on Crime 
Initiative is maximizing the public safety return on the 
dollars spent on criminal justice. Do you assert that there are 
no costs, social or otherwise, involved with the early release 
of drug offenders into communities where the mechanism is 
reduce penalties, broaden safety valve provisions, or executive 
clemency?
    Mr. Levin. Thanks your for question. Right on Crime doesn't 
support or oppose any actual legislation. But I will tell you 
what we have worked with many States on is how do you take some 
of the savings, if you are going to have people serve lightly 
less time for nonviolent offenses, how do take some of those 
savings and reinvest them in stronger parole supervision; 
reentry programs, where people, when they come out of prison, 
have to be drug tested, have to report to a parole officer, 
can't see certain people, including gang members; electronic 
monitoring; a whole host of models. The Hawaii HOPE Court, 
which is now being used in reentry in Washington State.
    So I think what we need to do is make sure when we have 
people perhaps coming out of prison a little earlier for 
certain nonviolent offenses, who are determined to be low risk, 
that we then in the community make sure they have the 
supervision so that they don't go back to their old ways.
    Mr. Goodlatte. Thank you.
    And, Mr. Evenson, in your 23 years as a Federal prosecutor, 
how often were drug-trafficking cases brought within your 
district where the drug quantity was below the statutory 
mandatory minimum level?
    Mr. Evenson. I can't think of one.
    Mr. Goodlatte. Anybody else want to respond to that very 
briefly?
    Mr. Evenson. And let me just say this: The majority of 
defendants that were brought in had prior drug convictions in 
State court.
    Mr. Goodlatte. And is it your opinion that these are 
serious drug offenders and not occasional users?
    Mr. Evenson. Absolutely. The individuals that our agents 
were looking at were heavily involved with distributing 
narcotics over extended periods of time. And they usually had 
prior State convictions that resulted in no time or probation, 
suspended sentences. And when we were able to obtain necessary 
evidence against them, we were able to bring them in, convince 
them that they were looking at strong minimum mandatory 
sentences, and it was at that point they realized that they 
wanted to cooperate, they assisted us, and were willing to 
testify. That is how we built our case and went up the chain 
and got the source of supply.
    If I can just say this. Drug organizations set up 
strongholds in neighborhoods and they affect everybody in that 
community. We represent the law-abiding citizens in that 
community. And as the Congressman said here a moment ago, 
referring to poor communities of color. We represent many of 
those poor communities of color who are sick and tired of that 
drug trafficker abiding by that kind of behavior in the 
district.
    I will tell you one example. We arrested a significant drug 
trafficker who was involved with violence.
    Mr. Gohmert. The time has expired.
    Mr. Evenson. I am sorry, Your Honor.
    Mr. Goodlatte. I thank the gentleman. If you want to submit 
something for the record to expand on that, we would welcome 
that.
    Thank you, Mr. Chairman. I appreciate your forbearance.
    Mr. Gohmert. Thank you, Mr. Chairman.
    At this time Mr. Scott, the Ranking Member, would be asking 
questions, but he had indicated to me he would like to first 
yield to the Ranking Member of the overall Committee, Mr. 
Conyers, for 5 minutes.
    You are recognized.
    Mr. Conyers. Thank you, Judge Poe.
    Let me begin with Marc Levin, Policy Director.
    And I want to express my appreciation for this discussion 
going on here. It is quite balanced and, to me, quite 
revealing.
    Mr. Levin, can you speak about States that have eliminated 
or reduced mandatory penalties and their effect on the crime 
rate, the guilty plea rate, the cooperation rate.
    Mr. Levin. Yes. Thank you very much, Congressman Conyers.
    In fact, one of the examples is Michigan, which you are 
probably familiar with, in 2000 eliminated their drug mandatory 
minimums, including retroactively, and then, in the subsequent 
decade, property crimes fell 24 percent; violent crime, 13 
percent.
    I mentioned earlier South Carolina, as another example, in 
2010, rolled back their drug mandatory minimums and has seen 
crime drop 14 percent since then.
    Georgia recently under Governor Deal, who is a former 
prosecutor--his brother is a drug court judge, and drug courts 
are one of the best solutions we have. They rolled back drug 
sentencing laws about a year ago, the penalties on low-level 
drug possession. And they have seen crime continue to decline 
in Georgia.
    So Texas, where I am from, we are definitely still tough on 
crime, and we say we are tough and smart. And so that does 
involve making the sentence fit the crime. For our drug 
possession cases, just as an example, if you have 1 to 4 grams 
of drugs, your sentence could be 2 to 10 years. That could be 
probation or prison.
    I think that what we need to do is--the heroin epidemic was 
mentioned earlier. That is a scourge. But, for example, there 
is new pharmacological interventions to literally block the 
receptors so the heroin addict doesn't feel anything anymore.
    Certainly those kingpins dealing large amounts of drugs, 
they are going to continue to get heavy Federal sentences. And 
we are just talking here about mandatory minimums, but there 
could still be sentences above that. That is just the floor.
    And no one is talking about getting rid of any mandatory 
minimums, just recalibrating them to some degree, expanding the 
safety valve, for example.
    And so I really think we have to keep in focus that, when 
you go back on the crack/powder disparity, after that was 
narrowed, the average sentence is 97 months. That is 7 or 8 
years. That is a lot of incentive to cooperate with the 
prosecutor and have that prosecutor be able to tell the judge, 
``This guy is fully cooperating.''
    So given 97 percent of cases plea out, I don't buy that we 
need penalties that are unjust simply to convict a third party. 
We ought to be focusing on what sentence fits the crime in that 
individual case before the court.
    Mr. Conyers. Thank you very much.
    So there has been, in effect, no increase in crime rates 
when we have reduced these penalties, and the plea rates and 
cooperation have gone on.
    Mr. Levin. I think that is correct. And I would also say 
the Federal system is a very small percentage. There is over 2 
million people locked up in the U.S. Only 10 percent of them 
are in the Federal system.
    So I would argue that, frankly, some of the best things we 
could do to reduce crime and have been doing are like 
policing--data-driven policing like CompStat in New York City. 
We can actually deter crime by having police in the right 
places.
    And so, again, you know, with the Department of Justice, we 
are getting to a point where close to a third of the budget is 
the Federal prison system, and we could be using those funds 
for prosecutors, for other strategies.
    Mr. Conyers. Is this from the State that you are giving us 
this experience, State instead of Federal?
    Mr. Levin. Yes. I am pointing out to you that I think the 
crime rates are more tied to State policy because, of course, 
the vast majority of defendants are sentenced and those 
incarcerated in State systems rather than the Federal 
Government. So I think the Federal Government has a very 
limited effect on the crime rate.
    Mr. Conyers. And after crack reductions, there was no 
increase in recidivism for those offenders either?
    Mr. Levin. Yeah. In fact, in Texas, we have seen our crime 
rate lowest since 1968. We have closed three adult prisons. Our 
probation and parole recidivism rates have fallen dramatically.
    And it is because, instead of building more prisons, we 
took some of that money and put it into strengthening 
probation, lower caseloads, more drug courts, more treatment 
programs. So I think that the Federal Government can learn from 
that.
    Mr. Conyers. Let me ask my final question to Mr. Otis.
    The media chooses how to portray the face of crime. It can 
choose to paint the face of a criminal as one--or someone of 
color.
    Law enforcement decides which neighborhoods and crimes to 
focus on, and that means not all neighborhoods are targeted. 
``You show me the man, and I will find you the crime.''
    Officers decide which cases are presented for prosecutors, 
and prosecutors frequently decide who is charged with mandatory 
penalties and who is not.
    Are you saying, sir, that it is impossible for bias, 
unconscious or not, to seep into our system?
    Mr. Otis. May I answer that question?
    Mr. Gohmert. Yes. Go ahead and answer. This is the last 
question.
    Mr. Otis. Of course it is not impossible for bias to get 
into the system. Anyone who would say that would be out of his 
mind.
    Nor is it impossible for ideology or naivete to creep into 
judges' decisions on what sentencing is when they are not 
constrained by a mandatory minimum.
    And I would cite for you a specific example, that being the 
Corey Reingold case, the child pornography case in New York 
where a Federal district judge imposed a sentence of 30 months 
on a defendant who did not merely possess, but had distributed, 
child pornography.
    And I am not talking here just about nude pictures of 
teenagers. I am talking about elementary school-age children in 
contorted poses that I am not going to describe in a setting 
like this.
    The district judge was so influenced by his own personal 
opinions and so convinced that Congress's mandatory minimum of 
5 years was unfair that he sentenced the defendant to 30 
months. A unanimous panel of the Second Circuit with a majority 
of Democratic-appointed judges reversed him.
    And the only reason that panel was enabled to require the 
district judge on remand to impose at least 5 years was that 
Congress had had the wisdom to say, ``For a crime like this, 
you cannot go below that.''
    Mr. Conyers. Professor Otis, you sound more reasonable this 
morning than I could have had any right to expect, and I thank 
you for your response.
    Mr. Otis. I apologize.
    Mr. Conyers. Please don't.
    Mr. Gohmert. At this time we will recognize the gentleman 
from Alabama. Mr. Bachus is recognized for 5 minutes.
    Mr. Bachus. Thank you.
    I noticed that there was general agreement that we ought to 
focus first on the kingpin, the organizer. And I think we all 
agree maybe with Mr. Evenson that, to do that, you have to get 
cooperation from someone down the line.
    With that in mind, I want to ask you about--the Attorney 
General back--August of last year directed U.S. attorneys in a 
criminal division to--and he was talking about Title 21, the 
safety valve, how you could not charge if certain elements were 
there. And he said, ``If these elements aren't there, this is 
what you can--you don't have to charge.''
    One element that had existed before that was cooperation, 
but he dropped that one. So you can deviate even though there 
is unwillingness to cooperate. So that is not even taken into 
consideration.
    Were you aware, Mr. Evenson or Mr. Otis, that there was a 
change made? He also--he elevated the number of points.
    Mr. Evenson. Congressman, I am aware of the August 2013 
memo. Essentially, prior to that time, prosecutors were 
authorized to file what is called an 851 enhancement in every 
drug case.
    That is, essentially, if a drug dealer is arrested and he 
has a prior drug felony conviction, a notice is filed with the 
court that basically doubles the minimum mandatory. That 
particular tool has been very effective in gaining cooperation. 
That is one of the tools that we have used.
    Now that tool has been greatly modified for assistant 
United States attorneys, and only in certain cases are we 
authorized to file that.
    Also, there was in the memo that we are not to put the drug 
quantities in the indictment which trigger the minimum 
mandatory.
    Mr. Bachus. Right.
    And, you know, it gives criteria when you don't put them in 
there. It is just general--you don't put them in unless these 
things are present, like violence.
    Mr. Evenson. In effect, the minimum mandatories have been 
done away to a large extent by that memo.
    Mr. Bachus. And used to cooperation was one of those things 
that you could consider, but then--I guess you still can.
    But what I am saying, the safety valve, the current--you 
know, according to this memo, even if they are not cooperating 
and they could--they could finger somebody, you still--you 
know, that is not----
    Mr. Evenson. You are exactly----
    Mr. Bachus [continuing]. That was the one thing that was 
dropped.
    Mr. Evenson. You are exactly correct.
    5C1.2 says, if you have a dealer with not any real record 
and he tries to cooperate, but doesn't come up to the level of 
a substantial assistance, there is no violence, then the court 
can come underneath minimum mandatory. Now that is not even 
necessary that he cooperate.
    Mr. Bachus. It just seems like that--you know, it goes 
against that philosophy.
    Mr. Stevenson. Just on that point, Mr. Bachus, typically, 
the charging decision is made before there is any opportunity 
to assess cooperation. And even in those cases, cooperation can 
still be considered in terms of recommendation.
    Mr. Bachus. Well, I think, you know, if you make the 
decision before you charge, it is more effective, the 
cooperation, because the kingpin doesn't know sometimes what is 
going on.
    Mr. Stevenson. Well, the only point I would make is that 
the range of sentencing is still extremely broad, extremely 
broad, and I think the data would support that most cases are 
going to plead.
    Mr. Bachus. Yeah. I just found that strange, that the 
cooperation was the one that was totally dropped out. You know, 
to me, it is--let me ask one that is not in here that I think 
ought to be considered, and that is age of the offender.
    You know, nowhere in these guidelines does it talk about 
age of the offender, and I think that is one of our biggest 
problems. You know, an 18- or 19-year-old is quite different 
from a 23- or 24-year-old. A 30-year-old is tremendously 
different, his judgment.
    Particularly, I have five children, two girls and three 
boys, and the boys mature a little later, I mean, you know, in 
most cases. I hope I don't hear about that. But, you know, 
there--I can say my 18-year-old at 30, after 4 years in the 
Marines, has much better judgment.
    But anybody want to comment on whether we ought to take 
that into consideration?
    Mr. Stevenson. Yes, Mr. Bachus. I will comment on that.
    I absolutely agree. And I think most states are actually 
moving in that direction where they are actually reintroducing 
age as an important factor, particularly when you start talking 
about drug conspiracies.
    Because what a lot of these kingpins do is they actually 
look for young, little kids, some as young as 13 and 14 years 
of age, where they have enormous influence over them, and they 
acculturate them into these behaviors.
    And right now judges and prosecutors don't have the 
discretion to consider the fact that this kid was brought in at 
13 and 14 and stayed in for 4 or 5 years. I absolutely agree.
    And the Supreme Court has actually issued a couple of 
decisions that I think would support this Congress and Task 
Force in taking steps to now recognize the importance of age 
when it comes to culpability and sentencing.
    Mr. Evenson. Congressman, I will say that most of the 
offenders that we charged were in their 20's. A juvenile in 
Federal court is under 18. We have to get Department approval.
    I will tell you one example, that we had one drug dealer 
who was involved with an organization in our district and we 
had to charge him with two murders and, after we did the 
debriefing, he told us he had committed four others. So he was 
19 years old.
    Mr. Bachus. Yeah. And I am not talking about murder. But I 
am talking about a drug--a 21-year-old is just a different 
person when he is 30, in most cases.
    I mean, they are just almost two different people in many 
cases, particularly if he hasn't had some of the supervision 
that other children do.
    Mr. Gohmert. Thank you very much.
    At this time Mr. Scott indicates he will still yield.
    And Mr. Jeffries from New York, you are recognized for 5 
minutes.
    Mr. Jeffries. Thank you, Mr. Chair.
    And I thank the distinguished panel that has appeared 
before us.
    And, Professor Stevenson, it is great to see you.
    I want to start with Professor Otis.
    Criminal justice is largely the province of 50 States. Is 
that correct?
    Mr. Otis. Yes, it is.
    Mr. Jeffries. And that is consistent, of course, with the 
constitutional landscape and the fact that prevention of crime 
wasn't necessarily an enumerated power given to Congress. It 
was left to the State. And the 10th Amendment obviously factors 
into that.
    And the majority of individuals who are incarcerated in 
this country right now are in the state penal system. Is that 
correct?
    Mr. Otis. That is also correct. Only about 217,000 are in 
the Federal law prisons.
    Mr. Jeffries. So the State experience is a relevant 
indicator of what could potentially happen if criminal justice 
reform occurs. Correct?
    Mr. Otis. That is correct, with a qualification. And the 
qualification is one that I would say I built on Mr. Evenson's 
experience as well as my own as an assistant U.S. attorney.
    The Federal prison population is not like the State prison 
population. The States turn over to the Feds the really tough, 
broad-ranging conspiracies.
    And the kind of people you find in Federal prisons are the 
ones the State didn't have the toughness or the resources or 
the sentencing system to deal with.
    Mr. Jeffries. Okay. That is interesting, because about 50 
percent of the Federal prison population actually constitutes 
non-violent drug offenders, many of whom did not have a prior 
criminal record or engaged in violent criminal activity prior 
to them being incarcerated in Federal criminal prison.
    Is that correct, Mr. Stevenson?
    Mr. Stevenson. That is correct.
    Mr. Jeffries. In fact, about 10 percent of the prison 
population in the Federal system actually are violent 
offenders. In fact, I think that is less than 10 percent.
    Mr. Stevenson, is that correct?
    Mr. Stevenson. That is correct.
    Mr. Jeffries. So the premise that the Federal system is 
somehow different in nature and is filled with kingpins and 
mafia lords and terrorists is just inconsistent with the facts.
    Is that fair, Mr. Stevenson?
    Mr. Stevenson. Yes. And the U.S. Sentencing Commission has 
made that point repeatedly in its assessment of who is doing 
time in the Federal system.
    Mr. Jeffries. So I think it is clear there is no real 
difference between the individuals in the State penal system 
and the individuals in the Federal penal system.
    And so I would argue, since the majority of individuals are 
actually in the State penal system, that the State penal system 
experience, in terms of criminal justice reform, is 
instructive. To me, that seems like a reasonable premise.
    But, Mr. Levin, does that seem fair?
    Mr. Levin. I think it is.
    There are obviously some differences in the composition, 
but, frankly, those have lessened over the years as more and 
more, frankly, low-level street-corner drug offenders have 
ended up in the Federal system.
    And I would also say one of the provisions of the Smarter 
Sentencing Act would say you could have two criminal history 
points instead of one and still be able to get this benefit of 
the safety valve.
    Now--but in order to get the safety valve, you have to 
cooperate. And so that would actually increase the incentive to 
cooperate for more people. Right? Because now, if you have at 
least two criminal history points, you can't get the safety 
valve anyway.
    Mr. Jeffries. Let me stop you there because my time is 
limited, but I appreciate that observation.
    Now, 29 States, as Mr. Stevenson pointed out, have limited 
or restricted mandatory minimums. And I would think, based on 
some of the testimony that we have heard today, that that 
perhaps would have resulted in a crimewave being unleashed on 
the good people of America in those 29 States.
    Has that been the experience, Mr. Stevenson?
    Mr. Stevenson. No, it is not. And as was indicated, some 
States have actually seen dramatic increases in their crime 
reduction after the passage of these reforms.
    Mr. Jeffries. Okay. Mr. Otis, are you familiar with the 
Rockefeller Drug Laws that were first put into place in New 
York State in the 1970's?
    Mr. Otis. Generally, but not in specifics.
    Mr. Jeffries. Okay. And it is widely understood that these 
were some of the most restrictive, punitive drug laws anywhere 
in this country. Correct?
    Mr. Otis. I would have to defer to you.
    Mr. Jeffries. Okay. Mr. Stevenson, is that correct?
    Mr. Stevenson. That is correct.
    Mr. Jeffries. Okay. Now, these are some of the toughest, 
most draconian mandatory minimums related to non-violent drug 
offenders.
    In 2009, I was in the State legislature. I was pleased to 
be part of the effort to dramatically reform those Rockefeller 
Drug Laws. This happened in 2009.
    Are you familiar with that, Mr. Otis?
    Mr. Otis. I am not.
    Mr. Jeffries. Okay. Well, it occurred.
    Are you familiar with that, Mr. Levin?
    Mr. Levin. Yes, I am.
    Mr. Jeffries. Okay. Now, again, based on this premise, I 
would assume in New York State that a dramatic crimewave, as 
some argued would have occurred as a result of the reforms that 
took place, would follow.
    Is that what took place in New York State, Mr. Otis, or did 
the crime actually continue to decline subsequent to the repeal 
of the Rockefeller Drug Laws in New York, as has been the 
experience in every other State that has changed or reformed 
its mandatory minimums?
    Mr. Otis. My answer to that is going to be a little bit 
long, but you have to forgive me. I am a law professor, after 
all.
    The answer is that, yes, in the States that have 
experimented in this way, crime has continued to decline, but 
that is because imprisonment and the use of imprisonment, while 
very significant, probably the most significant factor in the 
overall decrease in crime in this country in the last 20 years, 
is only one factor.
    Other factors are at work as well, and those factors have 
continued to be in play, other factors like hiring more police, 
better police training, better private security measures, 
better EMT care to reduce the murder rate, for example.
    So while it is true that crime has continued to decrease, 
the decrease has been at a lower rate in the States in which 
they have tried this. And the best example is California.
    Mr. Jeffries. My time is expired.
    But let me just make the observation one of the reasons 
that States have been able to invest resources in those other 
areas that you enumerated is because, when you reduce the 
prison population, you reduce the State budgetary burden and 
you can actually invest in things that have been empirically 
proven to lower crime.
    I yield back.
    Mr. Gohmert. Thank you, Mr. Jeffries.
    At this time we would move to the gentleman from North 
Carolina. Mr. Holding, is recognized for 5 minutes.
    Mr. Holding. Thank you, Mr. Chairman.
    Mr. Evenson, I would like for you to give us some, you 
know, real line--real life, frontline context.
    First, you know, just to establish--you know, in your 20-
plus years as a prosecutor, most of that as a drug prosecutor, 
how many drug defendants do you think you have prosecuted and 
who have been prosecuted under your supervision? Just a general 
number.
    Mr. Evenson. I had my own caseload while I was supervising 
a drug unit. I would say I have done hundreds myself over that 
period of time, but we have done over those years thousands. 
And we specifically went after the biggest organizations by 
using the techniques I described earlier.
    Mr. Holding. So in the thousands of drug defendants that 
you have personally dealt with, how many of those were low-
level, non-violent drug offenders?
    Mr. Evenson. Well, let me just say this. I hear the term 
``non-violent'' thrown around.
    Mr. Holding. Is the trafficking of drugs a violent crime?
    Mr. Evenson. It is by its very nature.
    You show me a city with a violence problem, and I will show 
you an underlying drug-trafficking problem. With drugs comes 
guns and violence. It is the nature of the game. They don't 
take their problems to court. They enforce it at the end of a 
gun.
    And any sheriff in my district, they would tell me--because 
I knew them all--I had 44 counties--their biggest problem was 
drugs and drug-related crime. That is what they were focused 
on, if they could get that problem solved.
    So I don't accept the term ``non-violent'' when it comes to 
drugs. These organizations are, by their nature, drug--and the 
higher they get, the more----
    Mr. Holding. But drug trafficking is a crime of violence?
    Mr. Evenson. Yes, sir. It is.
    Mr. Holding. I mean, by statute, it is a crime of violence.
    Mr. Evenson. And I am just going to say this right now. I 
have an opportunity.
    Law enforcement does not have a war on drugs. We have a war 
on drug traffickers. We seize drugs and we arrest traffickers. 
That is our mission. And we represent many of these people in 
these poor communities of color who are victimized by that.
    Mr. Holding. I want you to focus in on--another Member of 
the Task Force pointed out that, you know, law enforcement 
prosecutors can choose the communities in which they go into 
and--you know, to look for crime and prosecute crime.
    Talk about some of those communities that you have been a 
part of going into and trying to eradicate drug trafficking.
    Mr. Evenson. Congressman Bachus a moment ago asked me a 
question, and I didn't get to finish.
    One example: We had a community where a drug dealer had 
been selling for years. He had a fence around his yard. He had 
high-dollar vehicles. He had four of them. He had built an 
addition on his house.
    And there was a photo of one of my agents driving one of 
these high-dollar vehicles out of the driveway.
    He said, ``Eric, you see that picture?''
    I said, ``Yeah.''
    He said, ``You know what happened when I drove it down the 
street?''
    I said, ``No.''
    He said, ``The neighborhood had come out on the street and 
they were clapping.''
    And this was a bad, violent drug dealer. And that's the 
kind of people that we represent.
    Mr. Holding. That is, when the agent drove down the street, 
the neighborhood came out and clapped?
    Mr. Evenson. It was a Corvette. He took the Corvette out of 
the driveway. And he said, ``Right as I turned and went down 
the street, they were lined up, clapping.''
    You know, we represent some of the most vulnerable people, 
the poor, the elderly, the young, the addicted, and they have 
no voice. They have no way to sell their home and move away 
when a drug dealer sets up shop in a neighborhood and the 
property values drop.
    So, quite frankly, I am personally offended when I hear 
charges of racism. The laws are race neutral. We go where the 
battle is hottest. We represent people who are victimized by 
this activity. It doesn't make any difference what neighborhood 
it is.
    I have never prosecuted anybody on the basis of race and 
neither has any AUSA. The Department of Justice does not 
prosecute anybody on the basis of race. We have to go where the 
evidence leads us, and that is where we go.
    Mr. Holding. Thank you.
    Mr. Chairman, I yield back.
    Mr. Gohmert. Thank you.
    At this time the Chair recognizes the gentleman from 
Tennessee, Mr. Cohen, for 5 minutes.
    Mr. Cohen. Thank you. I appreciate the opportunity. I 
apologize for being late. A couple of post-midnight sessions, 
whatever.
    I walked in, Mr. Evenson, to hear you say something that 
just was incredulous, that there is not a war on drugs. You 
said there is a war on drug dealers.
    Is that what you said, something to that effect?
    Mr. Evenson. Yes, sir. I did say that.
    Mr. Cohen. And you said that the laws are race neutral. You 
said the laws are race neutral.
    Mr. Evenson. Yes, sir. They are.
    Mr. Cohen. Nobody denies the fact that the laws are race 
neutral. But the fact is the implementation of the laws is not 
race neutral and it is racial profiling. All laws are race 
neutral since 1865, except in the South, which went to 1963. 
Then they were not race neutral.
    But the implementation by people under color of law who 
arrest eight times more African Americans for possession of 
marijuana than White is not race neutral. Is that not a 
reality?
    Mr. Evenson. Congressman, I understand there is a lot of 
statistics being thrown around. But----
    Mr. Cohen. Yeah. Like the 99 percent of the people believe 
in climate change, and some of the people go with the 1 
percent. We will go back to the statistics.
    Mr. Evenson. Sir, I cannot argue the statistics.
    All I can tell you is, on a daily basis, I deal with drug 
agents that are Black, White, Indian. I have drug dealers that 
are Black, White, Indian in our district. We have prosecuted 
wherever the evidence led us.
    Mr. Cohen. I don't deny you don't prosecute them. I 
understand that. I am saying arrest. And a lot of it is street-
level arrests.
    You are a Federal prosecutor; are you not?
    Mr. Evenson. Yes, sir. And uniformed patrol is unable to 
stop this problem. It has to be investigators. They can't do 
anything in uniformed patrol. They just pick up a person with 
possession, and it ends there.
    Mr. Cohen. Do you believe that marijuana is less dangerous 
to our society than meth, heroin, crack, and cocaine?
    Mr. Evenson. Well, the laws indicate that. Yes, sir. Meth 
is highly addictive.
    Mr. Cohen. The laws don't indicate that. Marijuana is a 
Schedule I drug, the same as heroin and LSD. That law does not 
indicate it.
    Mr. Evenson. In our courtroom, it is treated differently, I 
can tell you that. Methamphetamine is instantly addictive.
    Mr. Cohen. I agree with you. That's right.
    And you might be the best in your courtroom. I don't know. 
But I--and I hope you are. But you're right. You need to go 
after meth and heroin and crack and cocaine.
    Mr. Evenson. We do that, sir.
    Mr. Cohen. How about marijuana, though?
    Mr. Evenson. Well, marijuana--some of the most violent 
dealers that I have experienced were marijuana growers.
    Mr. Cohen. Because it is illegal and they are violent when 
the police come--in or the DEA to try to bust them. So it is 
not just that they are like malum in se. They are not violent 
in se. They are violent because of the laws.
    Mr. Evenson. Well, I have been threatened by marijuana 
growers.
    Mr. Cohen. Right.
    Mr. Evenson. They want to do their thing.
    Mr. Cohen. If it was legal, do you think they would 
threaten you? They threaten you because it is illegal.
    Mr. Evenson. Well, that is a different question, 
Congressman. I am just telling you my experience.
    Mr. Cohen. I got you.
    And when alcohol was illegal--I mean, Al Capone and Frank 
Nitti and all those guys we watched on ``The Untouchables,'' 
Robert Stack--I mean, they were bad guys, but now they are 
wholesalers. They are nice guys. You know, it is just a matter 
of how you flip it.
    Do you think that the--you support mandatory minimums, I 
understand.
    Mr. Evenson. Yes, sir. We need those. We really need those.
    Mr. Cohen. Do you think that there are mistakes with 
mandatory minimums sometimes when the judge tells us so many 
times that there are situations where they didn't want to 
sentence this person to life when maybe the third offense that 
triggered or something was some minor thing or there was some 
nice woman who was involved with a man who led her astray, like 
Ms. Smith, who wrote a book? She served 6\1/2\ years, got 
pardoned--or commuted by President Clinton. She is a wonderful 
woman. Her son is at Washington and Lee.
    Mr. Evenson. Congressman, as long as we have human beings, 
there are going to be mistakes. But I can tell you that our 
system now is so regulated from the time they appear before a 
magistrate to a Federal judge, to the appeal process, that 
every case is scrutinized.
    I would say those kind of cases are rare. Every defendant 
is given a chance, in my experience, to provide assistance so 
that I can go to bat and tell the judge----
    Mr. Cohen. She was provided assistance. And the guy that 
led her into it was out in northwest Washington state, and he 
was murdered. So she couldn't provide assistance anymore.
    So they put her in jail and they put her in prison for a 
long time. And if it weren't for President Clinton, she might 
still be there. Because you can't provide assistance doesn't 
make your incarceration more just.
    Mr. Evenson. Well, there may be a case like that. But there 
is an old saying in law school that hard cases make bad law. 
And right now the law works. It has worked to remove a lot of 
drug organizations in America.
    Mr. Cohen. Well, how do you think that the experiment in 
Colorado and Washington is going?
    Mr. Evenson. I don't know, sir.
    Mr. Cohen. Mr. Stevenson, do you have anything you want to 
add?
    Mr. Stevenson. Well, I just want to emphasize that these 
exceptions, these extreme bad cases, I think should not inform 
what this Committee's Task Force does. We have a lot of data to 
tell us how to look at the system.
    And the truth of it is communities of color are not 
celebrating mandatory minimums. I think we really need to be 
sober about the impact of these laws on vulnerable populations.
    I am not suggesting that individual officers go out with 
racist intent, but there is a real difference in how easy it is 
to prosecute people in communities where you have to do your 
drug dealing on the streets as opposed to communities where you 
actually have the resources to do it covertly. And I think, if 
we don't acknowledge that, we are going to contribute to this 
problem of extreme racial disparity.
    Then the other point. I think you are right to emphasize 
that the way in which our system identifies who is bad, who is 
violent, is going to be shaped by the way we characterize and 
direct these laws.
    If we eliminate mandatory minimums, it will not, in my 
judgment, eliminate or even restrict our ability to go after 
bad kingpins. We can still do that.
    Nobody is talking about shielding drug dealers or drug 
traffickers from arrest and prosecution. What we are talking 
about doing is protecting people who are sometimes caught in 
the web and sometimes end up with these very unjust sentences.
    Mr. Cohen. Thank you. And I yield back.
    Mr. Bachus. Most bank robbers aren't violent unless you try 
to stop them.
    Mr. Gohmert. Gentleman is not recognized at this point.
    Mr. Cohen. Willie Sutton was a sweetheart.
    Mr. Gohmert. The Chair will recognize himself for 5 
minutes. Thank you.
    I really appreciate the level of commitment here. 
Obviously, we have got people that are quite familiar with the 
system.
    I am also pleased that we have such an experienced group on 
this Task Force, people that have dealt with the law in so many 
respects.
    Having been a state judge and a chief justice at a State 
Court of Appeals, we used different terminology. And so, when I 
hear an immediate adverse reaction to mandatory minimums--in 
the State, we called it a range of punishment, and it seemed 
perfectly appropriate for the legislature to say, you know, for 
these crimes, state jail felony--and I was a felony court--this 
is the minimum, 0 to 2 years for state jail felonies; 2 years 
to 10 years for a third-degree; 2 to 20. But you add that 
bottom level.
    Now, if you--and first degree, 5 to 99 or life. And then, 
of course, if you enhanced it up with prior convictions, then 
you could--I think there was a guy arrested for stealing a 
Snickers at one point, and that runs into strange facts when 
you have got a guy looking at maybe a mandatory 25 years 
because of enhancements.
    But it seems like we could deal with the areas in which 
there are great injustices without totally eliminating floors.
    Although most judges I know would be fair and try to act 
fairly within a proper range, I am old enough to remember 
before the Sentencing Guidelines back when Federal judges 
actually got mad that they were having discretion taken away.
    I was shocked when I started having more Federal judges 
say, ``Well, we kind of like it. We don't have to make such 
tough decisions. The Sentencing Guidelines tell us what we want 
to do.''
    Mr. Evenson, I cut you off twice when you seemed to be 
ready to proceed further, and I have got time.
    Anything that you were wishing to illustrate that you 
didn't have time to do earlier?
    Mr. Evenson. Well, thank you, Your Honor.
    I just want to emphasize on behalf of the over 5,000 
assistant United States attorneys that I read the comments that 
they provided on this legislation. We had a survey, and I read 
it again this morning.
    And if you could hear and see those statements, I think you 
would be amazed at how profound reducing the minimum 
mandatories would be on our ability to do our job. We will not 
be able to go after the biggest drug dealers unless we have 
witnesses.
    And, as I said, this is a hard, mean business we are in. We 
need the inducement to allow conspirators to testify, and they 
do that. They have to make a decision. It is a go or no-go 
situation.
    And there with their lawyer they decide, ``All right. My 
drug days are over.'' We build a rapport with them, and they 
tell us everybody that they have been getting their drugs from.
    And they are willing to testify. Oftentimes they don't have 
to testify, but they are told, ``We don't care what you tell 
us, as long as you tell us the truth.'' And most of them do, 
and those that don't go off to prison.
    And I had a lawyer tell me one time--he said, ``You know 
who is in Federal prison? Those who cooperated and those who 
wished they had cooperated. Those are the two people in Federal 
prison.''
    We need the ability to negotiate. And the sentences are 
fair. We are not prosecuting users. We are not prosecuting 
marijuana users. That is a myth.
    We are prosecuting people, for the most part, who have 
prior convictions and are dealing in significant quantities 
over a long period of time. That is why we have conspiracies 
that run 1, 2, 3, and 5 years.
    That was the thing that amazed me when I went to Federal 
court. You could actually charge somebody with an agreement 
that lasted that long period of time, but the jury gets to see 
the whole story then. It's not just a search on a drug house.
    So that would be our statement, Congressman. I appreciate 
the time.
    Mr. Gohmert. Anybody else wish to comment on Mr. Evenson's 
reflection?
    Go ahead, Mr. Otis.
    Mr. Otis. I have two comments on it.
    One is--I apologize for interrupting Mr. Levin.
    And you will have your chance.
    One of the things we need to do is go by our experience. 
Mr. Levin has pointed out that there has been the experience 
of, I think, 16 or 17 States that over the last few years have 
reduced or eliminated mandatory minimum sentencing and have not 
seen an upsurge in crime.
    I would point out two things.
    He omitted talking about California, which has had as many 
premature prison releases as the rest of the States combined.
    The reason for that is California is acting under the 
Supreme Court's Plata decision that required early releases in 
order to reduce the prison population to make prison conditions 
constitutional.
    What has happened in California, again, which has had as 
many premature releases as the rest of the States combined, is 
that crime has gone up, that that is not accounted for.
    The other thing I would say is that we can look beyond the 
experience of 17 States over a few years and look to the 
experience of 50 States over 50 years. We know what works, and 
we know what fails.
    What fails is what we had in the 1960's and 1970's, when we 
had a feckless and unrealistic belief in rehabilitation and not 
really a belief in incarceration. That failed. What works is 
what we have done for the last 20 years.
    Mr. Gohmert. My time is well expired.
    Let me recognize the gentleman from Virginia.
    Mr. Levin. Well, can I just briefly respond?
    First of all, with regard to California, I believe the 
reason they got in that situation is policymakers there failed 
to act proactively.
    That is why we have been working with legislators around 
the country to address prison crowding in a prospective way, in 
a way, for the Democratic process, so you don't invite Federal 
court supervision.
    So I think California illustrates why we need to tackle 
this Federal prison overcrowding issue up-front rather than 
leaving it to unelected--Supreme Court or other judges.
    I would also say one of the reasons I think we have seen 
the experience with the Rockefeller Drug Laws, as you 
mentioned, with the drug reform in South Carolina and other 
States not leading to an increase in crime is we know that the 
research has shown staying longer in prison does not reduce 
recidivism.
    Prisons do one thing well, which is incapacitate, which, 
obviously, with murderers, serial rapists and others, is 
exactly what's needed.
    But with people that have a drug problem--and many of these 
people who are dealing small amounts of drugs on street corners 
also have a habit themselves--if we can correct that habit and 
get them into a productive, law-abiding role as a citizen, 
including through appropriate supervision after release, which 
we are not investing in on the Federal level, I think then we 
can continue to drive down the crime rates in this country.
    Mr. Gohmert. Thank you.
    At this time we recognize Mr. Scott for 5 minutes.
    Mr. Scott. Thank you.
    And I thank all of our witnesses.
    Mr. Stevenson, you indicated that penalties do not affect 
drug use.
    Is there any evidence that the 5-year mandatory minimum for 
small amounts of crack when we had the 100-to-1 disparity 
encouraged people to instead use powder where they can have 100 
times more powder? Is there any indication that people would 
say, ``Oh, I am not going to use the crack. I am going to use 
the powder''?
    Mr. Stevenson. No. I think anybody who has worked with this 
population knows that, very sadly, they are driven by an 
addiction, by a disorder, that is actually shaping their 
choices. They are not worried about tomorrow. They are not 
worried about the next week.
    Most of them couldn't even tell you what the penalties are. 
And I think, until we recognize that, we are going to be 
misdirecting a lot of our resources.
    Mr. Scott. And if your goal is to reduce drug use, you 
mentioned a public health approach?
    Mr. Stevenson. No question. A lot of countries have 
actually invested in interventions and many States have also 
used drug courts where they authorize treatment and 
supervision.
    I just want to emphasize this point about supervision, 
which has proved to be very effective. If you spend $50,000 a 
year to keep somebody in prison, that money doesn't accomplish 
very much.
    If you spend $10,000 a year to take somebody who has just 
been released from prison and make sure that they are actually 
complying with very strict guidelines around treatment and 
services, allowing them to move forward to get a job, et 
cetera, not only are you spending less money on that person, 
you are dramatically increasing the chances that they are 
actually not going to recidivate or continue to be a drug user.
    We have got lots of data from lots of countries that talk 
about these public health approaches that have radically 
reduced drug addiction and improved the health of these 
communities.
    Now, I am very sensitive to communities that have been 
highjacked by drug addiction and drug abuse. The interventions 
that are around health care models are the interventions that 
have had the biggest impact on the health of those places.
    Mr. Scott. Mr. Levin, I understand that your organization, 
Right on Crime, takes the position that there are more cost-
effective ways of reducing crime than waiting for people to get 
arrested and get into a bidding war as to how much time they 
are going to serve.
    Have you seen the research that incarceration rates over 
500 per 100,000 are counterproductive?
    Mr. Levin. Yes. I think what the case is is that you reach 
a point of diminishing returns when it comes to incarceration 
rates.
    And that is, number one, because you are sweeping in too 
many non-violent and low-risk offenders into prison, and, 
number two, people are serving longer than necessary.
    Mr. Scott. Let me ask you a question on that point, then.
    If anything over 500 per 100,000 is counterproductive and 
ten States are locking up African Americans at the rate of 
4,000 per 100,000, if in a community of 100,000 with that kind 
of lockup rate you reduced it to the 500, at which you stop 
getting any kind of return, you have 3,500 fewer people in 
prison at, say, 20,000 each, that is $70 million.
    Are you suggesting that that community could actually 
reduce crime more by spending that $70 million productively in 
a public health model, education, after-school programs, 
getting young people on the right track, keeping them on the 
right track, than they could just locking up 3,500 extra 
people?
    Mr. Levin. Well, I think it is difficult to look at kind of 
setting arbitrary rates or cutoffs. Obviously, States have 
different crime rates and so forth.
    But I would say that certainly, once you do--Professor 
Steve Levitt, who has written ``Freakonomics,'' he looked at 
it. And John Dilulio, who signed our Right on Crime Statement 
of Principles, he was one of the biggest backers of increasing 
incarceration a few decades ago.
    And what they have said is we have reached a point of 
diminishing returns and, in fact, potentially in some places, 
negative returns by the sense that you could be using that 
money to put another police officer on the street doing some of 
the things they have done in New York City and other places 
where they are actually able to deter crime through a greater 
presence of officers in the right places, targeting those hot 
spots.
    So I think that--and, as you said, we have talked about 
problem-solving courts, a whole range of other approaches, 
electronic monitoring and so forth.
    And so I think that we really--without necessarily getting 
into arbitrary caps, we have got to--what we have seen in 
States is, because so much of the money--90 percent of State 
corrections budgets are going to prisons--the resources are not 
there often for these alternatives.
    So it is a matter of realigning our budgetary priorities 
and making sure people don't go to prison simply because we 
haven't provided the alternatives.
    Mr. Scott. Well, we have heard you need these bizarre 
sentences to fight the war on drugs.
    How is imposing sentences that violate common sense helpful 
to the war on drugs?
    Mr. Levin. Well, I think we--as you said, half of all high 
school students have tried illegal drugs. We have got to have a 
broader approach that looks at prevention, that looks at 
substance abuse treatment where there is many advances being 
made.
    And I really think that certainly we know that undoubtedly 
drug dealers replace one another. So simply the problem is too 
broad to solve just by taking what are unfortunately a small 
number of the total people dealing drugs and putting them in 
prison for incredibly long sentences.
    And, as we have said, these people are still going to be 
going to prison 97 months on the crack cases even after the 
disparity was narrowed. We are just talking about----
    Mr. Scott. When Mr. Evenson says that he can't deal with 
these people, these people are not--he makes it sound like he 
doesn't have any leverage over the people. These people are 
going to jail, just not on bizarre sentences. They would be 
going to jail on fair sentences.
    Mr. Levin. Right.
    And the question is: Is the last year or 2 of the 8 years 
or 10 years or 15 years--is that last year getting us that much 
mileage relative to what else we could be doing with those 
resources?
    Mr. Gohmert. Thank you.
    Let me just comment. We had submitted Chairman 
Sensenbrenner's statement for the record. He does point out 
things on which I would hope we would all agree that this Task 
Force has taken up. Rather unusual to see ACLU, Heritage 
Foundation, liberal and conservative groups joining together.
    But we have a lot of agreement with regard to issue of mens 
reas requirement for offenses. We have got--and it was 
mentioned earlier. We really should have these codified into 
one code instead of having 4,500 or 5,000 Federal crimes where 
a prison sentence was added simply to show Congress was tough 
on some issue when maybe it was a clerical error and it 
shouldn't have gone that route.
    So there are many things that we agree on that we really 
need to deal with. And we really appreciate all of your input 
on this issue of mandatory minimums, or what I might call a 
range of punishment.
    And you may have other thoughts as you leave. I know I 
always do: Gee, I wish I had said this, that or the other. So 
if you wish to have--we provide Members 5 legislative days to 
submit additional written questions for the witnesses or 
additional materials for the record.
    Let me just say, if you have additional information that 
you think of after you walk out, that ``I wish I had said 
that,'' we would welcome that being submitted in writing for 
our review, and it will certainly be reviewed.
    The Ranking Member has a comment.
    Mr. Scott. Thank you, Mr. Chairman.
    I would ask unanimous consent that letters and testimony 
from the U.S. Sentencing Commission;* Justice Strategies; 
Families Against Mandatory Minimums; the Leadership Conference 
on Civil and Human Rights; the Brennan Center for Justice; the 
Judicial Conference that often reminds us that judges are often 
required to impose sentences that violate common sense; the 
Human Rights Watch;** the ACLU;*** and the Sentencing Project 
article in The Hill all be entered into the record.
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    *This submission included a compilation titled ``Amendments to the 
Sentencing Guidelines.'' The compilation is not reprinted in this 
hearing record but is on file with the Task Force and can be accessed 
at http://www.ussc.gov/sites/default/files/pdf/amendment-process/
reader-friendly-amendments/20140430_RF_Amendments.pdf.
    **This submission included a report titled ``An Offer You Can't 
Refuse, How US Federal Prosecutors Force Drug Defendants to Plead 
Guilty.'' The report is not reprinted in this hearing record but is on 
file with the Task Force and can be accessed at http://www.hrw.org/
reports/2013/12/05/offer-you-can-t-refuse.
    ***The item referred to is not reprinted in this hearing record but 
is on file with the Task Force and can be accessed at https://
www.aclu.org/files/assets/111813-lwop-complete-report.pdf.
---------------------------------------------------------------------------
    Mr. Gohmert. Without objection, that will be done.
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    Mr. Gohmert. And, again, if you have additional materials--
any of you--that you feel would be helpful to this Task Force, 
we will welcome those. And the record will be open for 5 days.
    Mr. Cohen.
    Mr. Cohen. If I could just ask one other question. Would 
you mind?
    Mr. Gohmert. Without objection.
    Mr. Cohen. Thank you.
    I am just guessing. I haven't seen--Mr. Otis, I think you 
have got the most experience here. I think you are maybe the 
only person here older than me. I think 1968 is when you 
graduated.
    Mr. Otis. You look like a youngster to me. More and more 
people do these days.
    Mr. Cohen. I know. It is all relative.
    You have been doing this for a long time, and you were at 
DEA. If I am wrong in my opinion, tell me. But from what I see, 
the drug war over all those years hasn't changed at all as far 
as the American appetite for drugs, the American appetite for 
marijuana, for crack, cocaine, meth, whatever, Ecstasy, 
Oxycontin, whatever.
    And our process has been the same, arrest people, mandatory 
minimums, flip them, put them in jail, put them in jail for a 
long time. It hasn't worked.
    Is the system basically in the same place it has been? Do 
you feel like a rat going along in a cylinder there? Don't you 
think we ought to just kind of come out of it and go, ``In 40 
years, don't we need a new theory or a new way to do this?''
    Mr. Otis. What the statistics show is that drug crimes are 
intimately related with other kinds of crimes, with property 
crimes and with crimes of violence.
    And we know from the statistics that those crimes have gone 
down substantially; so, I don't think it is correct to say that 
it hasn't worked.
    In addition to that, in order to know whether specifically 
drug laws have worked, we would need to know what the state of 
play would be if they had not been enforced.
    And the great likelihood--because the drug business, I 
think, has been misapprehended in some of what is going on 
today. The drug business--unlike other kinds of crime, the drug 
business is consensual. So there is not a crime scene and a 
victim in the same sense that there is in other kinds of crime.
    We have talked a lot today and you have talked--and 
correctly so--about violence and whether we have seen an 
increase or decrease in violence when some States have released 
drug defendants early. But violence is not the only thing we 
need to care about when we are talking about drugs.
    We need to care also about harmfulness. Because the drug 
business is consensual--for example, the actor Philip Seymour 
Hoffman who recently died of an overdose, he died as a result 
of a consensual drug transaction, as almost all drug 
transactions are.
    But he and the other 13,000 heroin addicts who die each 
year are equally dead, whether it is consensual or whether 
there has been violence.
    We need to stomp out the harm that comes from the drug 
trade, a harm that is one of most destructive, particularly in 
minority communities, that is going on in the United States 
today.
    Mr. Levin. Would you mind if I added one thing?
    Mr. Gohmert. Go ahead.
    Mr. Levin. With regard to heroin, since 1990, the purity 
has gone up 60 percent. The price has dropped 81 percent. So it 
does indicate what we are doing with regard heroin is 
tragically not working.
    And I think we--obviously, those who--particularly kingpins 
dealing heroin and other hard drugs should go to prison.
    But what we need to do is, as I said, take a broader 
approach--there is pharmaceutical advances that are treating 
heroin addiction--and, also, recognize prescription drugs.
    Even with the increase in heroin recently, prescription 
drug abuse is far more common than heroin abuse. And so I hope 
we can also focus on that as well.
    Mr. Cohen. Mr. Chairman, thank you.
    I think what I got out of that is that what we need to do 
is--Huey Lewis probably had the answer about a new drug. We 
need to find a drug that is not addictive and not harmful, but 
still pleasurable, and we need to put the NIH to work on it 
tomorrow.
    Mr. Gohmert. Well, I always thought that was what we called 
glazed doughnuts.
    Mr. Bachus, you asked unanimous consent.
    Mr. Bachus. Thank you.
    Unanimous consent. And Professor Otis sort of reminded me 
of this. I had it. But this is a crime scene, and this is in 
Alabama.
    These are two young people that overdosed on a synthetic 
drug earlier this year. So it is a different crime scene. But 
it looks pretty violent, I am sure, to their parents and their 
friends.
    I would also like to introduce----
    Mr. Gohmert. Are you offering that for the----
    Mr. Bachus. Yes.
    Mr. Gohmert. All right. Without objection.
    [The information referred to follows:]
    
    
    
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    Mr. Bachus. I would also like to introduce a copy of the 
Attorney General's memorandum to U.S. attorneys and I 
particularly highlighted where the cooperation is no longer 
included.
    But, third, I--you know, Mr. Stevenson said something that 
I think we need to at least have one panel of people, and that 
is health care approach and things that we can do in drug 
diversion treatment, addiction, addressing it both as a 
criminal problem and a health care problem.
    And I would think the U.S. attorneys would probably welcome 
that more than any one group because I have had U.S. attorneys 
and DAs that have expressed to me that they wish more was done 
on addictions and rehabilitation, because they are really the 
ones that see it every day.
    Mr. Scott. Mr. Chairman.
    Mr. Gohmert. Without objection.
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    Mr. Scott. I just want to make it clear that I think we 
share the common goal of reducing drug use in America. The 
question is what the strategy will be.
    Mr. Levin and Mr. Stevenson pointed out that there is a 
better, more cost-effective way of actually reducing drug use 
in America. Others suggested the war on drugs is working.
    I think the war on drugs has been shown to be a complete 
failure. It has wasted money, it hasn't reduced drugs, and 
there are more cost-effective ways of doing it. And that is 
what the debate is all about.
    Mr. Gohmert. Thank you. You are right.
    We all agree on that, that we want to reduce the usage of 
drugs. And there have been data provided that indicate that in 
some ways it is working.
    To explain to each of you, we had anticipated having to go 
vote around 10 a.m. And so we started out under that--that is 
what we were told by the mortal gods, with a little ``g,'' from 
the House floor.
    While we were proceeding, we got word that the vote that we 
were told to anticipate around 10 was voice-voted--thankfully, 
some cooperation on the Floor--and that allowed us to finish 
without interrupting you or taking more of your time than 
necessary. So we do thank you.
    And, with that, we are adjourned.
    
    [Whereupon, at 10:54 a.m., the Task Force was adjourned.]
    
                            A P P E N D I X

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               Material Submitted for the Hearing Record

           Supplemental Material submitted by Eric Evenson, 
       National Association of Assistant United States Attorneys