    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                     UNDOING THE DAMAGE OF THE WAR ON DRUGS:
                      A RENEWED CALL FOR SENTENCING REFORM

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                            THURSDAY, JUNE 17, 2021

                                   __________

                               Serial No. 117-29

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                    __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    46-433                      WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREGORY STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

           PERRY APELBAUM, Majority Staff Director and Chief Counsel
                  CHRISTOPHER HIXON, Minority Staff Director
                                     ------

            SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                        SHEILA JACKSON LEE, Texas, Chair
                        CORI BUSH, Missouri, Vice-Chair

    KAREN BASS, California               ANDY BIGGS, Arizona, Ranking
    VAL DEMINGS, Florida                     Member
    LUCY McBATH, Georgia                 STEVE CHABOT, Ohio
    MADELEINE DEAN, Pennsylvania         LOUIE GOHMERT, Texas
    MARY GAY SCANLON, Pennsylvania       W. GREGORY STEUBE, Florida
    DAVID CICILLINE, Rhode Island        TOM TIFFANY, Wisconsin
    TED LIEU, California                 THOMAS MASSIE, Kentucky
    LOU CORREA, California               VICTORIA SPARTZ, Indiana
    VERONICA ESCOBAR, Texas              SCOTT FITZGERALD, Wisconsin
    STEVE COHEN, Tennessee               BURGESS OWENS, Utah

                       JOE GRAUPENSPERGER, Chief Counsel
                        JASON CERVENAK, Minority Counsel

                                C O N T E N T S

                                  ----------

                            Thursday, June 17, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Sheila Jackson Lee, Chair of the Subcommittee on
      Crime, Terrorism, and Homeland Security from the State of Texas     2
    The Honorable Andy Biggs, Ranking Member of the Subcommittee
      Crime, Terrorism, and Homeland Security from the State of
      Arizona........................................................     4

                                   WITNESSES

    Rachel E. Barkow, Vice Dean and Charles Seligson Professor of
      Law, Faculty Director, Center on the Administration of Criminal
      Law, NYU School of Law
      Oral Testimony.................................................     7
      Prepared Statement.............................................     9
    William R. Underwood, Senior Fellow, The Sentencing Project
      Oral Testimony.................................................    23
      Prepared Statement.............................................    25
    Kassandra Frederique, Executive Director, Drug Policy Alliance
      Oral Testimony.................................................    29
      Prepared Statement.............................................    31
    Marta Nelson, Director, Government Strategy, Advocacy and
      Partnerships Department, Vera Institute of Justice
      Oral Testimony.................................................    37
      Prepared Statement.............................................    39
    Jillian E. Snider, Director, Criminal Justice & Civil Liberties,
      R Street Institute
      Oral Testimony.................................................    51
      Prepared Statement.............................................    54
    Kyana Givens, Assistant Federal Public Defender, Office of the
      Federal Public Defender for the Eastern District of North
      Carolina
      Oral Testimony.................................................    58
      Prepared Statement.............................................    60
    John Malcolm, Vice President, Institute for Constitutional
      Government, Director, Meese Center for Legal and Judicial
      Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson
      Senior Legal Fellow, The Heritage Foundation
      Oral Testimony.................................................    86
      Prepared Statement.............................................    88

               STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED

    An article entitled ``The Trial Penalty: The Sixth Amendment
      Right to Trial on the Verge of Extinction and How to Save It,''
      NACDL, submitted by the Honorable Mary Gay Scanlon, a Member of
      the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Pennsylvania for the record..................   112
    An article entitled ``Profile: Charles Rangel and the Drug
      Wars,'' WNYC News, submitted by the Honorable Andy Biggs,
      Ranking Member of the Subcommittee on Crime, Terrorism, and
      Homeland Security from the State of Arizona for the record.....   208
    Items submitted by the Honorable Sheila Jackson Lee, Chair of the
      Subcommittee on Crime, Terrorism, and Homeland Security from
      the State of Texas for the record
      Statement from The Leadership Conference.......................   214
      Statement from the American Civil Liberties Union..............   219
      An article entitled `` `They let people die': US prisons bureau
        denied tens of thousands compassionate release during
        Covid,'' US Prisons..........................................   225
      An article entitled ``Drug reform advocates call Supreme Court
        ruling on crack sentences `a shocking loss,' '' NBC News.....   233
      An article entitled ``Why the war on drugs must end: Punishing
        people who make the personal choice to consume an illicit
        substance has no place in the 21st century,'' The Hill.......   240

                                    APPENDIX

    A statement for the record submitted by William R. Underwood,
      Senior Fellow, The Sentencing Project..........................   252

                        UNDOING THE DAMAGE OF THE WAR ON
                           DRUGS: A RENEWED CALL FOR
                               SENTENCING REFORM

                                  ----------

                            Thursday, June 17, 2021

                            House of Representatives

                       Subcommittee on Crime, Terrorism,

                             and Homeland Security

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 10:07 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Sheila Jackson
    Lee [chair of the subcommittee] presiding.
        Present: Representatives Jackson Lee, McBath, Dean,
    Scanlon, Bush, Lieu, Escobar, Cohen, Jordan, Biggs, Chabot,
    Tiffany, Massie, Spartz, Fitzgerald, and Owens.
        Staff Present: Cierra Fontenot, Chief Clerk; John Williams,
    Parliamentarian; Merrick Nelson, Digital Director; Monalisa
    Dugue, Deputy Chief Counsel; Veronica Eligan, Professional
    Staff Member/Legislative Aide; Tieffa Harper, Detailee; Jason
    Cervenak, Minority Chief Counsel for Crime; Ken David, Minority
    Counsel; Andrea Woodard, Minority Professional Staff Member;
    Kiley Bidelman, Clerk; and Carter Robertson, U.S. Secret
    Service Detailee.
        Ms. Jackson Lee. Good morning. The Committee will come to
    order. Without objection, the chair is authorized to declare
    recesses of the Subcommittee at any time.
        Let me, first, thank all of you for your indulgence. This
    morning we had the enrollment signing of the Juneteenth holiday
    that was declared yesterday, and I am certainly ecstatic, but I
    also want to acknowledge my respect for this hearing and my
    role as Chair.
        My tardiness was not for any other reason, for the historic
    enrollment signing of the Juneteenth independent national
    holiday day, so thank you all, as witnesses and my Committee
    Members, for your indulgence. Thank you so very much.
        We welcome everyone to this morning's hearing on undoing
    the damage of the war on drugs, a renewed call for sentencing
    reform. Long overdue.
        Before we begin, I'd like to remind Members that we have
    established an email address and distribution list dedicated to
    circulating exhibits, motions, or other written materials that
    Members may want to offer as part of our hearing today. If you
    would like to submit materials, please send them to the email
    address that has been previously distributed to your offices,
    and we will circulate the materials to Members and staff as
    quickly as we can.
        For those in the room, current guidance from the Office of
    Attending Physician is that individuals who are fully
    vaccinated for COVID-19 do not need to wear a mask or maintain
    social distancing. Fully vaccinated individuals may, of course,
    choose to continue wearing masks based on their specific risk
    considerations.
        If you're not fully vaccinated, the Office of Attending
    Physician requires you to continue wearing a mask and
    maintaining 6 feet of social distancing.
        I would also like Members to mute your microphones when you
    are not speaking. This will help prevent feedback and other
    technical issues. You may unmute yourself any time you seek
    recognition. I will now recognize myself for an opening
    statement.
        Today marks the 50th anniversary of the war on drugs, and
    the 1970s marked the start of a dramatic rise in U.S. prison
    population. Mass incarceration grew, developed, imploded, and
    continued. This has only increased and is unmatched globally
    with over 2 million people currently incarcerated, even though
    the U.S. only accounts for less than 5 percent of the world's
    population.
        On June 17th, 1971, President Nixon declared his new
    policy--war on drugs--in response to a rising tide of the use
    and/or trafficking of drugs. This policy became an engine for
    mass incarceration, as it resulted in an increase of Federal
    funding for drug control agencies, proposed measures such as
    mandatory and excessive sentencing laws and, yes, the now well-
    known and destructive no-knock warrants.
        The totality of these punitive measures does not increase
    public safety; rather, it produces permanent harm and disrupts
    the entire equilibrium of justice. We examine sentencing reform
    through a punitive lens, rather than rehabilitation.
        Consequently, a significant wave of destruction has amassed
    billions of dollars in human costs through our communities of
    color, while destroying families.
        I remember just a few years ago, under a former chairman of
    this committee, as the siege of opioids were facing us. We did
    a different approach. We did approach of rehabilitation,
    treatment. What a difference. I offered an amendment that this
    new approach would cover crack cocaine as well.
        New thinking needs to be the call of the day. When looking
    back at the true reason for the war on drugs, several top aides
    within Nixon's immediate orbit have revealed that by getting
    the public to associate the hippies with marijuana, Blacks with
    heroin, and then criminalizing both heavily, they could disrupt
    the communities; they would arrest their leaders, raid their
    homes, break up their meetings, and vilify them night after
    night on the evening news. They did so while knowing that the
    false narrative would work, and it did.
        As ACLU says, the drug war has achieved only the harmful
    purposes President Nixon intended--disrupting, vilifying, and
    oppressing communities of color.
        I agree with the leadership conference, that Congress must
    be bold to effectively repair the damage wrought by these
    overly excessive penalties.
        Do you know who else was caught up in all this? Juveniles,
    under 25, under 20. Their lives off track, because of the use
    of drugs, or the co-opting of those who were engaged in drug
    use and/or drug trafficking--juveniles, children, who got
    sentencing 25 years, 30 years, in that time.
        The impact of the war on drugs is still being felt today as
    evidenced in the alarming number of individuals incarcerated
    under these laws even 50 years later. According to the Federal
    Bureau of Prisons' own data, nearly half of all inmates are
    incarcerated on drug offenses.
        Every month, approximately 1,600 people are sentenced for
    drug offenses in Federal court, most of which receive harsh
    sentences. In the '80s-'90s, we passed several legislations
    which continue to move away from rehabilitation and focus
    instead on excessive punishment when dealing with drugs.
        Several bills continue to emphasize the prison focus. For
    example, the Anti-Drug Abuse Act of 1986 implemented the
    initial 100-1 disparity and created mandatory minimum penalties
    for drug offenses, including life imprisonment.
        In the '90s we passed the three strikes penalty that
    mandated life sentence for anyone convicted of a certain prior
    drug or violent felonies, and incentivized States to adopt
    similar policies.
        In 1995, the U.S. Sentencing Commission called upon
    Congress to revisit these Draconian mandatory minimum
    sentencing laws, because of the racial disparities in cocaine
    versus crack cocaine sentencing.
        Congress, however, overrode the recommendation made. We
    must use and undo the damage caused by the war on drugs. Terry
    v. U.S., June 2017, the most recent drug case before the
    Supreme Court, the court held that crack offenders who did not
    trigger a mandatory minimum are not eligible for a sentence
    reduction under the First Step Act of 2018.
        Justice Sotomayor concurs with Justice Thomas and
    essentially said that Congress has the necessary tools at its
    disposal to remedy the issue in Terry. I agree, and this is why
    I am working on legislation with the Senate, and we intend to
    introduce legislation in short order to address this issue in
    Terry.
        We're also delighted that other Members, such as Mr.
    Jeffries, are working on legislation that is important to this
    discussion, and many other Members on this Subcommittee. In
    making its finding, Justice Thomas pointed to instances in
    which Congress has responded with proposed legislation with
    disproportionate ratios in how drugs of equal effect are
    treated differently.
        The court explained and I quote, ``Senator Sessions and
    Hatch introduced legislation in 2001 to lower the 100-1 ratio
    to 20-1.'' Representative Lee led a similar effort in the House
    that would have created a 1-1 ratio in H.R. 4545.
        As the Supreme Court has acknowledged, I've been fighting
    to change these disparities for over a decade, and I will
    continue to do so as we seek to end mandatory minimum
    sentencing, beginning with the drug mandatory minimums, and I
    reserve the balance of my time.
        It is my pleasure now to recognize the Ranking Member's
    opening statement, and that is the gentleman from Arizona, Mr.
    Biggs, for his opening statement.
        Mr. Biggs. I thank the Chair and appreciate all the
    witnesses being here today, both in person and remotely as
    well.
        I look forward to a robust conversation surrounding
    sentencing reform, and I believe it's the job of Congress to
    examine the efficacy of our laws from time to time, see if
    updates are needed.
        In fact, we should be looking, in my opinion, at our entire
    Federal Criminal Code to see what changes need to be made.
        Shockingly, no one really knows how many Federal crimes are
    in statute, but some estimates put the figure above 4,000. Keep
    in mind that at its inception, the United States Code included
    only 30 crimes.
        It has been nearly 40 years since retired Justice
    Department Official Ronald Gainer managed the last
    comprehensive attempt to count the number of Federal crimes and
    concluded, quote, ``You will have died and resurrected three
    times,'' close quote, and will still not have an answer to how
    many Federal crimes are on the books in the United States.
        I would suggest that many of those are duplicative and
    irrelevant. Not even the Congressional Research Service or the
    American Bar Association are able to calculate the number of
    Federal crimes.
        According to one analysis, legislators introduced 154 bills
    in the 115th Congress alone that sought to add more criminal
    penalties to the United States Code.
        Congress is not even the most egregious culprit in this
    over-criminalization. The sheer number of regulatory crimes in
    this country is mind-boggling. I have stated there are more
    than 4,000 Federal crimes in the U.S. Code, but there are also,
    astonishingly, more than 300,000 Federal crimes throughout
    various Federal regulations. That is absurd.
        Many of these crimes are already crimes at the State level,
    and that's exactly where they should be prosecuted. Last, I
    checked, murder is a crime in every State, for instance.
        The saturation of criminal conduct prevents law enforcement
    from focusing only on the severe and dangerous Federal crimes.
    Andrew McCarthy, a former Federal prosecutor said that time and
    money, quote, ``spent investigating conduct that is not
    inherently criminal are time and money lost to the thwarting of
    much more serious crime,'' close quote.
        Over-criminalization, coupled with the left's desire to
    defund the police, has real world consequences. In New York
    City, NYPD data showed murders jumped by nearly 14 percent
    through March 28th of this year, the latest figures the
    Department has made public, while shootings were up nearly 50
    percent. The jump in crime came on the heels of New York City
    defunding its police department by $1 billion.
        In L.A., homicides have increased nearly 36 percent from 67
    to 91 through March 30th of this year. The increased homicide
    rate occurred after Los Angeles defunded its police department
    by $150 million.
        Detroit, Michigan, suffered 327 homicides in 2020, as
    opposed to 275 in 2019, and aggravated assaults rose to 12,003
    in 2020 from 9,467 in 2019. Detroit began defunding its police
    force in 2014 due to a city-wide bankruptcy. Since 2014, the
    Detroit Police Department has been cut by 20 percent.
        As leaders, we should not be encouraging States and
    localities to defund their police. In fact, we should condemn
    it when we see it. That is why I was dismayed to see that the
    majority invited at least one witness who advocates for
    defunding our police.
        In sum, we know that over-criminalization has led to a
    backlog in our courts and an overflow of inmates in our
    prisons. It's duplicative, it's unnecessary, and quite frankly,
    in my opinion, it's unconstitutional.
        No one really knows how many Federal crimes are in statute,
    and that is a crime, in and of itself, rhetorically speaking.
        Then, I will say also, generally crime in the United States
    had been trending downward over the last 30 years--violent
    crime and property crime. Last year, the United States tallied
    more than 20,000 murders, the highest since 1995.
        No doubt, the impact of COVID was there, but it was 4,000
    more than in 2019. Sixty-three of the 66 largest police
    jurisdictions saw increases in at least one category of violent
    crime in 2020.
        I'm looking forward to a robust discussion that I'm sure we
    will have today. I appreciate the Chair for convening this very
    important Committee hearing, and I look forward to hearing from
    all the witnesses today. Thank you. I yield back.
        Ms. Jackson Lee. The gentleman yields back. We'll now move
    to introducing our witnesses. Thank you very much, Mr. Biggs,
    for your statement.
        Ms. Rachel Barkow, that is on virtual, is the Vice Dean and
    Charles Seligson Professor of Law and Faculty Director of the
    Center on the Administration of Criminal Justice at NYU School
    of Law. She's recognized as one of the country's leading
    experts on criminal law and policy.
        In June of 2013, the Senate confirmed Ms. Barkow as a
    Member of the Sentencing Commission, which she served until
    January 2019. She's been a Member of the Manhattan District
    Attorney's Office Conviction Integrity Policy Advisory Panel
    since 2010.
        Mr. William Underwood is Senior Fellow at the Sentencing
    Project. Mr. Underwood served 33 of a 60-year sentence and life
    sentence in Federal prison after being sentenced in 1990 under
    then newly enacted sentencing guidelines of 1987, and the Anti-
    Drug Abuse Act of 1988.
        His mentoring of countless young men in custody attracted
    the attention of a Federal circuit judge who wrote to thank him
    for making a difference in the lives of people around him.
        On January 15th, 2021, the Federal judge granted his motion
    for compassionate release on an exemplary disciplinary record
    and found that he had transformed himself into a model prisoner
    and an American father. Today, Mr. Underwood works on criminal
    justice reform.
        Ms. Kyana Givens is an Assistant Federal Public Defender
    for the Eastern District of North Carolina. In addition to her
    Federal criminal defense practice, Ms. Givens teaches and
    trains attorneys across the country on trial advocacy, emerging
    digital technology, and unconscious bias.
        Ms. Givens was the Albert M. Sax fellow at Harvard Law
    School, where she worked closely with clinical professors,
    teaching and training in trial advocacy. Ms. Givens is a
    faculty member at the National Criminal Defense College and
    serves on the faculty for the Trial Skills Academy for Federal
    defenders.
        Ms. Kassandra Frederique is the Executive Director of the
    Drug Policy Alliance. She has built and led campaigns on the
    overdose crisis and marijuana legalization. Ms. Frederique has
    been instrumental in grounding the national drug policy
    conversation around reparative justice and restitution for
    communities harmed by the war on drugs.
        Among other victories, Ms. Frederique was the architect of
    the campaign that cut the number of New York City marijuana
    arrests by more than 99 percent.
        Ms. Marta Nelson is Director of Government Strategy,
    Advocacy, and Partnership Department at the Vera Institute of
    Justice. She joined Vera in 2019, to research and write on
    sentencing reform, particularly sentencing involving people
    convicted of violent offenses.
        Prior to joining Vera, Ms. Nelson served from 2014 to 2019
    as Executive Director of Reentry and Special Counselor for
    criminal justice initiatives in New York, where she helped
    deliver comprehensive bail reform in 2019.
        Ms. Jillian Snider is the Director of Criminal Justice and
    Civil Liberties at the R Street Institute. She is also a
    lecturer at John Jay College of Criminal Justice, and a retired
    officer from the New York City Police Department.
        Ms. Snider also teaches as an Adjunct Lecturer at John Jay
    College of Criminal Justice in the Department of Law, police
    science, and criminal justice.
        Mr. John Malcolm is the Vice President for the Institute
    for Constitutional Government, director at the Meese Center for
    Legal and Judicial Studies, and Ed Gilbertson and Sherry
    Lindberg Gilbertson, Senior Legal Fellow, Institute for
    Constitutional Government at The Heritage Foundation.
        He brings a wealth of legal expertise in both the public
    and private sectors. Mr. Malcolm is past Chair of the criminal
    law practice group of the Federalist Society and serves on the
    Board of Directors of Legal Services.
        We welcome all our distinguished witnesses and thank them
    for participating in today's hearing. I'll begin by swearing in
    the witnesses. I will ask that our witnesses in person please
    rise and raise your right hand. I ask that those that are
    remote witnesses, please turn on their audio, make sure that I
    can see your face and your raised right hand while I administer
    the oath.
        Do you swear or affirm, under penalty of perjury, that the
    testimony you're about to give is true and correct to the best
    of your knowledge, information, and belief so help you God? I
    need to hear you orally.
        I do.
        Ms. Jackson Lee. Thank you. Let the record show the
    witnesses answered in the affirmative. You may be seated. Thank
    you.
        Please note that each of your written statements will be
    entered into the record in its entirety. Accordingly, I ask
    that you summarize your testimony in 5 minutes. To help you
    stay within that time, there is a timing light on your table.
        When the light switches from green to yellow, you have 1
    minute to conclude your testimony. When the light turns red, it
    signals your 5 minutes have expired.
        For our witnesses appearing virtually, there's a timer on
    your screen to help you keep track of time.
        Ms. Barkow, you may begin, and you are virtual. Thank you
    very much and welcome again.

                     STATEMENT OF RACHEL E. BARKOW

        Ms. Barkow. Thank you, Chair Jackson Lee, Chair Nadler,
    Ranking Member Jordan, Ranking Member Biggs, and distinguished
    Members of the Subcommittee. Thank you so much for inviting me
    to testify on the important topic of sentencing reform.
        The United States leads the world in incarceration and its
    harsh sentencing policies have separated families, destroyed
    communities, and produced gross racial disparities.
        The biggest tragedy of all is that these policies haven't
    made us any safer. It's just the opposite. Our severe and
    punitive practices have increased the risk of crime.
        Now, the conventional wisdom for decades has been the more
    severe the punishment, the greater the crime-fighting benefits.
    While that view might be common, it's actually mistaken.
        In fact, we have a great deal of evidence showing that
    excessively punitive practices cause more crimes than they
    prevent. So, consider long sentences. When we give out
    disproportionate sentences, they undermine public confidence in
    criminal laws, and that, in turn, leads to reduced compliance
    with laws. People stop reporting crimes and cooperating with
    law enforcement, and that makes it harder to detect and solve
    crimes.
        Long sentences also undermine public safety, because they
    make it that much harder for people to adjust when they're
    released from prison. Ninty-five percent of all people who are
    incarcerated return to free society, and we should want their
    reentry to be successful. The longer they stay in prison, the
    harder that is.
        It's no wonder researchers find evidence that long
    sentences increase the risk of crime when people get out, even
    when you control for their underlying crime and criminal
    record.
        For example, a study from Texas found that after a certain
    point, each additional year of incarceration caused an
    increased risk of recidivism between 4 and 7 percent.
        Now, some might say, even if these sentences aren't
    deterring, at least they're incapacitating people from
    committing crimes outside the prison walls. Here too, reality
    is much more complicated than the gut instinct.
        For starters, most people age out of most criminal
    behaviors, even without any governmental intervention. Besides
    aging out of crime, people stop committing crimes for other
    reasons. They address underlying substance abuse problems; they
    get mental health treatment or employment.
        So, keeping people behind bars for decades doesn't bring
    incapacitation benefits after a certain point for so many
    people, because there's nothing to incapacitate.
        In addition, because most people eventually rejoin society,
    we need to weigh whatever incapacitation benefit we're getting
    against that increased risk of recidivism from longer terms of
    incarceration.
        All too often, the risks outweigh the benefits precisely
    because the person would have stopped committing crimes in any
    case, and time away from society has made it so much harder for
    them, when they're released, to stay on a law-abiding path.
        So, a comprehensive analysis of this issue, looking at all
    the studies, has concluded incarceration certainly reduces
    crime outside prison as long as it lasts, but it appears to
    cause more crime later.
        So, unfortunately, the flawed premise that we need to be as
    harsh as possible underlies so many of our laws and practices.
    We're spending a fortune on punitive practices that don't work
    to make us safer, and they tend to make things worse.
        So, whether your concern is fiscal conservatism, racial
    justice, public safety, or a fundamental respect for human
    dignity, all roads point to the same solutions. We need to roll
    back the harsh policies of the past four decades.
        Now, I'm just going to briefly offer a checklist of what
    those reforms should look like. It's not meant to be
    exhaustive, but it does give you a guidepost.
        It means eliminating mandatory minimums, which have failed
    in all their policy objectives.
        It means allowing the Sentencing Commission to make
    decisions based on evidence instead of congressional directives
    that aren't based on any evidence or data.
        It means making retroactive relief available for anyone who
    is punished under a law that has since been changed to reduced
    sentences, something we've seen works, because the Sentencing
    Commission has that authority and has retroactively reduced
    sentences to great effect.
        There should be second-look mechanisms for individuals,
    either through parole or allowing a judge to make adjustments
    because circumstances and people change.
        We need to eliminate the harsh collateral consequences that
    are attached to convictions that make it harder for people to
    reenter, and we need to limit the use of pretrial detention.
        Again, not an exhaustive list, but it gives you an idea.
    There aren't many areas left in public life that offer this
    kind of win-win, but criminal law is one of them.
        It's why it's been the rare space of bipartisanship, even
    in these polarizing times, and it's my hope that it will
    continue to be a place where we can all come together to make
    us all better off.
        Thank you for allowing me to testify and share my thoughts,
    and I'd be happy to answer any questions you may have.
        [The statement of Ms. Barkow follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. The gentlelady's time has expired. Thank
    you very much. I yield now to Mr. Underwood for 5 minutes.

                   STATEMENT OF WILLIAM R. UNDERWOOD

        Mr. Underwood. I first want to thank Chair Jackson Lee,
    Chair Nadler, Ranking Member Biggs, and Members of this
    Committee for holding this hearing today, and for sharing this
    space to hear stories about the impact that the war on drugs
    has had on people like me and families like mine.
        My name is William Underwood, and I am a Senior Fellow at
    the Sentencing Project's campaign to end life imprisonment.
        One hundred and fifty years ago today, President Nixon
    declared the war on drugs. I was a 17-year-old father at the
    time. It was fast money to be made, and I was not going to
    allow my son to grow up in a world of hunger and pain that I
    had.
        Just like any other war, this one has eviscerated entire
    generations and communities like the one where I grew up in, in
    Harlem.
        While it's called the war on drugs, it's disparate impact
    over the decades has made clear that this is actually a war on
    the poor, a war on inner city youth, and a war on Black people
    and other communities of color.
        I witnessed that reality every day of my 33 years of
    incarceration after being sentenced to life without the
    possibility of parole, and a concurrent 20-year sentence for
    leading a violent drug operation during the 1970s and the early
    '80s in New York City.
        From the beginning of my incarceration, I was surrounded by
    other men of color, serving life-long and other extreme
    sentences, including for drug offenses handed down under a
    mandatory minimum sentencing structure that never accounts for
    an individual's growth, rehabilitation, and transformation
    while incarcerated.
        This experience wasn't unique to the prisons in which I
    served. In fact, 1 in every 7 people in U.S. prisons are
    serving a life sentence, or virtual life sentence, of at least
    50 years.
        Nearly 4,000 of those people are serving life sentences for
    a drug-related offense, 38 percent of whom are in the Federal
    prison system in which I served, men like Tony Lewis, Sr.,
    Wayne Pray, Todd Vassell, Thomas Jackson, Steven Petersen,
    Darryl Riley, Spencer Bolis (ph), and Steven Brown.
        I was extremely lucky that I was granted compassionate
    release in January at 67 years old. Judge Sidney H. Stein found
    my sentence reflected the seriousness of my criminal behavior
    when I was convicted 33 years ago, but its extremeness did not
    account for the person I am today.
        Judge Stein's order stated, in light of Underwood's
    exemplary record over the last three decades, his consequential
    mentorship of young men and contribution to a culture of
    responsibility in Federal prison, and his commendable efforts
    in raising and supporting his children and grandchildren from
    behind bars, the court finds that Underwood's good deeds exceed
    the bounds of what we consider rehabilitation, and amount to
    extraordinary and compelling reasons meriting a sentence
    reduction.
        I was not the exception in prison. Many others like me
    remain and will take their last breaths there. Like me, those
    are men that have also spent decades having to get to know
    their children through 15-minute phone calls. Like me, they
    have had to see grandchildren grow up through nothing but
    photographs.
        I'm very fortunate to have four successful children who
    have always fought for me, supported me, and helped me maintain
    a piece of the music publishing rights that I owned before my
    incarceration.
        It comes as no surprise that the lack of preparation
    provided in prisons leaves so many young people returning to
    their communities to end up on the streets or back in prison.
        There's got to be a better way. Regardless of their
    intended purpose, mandatory minimums go against the Rule of law
    by perpetuating disproportionate prison sentences and
    aggravating racial disparities in the criminal justice system.
        A wealth of research shows that prosecutors bring charges
    carrying a mandatory minimum sentence against Black defendants
    at higher rates than White defendants. Research also
    illustrates that people age out of criminal conduct as they get
    older.
        Life sentences do nothing to promote public safety and only
    perpetuate cycles of poverty and trauma. Extreme sentences
    ignore people's capacity for change as human beings.
        We are capable of painful, yet transformative self-
    reflection, maturity, and growth, and to deny a person this
    opportunity is to deny them their humanity.
        There is no reason to wait decades until a person's
    sentence to begin evaluating their growth and readiness to
    rejoin their families and communities.
        By granting a second look after 10 years and releasing
    those who have proven they have worked for it, deserve it, and
    are ready for it, we can reunite families and free up resources
    in the justice system to prepare those inside for a successful
    release.
        So, I come before you a reformed man, an atoned man, with
    the hope that you will hear my words, hear the honesty and
    commitment in my voice, and be moved to understand why each and
    every one of us, when given the chance, can be better than the
    worse thing we have ever done.
        We all deserve a second chance. Thank you.
        [The statement of Mr. Underwood follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Mr. Underwood, I'm going to take the
    liberty of saying, thank you so very much for your powerful
    testimony.
        Mr. Underwood. Thank you.
        Ms. Jackson Lee. We thank you for being here today, and I
    hope that we will all learn from, among others, your testimony,
    which is extremely important.
        Ms. Frederique, you're recognized now for 5 minutes.

                   STATEMENT OF KASSANDRA FREDERIQUE

        Ms. Frederique. Chair Jackson Lee, Ranking Member Biggs,
    and Members of the Committee, thank you for the opportunity to
    submit this statement upon the committee.
        I am the Executive Director of the Drug Policy Alliance,
    the Nation's leading organization advancing drug policies that
    are grounded in science, compassion, health, and human rights.
        Today is not just the anniversary of a policy agenda around
    drugs. Today is also the anniversary of the calcification of
    this country's commitment to using punishment, surveillance,
    and imprisonment of people who disagree with those in power.
        Today, I sit here testifying that our country's principles
    of freedom, autonomy, liberty, and joy are for all and not for
    some. A day after Congress has made Juneteenth a Federal
    holiday, I'm sitting here today to say that not all of us are
    free, and that there is much work to do by this body to make
    freedom realized.
        For more than 50 years, the United States has adopted and
    expanded punitive policies toward the possession, use, and
    distribution of drugs, enacting increasingly harsh sentencing
    laws that lead to mass incarceration and mass criminalization,
    while ignoring the destructive impacts of those laws.
        The sentencing laws at the heart of that deeply flawed
    strategy have led to mass incarceration, fractured families and
    communities, interrupted educational and vocational progress,
    lost opportunities to contribute to society, and killed
    American Dreams.
        The human and fiscal impacts of this destructive policy are
    staggering. Every month, approximately 1,600 people, on
    average, are sentenced for drug offenses in Federal court, and
    over 1,000 people are sent back to prison for violations of
    supervised release or parole related to drugs.
        Drug convictions still account for the incarceration of
    almost half a million people. One in five people currently
    incarcerated in the U.S. are locked up for a drug offense,
    while over 750,000 people, or 25 percent of all people under
    community supervision, are on probation or parole for drug law
    violation.
        Although rates of drug use and sales are similar across
    racial lines, Black and Latinx people are far more likely to be
    criminalized than White people. Every year, the Federal
    Government spends $35 billion on law enforcement, Federal
    courts, forensic scientists, community supervision, and drug
    testing. What if we had invested that much money in education,
    health, and employment opportunities for our communities?
        Yet, the drug war has achieved no meaningful reduction in
    drug supply or prices. Instead, it has exacerbated the dangers
    of illicit markets. Long prison sentences have done nothing to
    stem the rate of drug overdoses, but instead, have prevented
    the implementation of robust, harm-reduction systems and driven
    people who need and want help further from the public health
    resources.
        In fact, overdoses have reached an all-time high. Nearly
    850,000 people have died from a drug overdose since 1999. More
    than 70,000 died in 2019, and almost 90 K in 2020.
        For Breonna Taylor, Carlos Ingram-Lopez, Andrea Circle
    Bear, and for my dear friend Alexis' son Jeff, and for my aunt
    and uncle's son, Stanley Frederique, who we buried last week,
    Congress must take bold steps to refocus the Federal strategy,
    pivoting from the central premise that drug use is something
    that should be punished.
        Instead, the Federal approach should be health-focused,
    evidence-based, and respectful of self-determination. Congress
    should move quickly to reduce sentences of incarceration for
    all drug offenses, particularly those related to possession and
    the distribution of personal use quantities of controlled
    substances.
        Additionally, it should fully repeal mandatory minimum
    sentences, and vastly broaden the safety valve provisions.
        Enact substantial reforms to supervised release to limit
    drug-related technical violations and reincarceration.
        Revisit harsh drug enhancements, like the distribution
    resulting in death statute that allows for excessive and
    arbitrary sentences, while discouraging others close to a
    person experiencing overdose from seeking medical help.
        Ensure that drug possession is no longer the cause of
    mandatory detention and deportation of noncitizens, or
    otherwise lead to immigration consequences tearing apart
    families.
        Reject efforts to further criminalize fentanyl and its
    analogues, and, instead, embrace a public health approach to
    drug use.
        Madam Chair, this must be a turning point. For 50 years,
    the drug war has filled our prisons and derailed individual
    lives and disrupted families and communities. The fiscal and
    human costs are incalculable.
        We must start enacting evidence-based policies rather than
    those based on arbitrary punishments and have no demonstrated
    benefit in keeping people safe.
        Thank you for the opportunity to submit testimony. I look
    forward to working with you all to create a world where we no
    longer waste money, destroy lives, decimate communities, but,
    rather, support people in getting services, support, and
    treatment they need to thrive.
        [The statement of Ms. Frederique follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you for your testimony, and now we
    yield to Ms. Nelson for her testimony.
        Members, at the inclusion of Ms. Nelson's testimony, we
    will recess for votes. We thank the witnesses for their
    indulgence. We will continue after votes on the floor of the
    House.
        Ms. Nelson, you are recognized.

                       STATEMENT OF MARTA NELSON

        Ms. Nelson. Good morning. Thank you, Chair Jackson Lee,
    Ranking Member Biggs, and Members of the Subcommittee. I'm
    Marta Nelson, Director of Government Strategy at the Vera
    Institute of Justice, a 60-year-old organization that provides
    data, evidence, and solutions to fight mass incarceration, and
    to transform the criminal, legal, and immigration systems until
    they are fair for all.
        I have worked for over 25 years on efforts to stem the
    effects of our country's addiction to punishment, and I am
    delighted to offer remarks on behalf of Vera on this long
    overdue topic of sentencing reform.
        This hearing notes the 50th anniversary of the war on
    drugs, but the early '70s also marked the start of mass
    incarceration and extreme sentences.
        We have as many people, over 200,000 to be exact, serving
    life sentences today, as we had total in prison in 1970. Black
    and Latinx people bear the brunt of this policy. They comprise
    32 percent of our country's population yet, make up 56 percent
    of the prison population.
        It doesn't have to be like this. If we incarcerated our
    citizens at the same rate as the rest of the world, we would
    have one-sixth of the people we do in prison, about 360,000
    instead of over 2 million.
        It's not that people in other countries do not engage in
    violent or harmful behavior and are not convicted of crime.
    They do, and they are. The difference is in how our systems
    respond.
        In stark contrast to the United States, criminal legal
    system in Europe, the default, even after a felony conviction,
    is a community-based sanction.
        To change where we are, we need to take bold steps. We
    suggest seven legislative changes that, taken together, could
    reduce the Federal prison population by 80 percent, according
    to preliminary Vera modeling.
        They are: Removing sentencing enhancements based on prior
    conviction records; creating a maximum incarcerative sentence
    of 20 years for the most serious crimes; significantly
    expanding opportunities to earn good time off of sentences;
    abolishing mandatory minimums; allowing people convicted of all
    crimes the opportunity for community-based sentences; creating
    second-look, resentencing options; and requiring racial impact
    statements before criminalizing any new behavior and enhancing
    punishments to already criminalized behavior.
        These reforms share three attributes:
        First, they promote actual safety, not performative safety.
    One influential meta-analysis of studies on deterrence
    concludes it is clear that lengthy prison sentences cannot be
    justified on a deterrence-based crime-prevention basis.
        Instead, community-based programming, even for people who
    have been charged with violent crimes, has been shown to reduce
    future unlawful conduct. Indeed, many of the rehabilitative
    innovations of the last 30 years were pioneered in the
    community.
        There may be a need to incapacitate those few people who
    truly cannot walk safely amongst us, but that is a small
    minority of the people behind bars now.
        Second, these repairs repair harm. By a margin of 3-1,
    survivors of crime prefer holding people accountable through
    more proactive measures like mental health treatment, drug
    treatment, restorative justice, or community service, rather
    than prison sentences.
        This is because prison sentences are not proactive. They
    are reactive. At bottom, they don't require the person to do
    anything other than to be removed from society.
        Sentencing could instead create a community-based process
    for the person to acknowledge and address the harm they have
    caused.
        Third, these reforms address racial justice. Our current
    excessive sentences grow from the harsh-on-crime policies of
    the '70s to the '90s, following the gains of the civil rights
    era amidst a racialized panic over crime and drugs.
        Recognizing this origin, jurisdictions must assume racial
    biases will continue to impact every part of the criminal legal
    system, and should sentence with a light touch, privileging
    liberty as much as possible.
        Finally, urging these reforms now, when homicide rates
    across the country have increased, regardless of criminal legal
    policies and when gun violence has also increased may seem
    challenging to those who think this is the time to be tough on
    crime. That would be a serious mistake.
        Again, increasing jail and prison sentences is a poor
    crime-deterrent strategy.
        In addition to approving crime clearance rates, which
    research shows it can deter crime, jurisdictions should invest
    heavily in proven solutions to gun violence, such as violence
    interruption, hospital-based interventions, and focused
    deterrence.
        The best crime-prevention solution of all is to invest in
    the services, resources, and support that help communities
    flourish and thrive, especially after the devastation of the
    pandemic. Thank you.
        [The statement of Ms. Nelson follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you for your testimony. Your time
    has expired.
        Again, Members, we are now in recess until the completion
    of the vote on the floor.
        Witnesses, thank you very much for both your testimony and
    those that we will hear when we return, and thank you for your
    indulgence. The hearing is now in recess.
        [Recess.]
        Ms. Jackson Lee. We are resuming the hearing on ``Undoing
    the Damage of the War on Drugs: A Renewed Call for Sentencing
    Reform,'' before the Subcommittee on Crime, Terrorism, and
    Homeland Security of the Committee on the Judiciary. I am
    please now to yield 5 minutes to Ms. Snider.

                     STATEMENT OF JILLIAN E. SNIDER

        Ms. Snider. Good morning, Chair Jackson Lee, Ranking Member
    Biggs, and Members of the Committee. Thank you for the
    invitation to testify today. My name is Jillian Snider, and I'm
    the director of criminal justice and civil liberties policy at
    the R Street Institute, which is a nonprofit, nonpartisan
    public policy research organization.
        Our mission is to engage in policy research and outreach to
    promote free markets and limited, effective government in many
    areas, including criminal justice reform. That is why today's
    hearing is of special interest to us.
        In addition to my current role, I'm also a lecturer at John
    Jay College of Criminal Justice and a retired New York City
    police officer.
        Today, I'm here to speak to you about the critical nature
    of bipartisan support for the EQUAL Act.
        Although the aggressive law enforcement approach to the
    crack epidemic of the 1980s was initially designed to decrease
    the spread of drug-related disease and death and to combat
    organized crime, we now know that it instead led to an
    overreliance on arrests, incarcerations, and sentencing
    disparities, all of which have had a disproportionate impact on
    Black and Latinx men in urban communities.
        Indeed, for far too long now the United States has relied
    on a system of overcriminalization that overuses and at times
    outright misuses criminal law to address societal problems that
    are more effectively handled through civil channels or by other
    interventions.
        Recent data shows our Nation's incarcerated population
    boasts approximately 2.3 million individuals, 430,000 of which
    were imprisoned for drugs offenses. In fact, an overwhelming 92
    percent of individuals in Federal prison have a drug offense as
    their most serious criminal charge.
        This is largely because lawmakers of the past assumed that
    the use or sale of drugs had a causal effect on violence, and,
    by this logic, stricter penalties on drug-related offenses
    would deter future criminal activity.
        However, subsequent data indicates that this is not the
    case. On the contrary, increased incarceration has had only a
    small impact on crime rates, and most of the benefits relate
    only to property crimes.
        Moreover, although drug abuse may cause income-generating
    crimes like burglary and larceny, it is not directly causal of
    violent crime. In fact, a recent cross-sectional analysis of
    more than 7,000 prisoners indicates that binge consumption of
    alcohol is more closely correlated to violent crime than the
    use of cocaine.
        Currently, approximately 35 percent of Federal drug
    offenders are considered Category 1 by the U.S. Sentencing
    Commission, which means they have no previous terms of
    imprisonment or extremely minimal criminal records.
        Additionally, of individuals with linked U.S. Sentencing
    Commission records, less than 5 percent have a violent crime as
    their most serious offense and less than 25 percent of
    federally sentenced drug offenders possessed an illegal firearm
    as part of their arresting offense.
        Recognizing our past mistakes, several States have
    reclassified and downgraded drug offenses and increased the
    quantity thresholds necessary to raise offenses to the felony
    level. In many States, there is no difference in statutory
    penalties between powder cocaine and crack cocaine. In New
    York, for example, the are treated the same, recognized in the
    State penal law as ``controlled substances.''
        Over the course of my policing career, I have seen how
    these positive changes at the State level are too often
    nullified when the Federal Government asserts jurisdiction over
    what is clearly a State matter.
        A decisive 67 percent of Americans who self-identify as
    Republicans, Democrats, and Independents believe that
    government should focus more on providing treatment for illegal
    drug users than prosecuting them.
        What's more, national law enforcement organizations, such
    as the Law Enforcement Action Partnership, also recognize that
    while drugs are potentially addictive and cause self-harm, drug
    abuse is a public health problem that requires a more nuanced
    approach.
        The United States relies on the principles of justice and
    equality for all, but the past 50 years have clearly
    demonstrated that, in the case of narcotics enforcement, the
    law has been not equally or justly applied.
        Rather, the war on drugs arrested and sentenced tens of
    thousands of individuals, ultimately for an often victimless,
    though socially intolerable behavior, and its effects were
    profound: The disruption of families, the loss of housing and
    potential employment, the inexcusable disparity based all too
    often on race, ethnicity, or financial status, rather than
    public safety concerns.
        Luckily, the EQUAL Act represents a golden and popular
    opportunity to reform sentencing to reduce these disparities
    and to focus on a more humane, rehabilitative approach instead
    of a largely failed punitive one.
        That is why support for the EQUAL Act cannot by mired in
    partisan politics--lives are at stake. Instead, bipartisan
    support must continue as you strive to achieve a meaningful
    solution to this ongoing crisis.
        Thank you to the Subcommittee for holding this hearing. If
    I could be of any assistance to Members of the committee,
    please feel free to contact me or my colleagues at the R Street
    Institute.
        Thank you.
        [The statement of Ms. Snider follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. We thank you very much for your testimony.
        Now, we'll yield for 5 minutes to Ms. Givens for her
    testimony.

                       STATEMENT OF KYANA GIVENS

        Ms. Givens. Good morning, again. Thank you, Committee Chair
    Jackson Lee, Committee Chair Nadler, and Ranking Member Biggs.
        I am a Federal public defender from the Eastern District of
    North Carolina. I've been proud to serve as a public defender
    for 16 years in three jurisdictions, both the West Coast and
    the East Coast.
        I agree with so many of the recommendations already shared
    by our esteemed panel member witnesses--most importantly,
    abolishing the mandatory minimum.
        As I sit here today, I can't help but think about who is on
    my caseload, and I want the Committee to remember who our
    policies affect.
        As I sit here today, 48 percent of the people on my
    caseload are eligible for mandatory minimums. Many of these
    young people are between the ages of 18-26 years old.
        That is entirely too young during developing adolescence to
    throw these young people into our prison system for time
    periods that equal 5-15 years. We are erasing entire phases of
    life for a whole generation.
        I'm asking the Committee to remember that the laws that you
    pass impact real lives. Some of those lives that I see on my
    caseload include a whole bunch of young people who landed at
    the prison system by falling through the education system. Let
    us not forget also, a whole bunch of our prisoners are people
    who grew up in the foster care system.
        I have represented a young couple who was expecting
    preemies and I could not get the young man out. He missed the
    birth of his children. The one family he ever knew, he was
    removed from for a mandatory minimum period.
        I'm asking the Committee to really consider some specific
    areas of the mandatory minimum and the impact it has. That is
    the recidivist statute of 851, the drug recidivist statute, and
    the 924(c), which is a combination of drugs plus a gun or drugs
    plus a violent crime.
        These are some of the most popular convictions that we see
    in our Nation and they also come with mandatory minimums.
    Simply making an impact on this area could seriously reduce and
    have a positive impact on reducing mass incarceration.
        I submitted in my testimony a young woman who represents
    something we often see, which is young people in a car with a
    gun and drugs ending up with a 924(c) and a mandatory minimum
    of 5 years. This was a young student-athlete who was not the
    driver, she was a passenger, and she is serving a sentence
    today for at least 70 months.
        I also want to touch on something that Ranking Member Biggs
    alluded to, which is the overfederalization of local crime. It
    results in task forces like Project Safe Neighborhoods that
    actually does not accomplish the goals that it intended. We
    have got to take a close look at the overfederalizing of local
    crime and bring it back to the place that it belongs.
        The impact of these task forces usually means
    oversurveilling and overpolicing communities of color; that is,
    Black and Brown individuals. We hide behind pretty names like
    Project Safe Neighborhoods when this does not make our
    neighborhoods safer.
        Long sentences do not ensure public safety. We have got to
    sentence like we believe it, we have got to sentence like
    supported by data.
        Last by not least, I'm going ask the Committee to really
    think about our youth, this 18-26-year-old group. We need to
    reclaim them. We need to recover them and remove them from the
    Federal prison system. They should not be subject to mandatory
    minimums under 851 or 924.
        Last, we should recenter drug misuse as the public crisis
    it is. Drug addiction and mental illness are a public health
    crisis, and the criminal justice system is so closely linked we
    have got to address it is as a public health crisis.
        I look forward to working with you, accepting your
    questions, and ask the Committee to take action. The war on
    drugs was a failure and we need to leave it where it was. Thank
    you.
        [The statement of Ms. Givens follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you for your testimony.
        Mr. Malcolm, you're now recognized for 5 minutes.

                       STATEMENT OF JOHN MALCOLM

        Mr. Malcolm. Chair Jackson Lee, Vice-Chair Bush, Ranking
    Member Biggs, and distinguished Members of Congress, I am the
    Vice President of the Institute for Constitutional Government
    and the Director of the Meese Center for Legal and Judicial
    Studies at The Heritage Foundation.
        Although I have spent much of my career as a Federal
    prosecutor, I recognize that our criminal justice system is far
    from perfect and that when it comes to sentences in drug cases,
    the pendulum can swing too far.
        Based on recent changes in State laws, it also seems clear
    that a lot of people believe that we should recalibrate how we
    tackle the drug problem that continues to plague our country.
    Sentencing reform is part of that ongoing discussion.
        Let me offer a few thoughts on some of the proposals that
    you are considering.
        Regarding the First Step Implementation Act, I endorse any
    effort to ensure that the First Step Act is fully implemented.
    While there are many parts of this bill that I support, there
    are some that give me pause.
        So, the First Step Act modestly reduced mandatory minimum
    penalties for certain repeat drug offenders, but only on a
    prospective basis. In addition to making these changes
    retroactive, the First Step Implementation Act would expand
    eligibility to those who commit a serious violent felony.
        I question whether this expansion makes sense at a time
    when we have experienced a dramatic spike in violent crime,
    although I recognize that eligibility for sentencing
    reconsideration does not mean that an offender will
    automatically--or even very often--get his sentence reduced.
        The Act would also enable a judge to take a second look at
    the sentence imposed on a juvenile offender who has served a
    minimum of 20 years.
        I have similar concerns with respect to juvenile offenders
    who commit unspeakably violent crimes. I recognize that such
    offenders would not be eligible for relief until they had spent
    over half their lives behind bars.
        The Act would also expand the current safety valve to allow
    a judge to impose a sentence below a mandatory minimum if the
    judge determines that a defendant's criminal record
    substantially overrepresents the seriousness of the defendant's
    criminal history or the likelihood that the defendant will
    commit other crimes.
        While I believe that the safety valve was too stringent
    prior to the passage of the First Step Act, I'm a bit
    uncomfortable with expanding the safety valve to recidivists
    who have more than four criminal history points based on such
    inherently subjective factors or criteria.
        The EQUAL Act would eliminate altogether the current 18-1
    disparity between crack cocaine and powder cocaine offenders
    when it comes to imposing mandatory minimum penalties, and it
    would make this change retroactive.
        There is some evidence that suggests that crack is more
    addictive than powder cocaine based on the different ways that
    the two drugs are ingested and the fact that crack is much
    cheaper. The vast majority of States, though, do not treat
    crack cocaine any differently from powder cocaine.
        Additionally, regardless of the intent behind these laws,
    it is clear that the greatest impact, both in terms of
    extremely long sentences handed down to offenders and the
    devastation that drugs have wrought, has been felt in
    communities of color.
        While I don't have a settled view on whether it makes sense
    to completely eliminate the differential, the current 18-1
    disparity certainly does strike me as excessive.
        Both the First Step Implementation Act and the EQUAL Act
    have provisions that would apply retroactively. While I respect
    the legitimate concerns expressed by many about applying
    changes in sentencing laws retroactively, I believe that if
    society has made a judgment that certain sentences are unduly
    harsh, then it must believe that those sentences were too harsh
    and unjust when they were originally imposed.
        In my opinion, enabling a judge to reconsider a sentence is
    a smaller price to pay than allowing offenders to languish in
    prison for longer than society now deems is just.
        In conclusion, let me say that the work you're doing will
    have a dramatic impact on both the victims and perpetrators of
    crime and their families. It will also shape how people view
    our criminal justice system in terms of its effectiveness and
    its fairness.
        Over the years, I have dealt with many people who approach
    these issues from different ideological perspectives. Some
    believe the system should be changed because of systemic racism
    or mass incarceration. Others believe we do not place enough
    emphasis on rehabilitation and redemption.
        While I don't always agree with them, I acknowledge that
    people who espouse these views believe them passionately and
    sincerely. In speaking to these thought leaders, I have often
    been struck at how often people agree about what ought to be
    done even if they disagree about why those measures are
    warranted.
        Sadly, too often nothing gets done, either because people
    get caught up on the ``why'' rather than focusing on the
    ``what'' or because they insist on an all-or-nothing approach
    with respect to the proposals they support.
        As you deliberate, I would urge you to focus on your areas
    of agreement and not let the perfect be the enemy of the good.
        I thank you for inviting me here to testify today, and I
    would be happy to answer any questions you might have.
        [The statement of Mr. Malcolm follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you.
        We thank all the witnesses for their testimony. This is a
    crucial, crucial, crucial crisis in our Nation, and all of you
    are contributing to our discussion.
        We will now proceed under the 5-minute Rule with questions.
    I will begin by recognizing myself for 5 minutes. Just for a
    moment, I'll ask if the Ranking Member of the Full Committee
    desires at this time to have his 5 minutes.
        Mr. Jordan?
        Mr. Biggs. Madam Chair, I think Mr. Jordan has left. So, I
    think he'll waive that for now. If he comes back, I'll let you
    now.
        Ms. Jackson Lee. We'll extend that courtesy. Thank you so
    very much.
        Mr. Biggs. Thank you so much.
        Ms. Jackson Lee. Ms. Barkow, for decades Congress passed
    extremely harsh laws that undermined public safety, created
    racial disparities and chaos in the Federal courts. Congress'
    approach to crack cocaine and the entire framework of mandatory
    minimum sentences is one example of how the failed war on drugs
    destroyed communities for generations.
        Those of us who live in certain communities are always
    reminded of neighbors, friends, and extended family Members who
    were just simply standing on a street corner and were caught
    with conspiracy charges and drugs and got 25 years. They were,
    like Mr. Underwood, 17, 18, 19, or 20.
        What mistakes did Congress make in its approach to
    punishment? What are the steps to developing laws that are
    rooted in sound policies?
        Ms. Barkow?
        Ms. Barkow. Thank you, Madam Chair.
        I would say there were several mistakes that I'd like to
    highlight, and the first one was that the way to solve issues
    of drug addiction, or use, or sale is by long sentences, which,
    as I said in my initial statement, the evidence just doesn't
    bear that out. When you arrest and incarcerate one person, they
    are easily replaced by someone else. So, those long sentences
    really did nothing to address the underlying problems of drug
    abuse.
        In addition, as you mentioned, it ended up that using those
    really harsh sentences destroyed families, neighborhoods,
    communities, lives, with no public safety benefit attached to
    them at all. We really miss out on the valuable contributions
    of these people locking them away.
        When Congress made these decisions, they did so in an
    environment that was essentially data and evidence free. It was
    all based on intuition and a kind of gut instinct that, ``We'll
    just lock this problem away.''
        Unfortunately, Congress did it at a time when it had also
    established an expert agency, the Sentencing Commission, which
    was supposed to help Congress address sentencing policy. Before
    even giving the Commission a chance, it went and passed
    sweeping mandatory minimums, the Armed Career Criminal Act, a
    whole bunch of laws that had no evidentiary basis for them,
    other than this underlying premise of, ``Let's be as harsh as
    possible.''
        I think that harsh reality fell disproportionately on young
    people and on communities of color. What we know about that is
    those young people would have aged out of their criminal
    behaviors, but they are serving sentences far beyond what they
    would have ever needed to do that.
        So, I would just urge all of you to look at all the
    evidence we now have to see that these sentences are really
    grossly excessive.
        Just the last point I will make in that regard. You can
    have great confidence that you can reduce sentences because
    we've seen it. We've seen it done at the Federal level. The
    Sentencing Commission reduced all Federal drug sentences on
    average by a couple of years.
        Those recidivism rates stayed low. They were no different
    than people who served their full sentences. We've seen State
    after State dramatically cut sentences. They've reduced their
    incarceration rates. They've reduced crime at the same time.
        So, we have the evidence that reducing sentencing works. I
    would just urge Congress to take that new path.
        Ms. Jackson Lee. Thank you very much.
        Let me, Mr. Underwood, again thank you for your powerful
    testimony and the work of your daughter, who is also in this
    work.
        You were sentenced to life without parole. Might you tell
    us how old you were?
        What do you think is a more effective approach than extreme
    penalties like life sentence? What would have been the
    appropriate sentence for you in light of what you were doing?
    You're a father. There is a basis of rehabilitation in the
    prison concept.
        Mr. Underwood?
        Mr. Underwood. Yes, Chair. Yes, ma'am.
        Ten years would have been an appropriate sentence. I say 10
    years because 3,650 days, 24 hours a day, when you're doing
    time in prison you have an opportunity to commit to either you
    want to go down that road and stay on that road and go down the
    road of perdition or you want to go down the road to
    redemption. You have a choice yourself to make whether you want
    to play chess, play cards, play basketball, and play all these
    other things.
        In a real sense, that day in and day out, you have to begin
    to deal with you're doing time, and that doesn't change, and
    that you destroyed some families, destroyed your family, and
    destroyed the community bonds. You have to be an individual
    that wants to commit to bettering themselves and educating
    themselves.
        The system is--I mean, while we do have law libraries or
    libraries per se with educational tools in them, they are not
    adequately staffed to prepare an individual for re-entry. I've
    seen that over and over, especially with young people.
        They don't have--we live in a--we have typewriters--what do
    you call those things? It is a skeleton. Basically, you can
    email people, but you can't really do--they have the vehicles
    there, they have the tools there, so put a flash drive in full
    of educational access for young men and young women, but they
    don't do that. They use these for GED programs.
        It's really a joke. Everybody in, at least on my side, knew
    that was a joke. You come into a room, there is, like, 50
    computers potentially set up to teach young people how to code
    and to do something, to give them some incentive to want to
    learn how to do things. They are just in there, just skeletons.
        It's a waste of money. They basically impart to people, you
    come in--if you are on the list to go take your GED, well, if
    you don't go to the GED class, you get a shot. That's a write-
    up.
        Ms. Jackson Lee. Thank you.
        Mr. Underwood. If you do go, you get an incentive and they
    give you $25.
        So, what I'm saying is the individual himself has to aspire
    to really want to change themselves. You come across a lot of
    young kids that really do, but they don't have the tools
    themselves, and they rely on elder inmates or people with
    education in prison basically to help them reach their goals.
        Ms. Jackson Lee. Thank you very much, Mr. Underwood.
        My time has expired. I had additional questions. I will
    yield now to the gentleman from Ohio, Mr. Chabot, for 5
    minutes. Thank you very much.
        Mr. Chabot. Thank you, Madam Chair. Thank you very much.
        I want to start off by thanking all the witnesses for being
    here, both in person and by video.
        A little over a year ago, in the wake of the death of
    George Floyd, protesters in cities and communities all over the
    country proclaimed--at least some of them--that because he and
    others, particularly minorities, have been killed by police
    officers, that police departments needed to be defunded, even
    in some cases dismantled.
        We then saw a number of cities do just that, cutting
    billions of dollars from police resources across the country.
    For example, here in our Nation's Capital, in Washington, DC,
    $15 million was cut out of their budget; Baltimore, not far
    from here, they cut 20 million; L.A., $150 million cut, and the
    Big Apple, New York City, a billion dollars was cut from the
    police budget.
        Well, as they say, you reap what you sow. Here in
    Washington, DC, a 43 percent increase in homicides this year
    compared to this point last year. Baltimore's violent crime
    went up, so they decided to add back $27 million for the
    police. L.A. experienced a 12 percent increase in homicides, so
    its mayor proposed adding back $50 million to the $150 million
    that they cut. In New York City, they experienced a 97 percent
    increase in shootings and a 45 percent increase in their
    homicides.
        Last year, in the city that I represent, Cincinnati--most
    of it is in my district--they experienced the deadliest year on
    record, with 94 homicides--when compared with some other cities
    that may not sound like a lot, but that's the most in the
    city's history--and an increase in violent crimes in the months
    of civil unrest that followed George Floyd's death.
        Ms. Snider and Mr. Malcolm, I'd like to direct this to you
    folks, if I could.
        Could you comment on the impact that the defunding the
    police and the over-the-top criticism of law enforcement by
    many in the media and by some of the protesters, again, not
    all, but many that have criticized the police--and this threat
    came from Congress--to eliminate qualified immunity, which
    would have meant that police officers could be sued in their
    personal capacity?
        So, your house, your savings, and your kids' college funds.
    If you made a mistake or were accused of it, even if you hadn't
    done anything wrong, you still have tremendous attorney's fees
    and that sort of thing. To take away qualified immunity.
        So, all of this, do you have an opinion as to what impact
    that has had on the recruitment of police officers across the
    Nation?
        Do you have an opinion as to whether that whole emphasis
    against the police has had an impact on the homicides and the
    rates going up in this country? The defunding, is there a
    relationship there?
        I'd ask either one to take that, or both.
        Mr. Malcolm. Ms. Snider has said that I can go first.
        I think that the defund the police movement is insane.
        There is no question that there are problematic relations
    between police officers and the communities that they serve.
    Both suffer as a result of that.
        While there are certainly issues that need to be worked
    through, I think one needs to keep in mind that the far bigger
    problem is the violence happening, primarily in our inner
    cities that are underpoliced.
        With respect to things like qualified immunity, certainly
    the defund the police movement, the hostility to the police has
    got to have an impact on recruitment. It probably also leads to
    an expansion of what's been referred to as the Ferguson effect.
        While I am not a big fan of many of the court
    interpretations involving qualified immunity, I fear that
    completely doing away with qualified immunity would have a
    very, very bad impact in terms of recruitment for police
    officers at a time when they are most needed, particularly
    among African Americans and Hispanics in terms of recruiting
    qualified officers from those communities.
        Mr. Chabot. Ms. Snider? You're a former New York police
    officer yourself if I'm not mistaken. Is that right?
        Ms. Snider. Yes. Yes, I am.
        So, I am going to say I completely agree with Mr. Malcolm's
    perspective. I do not at all support the rhetoric around
    defunding the police. I could get on board with maybe changing
    the verb to ``diverting'' funding somewhat to programs that
    will inevitably lead to less reliance on policing.
        In terms of morale, the word ``defund,'' it demoralizes
    police officers. It makes them feel like the public doesn't
    appreciate what they are there doing every single day.
    Obviously, their goal is to protect and to serve their
    community Members.
        In terms of qualified immunity, I think what we need to do
    is ensure that police officers know that as long as they do
    their work within the scope within the law, and they still are
    entitled to an indemnification policy, where they would not be
    subject to liability if they were sued civilly, I think we need
    to put parameters in effect like that to ensure that we don't
    lose the recruitment.
        As you saw, New York City police officers, I think we lost
    about 15 percent in the last year or two. A lot of officers who
    are eligible for retirement are running to the pension section
    to retire. I think that the defund the police movement is
    really encouraging people to want to leave the profession.
        Mr. Chabot. Thank you very much.
        My time has expired, Madam Chair. I yield back.
        Ms. Jackson Lee. I thank the gentleman.
        I now yield to the gentlelady from Georgia, Ms. McBath, for
    5 minutes.
        Ms. McBath. Thank you, Madam Chair.
        Thank each and every one you for your testimony today. We
    really, really appreciate you being here.
        Last March so much of our society changed as we tried to
    reckon with the danger of COVID-19. We reexamined many of our
    systems as we tried to keep our people safe, and including our
    criminal justice system, our prisons, and our jails.
        State and Federal officials took many different approaches
    to doing this, and including using home confinement authority,
    expediting parole, and other methods of reevaluating where and
    for how long people would actually serve their sentences.
        Critically, officials wanted to make changes while
    maintaining public safety and, avoiding a rise in recidivism.
    The goal was to release individuals.
        That was a decision that we ourselves were trying to make
    here in Congress, were to move them to home confinement or to
    protect their health and the health of those who work in
    prisons, while also not releasing anyone who might be posing a
    danger or risk to the public.
        I'm going to ask each of you if you would chime in briefly,
    and anyone is free to answer this question.
        Can any of you speak to whether these goals were actually
    achieved, and how we might study the effects of these different
    kinds of actions that were taken, and what they can teach us
    about using home confinement for elderly individuals or for
    those who have health conditions?
        Mr. Underwood, you look like you might want to chime in.
        Mr. Underwood. Well, ma'am, the elderly, for the most part,
    are left defenseless in prison. I actually watched--well, I'm
    67. So, I watched men that were in their fifties actually,
    first, when it hit, we immediately realized when we were locked
    down, the televisions were off, and we just listened on NPR and
    whatever else, other news we could garner that this thing is
    viral. I mean, it was airborne, it's going around the world,
    because it is moving too fast, and it is just destroying too
    many lives.
        I saw men that were sick from diabetes and whatever other
    ailments they had and it really attacked them first the most. I
    could actually see them physically deteriorate. They served no
    purpose being in there around, I couldn't see anything that
    they were doing for them.
        So, for them, especially when you have older men that are
    really for the most part--their sentences are almost done. They
    certainly don't want to come out into the world and commit any
    more crime.
        It's basically a service that you're doing to let them die
    at home or let them die in the free world as opposed to dying
    in jail, because you could actually really physically see
    people dying, deteriorating from--
        Ms. McBath. Thank you for that. I'm sorry that you had to
    witness that.
        Mr. Underwood. It was a traumatic thing to see.
        Ms. McBath. Anyone else?
        Mr. Malcolm. So, Congresswoman, I'm a little unclear about
    your question. I gather you're asking about for elderly
    incarcerated individuals whether compassionate release and home
    confinement makes sense?
        Ms. McBath. Well, actually, for any individuals that were
    confined during COVID at that time.
        Mr. Malcolm. Ah.
        Ms. McBath. The things that we tried to appropriate, the
    things that we tried to do to make sure that we were
    alleviating the possibility that some of those confined would
    actually end up having to stay incarcerated when they could
    actually have been released.
        We wanted to know the efforts that we tried to put forth
    that were done specifically within the prison system, was any
    of that helpful?
        Mr. Malcolm. Yeah. I don't know about the adequacy of
    those. Certainly, the impetus on making those changes for
    nonviolent offenders was important, not only in terms of
    protecting people who are being held involuntarily by the State
    because they've been incarcerated, but there are people who
    work in those prisons, who if they are exposed to a pandemic--
    which hopefully we are passing through--then bring that disease
    back to their loved ones in the community.
        I think that people tried hard to make sure that prisons
    weren't a petri dish. Probably some succeeded better than
    others.
        Ms. McBath. Thank you for that.
        Ms. Nelson, your testimony notes that we can reduce our
    prison populations by getting to the root of the causes of
    crime. So, how can evidence-based violence intervention
    programs make our communities much safer?
        Ms. Nelson. Thanks for asking that. I really appreciated at
    the time that we're certainly hearing a lot about the crime
    rates that have been going up in the last year, which not
    coincidentally corresponds with a worldwide pandemic and
    occurred independently of police being funded or defunded.
        In some places where funding for the police went up, crime
    still went up. This is happening in every city, rural places,
    and suburban places. So, it is really independent of all that.
        I think this is an opportunity for us to learn from what we
    did wrong in the 1990s when crime was up as well, and to look
    at, again, at what actually stops people from shooting each
    other wherever they are.
        There are a number of evidence-based solutions out there,
    including the Cure Violence intervention, which is a public
    health intervention for shooting. Focused deterrence, which is
    a similar intervention, but does include the participation of
    the police. Hospital-based interventions, in which folks go to
    victims of shootings who are in the hospital and try to stop
    retaliation from happening. Then again, funding communities so
    they have the resources and the bandwidth to be able to
    withstand this very stressful time that we are in.
        We have an opportunity now to jump on this, but we need to
    do that now before the violence continues to increase.
        Ms. Jackson Lee. Thank you very much for your questioning.
        I now recognize the gentlelady from Pennsylvania, Ms. Dean,
    Representative Dean, for 5 minutes.
        Ms. Dean. Thank you, Madam Chair.
        Just an extraordinary day that you are all here, but also
    the celebration of Juneteenth.
        So, congratulations on your hard fought and well-deserved
    victory on that front for our country.
        Ms. Jackson Lee. Thank you.
        Ms. Dean. I wanted to thank all of you for your compelling
    testimony about the area of the disproportionate--the crazy
    disparities, frankly--and the unsuccessful measures that we
    have put in place around sentencing.
        I thank you for speaking truth to the issues of addiction
    and the connection to the criminal justice system, and the
    racist sentencing disparities that have cast a shadow over our
    country for the last 50 years, since the beginning of the so-
    called war on drugs.
        You eloquently, Mr. Underwood, said, if it were a war on
    drugs it would have been applied equally, and it never was.
        You eloquently talk about how it actually has been so
    unsuccessful. It hasn't made us any safer.
        My own family is touched by addiction, which I have spoken
    about publicly. My middle son, Harry, is 8 years and 7 months,
    and some days in long-term recovery from opioid addiction.
        As he reports to me--he was a young man and a young father
    when he was falling deeply into addiction, stopped by the
    police many times. As he says to us in our family, he was
    treated unfairly fair. Has no record. Never spent time behind
    bars. Was never separated from his infant daughter. He was
    treated unfairly fair. It is time we recognize that.
        So, may I start with you, Ms. Frederique? My sympathies to
    you and your family in the loss that you have suffered.
        I want to talk about my support for the EQUAL Act,
    commonsense legislation championed by our Chair and colleague
    and friend Representative Jeffries, that addresses the
    sentencing disparities between crack and cocaine. The bill
    notably provides for retroactivity.
        Would you kindly speak to the importance of retroactivity?
    I'm thinking of a question that one of the testifiers said
    today: What will it say about us as a society if we change this
    and make it retroactive?
        What I think it says about us, if we do this, is that we as
    a society get a second chance to admit a mistake.
        What are your thoughts on retroactivity?
        Ms. Frederique. Thank you very much for that question.
        So, the EQUAL Act introduced by Representative Jeffries is
    long overdue. It is actually pretty incredible that we have
    people that are pushing for this moment.
        It is imperative that as we move forward, and as we
    progress and put forward legislation that fixes the choices
    that we've made in the past, that those choices apply to the
    people that are languishing behind.
        What it says about our country is that everyone is worth
    the redemption, everyone is worth the progress, and that we are
    strong enough to recognize when we've done something wrong, we
    are strong enough to say this was a mistake and we will atone
    and acknowledge that that has happened.
        I think this is a lesson we teach young people in preschool
    and in middle school, in high school and college and adults,
    and we say, you made a mistake, let's talk about it, let's talk
    through our feelings, and let's move forward. I don't think
    anything impedes us as a Nation from doing that for other
    people.
        We know the harm we've done with the disparate sentencing
    around crack cocaine. It doesn't save us anything to not
    reverse those decisions for people that are inside. It makes us
    stronger. It makes us stronger, but it also makes us truthful.
        Ms. Dean. Exactly right. Well said. Thank you.
        Mr. Underwood, you said in your testimony there's got to be
    a better way, and I couldn't agree with you more.
        I had the chance to hear the Pope speak to prisoners at
    Curran-Fromhold prison in Philadelphia when he visited a couple
    of years ago. He said that Jesus comes to save us from the lie
    that says no one can change, the lie of thinking no one can
    change. I think you spoke to that.
        Could you tell us what we should be doing differently here
    in Congress to talk about those second chances in redemption?
        Mr. Underwood. There are so many men, Congresswoman Dean,
    and women, that are geniuses sitting behind bars, that have sat
    10, 15, 20, or 30 years. So, just to interact with them and
    hear their stories, it is incredible.
        These are people that could make a difference in their
    communities. These are people that actually they have atoned a
    long time ago. They really don't want to be part of a system
    that--any criminal organization or any kind of crime. They want
    to do the right thing. They just don't have the opportunity to
    do the right thing.
        Education is important, education is vital. In this new age
    where you have DSPs that dominate, and we all know digital
    service providers that dominate the landscape, to have a prison
    industry that's basically they sit around and teach you how to
    make furniture and clothes, that's not a productive or adequate
    use of time for someone that's coming home to a world now
    that's dominated by technology.
        We have so much to offer out here in the society to offer
    those that are on their way home, that could make a difference
    in the world, that could do those jobs, that could help
    provide--pardon me.
        Ms. Dean. Thank you, Madam Chair. I yield back.
        Ms. Jackson Lee. The gentlelady's time has expired.
        First, we all are very engaged in this testimony and we are
    allowing Members to sort of spill over because it is such an
    important day.
        Fifty years in your life, Mr. Underwood, is testimony of
    how wrong the policy was.
        I know that Members know that this is a travel day, so we
    ask all of us--I have some questions at the end, but we will
    try to be consistent in our hearing.
        These are important times and important stories. So,
    Members, I do want to have you on the record. I thank you for
    your participation.
        The fact that the two gentlewomen from Georgia and
    Pennsylvania are so close together we called them back to back.
    So, we will now call Mr. Owens. Then, Members, we will call
    another Republican member. Then we'll come to the Democratic
    side. So, we thank you for understanding equity and fairness.
        Mr. Owens, you have 5 minutes at this time. Thank you.
        Mr. Owens. Thank you. Thank you, Chair Jackson Lee and
    Ranking Member Biggs, for holding this hearing.
        Thank you to all the witnesses for your participation.
        Mr. Underwood, thank you for your unique perspective.
    Really appreciate it.
        Citizen reform is an issue that's near and dear to my
    heart. Several years ago, I had the opportunity to mentor a
    young college football player. He showed great promise and was
    a close friend to one of my children.
        Unfortunately, during his summer break this young man,
    whose father had abandoned him, and his mother got involved
    with his uncle's drug trafficking operation, he was caught by
    authorities. Though it was his first offense, he was sentenced
    to prison.
        He was given a choice by a prosecutor who never lost and a
    public defender who never won. His plea offer: Ten years if he
    did not fight the charge or 15 if he did.
        He chose 10 years. Like tens of thousands of Black men, he
    was ripped away from his family. His 1-year-old son, like him,
    was also destined to be raised without a father.
        It will be 26 years, an entire generation, before the 2018
    Trump criminal justice reform bill would be passed to begin to
    address this heartless mandatory sentencing of the 1994
    Clinton-Biden crime bill.
        I would like to make clear that the criminality, murder,
    destruction we are seeing in Black communities across our
    country is not baked into our genes due to slavery 200 years
    ago.
        My upbringing in the segregated 1950s and 1960s proved what
    can happen to any community where there is a commitment to both
    mothers and fathers to their children.
        It was the proud Black community of my youth that led our
    country to the growth of the middle class. Men matriculated
    from college, men committed to marriage and proceeded to become
    entrepreneurs.
        So, I'm pleased to participate in this hearing today, but I
    do think it has been misnamed. It should be ``The Undoing of
    the Damage of Decades of Terrible Progressive, Anti-Black
    Policies.''
        While sentencing reform is a very, very important issue
    that I support, we can't overstate the damage of decades of
    policies that have decimated urban Black communities and
    minority communities.
        These policies include high minimum wage, a big benefit to
    increase the wages of skilled union workers but devastating to
    poor Black youth attempting to get work experience. Welfare
    incentives that force young single mothers into government
    dependency and our young men into self-centered narcissism.
    Sadly, having babies and abandoning them over the decades has
    become acceptable--in many cases, unfortunately, even
    fashionable.
        Anti-marriage tax incentives that penalize men and women
    who commit to marriage. Anti-school choice forcing poor
    children to remain in failing public schools, never learning to
    read, write, or think. The racist 1931 Davis-Bacon Act which
    prioritized White Federal unions over Black entrepreneurs and
    small business owners.
        We are in a country that believes in second chances.
    Correcting overly harsh sentences for those who have hurt the
    innocent in our communities should be important to all of us,
    as important as raising our young boys and girls in an
    environment that gives them a moral compass to give to their
    community instead of taking from it.
        It is imperative to raise them to understand that life
    obstacles are destined to come their way, but that they can
    overcome them as they learn to love God, country, family,
    respect women, authority, and themselves.
        Ms. Snider, according to the National Commission on COVID-
    19 and Criminal Justice, homicides and aggregated assaults rose
    significantly beginning in late May and June 2020. After almost
    30 years of a crime rate going down, why are we seeing this
    particular spike?
        Ms. Snider. Thank you for that question, Congressman.
        What we fail to realize and what the media has been telling
    us is crime rates are surging, violent crime rates are so high,
    but they are still not as high as they were in the 1980s and in
    the 1990s.
        So, yes, they have gone up. To date, I can't tell you
    personally why the crime rate has surged in the last year, but
    I'm going to say COVID-19 has been a very significant
    contributing factor. People were confined to their homes,
    people are losing economic resources, people don't have jobs.
    I'm going to say people probably got a little stir crazy
    staying at home for 15 months. Those are all factors that could
    contribute to aggression, behavioral changes, and an increase
    in crime.
        Mr. Owens. Do you have any other insights that you would
    like to share in the last few seconds here on the current State
    of crime and the police force in our Nation?
        Ms. Snider. I'm sorry.
        Mr. Owens. Do you have anything else you'd like--any other
    insights you would like to share with us in terms of the
    current State of the crime that we are experiencing now or the
    police force in our Nation?
        Ms. Snider. Not at this time.
        Mr. Owens. Thank you.
        I will give back my time. Give back my time.
        Ms. Dean. [Presiding.] The gentleman yields back.
        At this time, the Chair recognizes Rep. Spartz.
        Ms. Spartz. Thank you, Madam Chair.
        As we know, the criminal justice system is one of the core
    functions of the government, to protect people's rights to
    life, liberty, and property.
        As a former State legislator, I believe there are a lot of
    things that States are doing, and sometimes it seems to me that
    there is a redundancy with Federal crimes. Also, it makes it
    more complicated.
        When the system gets complicated, it is kind of stacked
    against the people who don't have the money. Maybe that's why
    it's good to have some CPAs, not just attorneys, in these
    committees. It is definitely a learning curve for me, and I
    appreciate your input.
        It's important that punishment does fit the crime. As one
    of my retired judges in my State told me, ``Victoria, since we
    don't put people in jails for life, it is important that we
    rehabilitate and provide second chances to people. It is also
    important that we have prevention.''
        So, I would like to get, Mr. Malcolm, you discussed
    sentencing and the proposed bills. Do you have any thoughts
    also on the probation and supervised release mechanism within
    the Federal system?
        As a Federal prosecutor, give me some insight. Are there
    some things that maybe could be improved there to provide more
    people opportunities?
        Because I think it's extremely important that we have this
    mechanism that gets people back into really being valuable and
    productive members of the society.
        Mr. Malcolm. You've raised a number of important points
    during your remarks just now. You've talked about the
    overfederalization of crime, where there are duplicative laws
    among Federal and States laws, which dilutes accountability and
    takes scarce Federal resources and diverts them into matters
    that have traditionally been left to the States.
        With respect to probation, people who are returning
    citizens after they have been incarcerated, it is important
    that the scarce resources for the probation officers are
    focused on people who are most likely to recidivate.
        I think that we have a problem with too many technical
    violations, returning people to prison too quickly. On the flip
    side, you'll get people who repeatedly commit violations and
    who are not dealt with in a timely manner. Before you know it,
    they have returned fully to a life of crime.
        Professor Barkow actually in her opening remarks talked
    about the problem of collateral consequences that are imposed
    upon people who are released that make it extremely difficult
    for them to reintegrate into society and become law-abiding
    Members of society, productive and being support to their
    family.
        So, part of the probation and parole process is also trying
    to make it easier by easing up on some of these collateral
    consequences to make it so that they have an opportunity to
    become productive members of society.
        Ms. Spartz. Any comments you have on supervised release?
        Mr. Malcolm. Well, look, supervised release is--there is no
    problem having supervised release. I wouldn't necessarily say
    that it is a substitute for incarceration.
        For certain nonviolent felons, depending on the
    circumstances of their offense, depending on the circumstances
    of their home life and their criminal history--so I know you
    are considering bills with respect to caretakers--supervised
    release is certainly an option, as are alternative sentencing
    mechanisms.
        A lot of States have things like drug courts, veterans'
    courts, and mental health courts. These are all things that are
    worthy of exploration.
        So long as the phrase ``evidence-based studies,'' so long
    as this is all evidenced based, I think these are all worthy of
    consideration and possible legislative changes.
        Ms. Spartz. Thank you.
        I yield back.
        Ms. Dean. The gentlewoman yields back.
        The Chair recognizes the gentlewoman from Pennsylvania,
    Representative Scanlon, for 5 minutes.
        Ms. Scanlon. Thank you, Chair Dean.
        The right to trial is established in our Constitution.
    However, we know that over the past few decades plea bargains
    have largely replaced trials in our justice system. When
    defendants choose to go to trial, they often face massive
    sentences if they lose.
        This so-called ``trial penalty'' punishes individuals for
    exercising their constitutional right. I'm really concerned
    about how the pressure to avoid the trial penalty impacts
    younger defendants and often women.
        Ms. Givens, I have several questions for you. Some of these
    structural things that are driving mass incarceration,
    including the sentencing guidelines and such. Also, the fact
    that public defenders are often underfunded, overwhelmed, and
    cannot adequately protect their clients.
        Can you speak to the impact of having less than adequate
    legal resources for folks who are in our system?
        Ms. Givens. Obviously, when we don't properly fund and
    support public defenders, we're not able to really deliver the
    services under the Constitution that people deserve.
        I will say, as a Federal public defender, I think that I
    have a lot of resources. I want to just shout out that be
    mindful of the difference between State and Federal public
    defenders. State public defenders are often saddled with higher
    caseloads, far fewer resources.
        As a Federal public defender, I wouldn't say it's perfect,
    but I have a little more. I think Federal public defenders
    across the country deliver some of the best legal services
    around.
        It is that trial penalty, the mandatory minimums, and the
    discretion in sentencing taken away from judges and given to
    prosecutors that really informs our outcomes.
        Ms. Scanlon. Right. Certainly, the Philadelphia public
    defender's office is legendarily wonderful. You're absolutely
    right, that often it's the State system. I believe
    Representative Deutch on our Committee has a bill, the EQUAL
    Defense Act, that was also sponsored by our current Vice
    President last term. So, we know there's work to be done there.
        I'd like to direct your attention to something that's kind
    of mentioned obliquely in your testimony, which is the
    ``girlfriend problem'' that we've seen with mandatory minimum
    sentencing.
        Before coming to Congress, I had the opportunity to
    participate in the Clemency 2014 Project and actually helped
    coordinate representation for two women who were sentenced to
    very long sentences as part of these ploys to get people to
    flip even though they weren't prime offenders.
        One of them was Michelle Miles, a first-time nonviolent
    drug offender. She received a mandatory minimum sense of 30
    years for conspiracy to possess and served 19 years before she
    received clemency. Basically, this was on the basis of her
    older boyfriend being someone who was running a drug ring.
        Similarly, Cindy Shank, whose odyssey became the subject of
    a Sundance Award-winning HBO documentary, also a young woman
    who was taken advantage of by an older guy who was running a
    drug ring, and prosecutors threw the book at both of them.
        Can you talk a little bit about how mandatory sentencing is
    disproportionately impacting women, particularly women of
    color?
        Ms. Givens. Yes. Mandatory minimum sentences are
    disproportionately impacting people of color of all genders. I
    understand your question about girlfriends taking the fall for
    their boyfriends involved in various trades, most
    representative drug trade.
        I think part of the problem is in the definition of
    cooperators, and how we define cooperation, and what type of
    things that we offer cooperators.
        A girlfriend of a boyfriend who is involved in the drug
    trade can be linked to his primary activities, even if she has
    a very peripheral role.
        That is something that is worth looking into it in how we
    can really separate the actions of a low-level involved person
    to the decisions of the primary person.
        Ms. Scanlon. Can I just get to one thing--one other thing,
    because my time is almost out? You did mention also the impact
    on juvenile defendants or folks who are younger and how the
    pressure to plead creates issues. Can you speak to that as
    well?
        Ms. Givens. Yeah, this a big problem, and I want to say
    distinctly that when I'm talking about young people, I'm
    talking about 18 to 26. When we're talking about evidence-based
    sentencing, we must remember that the data says that people
    between 18 and 26, they're not traditionally our view of
    juveniles, but they are in developmental adolescence.
        These young people, it takes a whole bunch of different
    skills to present to them these long sentences and what that
    means for their life. I think they get pressured and feel
    pressure to plea because they are overcharged. They don't have
    a lot of other choices.
        Ms. Scanlon. I see my time has expired, but Madam Chair, I
    would ask unanimous consent to enter into the record a report
    from the National Association of Criminal Defense Lawyers,
    entitled, ``The Trial Penalty, the Sixth amendment Right to
    Trial on the Verge of Extinction and How on Save It.'' With
    that, I yield back.
        Ms. Dean. [Presiding.] Without objection, it is so ordered.
        [The information follows:]

                          MS. SCANLON FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Dean. Next, the Chair recognizes the gentleman from
    California, Mr. Lieu.
        Mr. Lieu. Thank you, Madam Chair, and thank you to all the
    witnesses who are here today, as well as for your expertise. I
    just want to first say that mandatory minimum sentences are
    stupid, and they're stupid because we stupidly force every fact
    pattern, every life case, into these rigid little boxes that
    don't reflect reality.
        The whole reason we have judges and juries and prosecutors
    and defense attorneys, instead of robots and computers, is to
    provide individualized justice for each unique case. Mandatory
    minimums strip that away. It's had devastating consequences for
    society and overly harsh punishments.
        I'm a former prosecutor in the United States Military. We
    didn't have mandatory minimum sentences for drug offenses.
    We're talking about folks that fly fighter jets with weapons on
    them, drive tanks, sit in missile silos. We didn't have
    individualized--or mandatory minimum sentences, because we
    believe in individualized justice, so should the Federal
    civilian side. I look forward to working with the Committee to
    eliminate mandatory minimum sentences for drug offenses.
        What I'd like to focus on today is pretrial detention, and
    Professor Barkow, you had mentioned in your witness statement,
    a section on pretrial detention, and you stated that
    individuals detained pretrial are more likely to plead guilty
    than defendants who are not detained, and that pretrial
    detention also leads to longer sentences regardless of a
    defendant's risk, crime, or criminal history. Can you elaborate
    on why that is?
        Ms. Barkow. Yes. Thank you, Representative Lieu, for the
    question. I think that what we see when people are detained
    pretrial is they would like to leave, and, so, it's an even
    more coercive plea-bargaining environment than for someone who
    is not detained.
        If you're thinking about fighting your case but you're
    under detention, and you're offered any kind of time-served
    sort of thing, people are more likely to take it. So, they take
    worse deals, they get longer sentences as a result.
        Then the other thing we know about pretrial detention is
    that it is really disruptive on people's lives, right? If you
    take somebody who was working, their employer is unlikely to
    keep them. Even if they're just detained a short period of
    time, it's not something that they're particularly forgiving
    about, Hey, I've got to serve out a little bit of time in jail,
    can I still keep my job? The answer is typically no, so they
    lose their jobs.
        They often get evicted from their housing. These are people
    that are living at the margins. They lose custody of their
    children. So, it's an enormous disruptive event in somebody's
    life.
        So, separate and apart from whatever they're accused of
    doing, when you detain them pretrial and you take them away
    from all of those things, their job, their housing, and their
    children, you can see why when they are ultimately released
    from that, it's harder to get on a path to stay law-abiding.
        So, they're actually at an increased risk of committing
    crimes than if we just kept them out in the first place and
    didn't detain them. We have lots of evidence from the States
    now, places that are reforming their pretrial defense practices
    where they're really lowering their detention numbers and crime
    rates are going down, they're saving money. Again, it's one of
    those win-win areas.
        Mr. Lieu. Thank you, Professor Barkow. I gather from your
    answer that you believe that pretrial detention reform, also
    known in some places as bail reform, would be a critical part
    of sentencing reform, right?
        Ms. Barkow. I think it is urgent, absolutely, 100 percent.
        Mr. Lieu. Thank you. I also note that pretrial detention
    has skyrocketed in the Federal system, from 19 percent in 1985
    to 75 percent in 2019.
        In addition, Federal pretrial detention rates are much
    higher than States, who are at about 75 percent, compared to 38
    percent for States with large urban counties.
        That's one reason I introduced the pretrial reform bills. I
    have two of them, and I look forward to working with this
    Subcommittee to get those bills marked up.
        I'd like to ask a question of Ms. Givens. First, thank you
    for your service as a Federal public defender. Can you explain
    a little bit what the effect of pretrial detention has on some
    of your clients who, let's say, are unable to leave pretrial
    detention?
        Ms. Givens. Pretrial detention, in the Federal system, has
    a devastating effect. I agree with Rachel Barkow
    wholeheartedly. It affects families, their lives, employment,
    but most importantly, I think we need to look at the data,
    which is, if you release people pretrial, they don't abscond,
    and they're not a community safety risk, which are the only two
    questions that you're supposed to be answering at a pretrial
    detention hearing.
        The evidence just doesn't suggest that these people
    represent those two risks. We could save a lot of money and
    divert people into drug treatment and mental health treatment
    before detaining them.
        Mr. Lieu. Thank you so much. I yield back.
        Ms. Dean. The gentleman yields back. The Chair recognizes
    the representative from Wisconsin, Representative Tiffany, for
    5 minutes.
        Mr. Tiffany. Thank you, Madam Chair.
        Ms. Barkow, we're hearing a lot about that mental health is
    needed here. Mental health treatment is a consistent message
    here in regard to drug problems, that type of stuff.
        So, we had this great deinstitutionalization that happened,
    what was that, back in the 1970s, and did we make a mistake in
    not getting people mental health? Because, perhaps, changes
    should have been made in the '70s, but did we, by
    deinstitutionalizing--because I hear people, in regards to the
    homeless problem, they speak frequently about those people have
    significant mental health problems, but they're not getting
    them, whereas perhaps they did get them earlier. Did we miss
    the mark 50 years ago?
        Ms. Barkow. Well, I think the deinstitutionalization
    movement, it was the right idea, because these big mental
    hospitals were really abusive and awful places. They actually
    had a lot in common in what we see in prisons today.
        The idea behind it was they were supposed to be
    deinstitutionalized to community mental health facilities. So,
    there were supposed to be community-based places for them to
    go, and that's where it went awry, there was no replacement for
    what had been offered.
        So, I don't think the answer would be a return to
    institutionalizing people, but I do think the idea of providing
    community-based care is critical, and that was the piece that
    was missing from that movement previously.
        I think you're entirely right to draw the connection,
    though, between people with mental health needs and a hearing
    on sentencing, because for many of the people that we see
    cycling in and out of prisons and jails, they have an
    underlying mental health issue, so you're not really doing
    anything by incarcerating them.
        Mr. Tiffany. Sure. So, we didn't have a replacement for
    what happens which is classic.
        Ms. Givens, what I heard from you is, you were saying the
    Federal Government has a problem in regards to this issue, that
    you would more effectively deal with this--or it would be more
    effectively dealt with if the Federal Government didn't do
    certain things. Is that correct?
        Ms. Givens. The Federal Government--I heard your question,
    as the Federal Government is a problem, and they need to do
    certain other things. I'm not sure what you're asking me.
        Mr. Tiffany. So, when I heard your testimony, you talked
    about harsh mandatory minimums, some of the requirements that
    the Federal Government has in place, that they end up being
    counterproductive. Is that accurate?
        Ms. Givens. I would agree.
        Mr. Tiffany. Is that accurate?
        Ms. Givens. Yes.
        Mr. Tiffany. Yeah. Okay. So, I sure hope this committee,
    that we look at this in a way that is introspective and making
    sure that we're not creating problems for the States. Maybe
    this is something that we should defer to the States. I'm
    hearing about some success stories from States, that they think
    they're handling it better.
        This is classic, where we have the laboratory of the
    States, the 50 States, where they, maybe, more effectively deal
    with something like this, rather than trying to get this one-
    size-fits-all approach that comes from the Federal Government.
        Number three, Ms. is it Frederick? I wasn't here for your
    testimony.
        Ms. Frederique. Frederique.
        Mr. Tiffany. Frederique. Thank you. Can you assure--if we
    make these changes that you're calling for, can you assure us
    there will not be a spike in violent crime?
        Ms. Frederique. I think what you're seeing is that the
    things that we have currently have not assured that either, so
    what I can say is that the things that we are pushing for is an
    investment in communities and providing people support, and
    that those things are important as we move forward.
        Mr. Tiffany. I respect the goals that you have laid out
    here for what we should try to do in laying out, perhaps, a
    roadmap to make this happen, but I can tell you, if we continue
    to see the unprecedented increase in violent crime that's
    happening in our cities right now--so my district, I'm in
    Wisconsin, but I'm right next to Minneapolis and St. Paul.
    That's in Wisconsin, it's 15 minutes away.
        They are seeing an unprecedented increase in violent crime
    in Minneapolis right now, and it largely affects minority
    communities of color. That's who is being hit the worst with
    this. I look at the feed on my phone each day, and I had two
    today, that regularly get these crime updates from Minneapolis,
    and it's unbelievable the number of people that are being
    harmed, whether it's carjackings, murders, and stuff like that.
        We have to make sure that we do a smart job here about
    this, because if crime continues to increase the way it is in
    our major cities across America, people are not going to stand
    for this, because this is what happened after the '60s and
    '70s, people said, That's enough. We want our communities to be
    safe. We could be right back here with the public saying, we
    want tougher--we want you to be much tougher on crime if we
    don't do this properly.
        Anyhow, my time is up, and I yield.
        Ms. Jackson Lee. [Presiding.] The gentleman yields back. I
    thank him for his testimony. We now acknowledge the Vice Chair
    of the Subcommittee, Ms. Bush from Missouri, for 5 minutes.
    You're recognized.
        Ms. Bush. I thank you, Chair, for convening this important
    hearing. Let me just say, being tough on crime--let me start
    with, being tough on crime is the reason why we're here today.
    It is not because social safety nets were being taken care of.
    It was the tough-on-crime work of people that even are in this
    Chamber.
        So, 50 years, that's how long our government has waged a
    war, not on drugs, but on people. Our people, they are not
    statistics. A lot of my colleagues even here today in Congress
    aren't where I'm from. They haven't seen what I've seen, the
    people and communities harmed by this racist, White supremacist
    war on drugs.
        Those folks are my neighbors, they're my friends, they're
    my classmates, they're my loved ones. I will never forget how
    in a 2-year window, as a young person, I lost 40-50 friends.
    Imagine losing friends or community members so frequently that
    loss and trauma become your norm.
        In fact, I lost more friends to the war on drugs than not.
    I had a very, very close loved one of mine who was killed, shot
    straight in the head because of this nightmare. For those of us
    that lived through this war, we lived through daily and tragic
    deaths. What the war on drugs ignited was an actual warfare on
    our streets.
        Our grandparents were forced to put their homes up for
    bond, and when the government threw us in jail and left us
    without any social safety nets, it was that this was what was
    needed. No, many grandparents were forced to become guardians
    because the war on drugs devastated an entire generation of
    parents.
        Children were forced to be caretakers for their parents who
    fell victim to the cycle of abuse. I watched young boys fall
    into the trap of selling drugs as a means of survival.
    Survival. Youth are joining gangs as a way to secure their
    homes and their streets from police violence.
        I know because I was a part of that. It's not something
    that I read or that I heard, like some folks on here.
        I saw young women and girls unwillingly fall victim to
    trafficking, abuse, and exploitation to survive this war on
    drugs.
        As a young child and a young adult, I didn't think I had a
    voice to do anything about what I was seeing, but now as a
    Congresswoman and as a nurse, I can speak for all my friends
    whose lives were cut too short. I can speak for those friends
    who are still behind bars even to this day, and I can say,
    unequivocally, that the war on drugs was a failure of policy.
    It was a failure many leaders in this very Chamber are
    responsible for.
        Ms. Frederique, thank you for your thorough testimony and
    providing solutions. The war on drugs has not meaningfully
    reduced drug use. In what ways has it worsened drug use and
    overdose deaths?
        Ms. Frederique. Thank you so much, Congresswoman, for your
    question. Unequivocally, our choices around policy, our
    Draconian investments, our focus on incarceration and
    criminalization, have not only not deterred people from using
    drugs, but they have also made drug use more risky and more
    dangerous.
        Prohibition itself has made our drug supply risky and
    dangerous. Our choice--that was a choice--to create
    prohibition, and to really push and focus on criminalization,
    has made our drug supply poisoned.
        What we are seeing with the overdose rates is that people:

              1. Don't have the education that they need to
            understand drug use and to make sure that they don't
            die, which is basic.
              2. Our drug supply is poisoned because people are
            adulterating it because of the incentivization of
            prohibition.
              3. Our communities don't have the resources necessary
            to navigate addiction because we are bloating our
            criminal justice system as opposed to the public health
            infrastructure that people need to navigate addiction.

        As a social worker, it is very clear to me that we need
    community supports and resources to navigate people's choices
    around risky drug use. Our focus on criminalization, not only
    makes it difficult for people to ask for help or to get them,
    and it also makes it really difficult for us to control the
    kinds of substances that people are using.
        Ms. Bush. Thank you. Thank you, Ms. Frederique.
        Ms. Barkow, you have written extensively on the role of the
    President and the role he can play in reversing the harms of
    the war on drugs for those who are serving time. Can you talk
    about these proposals?
        Ms. Barkow. Yeah. Whatever you do in Congress--and I urge
    you to do as much as you can--the President can use the
    clemency power to reduce sentences. So, anyone, for example,
    who is serving a sentence under any of these mandatory minimums
    that's too harsh, the people who are on home confinement that
    someone asked about earlier, keeping them out, the President
    can do all that through clemency. There's no reason to send any
    of those folks back. A blanket clemency order would keep them
    home. He can use the clemency power to reduce these Draconian
    drug sentences that people are serving, and I certainly hope
    that he uses that power.
        Ms. Bush. Thank you very much, and I'll close here. For
    years and years our communities were duped, our communities
    were told that these criminal policies were necessary to keep
    our streets safe, but we know that that was a lie.
        We know that these policies made substance use, health
    issues even worse, and I implore my colleagues to join us in
    legislating to promote health and not perpetuate harm. Thank
    you, and I yield back.
        Ms. Jackson Lee. I thank the gentlelady for important
    questions, and I thank her for yielding back. Now, recognize
    the Ranking Member, Mr. Biggs, for 5 minutes of questioning.
        Mr. Biggs. I thank the Chair, and this has been a very
    interesting hearing, and I really thank you for holding this
    hearing. This is an important hearing.
        As a person who practiced law in the criminal field for a
    number of years and tried many cases, I will tell you that I
    think that it's interesting to me that we have--so much of what
    I've heard I find fascinating. I think there are things that we
    can have points of agreement on, and if I could, at some point,
    I would encourage us to be able to sit down, put aside our
    partisan differences, and see if there was some way to find
    concord at least in certain areas that we could move forward.
    That's very difficult to do.
        I would just want--and I have to respond to something that
    was just said in the last speaker, that these were
    institutionally racist policies. I just point out in 1971, New
    York had a huge heroin epidemic. It was just a terrible problem
    in the early '70s. Then Congressman Rangel from Harlem urged
    then-President Nixon to ramp up drug-fighting efforts more
    aggressively and said, quote, ``We could bring a halt to this
    condition which is killing off American youth,'' close quote.
    That's what he told President Nixon. I don't think this was
    done intentionally, on a racist basis--
        You know, could I have a point of order? That's--Madam
    Chair?
        Mr. Cohen. Sorry. I apologize. Will you yield?
        Mr. Biggs. That is absurd. That is absurd.
        Mr. Cohen. It is not absurd. Will you yield?
        Ms. Jackson Lee. It's Mr. Biggs time.
        Mr. Biggs. I would ask for my time to be restored to where
    I was before I was interrupted.
        Ms. Jackson Lee. Your time is being restored, and I'll--do
    you wish to yield to the gentleman for his question?
        Mr. Biggs. No, I don't. I don't, Madam Chair. I will not
    yield to him.
        Ms. Jackson Lee. We'll provide you with that time.
        Mr. Biggs. Thank you.
        The reality is, that's what I'm talking about. That kind of
    interruption prevents us from being able to set aside partisan
    bickering and get to where there's concord to move things
    forward.
        I'll tell you about a case where a client I represented one
    time with regard to drug abuse. This individual was charged and
    he was probably the most respectful defendant I'd ever had an
    opportunity to work with. Very respectful, very kind, very
    gracious.
        His charge was first-degree murder. While under the
    influence of drugs, he had gone into a home of a man that he
    had met and killed him. He strangled him. There was very little
    defense to that. I mean, that's what he did. He was under the
    influence of drugs.
        We had to wait to do the trial because while under the
    influence of drugs, he had gone into a restaurant with two
    friends and semiautomatic weapons and robbed the entire
    restaurant. We had to wait for that trial to be completed
    before we could go forward, and we had to move the motions that
    were necessary regarding that.
        I tell you that because I asked him what he thought the
    root of his problem was. He said it was drugs. He said it was
    clearly--he said, when I was under the influence of drugs, it
    just messed everything up, and we had an extensive talk and
    conversation about that. It ended up ruining his life and many
    others.
        I tell you that because I do think drug use and trafficking
    can have very serious consequences tangential to personal use.
        I was taken by something that Mr. Underwood said about
    training individuals who are going to be coming out, so they
    don't recidivate. There's a Department of Corrections--and this
    is one thing I think Mr. Tiffany was correct on. I think the
    States have gotten way ahead of the Feds on a lot of sentencing
    reform. They use private sector groups.
        I'll give you an example. They use the Home Builders
    Association. That Home Builders Association provides training
    in the trades, whether it's framing, plumbing, et cetera, to
    build homes and commercial facilities. Why is that important?
    Because Arizonans can never find enough--there's always
    employment available in those trades. So, we want individuals
    to be able to get out, be able to find employment, and go
    forward.
        We have unique problems. Every State does. I think in the
    comments that Mr. Malcolm indicated, my note at the beginning
    of his comments after listening to him, was that, and I think a
    lot of you have shared that, is, an individual charged with a
    crime, those are particularized situations and circumstances
    for that individual, and sometimes the larger view, the generic
    view, doesn't take those into account.
        I'll have more to say on this later, Madam Chair, and I'll
    yield back.
        Ms. Jackson Lee. The gentleman yields back. We thank him
    for taking a moment of personal privilege, indicating that we
    may have some common ground, and we do thank you for
    acknowledging that. I think it is now appropriate to yield to
    Mr. Cohen for 5 minutes.
        Mr. Cohen. Thank you, Madam Chair, and I should not have
    laughed, except I had to, because I was reading a quote from
    John Ehrlichman, a top Nixon adviser and former Watergate co-
    conspirator, who later revealed the true reason for the war on
    drugs in a 1994 interview with Harper's Magazine.
        Mr. Ehrlichman didn't bring up Charlie Rangel. Mr.
    Ehrlichman said, ``You want to know what this is really
    about.'' The Nixon campaign in 1968 and the Nixon White House
    after that had two enemies: The anti-war left and Black people.
    You understand what I'm saying? We know we couldn't make it
    illegal to be either, against the war or Black, but by getting
    the public to associate the hippies with marijuana and Blacks
    with heroin, and then criminalizing both heavily, we could
    disrupt those communities. We could arrest their leaders, raid
    their homes, break up their meetings, and vilify them night
    after night on the evening news. Did you know we were lying
    about the drugs? Of course, we did.
        So, that's a pretty laughable thing to follow-up with
    Charlie Rangel influenced President Nixon to start the war on
    drugs. That was absurd.
        If you go back into history with Harry Anslinger, which is
    back in the '30s, it was all about African Americans and
    Mexicans. It was racist, racist, racist, and always has been
    and still is. The war on drugs is a big failure. ``Just say
    no'' is a joke, a simplistic answer to a difficult situation.
        I've worked--I think Ms.--is it Barlow? She brought up--
    somebody brought up about commutations and sentencing. I've got
    pardon legislation to mend our pardon power, to take away the
    ability to pardon your cronies, your family Members, your
    associates who work with you and your campaign, your people in
    your Administration, which is what basically what the previous
    President did.
        He'd had a few cases where he took care of a few people who
    knew a lady that was originally from Memphis, moved to Arizona,
    and somebody she brought up. He didn't go through and try to
    take care of a bunch of people sentenced for long drug
    sentences. He didn't do that. He took care of Manafort, and he
    took care of Flynn, and he took care of Roger Stone, and all
    those criminals.
        We need to change our pardon power and make it to where it
    is mercy and justice and not taking care of cronies and
    covering up crimes, which is what we just experienced.
        I was not totally over-enamored with what President Obama
    did, but at least he got 1,800 people out of the criminal
    justice system, people he didn't know. They weren't favors. He
    set up a system that was rather rigid and lengthy, but a
    system.
        He didn't get to probably another 8,000 people who at least
    deserved justice and should have had their sentences commuted
    because it was such a difficult process. At least 1,800 people
    got out, and it was something pretty amazing in American
    history, that somebody--a President pardoned people who he
    didn't know, who never made a campaign contribution and never
    covered up a crime for them, but he pardoned them because they
    did meet some criteria that showed they were in prison
    unnecessarily and too long a period of time, and they were drug
    sentences.
        We need to use the pardon power early on to help filter out
    people who shouldn't be in the criminal justice system. We need
    to use compassionate release and get rid of older people and
    sick people and whatever and do whatever we can.
        Mr. Malcolm, in your testimony, you said you don't like to
    call the drug problem a victimless crime or whatever, because
    of the fact that in the chain of distribution, there's a
    likelihood of there being violence and guns and all that stuff.
    That's true.
        Do you still think that because that the people who are
    possessing should be penalized harshly like we do it?
        Mr. Malcolm. No. So, what I said in my written testimony is
    that I'm always uncomfortable with the phrase ``nonviolent drug
    offense,'' because there is, inherent in any drug deal, the
    risk of overdose, in addition to the fact that a lot of it is
    gang-related, and there is a lot of violence that comes from
    that, but--
        Mr. Cohen. Let's take marijuana. Let's take marijuana.
    Would a person possessing marijuana, he's not going to
    overdose?
        Mr. Malcolm. I'm going to separate out--so, all I'm saying
    is that people who just routinely use the phrase ``nonviolent
    drug offense'' doesn't sit well with me. That is a different
    issue from how long we should incarcerate people and how long
    we should punish them.
        As I said, I was in favor of the First Step Act, which cut
    back on mandatory minimum sentences for repeat drug offenders,
    and I am open to reforming sentencing laws. That's what I have
    said in my testimony.
        Mr. Cohen. Okay. Let me ask you this. Mr. Chabot mentioned
    in his questioning--and Mr. Chabot's my friend, but he brought
    up the idea of, does defund the police hurt the police's
    attitude, and he stressed all the defund the police, which
    Republicans do, and that's one of our problems here. Most
    Democrats--I'd say that less than two hands can you count
    people who are for defunding the police.
        Do you think that Republicans who voted against the
    Congressional Gold Medal for police and other policemen--and
    there were 20--I think there were 21 of them voted again--more
    than 21--voted against giving them a Congressional Gold Medal.
    Do you think that hurts the feeling of the police about their
    support and their attitudes?
        Mr. Malcolm. Congressman, that's a political question that
    I've given no thought to. I certainly applaud the heroic
    efforts of the people who kept you safe on January 6th.
        Mr. Cohen. What about somebody--and one of our Members said
    that the officer who shot Ms. Babbitt when she tried to break
    through the glass window that had been broken and come into the
    Speaker's lobby, he called that Capitol Policeman an assassin.
    Do you think that hurts the people in the Capitol Police
    Department's mood and feeling?
        Mr. Malcolm. I've heard that view expressed. I do not agree
    with that. The officer who killed Ms. Babbitt was clearly
    protecting you. You were about to have a group of people
    breaking through a window--
        Ms. Jackson Lee. The gentleman's time is expired.
        Mr. Malcolm. Okay.
        Mr. Cohen. Thank you, sir.
        Mr. Malcolm. Sure.
        Mr. Cohen. Thank you.
        Ms. Jackson Lee. The gentleman's time is expired. Thank you
    so very much.
        Let me take a moment, Members, to first acknowledge Members
    who desire to be here. Again, Members of this committee, I want
    to thank you for being here, the Representatives Bass, Demings,
    McBath, Dean, Scanlon, Bush, Cicilline, Lieu, Correa, Escobar,
    and Cohen. These are all faithful Members, and in some ways,
    Members were called away when I acknowledged them:
    Representative Biggs, of course, our Ranking Member Chabot,
    Representatives Gohmert, Steube, Tiffany, Massie, Spartz,
    Fitzgerald, and Owens.
        My Subcommittee is a very faithful committee. I want to
    acknowledge that Members had a number of obligations, but we
    thank them for their presence.
        Mr. Biggs, did you want to take some follow-up questions?
        Mr. Biggs. I unfortunately have to go, but I want to submit
    that--Madam Chair, I unfortunately have to go. I'd like to
    submit this article for the record, if that's possible.
        Ms. Jackson Lee. Without objection, so ordered.
        [The information follows:]

                            MR. BIGGS FOR THE RECORD

    =======================================================================
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Biggs. Thank you.
        Ms. Jackson Lee. Thank you. You have a very effective
    substitute, so thank you.
        I am going to take a moment to submit some statements into
    the record that I think are appropriate. First, without
    objection, I will be submitting a statement from the Leadership
    Conference into the record, submitting a statement from the
    ACLU into the record without objection.
        Then an article, ``They Let People Die, U.S. Prison Bureaus
    Denied Tens of Thousands Compassionate Release During COVID.''
    Mr. Underwood indicated that he was released for his own record
    but also under that process.
        The data shows officials approved fewer applications during
    the pandemic and the year before despite risks from the virus.
    I ask unanimous consent to submit that, without objection.
        Also, ``Drug reform advocates call Supreme Court ruling on
    crack sentences `a shocking loss,' '' which just recently came
    out on Friday, and then an article in The Hill from Mr.
    Loewenstein, ``Why the War on Drugs Must End.'' There's a
    dangerous myth that it is over. In reality, the drug war has
    never been more ferocious, targeting minorities and the most
    vulnerable in the U.S. and abroad.
        I ask unanimous consent to have those submitted into the
    record.
        [The information follows:]

                         MS. JACKSON LEE FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Members, I have one or two questions, and
    I will then conclude. So, let me just quickly ask Ms. Nelson
    that we know the '70s marked the formal beginning of mass
    incarceration. We have seen the results of mass incarceration,
    of what transpired with mass incarceration. So, the question
    that we have is, why is it important to remember and consider
    that history, which is evidence of mass incarceration, when
    undertaking sentencing reform?
        Ms. Nelson. Thank you for that question. I think it's
    important to--and many of the questions on the colloquy today
    has touched on the history of when we started going down this
    path in the '70s through the '90s.
        It was a period, and as I said in my testimony, right after
    the civil rights--the achievements of the civil rights era.
    There was a rise in crime, but it immediately became
    politicized and racialized in terms of sort of conflating
    growing crime with criminality of non-White people. That
    allowed us to come down on people in a very harsh way.
        I think now--and certainly we've been hearing about it
    throughout this testimony--what are the lessons that we've
    learned from that period, how can we not make those same
    mistakes, both as we undo the war on drugs, and think again
    about what we're trying to do when we sentence people.
        The framework that we put forward is that when we're
    sentencing people, we have to have a reason for doing it. We
    have to actually--need to create actual safety, we have to
    repair harm, and we have to promote racial justice. An overly
    harsh mechanism for sentencing does none of that.
        There's been lots of testimony from several witnesses about
    how harsh sentences do not deter crime, and there has been
    testimony about where we are now in terms of rising crime.
        I cannot say strongly enough that as we are in this period,
    we can learn from what we did wrong in the '70s through the
    '90s, and take an evidence-based approach to both how we deal
    with being proactive about crime, and then once crime has
    occurred, what is the appropriate sentence. It should be a
    sentence that repairs the harm, not a sentence that holds
    people in for too long, and to no effect.
        Ms. Jackson Lee. Thank you very much. I think it's clear
    the challenges we have.
        Very quickly to Ms. Givens, you had an important statement
    in your testimony that what we're doing is really erasing an
    entire phase of life for an entire generation. We know that
    brains do not mature until the age of 25.
        Explain what this process of mass incarceration and
    mandatory minimums does to your defendants, particularly in the
    age 18 to 26, and again how destructive that is.
        Ms. Givens. Quickly, I guess in a nutshell, I would say
    that what it does, is, it doesn't give young people the
    opportunity to do some of the things that Ms. Nelson was just
    speaking about. It doesn't give them the opportunity to repair
    and recover.
        The brain development piece is so hopeful and so important
    because what we know from data is, young people's brains
    develop and they respond in a shorter time, so they don't need
    these long sentences to make a U-turn in their life.
        It takes away their education, takes them away from their
    family. It actually increases trauma. The Act of incarcerating
    a young person increases trauma. You really take away
    connection, mental health, and superimpose on them
    hypervigilance, anxiety, they don't continue to develop self-
    esteem.
        All of these things will follow them for the rest of their
    life, but most importantly, it takes young people away from the
    ability to become good income earners, because we are wasting
    5, 10, 20 years of their life where they could get a skill and
    contribute to society.
        Ms. Jackson Lee. As a Federal defender, you see this all
    the time?
        Ms. Givens. All the time. It's why I feel like this about
    it. I see it all the time.
        Ms. Jackson Lee. Ms. Frederique, I think you might remember
    a recent news story regarding teens in Ocean City, simply
    trying to enjoy themselves. They were vaping and came across--
    or law enforcement came across them. Sizeable amount of
    violence following the antivaping law obviously. I guess one
    might say that it was considered a drug.
        How does these kinds of laws then wind up with probably
    violent encounters and young people losing their freedom, and
    also being unfortunately violently confronted?
        Ms. Frederique. Thank you for that. So, what I would say is
    what we saw in Ocean City is something that we see all across
    this country, where people use substances as an excuse, as a
    pretext, or justification, for law enforcement and violence
    against young people and people of color.
        It's one of the biggest reasons why we need to move away
    from the current war on drugs, because it creates the space for
    these encounters. So, it gives excuse for law enforcement to
    disrupt the fun that young people are having.
        I think it's really important to recognize that there are
    only certain young people that are able to take up public space
    and to have fun and to be joyful and to be loud and
    rambunctious.
        Then there are other young people that take that time and
    take up that space and that are met with the State actors, like
    law enforcement, engaging them in ways that can often escalate
    and turn into violence.
        Drugs, be it things that are legal or illegal, drugs in
    general--so, tobacco, alcohol, substances--are often used as a
    pretext for the engagement, or justification for the
    escalation.
        So, one of the things that is super important for us is to
    figure out, how do we remove those tools so that we can give
    young people more time to experience life, freedom, liberty,
    and autonomy, without the constant over-surveillance that we
    see that the State uses.
        Ms. Jackson Lee. Thank you very much.
        Mr. Underwood, because you're so powerful, let me give you
    the last word. Mr. Underwood, can you turn your mike on? I'm
    giving you the last word.
        You had a sentence of life. Is that correct?
        Mr. Underwood. Yes, ma'am.
        Ms. Jackson Lee. Was that life without parole?
        Mr. Underwood. Yes, ma'am.
        Ms. Jackson Lee. If you don't mind, in the course of your
    being contrary to the legal system, did you have any Act where
    someone lost their life?
        Mr. Underwood. In my case?
        Ms. Jackson Lee. Yes.
        Mr. Underwood. Well, I was accused of being the head of a
    drug ring that--
        Ms. Jackson Lee. But your actual actions did not--
        Mr. Underwood. No, no, not--no, no.
        Ms. Jackson Lee. You got life without parole?
        Mr. Underwood. Yes, ma'am.
        Ms. Jackson Lee. So, if there was not a court intervention
    and a number of other things and your basic rehabilitation and
    goodness, you would still be there?
        Mr. Underwood. Absolutely.
        Ms. Jackson Lee. A gentleman with a suit on and tie would
    still be there?
        Mr. Underwood. Yes, ma'am.
        Ms. Jackson Lee. So, just my final question to you--my
    final question to you is, the war on drugs, mandatory minimums,
    how much life is being lost, how much people, value here to
    this Nation, is being lost by those under the mandatory
    minimums in our prisons today, particularly our Federal
    prisons?
        Mr. Underwood. Well, mandatory minimums, Chair, are a
    travesty, because they don't allow for judges to consider the
    individual themselves.
        I can speak for myself. I made a Sixth amendment challenge
    to the application of the Federal sentencing guidelines to my
    case. What that means is, when I went to trial, I understood
    that the Sixth amendment was initiated in 1791. I went to trial
    in 1989, but I didn't have Sixth amendment rights because of
    mandatory minimums.
        I was one of the first persons that they used with this
    case, McMillan v. Pennsylvania, and--long story. This is the
    condensed version. After McMillan in 2002, Harris--McMillan
    was--came out of the '86. I was one of the first persons that
    they experimented with, McMillan, sentencing factors. Judge can
    do this. No, the jury has doesn't have to find anything. They
    don't have to find you guilty of the most heinous act.
        If they say you committed murder, then the jury--it should
    have been a jury question. No, the jury don't have to find
    that. They say you sold drugs and you're facing a 10-year
    sentence, and now, because of mandatory minimums, you got life
    with no parole. Well, that should be a jury question. No,
    juries don't have to find that. This is drug--I, as the judge,
    these are sentencing factors, live with it. That's what they
    did. That's fine.
        Time went on, 25 years passed, and this is the irony of
    doing a lot of time, because you have to understand that your
    children, grandchildren, friends, and people that love you,
    that want to help you, that don't know how to help you, the
    reality is, for them, life, it's like this, because you over
    there, and life is over here.
        If you have families grow, like the Congresswoman said,
    friends and families you lose along the way. In my case, 25
    years went by in Alleyne. We say Alleyne, but it was Alleyne.
    It's pronounced Alleyne. That came out in 2013, 570 U.S. 99,
    2013, it came out. It said, you know what, you were right.
    Mandatory minimums, to get to the ceiling for maximum, you have
    to stand on the floor.
        So, you have to be found guilty of every element of the
    offense to get the mandatory minimum. I didn't get that option
    under the Sixth Amendment, which, I have six cases in the law
    books, six actual published opinions. Three of them I put there
    myself.
        So, once this happened with the law, and I figured, well,
    okay, I was going to go home at some point, the reality of this
    is that they never made any of this retroactive. So from--let
    me--I digress. Let me go back a little bit; in 1999, Richardson
    v. United States, 526 U.S. 813.
        Ms. Jackson Lee. If you can summarize.
        Mr. Underwood. Yes, ma'am, I'll summarize it like this.
    Richardson was the subsection 848 CCE case that triggered a
    life sentence if you were found guilty of all elements of that
    offense. Not only did I have racketeering, and I had drug
    conspiracy, but I had continued criminal enterprise. I was
    never given the opportunity to have the jury find me
    individually guilty of any of those offense. I was found guilty
    in a general jury verdict, and the judge decided what I was
    guilty of. I made a Sixth amendment objection at the trial at
    sentencing.
        I just had a general jury verdict, and the judge said,
    whatever they say, that's, yeah, you're guilty of that. I made
    these objections at trial, at sentencing--
        Ms. Jackson Lee. You lost a part of your life?
        Mr. Underwood. Yeah, a significant part.
        Ms. Jackson Lee. Well, you have made your repentance to
    society, and I assume to yourself and four children that you
    have.
        Mr. Underwood. Yes. My children.
        Ms. Jackson Lee. Your children are in good stead. Your
    children are--you are proud of your children?
        Mr. Underwood. Absolutely. Yes, ma'am. Absolutely, Chair,
    absolutely.
        Ms. Jackson Lee. Well, let us learn from where you are
    today, and what might have happened to those who are not lucky
    enough, or, how should I say, astute enough to have been in
    this chair where you are today--that are now languishing.
        Mr. Underwood. Yes, ma'am.
        Ms. Jackson Lee. I hope that this committee, in a
    bipartisan manner, with Mr. Biggs, the Ranking Member, has made
    some very important points. Our colleagues have made some very
    important points and that we can come to some consideration of
    what is the best approach for this scourge of drugs that was
    utilized to be a scourge on people and families and humanity.
        Forgive me for my extended comment. The Ranking Member is
    very kind in his indulgence and so are Members, but I want
    Members to know that we are going to move ahead, because this
    is the moment that we must deal with this question.
        I think there are a lot of minds here that can contribute
    to the solution, and I hope the minds will be both Republicans
    and Democrats.
        With that in mind, no further comments from my Members,
    this hearing on the ``Undoing the Damage of the War on Drugs: A
    Renewal Call For Sentencing Reform,'' is now herefore
    adjourned. Let me thank all the witnesses for their outstanding
    testimony. Thank you.
        [Whereupon, at 1:16 p.m., the Subcommittee was adjourned.]

                                    APPENDIX

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     [all]