[Senate Hearing 113-356]
[From the U.S. Government Publishing Office]
S. Hrg. 113-356
REEVALUATING THE EFFECTIVENESS OF FEDERAL MANDATORY MINIMUM SENTENCES
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 18, 2013
__________
Serial No. J-113-30
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 32
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
prepared statement........................................... 34
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 5
WITNESSES
Witness List..................................................... 31
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky....... 6
prepared statement........................................... 37
Levin, Marc, Policy Director, Right on Crime Initiative at the
Texas Public Policy Foundation, Austin, Texas.................. 9
prepared statement........................................... 40
Tolman, Hon. Brett, Shareholder, Ray Quinney & Nebeker, Salt Lake
City, Utah..................................................... 11
prepared statement........................................... 62
Burns, Hon. Scott, Executive Director, National District
Attorneys Association, Alexandria, Virginia.................... 13
prepared statement........................................... 68
QUESTIONS
Questions submitted by Senator Franken for Marc Levin............ 73
Questions submitted by Senator Franken for Brett Tolman.......... 74
QUESTIONS AND ANSWERS
Responses of Marc Levin to questions submitted by Senator Franken 75
Responses of Brett Tolman to questions submitted by Senator
Franken........................................................ 80
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Saris, Patti B., Chair, United States Sentencing Commission,
statement...................................................... 83
Bell, Robert Holmes, Chair, Committee on Criminal Law, Judicial
Conference of the United States, Grand Rapids, Michigan,
September 17, 2013, letter..................................... 96
Stewart, Julie, President, Families Against Mandatory Minimums
(FAMM), statement.............................................. 105
Angelos, Lisa, statement......................................... 123
Hopwood, Shon, The Justice Safety Valve Act of 2013, statement... 126
The Need for Meaningful Federal Criminal Justice Reform, Policy
Statement of Former Federal Prosecutors and other Government
Officials, submitted by Brett Tolman........................... 134
Summary of Sample Mandatory Minimum Cases........................ 140
Armstrong, Sherrie A., and Thomas C. Means, Attorneys, Crowell &
Moring LLP, Washington, DC, statement.......................... 168
Immigrant Justice Network (IJN), statement....................... 176
Group of former judges, prosecutors and law enforcement
officials, Letter to Senators Durbin and Lee regarding the
Smarter Sentencing Act, September 17, 2013..................... 181
American Correctional Association, Alexandria, Virginia, Public
Correctional Policy on Sentencing, statement................... 187
American Correctional Association, Alexandria, Virginia,
Supporting the Elimination of Mandatory Minimum Sentences and
the Enactment of ``Safety Valve'' Legislation, statement....... 189
Haase, Mark and Sarah Walker, Co-Chairs, Minnesota Second Chance
Coalition, letter.............................................. 190
Ford, Wayne, Former Iowa State Representative, Des Moines, Iowa,
statement...................................................... 193
Eaglin, Jessica M., Counsel, Brennan Center for Justice at NYU
School of Law, statement....................................... 194
American Civil Liberties Union (ACLU), Washington Legislative
Office, statement.............................................. 202
Tyler, Jasmine L., M.A., Deputy Director, National Affairs, Drug
Policy Alliance, Berkeley, California, statement............... 214
Federal Criminal Justice Clinic, the University of Chicago Law
School, statement.............................................. 223
Ginatta, Antonio M. Advocacy Director, Human Rights Watch,
statement...................................................... 240
Henderson, Wade, President & CEO, The Leadership Conference on
Civil and Human Rights, Washington, DC, statement.............. 246
REEVALUATING THE EFFECTIVENESS OF FEDERAL MANDATORY MINIMUM SENTENCES
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WEDNESDAY, SEPTEMBER 18, 2013
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Durbin, Klobuchar, Franken,
Blumenthal, Hirono, Grassley, Cornyn, and Lee.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Thank you for being here.
Today we are meeting to confront the unsustainable growth
of our federal prison population. Let me emphasize that: the
unsustainable growth. After years of debate, I am encouraged
that we have bipartisan agreement that we must act, that we
must reevaluate how many people we send to prison and for how
long. Fiscal responsibility demands it. Justice demands it.
One piece of the problem is the extensive use of mandatory
minimum sentences. It is a problem that Congress created, but
it is also a problem Congress can fix.
I want to be clear that some offenders deserve long
sentences. I certainly learned that as a prosecutor. And no one
is saying that we should not send dangerous criminals to
prison. As any prosecutor knows, behind our most serious
crimes, of course, are victims, and victims deserve peace of
mind knowing that the criminal who robbed them or raped them or
defrauded them of their life savings is off the streets and is
being punished. We know that in some cases, especially white-
collar crimes, long sentences can serve as a deterrent to
others. I also want to emphasize that our efforts should in no
way be seen as a criticism of the tireless efforts of law
enforcement officials who dedicate their lives to keeping us
safe. They deserve our appreciation and support. We saw an
example of their efforts just this week here in Washington,
D.C.
But we also have to acknowledge that our federal prison
population is expanding at a rate that is simply unsustainable.
In the past 30 years, it has soared by more than 700 percent.
We now spend--and this is just on federal prisons, not State
prisons. We spend approximately $6.4 billion a year on federal
prisons; that is about a quarter of the Department of Justice's
budget. This spending means fewer federal prosecutors and FBI
agents, less funding for investigations, less support for State
and local law enforcement, and fewer resources for crime
prevention programs or victim services or reentry programs.
Now, the skyrocketing costs might be acceptable if mass
incarceration improved public safety. But we know it does not.
While Congress has continued to pass legislation mandating ever
longer sentences, the States have focused on successful
alternatives. New York, South Carolina, Georgia, Ohio, Rhode
Island, and Michigan have undertaken reforms like reducing
sentences, repealing mandatory minimums, investing in
recidivism reduction, and they have saved taxpayer dollars--all
while crime rates have decreased. So I think we should look to
the States and see what lessons they have learned.
The number of mandatory minimum penalties in the Federal
Code nearly doubled from 1991 to 2011. Many of those mandatory
minimums originated right here in this Committee room. When I
look at the evidence we have now, I realize we were wrong. Our
reliance on a one-size-fits-all approach to sentencing has been
a great mistake. Mandatory minimums are costly, unfair, and
they do not make our country safer.
I will give you an example. Weldon Angelos, a 23-year-old
with no criminal history, received a 55-year mandatory minimum
sentence for selling $350 worth of marijuana on three occasions
while in possession of a firearm. Now, there is no question Mr.
Angelos committed a crime and he should be punished. But 55
years? He will be in prison until he is nearly 80 years old.
His children, only 5 and 6 at the time of his sentencing, will
be 60 years old. And for selling that $350 worth of marijuana,
we the taxpayers will have spent more than $1.5 million to lock
him up.
The federal judge who sentenced Mr. Angelos--and
incidentally, the federal judge was a conservative Republican--
called this sentence ``unjust, cruel, and irrational'' and
noted the sentence, which involved no violence, was much more
than the minimum for hijacking or kidnapping or rape. So we
have to ask ourselves: What good does this do society?
Mr. Angelos' sister is here today, as are many family
members with similar stories of loved ones sent to prison for
decades, and I thank them for being here.
Attorney General Holder's decision last month not to pursue
mandatory minimum sentences for certain drug cases is an
encouraging step, but it will not reach cases like Mr.
Angelos'. And the Department of Justice cannot solve this
problem on its own. Congress has to act.
In March, Senator Rand Paul and I introduced the Justice
Safety Valve Act of 2013, which would restore the sentencing
discretion judges used to have if they determine that a
mandatory minimum punishment is unnecessary and
counterproductive. And I believe I speak for both Senator Paul
and myself--and he is going to be testifying--that judges, not
legislators, are in the best position to evaluate individual
cases and determine appropriate sentences. Our bipartisan
legislation is neither liberal nor conservative. It has
received support across the political spectrum.
I am also a cosponsor of the Smarter Sentencing Act, which
was introduced by Senator Durbin and Senator Lee and makes
necessary reforms to federal drug sentences. I know that
Senator Cornyn, Senator Whitehouse, and others are working on
legislation to reduce the size of our prison population. I hope
we can combine the best ideas from all of these pieces of
legislation, because we cannot afford to stay on our current
path.
Reducing mandatory minimum sentences, which have proven
unnecessary to public safety, is an important step that we
desperately need. This is not a political issue. It is a
practical one, and it is long overdue.
Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. Thank you for holding this hearing. There
is quite a bit of misunderstanding concerning this topic. Prior
to 1984, federal judges had almost unlimited discretion in
sentencing. Sentences imposed depended much more on which judge
was giving the sentence than the nature of the offense or of
the criminal's history. Parole and excessive judicial
discretion led to unwarranted disparity. Congress thus adopted
Sentencing Guidelines. They considered the nature of the
criminal offense and the history of the offender. Those
guidelines were normally binding on any federal judge. So no
longer would sentences turn on which judge a criminal appeared
before. The guidelines eliminated disparities. Judges could not
consider factors that often led to wealthier defendants
receiving shorter sentences for similar crimes than the less
wealthy.
Racial bias, conscious or unconscious, also was addressed
through the guidelines. Lengthier sentences protected victims'
interests and reduced the changes that other innocent people
would become victims. All this had wide bipartisan majorities.
Congress also increased the number of mandatory minimum
sentences, although they have existed since 1790. Since then,
due in part to tougher federal criminal penalties, elimination
of parole, increased number of inmates, better police
practices, and other factors, crime rates have dropped
significantly.
The Supreme Court undermined the excellent sentencing
legislation.
First, the Court created from whole cloth a novel
interpretation of the Sixth Amendment.
Second, the Court in Booker unnecessarily extended that
line of cases to mandatory sentencing guidelines and help them
to be unconstitutional.
Third, rather than strike down the guidelines, the courts
rewrote them.
In a particularly egregious example of judicial activism,
they overrode congressional intent and made the guidelines
advisory. It was only because the guidelines were clearly
intended to be mandatory that Congress ever passed them in the
first place.
Following Booker, Congress has only one tool to make sure
that sentences are not too lenient and do not reflect
unwarranted disparity. That, of course, is mandatory minimums.
Under the current state of the law, if Congress, reflecting
the will of the American people, is to have any effect on
sentences imposed, protecting victims, deterring crimes,
punishing appropriately, mandatory minimums are our only
option. Otherwise, judges will be able to exercise effectively
unbridled discretion that existed before 1984.
Some people think that the cost is a reason to do away with
mandatories, so we have this oddity. For the first time in 5
years, this administration finally found one area of federal
spending that it wants to cut, and that is, prison expense.
Perhaps in an era of voluntary guidelines, the first place to
think about cutting spending on sentencing would be abolishing
the Sentencing Commission. Private parties can analyze this
data and issue reports just as well, and taxpayers will not
have to fund an entity that favors retroactive leniency at
various opportunities.
The sentencing disparities that exist today are not due to
mandatory minimum sentences, which existed both before Booker
and after. In fact, Congress has reduced mandatory minimum
sentences since Booker. Rather, the disparities are due
primarily to the Supreme Court's Booker decision that made the
Sentencing Guidelines advisory. Minimum sentences imposed now
turn on which judge the offender appears before. The quality of
the lawyer, and other factors that produced disparities before
the Sentencing Reform Act are now creeping back into
sentencing.
The Sentencing Commission in December issued a report that
compared sentences of African Americans and white males at the
time the guidelines were still mandatory until now when they
are advisory only. For cases overall, when the guidelines were
mandatory, African American males served 11.5 percent longer
sentences than white males. Now that the guidelines are
advisory, African American men serve 19.5 percent longer
sentences than white males.
In firearms cases, African American men received sentences
that were 6 percent longer than white men when guidelines were
mandatory. Today African American men receive sentences 10
percent longer than whites for these crimes.
For drug trafficking, African American men received
sentences that were 9 percent longer than white men in 2005,
but since the guidelines were made advisory, they now receive
sentences that are 13 percent longer.
As the Sentencing Commission concluded, ``Although sentence
length for both black male and female offenders and white male
and female offenders have decreased over time, white offenders'
sentence length has decreased more than black offenders'
sentence length.''
We should certainly continue to examine federal sentencing
policies. We may decide that the length of some mandatory
minimum sentences should be adjusted up or down. But there are
two areas in which we ought to consider adding new mandatory
minimum sentences because federal judges are departing downward
from guidelines excessively. These are financial crimes and
child pornography possession. We should consider imposing
mandatory minimum sentences for these offenses.
Mandatory minimum sentences are not as inflexible as they
are often characterized. According to the Sentencing
Commission, almost half of the offenders convicted of an
offense carrying a mandatory minimum sentence are not given
such sentences. We hear over and over again that mandatory
minimum sentences are not one size fits all or that they are
unfair. We hear that low-level and first offenders always
receive harsh sentences, and that is not so. It effectively--
the safety valve provision requires judges not to impose
mandatory minimum sentences for first-time low-level nonviolent
drug offenders who have cooperated with authorities. The
combination of mandatory minimum sentences and the reduction
for substantial assistance provides investigative leads against
bigger fish. It is a benefit of mandatory minimum sentences
that is not always appreciated.
I will put the rest of my statement in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Leahy. Thank you.
I mentioned that Senator Durbin, who chairs one of the
major Subcommittees here, has legislation. He wanted to say a
couple words, and then we will go to Senator Paul, if that is
all right. Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, thank you for this hearing.
Senator Paul, thank you for being part of a bipartisan effort.
Senator Lee has also been working with me on companion
legislation, parallel legislation. I commend it to you. I hope
that you will look at it. It is very, very similar to what you
have, but it takes a slightly different approach.
I just want to tell a story. It is a story of a young black
woman named Eugenia Jennings. Eugenia Jennings from Alton,
Illinois, was a single mom with three children. She became
addicted to crack. There was a time when she was desperate,
without money, and she sold a small quantity of crack to a man
in exchange for clothing, and she ended up being arrested.
At the age of 23, she was arrested, convicted, and
sentenced to 22 years in prison for the sale of a handful of
crack cocaine. Twenty-two years in prison. She left behind
three small children. Her brother, Cedric Parker, a true hero,
stepped in to raise those kids while his sister went off to
prison for 22 years. He did a great job, and he came and
testified and told us her story.
I decided to look at it more closely and get to know
Eugenia Jennings. I met her in a federal prison in Greenville,
Illinois, and found out that she had been a model prisoner for
10 years. She had done everything right. There was nothing to
say negatively about her, and I met with her in a room, and she
looked up at me, and she said, ``Senator, if you can get me
back with my kids, I promise you I will never, ever commit
another crime in my life.''
I told that story to a former Senator from Illinois named
Barack Obama. He commuted her sentence. She has been home now
for a year and a half. She is struggling with cancer, but she
is back with her children. They are reunited. They are a family
again.
Was America safer if she spent another 10 years in prison
at $29,000 or $30,000 a year? Was her family better if she was
separated from them for another 10 years? Is 22 years a just
sentence for what I just described to you, even if it was one
of multiple offenses? And I will be very honest with you--it
was.
In fact, the President saw it differently, and he did what
I think was the right thing.
What we are talking about here is doing everything that we
can do sensibly to reduce the level of incarceration. In our
bill, it focuses on drug cases, and those represent about 50
percent of the increase in prison incarceration.
I have talked to judges, prosecutors, all across the board.
They have begged for the opportunity to be able to reduce these
mandatory minimums in cases just like Eugenia's. Before the
President commuted her sentence, he went back to the sentencing
judge, went back to the U.S. Attorney's Office, and all of them
said, ``Turn her loose.'' They knew that there was a
miscarriage of justice in her case.
Let us be smart about reducing crime in America. Let us not
be punitive in the belief that somehow that makes us a safer
nation.
Mr. Chairman, this is the right time for this hearing, and
this is the right time for the Judiciary Committee and Congress
to address this issue.
Chairman Leahy. Well, thank you very much.
Senator Paul and I have had a lot of discussions on this. I
know of his sincerity and his feelings about this. Senator,
please go ahead.
STATEMENT OF HON. RAND PAUL, A U.S. SENATOR FROM THE STATE OF
KENTUCKY
Senator Paul. Good morning. Thank you for allowing me to
testify today about mandatory minimums.
If I told you that one out of three African American males
is forbidden by law from voting, you might think I was talking
about Jim Crow 50 years ago. Yet today a third of African
American males are still prevented from voting because of the
War on Drugs.
The War on Drugs has disproportionately affected young
black males. The ACLU reports that blacks are four to five
times more likely to be convicted for drug possession although
surveys indicate that blacks and whites use drugs at about the
same or similar rate. The majority of illegal drug users and
dealers nationwide are white, but three-fourths of the people
in prison for drug offenses are African American or Latino. Why
are the arrest rates so lopsided? Because it is, frankly,
easier to go into urban areas and make arrests than it is to go
into suburban areas.
Arrest statistics matter when applying for federal grants.
It does not take much imagination to understand that it is
easier to round up, arrest, and convict poor kids than it is to
convict rich kids.
The San Jose Mercury News reviewed 700,000 criminal cases
that were matched by crime and criminal history of the
defendant. The analysis revealed that similarly situated whites
were far more successful than African Americans and Latinos in
the plea bargaining process; in fact, ``at virtually every
stage of pretrial negotiation, whites are more successful than
non-whites.''
I know a guy about my age in Kentucky, who grew marijuana
plants in his apartment closet in college. Thirty years later,
he still cannot vote, cannot own a gun, and when he looks for
work he must check the box, the box that basically says: ``I am
a convicted felon and I guess I will always be one.'' He has
not been arrested or convicted for 30 years, but he cannot
vote, he does not have his Second Amendment rights, and getting
a job is nearly impossible for him.
Today I am here to ask you to create a safety valve for all
federal mandatory minimums. Mandatory sentencing automatically
imposes a minimum number of years in prison for specific
crimes--usually related to drugs. By design, mandatory
sentencing laws take discretion away from judges so as to
impose often harsh sentences, regardless of circumstances.
Since mandatory sentencing began, America's prison
population has exploded, quadrupled, 2.4 million people in
jail. America now jails a higher percentage of its citizens
than any other country in the world, at a staggering cost of
$80 billion a year.
Recently Chairman Leahy and I introduced the Justice Safety
Valve Act. This legislation is short and simple. It amends
current law to provide ``authority to impose a sentence below a
statutory mandatory minimum.'' In other words, we are not
repealing mandatory minimums, although I probably would. What
we are doing is merely allowing a judge to sentence below a
mandatory minimum if certain requirements are met.
There is an existing safety valve, some will argue, yet it
is very limited. It has a strict five-part test, and only about
23 percent of all drug offenders are qualified for the safety
valve.
The injustice of mandatory minimum sentences is impossible
to ignore when you hear the stories of the victims:
John Horner was a 46-year-old father of three when he sold
some of his prescription painkillers to a friend. His friend
turned out to be a police informant, and he was charged with
dealing drugs. Horner pleaded guilty and was sentenced to the
mandatory minimum of 25 years in jail. He will be nearly 80,
like the other people we have heard from earlier.
Edward Clay, 18 years old, was a first-time offender when
he was caught with less than 2 ounces of cocaine. He received
10 years in jail from a mandatory minimum sentence.
Weldon Angelos, who the Chairman mentioned, was 24 years
old and was given 55 years in prison for selling marijuana.
There is no justice here. It is wrong, and it needs to change.
Federal Judge Timothy Lewis recalls a case where he had to
send a 19-year-old to prison for conspiracy. What was the
``conspiracy''? The young man was in a car where drugs were
found. I do not know about you--this is Judge Lewis--but I am
pretty sure one of us might have been in a car in our youth at
one point in time where there might have been drugs in the car.
Imagine this--and I am glad the President has such great
compassion, because he has admitted, like a lot of other
individuals who are now elected to office, that one time he
made mistakes as a youth. And I think what a tragedy it would
have been had he gone to prison. What a tragedy it would have
been if America would not have gotten to see Barack Obama as a
leader. I just do not know why we cannot come together and do
something about this.
Each case I think should be judged on its own merits.
Mandatory minimums prevent this from happening. Mandatory
minimum sentencing I think has done little to address the real
problem of drug abuse while also doing a great deal of damage
by destroying so many lives.
I am here today to ask you to let judges start doing their
jobs. I am here to ask that we begin today the end of mandatory
minimum sentencing.
Thank you, Mr. Chairman.
[The prepared statement of Senator Paul appears as a
submission for the record.]
Chairman Leahy. Well, thank you, Senator Paul. As I said,
you have talked many, many times about this, and I do not
question your sincerity. I know the Sentencing Commission found
that African American and Hispanic offenders constitute the
large majority of offenders subject to mandatory minimums. And
as a result, African American offenders make up 26 percent of
drug offenders convicted of crimes carrying mandatory minimums.
But they account for 35 percent of those at sentencing. And,
you know, the statistics are very clear on this. They are also
very clear that this has not really done anything to protect us
or make us safer.
Senator Paul. Could I make one final point? It is not just
the unfairness of the sentencing. This is a lifelong problem
with employment. People talk about it. You have got to check
the box that you are a convicted felon. It makes it very
difficult, and I think for a nonviolent felony, we need to get
away from a lifelong punishment where you really have
difficulty getting employment after this.
Chairman Leahy. You know, it is interesting. On the voting,
in my State, if you are convicted of a felony, you do not lose
your right to vote. In fact, when I first ran for the Senate, I
was very interested in what the votes were coming out of our
State prison insofar as about a third of the people in there
had been prosecuted by me.
[Laughter.]
Chairman Leahy. But I have always supported allowing people
to vote.
Senator Paul, you have asked if you can stay, and you are
most welcome to stay for any part of this hearing you want.
Unless there are questions of Senator Paul, we will go to
our next witness. Thank you very much.
Senator Paul. Thank you.
Chairman Leahy. Senator Grassley, go ahead.
Senator Grassley. I ask unanimous consent to include in the
hearing record a statement from Wayne Ford, Des Moines, Iowa, a
former member of the Iowa Legislature, on this subject.
Chairman Leahy. And, without objection, of course, it will
be.
[The statement appears as a submission for the record.]
Chairman Leahy. Our first witness is Marc Levin. He is the
director of the Center for Effective Justice at the Texas
Public Policy Foundation and policy director of its Right on
Crime Initiative. Since he started Right on Crime with
colleagues in 2010, the initiative has become a national leader
in conservative criminal justice reform. His work played a key
role in Texas criminal justice reforms that I understand saved
$2 billion in avoided incarceration costs while still
maintaining low crime rates.
Mr. Levin, please go ahead. And what we are going to do, we
are going to hear from each of the witnesses, and then we will
have questions. And I would ask you to keep within 5 minutes.
Your whole statement will be placed in the record. Go ahead,
sir.
STATEMENT OF MARC LEVIN, POLICY DIRECTOR, RIGHT ON CRIME
INITIATIVE AT THE TEXAS PUBLIC POLICY FOUNDATION, AUSTIN, TEXAS
Mr. Levin. Thank you, Chairman, and it is a real privilege
to be here with our very distinguished, outstanding U.S.
Senator, John Cornyn, who has done a great deal to advance
public safety over the years as well.
We launched Right on Crime back in 2010 following our
successful work since 2005 to strengthen the criminal justice
system in Texas, and I am pleased to tell you we have now our
lowest crime rate since 1968, even as our incarceration rate
has fallen by more than 10 percent.
Back in 1999, Ed Meese, who was one of the signatories to
our Right on Crime Statement of Principle, said, ``I think
mandatory minimum sentences for drug offenders ought to be
reviewed. We have to see who has been incarcerated and what has
come from it.'' Now more than 2 decades later since Ed Meese
said that, we now have a chance to review these mandatory
minimums, and I thank the Committee and the Chairman for that.
I am really pleased that Senators of both parties have come
together to see how we can improve the federal criminal justice
system and, frankly, learn from our laboratories of innovation,
the States around this country, including Texas. And as a great
believer in the Tenth Amendment, I think it is a great
opportunity for the federal prison system to see some of the
evidence-based practices in community supervision,
strengthening reentry, and other solutions that have proven to
be successful in many States.
We want to emphasize that public safety, whether
accomplished through our military or justice system, is one of
the few functions government should perform and perform well.
As crime began increasing in the 1970s, Americans, and
particularly conservatives, were correct to react against the
attitudes and policies that stemmed from the 1960s, which
included an ``if it feels good, do it'' mentality, as well as a
tendency to emphasize societal causes of crime while
disregarding the fundamental individual responsibility for
crime. In the ensuing decades, we have seen a six-fold increase
in incarceration, and we want to emphasize some of that,
particularly as it relates to ensure violent and dangerous
offenders were kept off the streets for a long time, was
necessary.
But the pendulum went a bit too far. We swept too many low-
risk nonviolent offenders into our prison systems. Thankfully,
we have seen a great deal of advances both in techniques and
research since that time, whether it is risk and needs
assessments, electronic monitoring, Drug Courts, the Hawaii
HOPE Court, which has reduced recidivism and substance abuse by
two-thirds. We are seeing many States around the country
achieve great success with strengthening alternatives to
incarceration for nonviolent offenders.
And in Texas, as the Chairman observed, we were able to do
that back in 2007 with a justice reinvestment package; since
that time we have seen double-digit drops both in our crime
rate and our incarceration rate, including saving more than $2
billion on building prisons that we did not have to do.
Now, building on the success in Texas, we launched our
Right on Crime Initiative in 2010, with our Statement of
Principles signed by conservative leaders such as Jeb Bush,
Newt Gingrich, Bill Bennett, Grover Norquist, and J.C. Watts,
as well as leading experts in the field of criminology and
policing such as John DiLulio and George Kelling. And so our
focus here in this Statement of Principles is on personal
responsibility for offenders, accountability for the system,
restitution for crime victims, and ensuring we combat
overcriminalization by reducing the growth of non-traditional
criminal laws and ensuring there is an appropriate mens rea or
intent requirement in criminal justice.
Now, I want to talk about some of the States where we have
seen tremendous success in the last several years in addition
to Texas. Georgia, for example, South Carolina, Ohio,
Pennsylvania--in each of these States, we have seen
conservative Governors taking the lead in enacting far-reaching
reform packages that have included expanding Drug Courts, in
some cases increasing penalties on certain violent crimes such
as in South Carolina, while lowering penalties on low-level
drug possession, implementing earned time policies for
offenders, risk and needs assessments. In Georgia, we also saw
the enactment of a mandatory minimum safety valve for drug
cases that is very similar to the legislation by Chairman Leahy
and Senator Paul.
Now, while in the last 2 years the incarceration rate at
the State level has declined, the federal incarceration rate
continues to increase. Let me conclude by just touching on some
of the issues with mandatory minimums.
We believe that they do result in excessive prison terms in
many instances. For example under 21 U.S.C. 851, if a federal
defendant is convicted of as little as 10 grams of certain
drugs and has one or more prior convictions, the mandatory
minimum is 20 years with a maximum of life in prison. And one
of the issues that we have seen is that judges and juries have
much more information as to the specific facts of the case, yet
are prevented from looking, for example, at the risk level of
the defendant.
The other thing that I want to emphasize is that mandatory
minimums do not take into account the wishes of the victim in
the case. They also have not succeeded in, frankly, creating
uniformity.
For example, a defendant in the Northern District of Iowa,
``who is eligible for a Section 851 enhancement is 2,532
percent more likely to receive it than a similarly eligible
defendant in the bordering District of Nebraska.'' And, again,
it is just really random in some instances whether this
enhancement ends up being administered.
So it is important to remember that if we did not apply
mandatory minimums to certain drug cases as proposed, these
offenders would still be going to federal prison. And recent
experience shows they would still be going for a long time.
Since the crack-powder disparity was narrowed in 2010,
those convicted subsequently in crack cases have received an
average federal prison term of 97 months.
So to wrap up, we really applaud the work that this group
is doing here. We would refer you to the copy of our paper,
``The Verdict on Federal Prison Reform,'' that you have been
given, and we stand ready to work with each of you to improve
the federal criminal justice system and learn from the
successful models in States across the country.
Thank you.
[The prepared statement of Mr. Levin appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Levin.
Brett Tolman is a shareholder at Ray Quinney & Nebeker, co-
chair of the firm's white-collar criminal defense, corporate
compliance practice group. He was the U.S. Attorney for the
District of Utah from 2006 to 2009. He worked in the same
office as Assistant U.S. Attorney from 2000 to 2004. He served
as chief counsel for Crime and Terrorism to Chairman Specter,
and prior to that as counsel to Chairman Hatch on this
Committee, which is where we first met.
Welcome back to the Committee. You are as familiar with
this room as anybody in it. Go ahead.
STATEMENT OF HON. BRETT TOLMAN, SHAREHOLDER, RAY QUINNEY &
NEBEKER, SALT LAKE CITY, UTAH
Mr. Tolman. Thank you, Chairman Leahy, Ranking Member
Grassley, and the many Senators, especially the good Senator
from Utah and long-time friend, Senator Lee.
Prior to my service in the U.S. Senate, I was an Assistant
United States Attorney in Utah. As a line prosecutor in the
federal system, I personally prosecuted hundreds of felonies.
While I prosecuted mostly violent crime felonies, I also
participated in the prosecution of white-collar criminals, drug
traffickers, child predators, violent illegal immigrants, and
others. Indeed, in my nearly a decade with the Department of
Justice, I was responsible for the prosecution of individuals
who are currently serving long prison sentences--some longer
than 30 years in prison.
I am here today because my experience, while at times
rewarding, revealed the need for federal criminal justice
reforms that are not only meaningful, but the result of
thoughtful analysis of the deficiencies in the administration
of justice in the federal system. I am not alone in this
position. Several of my former colleagues, many of which were
appointed by Republican Presidents, have joined me in signing a
``Policy Statement of Former Federal Prosecutors and Other
Government Officials,'' which I have brought with me and ask
that it be made part of the record.
The signers of this statement are a diverse group of former
federal prosecutors, judges, Department of Justice and other
officials who deeply believe in notions of fairness in the
administration of justice.
Rather than focusing valuable resources on the highest
levels of criminal conduct, the reality is that today's federal
system is all too often mired in the pursuit of low-level
offenders who are too often overpunished by the Federal
Government and who, a growing number believe, should otherwise
be prosecuted by the States. More and more individuals, on both
sides of the political aisle, are recognizing that many of
these low-level offenders are being given extremely long
sentences in federal prisons--sentences that too often do not
match the gravity of the crimes committed.
The result, ironically, is a burgeoning prison population
that, with its rising costs, is becoming a real and immediate
threat to public safety. Department heads and congressional
leaders have become painfully aware that the growing prison
budget is consuming an ever-increasing percentage of the
Department of Justice's budget.
It is with these concerns in mind that I appear before this
Committee. It is my hope and intention to highlight areas of
concern and to engage at all levels necessary to assist in
achieving meaningful and thoughtful reforms. Specifically, the
Committee should focus its attention on several unfortunate
consequences of our current front-end policies and practices,
including the use and abuse of certain mandatory minimums.
Under current laws, federal prosecutors exercise virtually
complete control over the entire criminal justice process.
Federal prosecutors decide who to charge, what to charge, how
many counts to charge, the terms of any plea agreement, and all
too often what the range of sentence will be.
Unfortunately, the substantial majority of federal drug
prosecutions are utilizing mandatory minimum statutes based
solely upon quantity rather than the position of the individual
in the trafficking organization. Adding to the problem is the
use of sections like Section 851, which is effectively a way in
which a drug mandatory minimum can be doubled simply by the
existence of a prior felony for--even if they had not served
any time in jail. Section 851 continues to be a problem that
prosecutors have highlighted for years, but have fallen on deaf
ears.
It is of particular concern that mandatory minimum
sentences have become the sought-after result by which many in
the criminal justice system measure success. The practical
implications are such that the federal criminal justice system
has become overly reliant on the use of mandatory minimum
statutes in making its charging decisions. All too often,
prosecutors and investigators associate the success of their
investigations and prosecutions with the amount of time a
particular defendant receives in sentencing. And, in fact,
agents and prosecutors will attempt to utilize the facts in a
way that add to the sentence, even above and beyond the
existing or underlying mandatory minimum that was charged.
I had a conversation with a federal judge last night who
informed me of a case that I was unaware of. Patrick
Washington, convicted in Kansas of distribution of crack
cocaine, under his conviction was to be sentenced to around a
decade of prison time based on the charging decisions of the
prosecutor. However, because Patrick was so forthright in his
interview after conviction, the probation officer learned that
he had distributed crack cocaine on previous occasions, and as
a result applied four 30-year mandatory minimums to achieve a
sentence of over 120 years. In the end, Mr. Washington served
over 20 years, was saved through a habeas corpus petition in
which the prosecutor testified on Mr. Washington's behalf. That
extreme effort by a prosecutor in order to save--or to enable
the fairness in the administration of justice is something we
should not always be dependent on or hope for when these
sentences are distributed.
I look forward to the opportunity to work with this
Committee. I applaud the dedication and determination to do
front-end and back-end changes. I have been honored to work
with Senator Cornyn, Senator Hatch, and Senator Lee on
fashioning a bill, but look forward to working with Senator
Leahy and those on the Democratic side, and the Republican
side, who have joined hands in addressing the mandatory
minimums.
Thank you.
[The prepared statement of Mr. Tolman appears as a
submission for the record.]
Chairman Leahy. Thank you, Mr. Tolman, and, again, welcome
back to the Committee room.
Mr. Tolman. Thank you.
Chairman Leahy. Our next witness is Scott Burns, who is the
executive director of the National District Attorneys
Association, one of the largest professional organizations
representing district attorneys, State's attorneys, Attorneys
General, and county and city prosecutors. Before I gave up that
position for the anonymity of the U.S. Senate, I was once a
vice president of the NDAA and had to make the difficult choice
of being elected president of the NDAA or taking the Senate
seat, and I took the Senate seat.
Previously Mr. Burns served as the Deputy Director at the
White House Office of National Drug Control Policy, and as an
elected county attorney and chief prosecutor in Iron County,
Utah.
Mr. Burns, always good to have you here, sir. Go ahead.
STATEMENT OF HON. SCOTT BURNS, EXECUTIVE DIRECTOR, NATIONAL
DISTRICT ATTORNEYS ASSOCIATION, ALEXANDRIA, VIRGINIA
Mr. Burns. Thank you, Senator, and thank you, Ranking
Member Grassley and members of the Committee, for inviting me
to testify today on behalf of the National District Attorneys
Association, which has been around for some 60 years and is the
voice of America's 40,000 prosecutors.
To begin with, I would like to acknowledge and thank you,
Senator Grassley, for your statement on the Senate floor this
week regarding the importance of federal mandatory minimum
sentences. And like you, Senator Grassley, prosecutors across
the country listened closely to the policy announcements made
by General Holder. And like you, some of the items and
priorities that he outlined we agree with. Coordinating with
State, local, and tribal enforcement and prosecutors in order
to maximize federal resources in criminal prosecutions is a
good thing.
In addition, General Holder talked about something that
NDAA has made a priority for years, and that is, providing
support for survivors of sexual assault and domestic violence.
But what America's 40,000 prosecutors--and I think I can
speak for law enforcement--did not agree with are General
Holder's repeated statements that the criminal justice system
is broken--or the current popular phrase that is repeated over
and over, it is ``in crisis.'' The truth is that crime is down
significantly in the United States, and many at record low
levels. I met with Willie Meggs yesterday. He came up to
testify in the Stand Your Ground hearing that was canceled and
spent the day with him. Willie Meggs is the long elected DA in
Tallahassee, Florida, and he told me that in Florida crime is
at the lowest rate it has been in 42 years, and many other
prosecutors across the country echo that sentiment in their
respective States. Homicides are down 50 percent in the United
States. Think about that: 50 percent in the past 30 years. And
every other category of crime--rape, robbery, assault,
burglary--they are all down 30 to 40 percent. This is a success
story. If we recall the 1980s, those of us that were around
then, when crime was rampant in the urban cities, and citizens
demanded not only of federal, State, and local legislators but
their prosecutors and law enforcement, ``Do something about
it.'' And with laws passed in this Congress and State and local
legislatures, we did something about it, and prosecutors and
law enforcement got the message as well. Crime is down
significantly, and I think you are to be applauded for many of
the steps that you have taken right here.
I submit to you that prosecutors across the country
collectively shook their heads when General Holder directed
United States Attorneys to no longer prosecute or send to
prison ``first-time offenders,'' no longer send to prison low-
level drug offenders. U.S. Attorneys have never, to my
knowledge, prosecuted low-level cases. They have never in my
opinion, unless there is a gun--it is the same on the State
level, it is a serious offense--sent first-time offenders to
prison. Prosecutors across this country would tell you in the
real world--and, by the way, we do 95 percent of the
prosecutions in this country, and I appreciate my colleague and
friend Brett Tolman's statement that State and local
prosecutors should do more. But they prosecute more cases in 6
months in the city of Philadelphia than all U.S. Attorneys
handle, all federal judges handle in all the federal courtrooms
across the country, over 10 million non-misdemeanor cases. So
we are willing to step up and do more, but we already do 95
percent of the criminal cases in this country.
The fact that the system is broken or ``in crisis'' is a
myth, and it is a myth that must be dispelled if we are going
to work together to make a great criminal justice system even
better.
The prosecutors I know--and we have prosecutors here in the
Committee and throughout the Senate and the House--we look at
treatment programs, diversions, plea in abeyance, Drug Courts--
which have been highly successful--supervised probation, and we
work with judges and defense counsel to look at every single
alternative. And if you were a prosecutor, you know what I am
saying is true. The last thing a prosecutor wants, a defense
attorney wants, a judge wants, if there is any possible means
of doing something different, is to take a valuable prison cell
and lock up somebody that does not deserve to be there. I
promise you we go to great lengths to look at every alternative
we can.
The reality is, together with that attitude and those
policies, mandatory minimums have become an important tool for
State and local prosecutors. Again, it is kind of the game
inside the game, but people are out there listening that
understand the criminal justice system. State and local
prosecutors all the time, to go up the chain in a sophisticated
drug cartel case or to get somebody to roll on a homicide where
a 3-year-old has been shot in the head and you have a
recalcitrant witness who happens to be charged with a State
crime, possession of cocaine or methamphetamine, think about
this: ``What if I call the U.S. Attorney and now you are
looking at a much more serious crime. It would be helpful now
if you tell me what you know about this 3-year-old getting shot
in the head.'' It has been highly successful and used to
leverage cases on the State and local level.
I guess the final question prosecutors would ask is, Why
now? With crime at record lows, why are we looking at sweeping
changes? Why now? We are getting even smarter on crime. With
programs like Drug Courts and 24/7 and Project Hope as carrots,
why would we take away one of our most effective sticks?
Again, I appreciate the opportunity to testify and look
forward to answering any questions you may have.
[The prepared statement of Mr. Burns appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much.
I will lead off with a question for Mr. Tolman. Some of the
critics of sentencing reform have said that low-level drug
offenders normally do not face prison time. The Sentencing
Commission looked at the data and came to a different
conclusion.
In your experience as a federal prosecutor, did offenders
at the lowest levels of drug organizations, such as mules or
street-level dealers, face mandatory minimum sentences? Or were
these reserved just for the kingpins?
Mr. Tolman. The reality is too many people confuse a large
amount of drugs found in an investigation as a high-level drug
prosecution. The drug cartels, those running those trafficking
operations, understand our criminal laws as well as we do, if
not better. They send their low-level people with their large
quantities knowing that the large quantities, once found, are
going to result in extremely large sentences.
I recently asked the former head of the Drug Division in my
former office, who has over 25 years of prosecuting federal
drug cases, ``How many times did you get a kingpin?'' He said,
``Almost got one once.'' Almost once.
The reality is the individuals with the large quantity of
drugs do not have the knowledge or the insight into the
operation to actually go up the chain in the usual case, and
that is getting worse, because they know it is much easier to
send someone with a lack of knowledge with a high quantity
amount of drugs than it is to put someone that knows the inner
workings of their operation.
Chairman Leahy. While it has been years since I was
involved in prosecutions, what you say is very similar to what
I recall. But let me ask you this: You prosecuted many serious
crimes, first as a line prosecutor and then as U.S. Attorney.
Were mandatory minimums necessary to do your job effectively,
or to ensure public safety?
Mr. Tolman. They are not necessary. I will say there may be
the occasional mandatory minimum that can be applied. In the
child predator arena, there appears to have been different data
than in the drug or the violent crime area. However, the
mandatory minimum--and I think the Senator is right on the
money when asking the question, ``Is it necessary? '' Because
Section 3553 tells us that we should be sentencing individuals
only the minimum amount necessary to achieve punishment and
deterrence. What we are seeing, however, is all too often--and
you highlighted the Weldon Angelos case. What is not talked
about in the Weldon Angelos case is the fact that the agents
could have arrested him after the first undercover buy. But why
did they wait for three? That is because 924(c) allows you to
stack 25-year mandatory minimums on each subsequent offense. So
they waited and then stacked them, and then pulled the trigger
on arresting.
Chairman Leahy. Thank you.
Mr. Levin, I look at Texas, and we have two Texas Senators
on this Committee, so I also get the anecdotal aspect, but I
think it is a fact that they dramatically reduced the prison
population in Texas but have not increased crime rates. At
least that is what I am told.
You noted in your testimony that Texas had few mandatory
minimums to begin with, so the reforms were based on
alternatives to incarceration on the front end of sentencing
and shorter sentences on the back end. Would back-end
sentencing reforms like earned time credits have been as
successful in reducing the prison population in Texas if a
large number of them had been on mandatory minimums where you
could not have used that?
Mr. Levin. That is a great question, Chairman. Definitely
there is a big difference between Texas and the federal system
in this area in that in Texas we have very few mandatory
minimums. The only one that we really have is in our habitual
offender statute, which deals with murders and rapists, the
most heinous crimes.
So as you said, in Texas, the success of our reforms has
really been based on prosecutors and judges responsibly
exercising their discretion. And what we did is we greatly
expanded the availability of Drug Courts and mental health
treatment, of alternative sanctions, and our judges and
prosecutors have taken advantage of those for appropriate
nonviolent offenders, and that has enabled us, as you said, to
see our crime drop to its lowest level since 1968.
Now, with the federal system, with the mandatory minimums
covering the drug offenses and other nonviolent offenses, that
really eliminates the discretion or severely reduces that of
the judges. And so you are not able to get the benefits of
these alternatives in the same way we have in Texas. And so I
think it is very important at the federal level to not only
implement, as you said, earned time, risk and needs
assessments, evidence-based practices, strengthening reentry,
but also at the same time we must address these mandatory
minimums through some of the legislation that has been
discussed today.
Chairman Leahy. Thank you. My time is up. I do have further
questions, but go ahead, Senator Grassley.
Senator Grassley. Mr. Burns, one of the bills before the
Committee would cut in half the mandatory minimum sentences
that are now in place for drug offenses, such as manufacture,
distribution, importation of a variety of serious drugs, some
of which would be cocaine, PCP, LSD, and methamphetamine.
When the sponsor of this bill introduced it, he said that
mandatory minimum sentences for nonviolent drug offenses are
``a threat to public safety'' and ``have been proven not to
work.''
Mr. Burns, do you think that mandatory minimum sentences
are these offenses--or do you think that mandatory minimum
sentences for these offenses are a threat to public safety and
have been proven not to work?
Mr. Burns. Clearly, the drug trade and the insidious nature
of all of addiction is a threat to public safety, and I think,
Senator, minimum mandatories are appropriate in the right cases
under the discretion of the prosecutor. And I do not think we
even say anymore, anybody that has looked at the drug issue,
that it is a nonviolent offense. I do not have to go into a 5-
minute soliloquy about people that are murdered and children
that are killed, you know, ``lead or silver'' in Mexico.
I got a call yesterday from Jan Scully, our former
president. In Sacramento, 82 percent of all the people that are
checked into her jail, 82 percent are under the influence of
one or another illegal substance, and many of those are violent
offenses.
So I think we all understand that now, that possession,
selling, slinging meth and heroin and cocaine, is not a
nonviolent offense.
Senator Grassley. Mr. Levin, based upon your opposition to
mandatory minimums for low-level possession, one of the bills
the Committee is discussing today would allow federal judges to
disregard mandatory minimum sentences that now apply to serious
drug offenses such as manufacture, distribution, importation,
and export of drugs such as heroin, LSD, PCP, and
methamphetamine. More so, this bill would eliminate the
mandatory minimum sentences when the drug offense results in
death. Were the bills to pass, judges could impose no jail time
at all for these crimes. The second bill would cut in half
current mandatory minimum sentences for these crimes.
Does your opposition to mandatory minimum sentences for
low-level, nonviolent drug offenses extend to changes in
sentencing for the other crimes that these bills would create?
Mr. Levin. Well, thank you, Ranking Member Grassley, for
that question. We actually do not endorse or oppose specific
legislation, so I would not be able to address that. But I
certainly can tell you, as I said at the outset, we think long
prison sentences are appropriate for violent and dangerous
criminals as well as international drug kingpins, those who are
really at the center of leading large criminal enterprises.
I think that when you look at it, as far as the current
safety valve was concerned, only 24 percent of drug offenders
benefit from that, and, furthermore, that only 7 percent of
those sentenced under mandatory minimums for drug offenses are
supervisors, ring leaders, kingpins, et cetera.
So I do think it is important to make the distinctions that
have been referenced by you and others and to make sure that we
narrowly tailor sentences to fit the particular offense as well
as the risk level that the offender presents.
Senator Grassley. Mr. Tolman, in your statement you
referenced your work with the Public Safety Enhancement Act.
That bill would give prisoners rewards for ``successfully
participating'' in various programs designed to reduce the
likelihood that they would commit future crimes after release.
I am concerned that the bill would release prisoners simply for
showing up at a program.
For instance, drug treatment is unlikely to work if the
individual being treated is not interested in breaking his
habit.
Question: Why should we release prisoners early just for
participating in a program? Setting aside whether cutting
sentences is a good idea, shouldn't we at least make sure that
the prisoner completes the program and has obtained some
measurable benefits that might prevent his returning to a life
of crime after release?
Mr. Tolman. The short answer is we should not. However, I
am encouraged by the work of Senator Cornyn and Senator Lee and
Senator Hatch--I apologize. The short answer is that we should
not simply release for mere participation.
The encouraging thing is that this is a factor that Senator
Cornyn, Senator Hatch, and Senator Lee have been very focused
on. So the bill that is being proposed actually takes the
leading and cutting edge reassessment tools and requires an
initial assessment and a reassessment throughout their
incarceration before they receive rewards.
And if I might correct one mis-notion about this, it is not
a release in the traditional sense that we think an individual
is released. We still have the Truth in Sentencing Act which
requires that they serve 85 percent of their time.
In law currently, you are allowed, a judge is allowed,
prosecutors are allowed, defendants are able to take advantage
of pre-release custody. This bill would expand and incentivize
those willing to take advantage of those programs and jobs, be
assessed and reassessed throughout their time, and allow them
to enter into pre-release custody, which is still custody, but
it is home confinement, monitoring, ankle monitoring, and
supervision, which will have a great impact on the budgetary
problems, but at the same time do what Texas did, which is to
identify--and might I add, the States are our pilot programs.
The federal system is very juvenile in its administration of
criminal justice and should be learning from the States. And
States like Texas, South Carolina, Ohio, and many others have
learned that assessing recidivism and the risk of recidivism in
your prison population and then training, educating, employing
those individuals and reassessing that recidivism and rewarding
them has lowered their crime statistics at a greater rate than
we have seen nationally.
Chairman Leahy. Thank you.
Senator Grassley. Thank you. I have further questions, but
I am going to have to submit them in writing because I have to
go to a Finance Committee hearing.
Chairman Leahy. Thank you.
I would note that I have been told that Judge Benson, a
federal district judge for the District of Utah, is here, well
known both to Senator Lee and to Mr. Tolman, who both clerked
for him. Judge, happy to have you here, sir.
I have to take one phone call. I am going to turn the gavel
over to Senator Durbin, who is next anyway, and I will be back
in a couple of minutes. Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. And, without
objection, I will enter into the record a letter which we
received supporting the bill which I worked on with Senator
Lee. The support is from the bipartisan U.S. Sentencing
Commission and more than 50 former federal judges and
prosecutors. If there is no objection, I would like to enter it
into the record at this moment.
Chairman Leahy. Without objection.
Senator Durbin. Thank you.
[The letter appears as a submission for the record.]
Senator Durbin [presiding]. Mr. Burns, we have worked
together on a few issues.
Mr. Burns. Yes, Senator.
Senator Durbin. The John R. Justice Act, which provides
student loan forgiveness for prosecutors and defense attorneys,
and allows more to become professionals who might otherwise
make a different career decision.
We have also worked on the Fair Sentencing Act dealing with
the issue of crack cocaine and powder cocaine sentencing.
Mr. Burns. That is right.
Senator Durbin. Which had a huge disparity at one point in
time not that long ago of 100 to 1. We brought it down to 18 to
1. Senator Sessions and I cosponsored the bill, it went through
this Committee, and was signed into law. I thank you for that
cooperation.
Mr. Burns. Thank you, Senator.
Senator Durbin. Mr. Burns, you are an important part of
this conversation because the prosecutors play the critical
gatekeeper role in determining who goes into the federal system
of criminal justice. And despite what the Attorney General may
have said or not said, I do not believe our system is in
crisis, but I do believe we face a pretty serious challenge.
The rate of incarceration, the cost of incarceration, is
forcing us to make some hard choices. If we are going to
continue to push money into the correctional field, it is at
the expense of money that would otherwise be spent for law
enforcement or perhaps for some of the things Mr. Levin has
noted: the Drug Courts, for example, the mental health
diversion, in my State veterans courts, which have really
turned out to be fairly successful.
An interesting note. When we worked together on reducing
the crack cocaine sentencing disparity from 100 to 1 over 18 to
1 over powder, there was a reduction in the sentencing of some
who were already in prison, and we received a report. We asked
what happened when we let these people out, and it is
interesting. They were let out earlier than they might have
been because of the action that we took, and we found the
following: Of the 848 offenders studied who were released in
2008 pursuant to the retroactive application of the sentencing
amendment, 30.4 percent recidivated within 2 years. Of the 484
offenders studied who were released the year before the new
amendment took effect, 32.6 recidivated. So there was a slight
decrease in recidivism for those who were released early, which
seems counterintuitive. But I think it is what we are driving
at here.
Senator Lee and I are not trying to eliminate mandatory
minimums but, rather, in some cases to be able to lower those
minimums so that there are not these gross disparities which
Mr. Tolman and others have described.
Do you think we can still meet the goal, a worthy goal, of
reducing drug crime in America and do it without wasting
resources on incarceration and make certain that judges and
prosecutors have the right tools to do the job?
Mr. Burns. Well, first of all, Senator, on behalf of 40,000
prosecutors and probably that many defense attorneys, thank you
for all of your work on the John R. Justice Act and providing
student loan assistance to thousands that otherwise would have
gone into the public sector, good, bright young men and women
who are in courtrooms today doing public service, and that is
because of you. And it is much appreciated.
We did work with you on the Fair Sentencing Act, and I
think people forget that Ronald Reagan proposed a 50 to 1
crack-powder disparity. It was a Congressman named Charles
Rangel and the Black Caucus that insisted that it be 100 to 1,
and a lot of us shook our heads and said, wow, that is some
disparity. But it worked. The consequences were great. A lot of
young people, young African American males primarily, went to
prison, and they went to prison for a long time. But people
could then walk the streets of Washington, D.C., and
Philadelphia and New York.
So we did what the Congress asked, and in States across the
country where they have minimum mandatories, we follow what the
legislature says, and crime has been reduced.
We are always willing to work with you, Senator Durbin. You
have always been reasonable and you are great and you have a
great staff, and we are here.
Senator Durbin. Good. Mr. Levin, you make a point of what
is happening in Texas. It is happening in Illinois, too, where
we have some special courts. And just to put it in the
vernacular, we are finding ways to take potential criminal
defendants and better ways to rescue them from addictions,
mental illness, lives of crime, and costly incarceration. Our
communities are safer. Rather than putting a mentally ill
person in a prison where they are not likely to receive the
kind of professional care they need, they are redirected to a
different place.
Has that been the part of the experience in Texas which has
brought down the crime rate?
Mr. Levin. Absolutely, and I would also add the kind of law
enforcement strategies, when we talk about walking the streets
of New York, a lot of that is data-driven policing, ComStat,
things that occurred under Mayor Giuliani, and similar efforts
with William Bratton and now in other jurisdictions. So I think
we ought to really emphasize it is also the percentage of
people we catch, it is the swiftness of the sanction, when we
look at the Hawaii HOPE Court, the swiftness and sureness of a
sanction, not the length of time.
And with regard to mental illness, it is an enormous
problem, but we are seeing things like mental health courts,
veterans courts have tremendous impact in reducing recidivism.
We are also seeing programs like in Harris County, which is in
Houston, Texas, where you have got a mentally ill person, who
are called ``frequent flyers.'' They go in and out of jail
dozens of times a year for things like criminal trespassing.
They are now driving by those people's homes a few times a week
with a probation officer and a mental health worker, making
sure that person is taking their prescription medications and
complying with treatment. And the visits are going way down,
and you are taking someone you might have been spending half a
million dollars on a year with these frequent jail visits and
keeping the public safe and making sure that person is staying
healthy.
So I think there is a tremendous amount we can do when it
comes to mental illness and criminal justice.
Senator Durbin. The only problem I have with this hearing
is that all the time we are speaking of Texas, and so now I
want to recognize Senator John Cornyn of Texas.
[Laughter.]
Senator Durbin. Maybe you could say something about
Illinois.
Senator Cornyn. I was going to say it is music to my ears,
Mr. Chairman, Senator Durbin. Thank you.
I just want to acknowledge at the beginning, in large part
thanks to the pioneering work of the Texas Public Policy
Foundation and Mr. Levin, Texas is no longer known--well, we
are still known for swift and sure justice and for punishing
people who need punishment. But I think we are also becoming
known for something else, which is more enlightened treatment
of people who commit offenses, and certainly I just want to
acknowledge the great work that is being done by Mr. Levin and
the Public Policy Foundation. But we have had the pleasure of
working with all three of these witnesses--Mr. Burns and Mr.
Tolman--on legislation, and thank you for your contribution
today and always.
I just want to also say that Senator Paul, I think, and
Senator Leahy have touched on something very important we need
to address when it comes to arbitrariness in the sentencing of
people who commit offenses, and really if I think about that
slogan or that motto above the Supreme Court of the United
States just across the street here, it says, ``Equal Justice
Under Law,'' and that, of course, is the aspiration of our
entire justice system.
But just as minimum mandatory sentences can result
sometimes in arbitrariness, I think we also have to recognize
that it was actually supposed to be the antidote to what was
viewed as arbitrariness, where people committing similar
offenses were treated dissimilarly, depending on the court and
the circumstances under which they were prosecuted. So it
reminds me of one of the quotes from H.L. Mencken, which says,
``To every complex problem, there is a simple, neat answer that
is wrong.''
And so this is more complicated, I think, as you all
appreciate and as we all need to continue to keep in mind as we
fight arbitrariness in our justice system no matter where it
appears. And I think it is also important to make the point
that we have to be careful not to legislate by anecdote,
because we all have heard horror stories--and Senator Durbin
certainly has recounted one today--where the criminal justice
system has gone completely awry, and that ought to be something
we continue to try to root out. But we need to be careful, at
least in my view, to legislate by anecdote because, just for
example, if you look at the number of people in federal prison,
at the end of 2010, we had 96,000 people in federal prison for
drug trafficking, 156 for drug possession. And I think, Mr.
Burns, your point is well taken. People get involved with
drugs. Even though they might be classified as nonviolent, it
does not mean there is no harm, either to society or to those
persons or the people they love and live with.
So I am actually very encouraged by where we have come due
to pioneering efforts at the State level. I wish we would do
this more and look at the States as laboratories of democracy.
The tendency is for Washington to think we know better than
anybody else and impose the one size fits all, which does not
work. I think experience would show us that.
But particularly what I hope as a result of this series of
pieces of legislation that are going to be introduced here now
and in the near future--I was just looking at a study from the
RAND Corporation. That is not the Rand Paul Corporation. That
is the RAND Corporation.
[Laughter.]
Senator Cornyn. But they point out that after examining the
higher-quality research studies that, ``We found on average
inmates who participated in correctional education programs had
43 percent lower odds of recidivating than inmates who did
not.''
So I was struck, Mr. Tolman, when you talked about the
goals of our criminal justice system to punish and deter. There
is a third leg to that stool that I learned in law school and
as a former judge, and that is to rehabilitate.
Mr. Tolman. Yes.
Senator Cornyn. But we have almost forgotten that part of
it.
Mr. Tolman. True.
Senator Cornyn. And to me I think we just need to remind
ourselves that that is one of the goals of our criminal justice
system.
So I wonder, Mr. Levin and Mr. Tolman and Mr. Burns, if you
just might comment on the role of rehabilitation and how do we
restore it to its rightful place as part of the goals of our
criminal justice system.
Mr. Levin. Well, I will start, I guess. Thank you. Those
are terrific points, Senator Cornyn. I think that what we
really need to realize is we need to create the right
incentives both for offenders and the system. And as was
referenced earlier, Texas did adopt earned time policies both
for inmates in State jails, which are basically less than a
gram of drugs, prostitution offenders, et cetera, our lowest-
level felonies, as well as earned time for probationers, so
that you could actually earn a bit of time off your sentence by
successfully completing programs--not just showing up, as was
referenced, but actually successfully completing programs as
well as paying all your restitution, meeting all your
obligations, basically exemplary performance.
And so that provides an incentive for offenders, but we
also need to look at incentives for the system. A number of
States, including Texas, Ohio, for example, have adopted,
particularly in the juvenile system, incentives for counties
that have made those local juvenile probation departments
reduce their commitments to the State lockups and they reduced
recidivism, and that is very important. They can get some
additional funding from the States, some of the savings that
the State achieves by those reductions. And so that is very
important.
And we need to have rigorous performance measures to know
whether programs are working, and we need to utilize nonprofits
and faith-based programs. We should not think government has
all the answers. In particular as we are looking at the federal
system, rather than reinvent the wheel, one thing we suggested
in our paper is that the Federal Government could contract with
States, local, and nonprofit agencies that run reentry
programs, for example, and that way we do not have to build a
new federal building to do it. We can utilize what is already
effective.
Chairman Leahy [presiding]. Thank you. And as you said
earlier, Mr. Tolman, too, it would not hurt for the Federal
Government to learn from the States. They are usually much
closer to this.
Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
We have seen throughout the country the impact of mandatory
minimums, and I think it is very appropriate for this Committee
to assess the impact of these kinds of mandatory sentencing
laws. So I am glad--and thank you all for being here, and I
note that two of you have mentioned the HOPE program, which
began in Hawaii, and it was created by former U.S. Attorney and
now Judge Steve Alm, and I am glad that this program is being
recognized more and more as one of the ways and one of the
tools in fighting crime. And, yes, we have the three-pronged
goals of our criminal justice system, which is to punish, to
deter, and to rehabilitate. And sometimes we spend a lot more
resources on one aspect of these goals, particularly
punishment.
I do have a concern about the disparate impact that
mandatory minimums have on minority communities, and this was
certainly pointed out by Senator Paul in his testimony,
including the impact on women. And there have been articles
written about mandatory minimums and their unfair impact on
women, especially black women. These women of circumstances are
often minimally involved in the crime of drug trafficking, and
their crime truly being that of a relationship of some kind
with a male drug trafficker.
Are women still being unfairly impacted by mandatory
minimums? And if so, how can we prevent this from occurring?
And I would ask any of the members of the panel to give brief
responses.
Mr. Tolman. I will go ahead and address that, Senator. I
appreciate the question. I would indicate that one of the
misnomers is that when we cite a very large number for drug-
trafficking offenses is to not fully understand or appreciate
in the federal system how easy it is to get a trafficking
offense. Oftentimes it can be simply based on the quantity,
what they refer to as a ``distributable amount.'' And there may
be no other indicia of trafficking but for the fact that it is
a distributable amount.
I remember many cases which would have an impact, a
disparate impact, in some of our inner cities among our
minorities, even women, and that is oftentimes individual users
will purchase larger quantities because they come into some
money or it is an opportunity for them. And they may be
purchasing for themselves and perhaps someone else in their
family. We all agree that punishment is appropriate, but
rehabilitation is a concern.
However, a prosecutor can get a trafficking offense, which
can bring in mandatory minimums, at very low levels. We often
refer to it as the ``Snickers bar case'' because if you have a
Snickers bar size of methamphetamine, for example, you are
invoking a mandatory minimum.
And so I do not think there is an appreciation for some of
the unintended consequences of being very reliant on quantity.
Mr. Levin. Could I add to that? Thank you for that
question.
One of the things that--for some of the mandatory minimums,
the only way out is a substantial assistance, for lowering the
amount for the prosecutor to say that person provided
substantial assistance. The problem is in some of these
examples of cases I have in front of me, typically you have a
girlfriend and she has a lot less information than her
boyfriend, who in some cases was actually the primary person.
And so because she has less information, she is less able to
qualify for the substantial assistance.
There was one case, Stephanie George, in Florida, a young
mother of three, had a minor role in a boyfriend's crack
dealing. She ended up sentenced to mandatory life in prison.
And, of course, the boyfriend actually got off much lighter
because he had more information, and the judge said, ``Your
role as a girlfriend and bag holder and money holder does not
warrant a life sentence,'' but the judge had no choice.
And so that illustrates, I think, what you are talking
about, that we may think we are promoting uniformity with these
mandatory minimums, but on things like substantial assistance,
it actually is not at all uniform who may qualify for that and
who may be in, frankly, a position, it is the person that was
more culpable is in a position to provide the information.
Senator Hirono. I am interested in how these laws actually
result in disparate treatment, whether they be of African
Americans or women.
Mr. Burns, you mentioned the HOPE Program. I am wondering
if, in your opinion, the HOPE Program is a workable solution
for federal offenders, and if so, how?
Mr. Burns. Yes, I applaud Judge Alm, and I met with him
several times as you were launching that in the great State of
Hawaii. But what works, I think, depends upon the personalities
and the State that you are in. 24/7 works great in South Dakota
and some rural States, Red Hook in New York, and Drug Courts, I
think we would all agree, mental health courts, DUI courts,
veterans courts have been a godsend to this country and to
prosecutors.
But I am also interested in your question about women, and
our job as prosecutors, as you know, is to not prosecute the
innocent and hold the guilty accountable. And we take our
victims as we get them. And, unfortunately, a large number of
victims are women, and I have heard stories around the
courtroom, around the chambers--I try not to, as Senator Cornyn
stated, talk anecdotally, but we can talk about a man who was
sentenced to 30 days in jail for rape of a prepubescent teen in
Montana last week. That is horrific. That deals with women
across the country.
We can talk about my friend Don Klein in Omaha who just
this last week had an offender who was serving a 21-year
sentence released after 10\1/2\ because he supposedly met the
guidelines even though he had violated every rule they had,
tried to escape twice, and assaulted prison guards, and he
murdered four people within 2 weeks of being released from
prison--women. So our job, when we talk about women primarily,
we talk about as victims.
Senator Hirono. Thank you.
Thank you, Mr. Chair.
Chairman Leahy. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. And thanks to our
distinguished panel for being here today. It is a real pleasure
to have you here, all three of you. It is a pleasure to have
two Utahns on the panel. I was pleased a minute ago when Mr.
Cornyn was referring to what Texas has become known for. I was
hoping he was going to say Texas' recent loss to BYU, but,
alas, that was not what he had in mind.
[Laughter.]
Chairman Leahy. We are having a special hearing on that.
Senator Lee. Exactly. I look forward to that, sir. But
having Mr. Burns and Mr. Tolman here from Utah is a pleasure. I
have known Mr. Tolman ever since law school. I am not sure he
was shaving back then, but apparently he got into the habit of
not shaving, and I might say, sir, that is a beautiful beard.
[Laughter.]
Senator Lee. We worked together on two subsequent
occasions. We clerked together while clerking for U.S. District
Court Judge Dee Benson, one of the great minds ever to serve in
the federal judiciary, who we are honored to have here in the
audience with us today.
The Federal Government is, in my opinion, enacting and
enforcing far too much substantive criminal law, and,
consequently, our federal criminal system is far too large and
it is far too expensive.
To put this in perspective, we need to remember that in
1980, the size of the federal prison population was about
25,000. Today it stands at about 200,000. To my knowledge, the
U.S. population has not increased eight-fold since 1980, nor to
my knowledge have the number of crimes engaged in by Americans
increased eight-fold since 1980. I, therefore, reach the
conclusion that what has changed, at least the biggest single
factor that has changed, is the fact that we have, in my
opinion, over-federalized the criminal justice system.
In recent years one of the things that has been pushing
that, one of the factors that has strongly influenced this very
significant increase in the federal prison population has been
the increased use of minimum mandatory penalties within that
system. Almost half of all federal inmates are serving
sentences for drug-related offenses. Even if long mandatory
minimums for drug offenses that do not directly involve
violence as an element of the offense, even if those were a
good idea, it is not clear that our country can afford to
continue waging this war on drugs through a system that so
directly and so inevitably involves these kinds of minimum
mandatory sentences.
As evidenced by our witnesses today and the two
distinguished panels that we have had today, there is, I think,
an increasing consensus developing, a consensus that is
developing on the right and on the left, that significant
reforms to minimum mandatory penalties are in order, that this
is where we need to go.
I really appreciated the opportunity to work with Senator
Durbin on this issue, and with the help of Chairman Leahy as
well, to introduce some modest and incremental measures that,
if enacted, will result in significant savings and enhance
public safety by better focusing scarce federal resources on
serious crimes.
Our bill, importantly, does not eliminate any mandatory
minimums but, rather, reduces some of the more egregious
mandatory minimums for drug offenses that do not directly
involve violence as an element of the offense. And this bill
also would return discretion to judges in a narrow set of
circumstances here.
So, Mr. Tolman, in the time I have got left, I would like
to get your perspective as a former Assistant U.S. Attorney and
then as a former U.S. Attorney. I would like to just ask you
about something that I do not think we have covered yet today,
which is what mandatory minimum penalties do to the discretion
of a prosecutor and specifically what they do to a prosecutor's
ability to manage that prosecutor's caseload. How does that
affect your interaction with defendants and defense counsel?
Mr. Tolman. It is a great question we have not focused on.
The mandatory minimum sentences have become larger and larger
in the eyes of the prosecutor, sometimes based on the pressure
they receive within the Department of Justice, in particular
the agencies that know that in some ways they receive pats on
the back for the lengths of sentences. It is not something
anyone really is proud of, I would think, but it is a culture,
it is the underlying culture that you measure yourself with the
length of sentences that you receive. So I am very concerned
about the driving force that motivates a prosecutor.
When it comes to what does that do to the discretion,
mandatory minimums have started to replace the discretion of
the prosecutor. It has become a foundation which they are
trying to build on rather than address case by case and
individually what are the merits.
I am reminded of--I had a personal meeting with Ed Meese
not long ago in which he reminded me that he would on occasion
call Assistant U.S. Attorneys and U.S. Attorneys when he would
learn that they would defer a prosecution or they would decline
a prosecution, and he would congratulate them on exercising
their discretion. That culture is not really there. I think the
States have done a better job of recognizing rehabilitation is
part of their mandate. The Federal Government has not done
that, and I think the mandatory minimums are a large part of
that.
Your wanting to review both the front end and the back end
of the criminal justice system really is identifying both sides
of a very similar problem, which is discretion is being set
aside, and often what is replacing it is the very draconian
sentences. And I would articulate that while I agree we are all
encouraged by the decrease in the crime rate, as Mr. Burns
points out, you know, that is something we do not want to lose.
But we can focus on rehabilitation and we can move away from
some of these anecdotal problems and still maintain the
reduction in that crime rate.
Chairman Leahy. You know, it is interesting. If you listen
to this, like many others on this Committee, I have fought for
grants to local prosecutors and various law enforcement
agencies and the Department of Justice, for everything from
specialized enforcement for a particular problem in the area or
rehabilitation programs or other programs that work. We now
find there is less and less and less money available for these
programs because the Department must spend more and more and
more of their budget on the Bureau of Prisons.
I am not suggesting it is all dollars or cents, but I would
note that local prosecutors and those who work on diversionary
programs and everything else are finding a lot less money as it
goes into the Bureau of Prisons. It is just an interesting
thought to have.
Senator Lee, were you finished? I did not mean to
interrupt.
Senator Lee. I just wanted to ask one more followup on that
point.
With regard to getting to a plea agreement, does this
influence your ability as a prosecutor, or did it when you were
a prosecutor, to get to a plea agreement? Are cases that
involve significant mandatory minimum penalties less amenable
to being resolved through a plea? And if they are, explain to
us how that might be detrimental to a prosecutor's office.
Mr. Tolman. It is absolutely true. If you look at some of
the high mandatory minimums, 20-, 30-, 40-year mandatory
minimums that are in the code, a prosecutor is now faced with
the problem that anytime you charge that particular crime, you
are going to go to trial. And as one prosecutor indicated to
me, when several--and I was here in the Senate when some of
these mandatory minimums were elevated. The problem--and she
was asking, was anyone a prosecutor back there that was looking
at this when Congress passed these elevated mandatory minimums?
Because she now was--previous to these mandatory minimums, she
could prosecute dozens and dozens of cases. She was in the
child predator area. Now every one wants to go to trial because
the risk is so great, she is now doing six, seven, eight cases
a year because she has to go to trial. There is no longer an
ability to--and they should be punished and they should have
severe punishments. But when those mandatory minimums are so
high, you have now eliminated any ability to enter into
appropriate plea negotiations.
Mr. Burns. Could I just say, Senator, if that is happening
in the federal system, that is a shame. I have not heard that,
that there is a culture that you get a pat on the back if you
rack up a long prison sentence, because I can tell you--and I
think Senator Leahy would agree--the days of putting a notch in
your belt for how many convictions you get are long gone. And
with respect to the plea negotiation, Mr. Tolman stated
earlier, right now the prosecutor has all the power. You get to
assess the case, you get to decide who is charged, and you can
decide what the penalty is. And from General Holder's
announcement, I think U.S. Attorneys will be getting calls
every week congratulating them for not charging crimes that
supposedly he does not want them to charge.
We never do that. We are just as proud when we acquit the
innocent, when we do not charge, or when we go to trial and
hold the guilty accountable for victims.
Senator Lee. All the more reason why I am very comfortable
with the bulk of the criminal law enforcement being done at the
State level.
Mr. Tolman. Correct. And if I could just add, the problem
is--and Mr. Burns has pointed it out--the States are using--
they are using the federal system to say if you do not reach a
certain agreement, we are going to send you over to the Feds.
Why do they say that? And why do they want to?
Mr. Levin. We really like it.
Mr. Tolman. They do. They can still do it under the
Sentencing Guidelines, but the reason they are doing it, you
cannot simultaneously indicate that federal prosecutions are
only 5 percent of the Nation's criminal justice prosecutions
and laud the mandatory minimums and argue that our decreasing
crime is a result of those types of policies, when it is only
based on 5 percent of the population.
Chairman Leahy. Let me conclude on this. I think we
applaud, and should, the discretion, as Mr. Burns has noted,
that prosecutors have to decline a case. I always felt as a
prosecutor that was probably the most important job I had, to
determine when to decline. But we also know prosecutors who
love to, especially at election time, tout the number of
convictions they had. It is just like I remember when I was a
young lawyer watching J. Edgar Hoover testify, I believe before
the Judiciary Committee--he had contrasted the amount of budget
that he had, but he said, ``We have recovered for the American
people two times that--or three times that.'' Well, when I
became a prosecutor, I found out how that worked. The local
sheriff would recover the stolen car, which might have been
$10,000 new, it was probably worth $500 now, and within 2
minutes the local FBI agent was there and said, ``We will take
it and rack it up--we have recovered $10,000.'' I mean,
statistics can be statistics, and we do not want to get
ourselves into a case in which we just deal with statistics
when we are dealing with human beings.
To end on that, there are a large number of family members
here today with photos of their loved ones who are serving
mandatory minimums. As this Committee knows, during the time of
testimony, whether people agree or disagree with me, I do not
allow people to stand and show things, but we are finished the
testimony now. You have traveled from as far as Montana, Texas,
Utah, Illinois, Connecticut, Maryland, Virginia, and D.C. I
wonder if the family members would mind standing up so we can
see them.
I think all of you should know that we all come from
different backgrounds. I have always felt that much of what I
do in public office was shaped by my experience as a
prosecutor. And I did appreciate the fact that the NDAA picked
me 1 year as one of the three Outstanding Prosecutors in the
country. I took that very seriously. And I come to this
seriously. That is one of the reasons why I stayed as Chairman
of this Committee instead of taking a different Committee when
I had the opportunity. Let us work together. There are
Senators, Republicans and Democrats, conservatives and
liberals, who want to find out the best way, and your
testimonies helped.
Mr. Tolman, it is nice to have you back here in the
Committee. I do not know why we ever let you leave.
[Laughter.]
Chairman Leahy. Thank you all very, very much. We stand in
recess.
[Whereupon, at 11:40 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
A P P E N D I X
Additional Material Submitted for the Record
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Prepared Statement of Hon. Patrick Leahy
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Prepared Statement of Hon. Chuck Grassley
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Prepared Statement of Hon. Rand Paul
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Prepared Statement of Marc Levin
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Prepared Statement of Hon. Brett Tolman
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Prepared Statement of Hon. Scott Burns
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Questions submitted by Senator Franken for Marc Levin
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Questions submitted by Senator Franken for Brett Tolman
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Responses of Marc Levin to questions submitted by Senator Franken
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Responses of Brett Tolman to questions submitted by Senator Franken
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Miscellaneous Submissions for the Record
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