[Senate Hearing 113-356]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-356
 
 REEVALUATING THE EFFECTIVENESS OF FEDERAL MANDATORY MINIMUM SENTENCES 

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

                                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

                              ----------                              

                    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

                              ----------                              


                     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.]



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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 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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