[Congressional Record Volume 140, Number 24 (Tuesday, March 8, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 8, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           THE DEPARTMENT OF JUSTICE MANDATORY MINIMUM STUDY

  Mr. HATCH. Madam President, former Deputy Attorney General Philip 
Heymann has criticized the Senate-passed crime bill as largely 
irrelevant to any realistic law enforcement effort, disparaging, among 
other things, Republican proposals to increase Federal prison 
construction.
  Mr. Heymann argues that the Federal Government does not need 
additional prison space because existing Federal prisons house so many 
nonviolent, low-level offenders who should not be in prison. He cites 
as evidence a recent Department of Justice study which finds that 21 
percent--or 16,316--of all Federal offenders within the custody of the 
Bureau of Prisons are low-level drug offenders for whom there could be 
alternative punishments. This finding is questionable.
  For example, the study suggests that each of these 16,316 low-level 
drug offenders within the Bureau of Prisons custody are actually 
imprisoned. In fact, the 21 percent figure includes many of the nearly 
5,000 offenders who are not in prison but who are serving their 
sentences in halfway houses or in-home confinement.
  When one digs deeper, one also finds that the study's definition of 
low-level offender is exceedingly broad. Low-level drug offenders are 
defined as persons who are not sophisticated criminals, meaning 
offenders who are not principal figures or prime motivators in the 
criminal organization or activity. In short, unless an offender is the 
leader or organizer of a drug enterprise, he or she is considered low 
level.
  This broad definition fails to account adequately for mid-level 
conspirators and fails to take into account the quantity of drugs with 
which an offender may have been involved. For example, a mid-level drug 
cartel member involved in a conspiracy to smuggle several tons of 
cocaine could qualify under the Justice Department guidelines as a low-
level drug offender. Couriers who, on several occasions, knowingly 
transport millions of dollars of narcotics into our States qualify as 
low-level offenders.
  The study's 21 percent figure also includes drug offenders who have 
lengthy criminal records but who have avoided serving more than 60 days 
in prison. As well, this figure includes foreign drug smugglers who 
have never been convicted in the United States but may have lengthy 
criminal records in foreign countries. So too does this 21 percent 
figure include nonviolent drug offenders who may have threatened 
violence against others or whose associates used firearms.
  The Senate-passed crime bill contains an amendment I offered with 
Senator Phil Gramm that gives Federal judges limited discretion to 
sentence below mandatory minimum sentences for those drug offenders who 
are truly first time, low-level, nonviolent offender.
  I read Congressman Edwards' op-ed piece in the Washington Post this 
morning. He wants to do the same thing. Only I am sure he would make it 
even broader so that some would slip through. But we did it in the 
Senate. We really, basically have given judges limited discretion with 
regard to those who are truly first-time, low-level, nonviolent 
offenders.
  Our provision, while needed, will affect less than 1 percent of the 
drug cases in Federal court. And we have given that provision because a 
number of judges have asked me personally to see what I could do to 
bring a little balance in that system. And we tried to do it.
  According to figures provided by the U.S. Sentencing Commission, of 
the total 16,684 drug cases sentenced in Federal court in 1992, only 
98--06 percent--of those sentenced to mandatory minimum sentences--were 
truly first-time offenders who had minimal involvement in the drug 
enterprise, did not carry a firearm, and did not cause death or serious 
injury to another.
  The notion that our Federal prisons are filled with people who should 
not be there is wrong. And, with respect to State prisons, bear in mind 
that in 1991, the Department of Justice found that 94 percent of all 
State inmates were either violent or repeat offenders, and over one-
third of all inmates have been incarcerated before. Moreover, two-
thirds of the violent inmates in State prisons had killed, raped, or 
injured their victims. Over half of the remaining 6 percent of State 
inmates had been convicted of drug trafficking or burglary.
  That is according to the Bureau of Justice Statistics survey of State 
prison inmates in 1991.
  The problem facing our criminal justice system is not one of too much 
incarceration. Rather, the problem is too much crime, and the simple 
fact is that the best way to stop crime is to put criminals, drug 
offenders included, in prison.
  The Senate-passed crime bill appropriately ensures that additional 
prison space will be constructed both at the State and Federal level. 
Yet, despite the obvious need for more prison space, the administration 
appears to be basing its decisions on its own questionable studies. 
That might explain the Department's decision to cut prison construction 
by nearly 30 percent. It is time for the administration to stop 
worrying so much about how it can curtail prison expansion and to focus 
on how it can more readily ensure that criminals are incarcerated.
  Rather than curtail prison expansion, as the budget proposes, I 
believe we must continue aggressively to increase prison space.
  Madam President, these are important issues. I think Professor 
Heymann, who happens to be a friend of mine, a person I really admire 
and like, is way off base in some of his criticisms. That is typical 
sometimes of people who are only looking at the liberal side of things 
instead of at the realistic side of things.
  Frankly, it is sometimes typical of law school professors who really 
do not have to deal with the day-to-day heinous world of crime. I think 
we have to deal with that in the Senate, and I am happy to say that the 
Senate bill, which passed overwhelmingly, passed because the principles 
in it, by and large, are valid, good and will work.
  I want to thank my colleagues in the Senate for being so strongly in 
favor of that bill. I hope our colleagues in the House will do an 
equivalent job rather than what they did in the prior Congress: Passing 
something that really is soft on crime rather than hard on crime. It is 
time we get tough on these criminals in this society. I, for one, am 
going to do everything I can to do so.
  I yield back the remainder of my time.
  Mrs. MURRAY addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Washington.

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