[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

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

  
                     MS. JACKSON LEE FOR THE RECORD

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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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