[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
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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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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.
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MS. JACKSON LEE FOR THE RECORD
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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
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