[Congressional Record Volume 140, Number 123 (Wednesday, August 24, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                         ADDITIONAL STATEMENTS

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                          CRIMINAL SENTENCING

 Mr. SIMON. Mr. President, I want to bring to my colleagues 
attention a special report published today in the Washington Times, 
entitled ``Mandatory Drug Sentences Lead to Inequities.''
  The article highlights the counterproductive policies of our current 
sentencing practices.
  The report cites research published by the Cato Institute, which 
shows how mandatory prison terms, force violent criminals into the 
streets and keep low-level drug offenders in jail. And it notes how a 
broad array of experts--including Edwin Meese, Lee Brown, and pro-gun 
groups--have recognized the ineffectiveness and injustice of these 
penalties for drug offenders.
  This report demonstrates what I have been saying for years: Before we 
jump on the bandwagon to spend billions and billions on more prisons, 
we should reexamine the way we are using our prison resources today. If 
we did, we would find that we are using too much prison space for 
nonviolent offenders and not enough for violent ones. As the Washington 
Times notes, our prison space tripled over the past 15 years. But the 
number of violent offenders incarcerated remained about the same or 
lower.
  The fact is that we would have enough prison space today if we used 
our resources more wisely. Unfortunately, even small efforts to bring a 
little sanity to our sentencing practices run up against political 
grandstanding. Take, for example, the mandatory minimum safety valve 
that I sponsored in the Senate, which would allow judges just a little 
bit of discretion in sentencing low-level, nonviolent offenders, many 
of whom are serving 5, 10, or 20 years in prison under existing 
mandatory sentences.
  This small effort to restore a sense of proportionality to our 
criminal justice system has provoked critics to claim that the safety 
valve would result in the immediate release of 10,000 or more inmates 
from prison. In fact, as the Washington Times observes, the number 
would be closer to 1,600. The Bureau of Prisons puts the number even 
lower, projecting that only 100 to 400 inmates would be immediately 
released from jail.
  It is easy to throw money at our crime problem by building more 
prisons. The better approach--but the harder approach politically--is 
to use our existing resources more intelligently. That approach is more 
effective, more efficient, and more just.
  I ask that the full text of the Washington Times article appear in 
the Record at the appropriate place.
  The article follows:

               [From the Washington Times, Aug. 24, 1994]

              Mandatory Drug Sentences Lead to Inequities

                          (By Nancy E. Roman)

       New research suggests that mandatory minimum prison terms, 
     coupled with tough new sentencing guidelines, force violent 
     criminals onto the streets and keep low-level drug offenders 
     in jail.
       Take Nicole Richardson.
       The 17-year-old high school senior fell in love with Jeff 
     Thompson, a drug dealer who sold cocaine and ``ecstasy,'' a 
     combination of synthetic mescaline and an amphetamine, which 
     produces short-term euphoria.
       Shortly after the two started dating, he began selling LSD.
       When the federal drug enforcement agents caught one of his 
     suppliers, he informed on Jeff as part of a deal to get a 
     reduced sentence. Undercover agents then telephoned 
     Thompson's home, where Richardson answered and told the 
     agents where to find Thompson to pay him for drugs.
       In 1992, when Richardson was in college, she was arrested 
     and charged with conspiracy to distribute and possess LSD 
     with the intent to distribute. Now 20, she is serving a 
     mandatory minimum 10-year sentence in federal prison. 
     Thompson went to prison for five years.
       ``In all of my experience with guidelines, this case 
     presents to me the top example of a miscarriage of justice,'' 
     said U.S. District Judge Alex T. Howard Jr. of Alabama, 
     appointed by President Reagan in 1986.
       Or take Johnny Patillo, 27.
       One day a neighbor offered to pay Patillo $500 to take a 
     package to a Federal Express office in Los Angeles and send 
     it to Dallas.
       Patillo, manager at a cable television company, agreed to 
     send the package to Dallas even though he knew it contained 
     illegal drugs. He did not know which type or the amount of 
     drugs in the package.
       Patillo was arrested and charged with possession with 
     intent to distribute crack cocaine. He was sentenced to a 
     minimum of 10 years in federal prison, based on the weight of 
     crack cocaine in the package--681 grams.
       Judge J. Spencer Letts, a Reagan-appointed federal judge in 
     California, said the case made him face his most difficult 
     dicision--``between my judicial oath of office, which 
     requires me to uphold the law as I understand it, and my 
     conscience, which requires me to avoid intentional 
     injustice.''
       He said if the package had contained another amount and 
     type of drug, Patillo may have been sentenced only to 
     probation.
       ``Under this sledgehammer approach, it can make no 
     difference whether [the] defendant actually owned the drugs 
     with which he was caught,'' Judge Letts said. ``Or whether, 
     at a time when he had an immediate need for cash, he was 
     slickered into taking the risk of being caught with someone 
     else's drugs.''


                          justice by the gram

       In 1986, Congress enacted tough laws that require drug 
     offenders to serve non-negotiable minimum sentences based on 
     weight and type of drugs.
       Under these laws, someone dealing in 50 grams of crack 
     cocaine--less than 4 ounces--gets a mandatory minimum 
     sentence of 10 years. If there is a prior conviction of any 
     felony drug offense, a dealer gets a mandatory minimum 
     sentence of 20 years. Under these mandatory minimums, judges 
     are not allowed to even recommend a sentence less than the 
     assigned minimum. Parole boards may not let those convicted 
     out.
       By contrast, under federal sentencing guidelines, 
     kidnappers get between four and five years in prison. Those 
     who commit voluntary manslaughter go to prison for between 
     4\3/4\ years and six years. Assault with intent to commit 
     murder gets from 5\1/2\ years to eight years and one month.
       Under mandatory minimums, record numbers of drug offenders 
     are being locked up. (In 1992, states sentenced to prison 
     102,000 drug offenders and 95,300 violent offenders.) But 
     statistics show drug use and dealing is holding fast.
       Meanwhile, violent crime is on the rise and many judges, 
     law enforcement officials and policymakers are beginning to 
     conclude that prison space would be better used to 
     incarcerate violent criminals than to lock up the likes of 
     Richardson and Patillo.
       ``The public doesn't see any redeeming value in drugs per 
     se, but an increasingly large percentage of the population is 
     coming to the conclusion that the drug war is a greater 
     threat to them than drug possession by someone in their 
     neighborhood,'' said David B. Kopel, research director of 
     Independence Institute, a think tank in Golden, Colo., that 
     advocates a free market and limited government.
       Mr. Kopel, a former New York prosecutor, has published a 
     62-page report called ``Prison Blues: How America's Foolish 
     Sentencing Policies Endanger Public Safety,'' in which he 
     argues that federal prisons devote too many resources to drug 
     offenders, at the expense of incarcerating violent criminals.
       He said that although his research was based on the federal 
     system, its conclusions apply to state prisons, too, where 
     most of the violent criminals are incarcerated.
       ``If a society is so intent on sending first-time drug 
     vendors to prison that first-time muggers often do not go to 
     prison, should it be surprising that burglary and mugging 
     increase?'' he asks.
       Oddly disparate groups are coming to the same conclusion. 
     Reagan- and Bush-appointed judges have opposed mandatory 
     minimum sentences for drug crimes, as has the American Civil 
     Liberties Union. Lee Brown, the Clinton-appointed director of 
     the Office of National Drug Control Policy, opposes mandatory 
     minimum sentences. So does Edwin Meese III, who served as 
     attorney general under President Reagan. Many pro-gun groups 
     oppose mandatory minimums.
       ``I don't see the point of cluttering up the prisons with a 
     lot of these drug offenders when a lot of them aren't violent 
     criminals anyway,'' said Larry Pratt, executive director of 
     Gun Owners of America. ``If they are not in there for an act 
     of violence, I personally don't believe they should be in 
     jail. Why should I be paying for them?''


                           Rethinking the war

       Mr. Pratt says just 10 years ago, he was fully behind the 
     ``war on drugs.''
       ``It's not a pretty idea to have people destroying 
     themselves with drugs,'' he said. ``But I've come to the 
     conclusion that to the extent that it affects me, there are 
     ways to deal with a guy blowing his brains out with pot.''
       Not necessary so with a rapist, or an armed robber or a 
     murderer, he said.
       In his report, published by the Cato Institute in May, Mr. 
     Kopel tells the story of Kenneth McDuff.
       In the early 1980s, McDuff murdered two teen-age boys, 
     raped a girl and snapped her neck with a broomstick. During 
     his trial, law enforcement officers testified that McDuff 
     would kill again if given the chance.
       ``In 1989, the war on drugs gave McDuff the opportunity,'' 
     Mr. Kopel narrates.
       Although Texas had doubled its prison capacity in the 
     1980s, it also quadrupled its incarceration of drug 
     offenders. To cope with the increased number of prisoners, 
     the state parole board made it easier to qualify for parole 
     and let McDuff out in 1989.
       ``Three days later, the naked, strangled body of his first 
     new victim was found,'' Mr. Kopel says.
       McDuff was arrested a year later. He was charged with three 
     murders and investigated for six more.
       ``Mandatory drug minimums have led to reduced punishment 
     for violent crime,'' Mr. Kopel says matter-of-factly.


                          Focus on time equity

       Mr. Kopel draws on the work of Morgan Reynolds, an 
     economist at Texas A&M University who studied average 
     sentences in Texas. He found that the average time served by 
     violent offenders in Texas dropped from 28 months in 1985 to 
     24 months in 1991.
       His research also showed that the average murderer could 
     expect to serve less than two years in prison; the average 
     rapist, about 23 days.
       Patrick Langan, senior statistician with the U.S. Bureau of 
     Justice Statistics, said those figures are artificially low 
     because they include murderers who are never caught and thus 
     get no sentences at all.
       When those cases are eliminated, the average time served 
     for murder is more like four years.
       Nonetheless, he said, it is clear that politicians and law 
     enforcement have devoted more resources to fighting drug 
     crime. From 1986 to 1990, police increased the number of 
     arrests for drug trafficking by 75 percent. During that same 
     time, they doubled the arrests for trafficking in cocaine and 
     heroin.
       In 1987, 36 of every 100 drug convicts went to prison. In 
     1990, 49 percent were incarcerated.
       According to the U.S. Bureau of Justice Statistics, the 
     sentences for robbery, rape, kidnapping and property crimes 
     fell between 1980 and 1990, while the prison sentences for 
     drug offenses nearly doubled.
       Mr. Langan said looking at time served in a common set of 
     states between 1988 and 1992, the average time served for 
     robbery was 40 months. It is now 37. Average time served for 
     assault dropped from 24 months to 22 months. Time served for 
     violent offenses in the aggregate dropped from 38 to 36 
     months. At the same time, time served for drug offenses 
     climbed from 15 months to 16 months. Time served for 
     kidnapping climbed from 40 to 45 months.
       While prison space tripled over the past 15 years, the 
     number of violent offenders incarcerated is about the same or 
     lower.
       ``The people of the United States have paid a tremendous 
     amount of money for this tripling of prison capacity over the 
     past 15 years,'' Mr. Kopel said. ``They are entitled to 
     better than a system that incarcerates about the same number 
     of violent criminals. It ought to be incarcerating three 
     times as many [violent] criminals.''


                         degress of criminality

       He said if you envision a prison as a crowded room, you can 
     imagine that as more people get pushed into the front door, 
     some must be let out of the back door.
       Because mandatory minimum sentences prevent parole boards 
     from releasing drug offenders before their sentences are 
     served, they are sometimes forced to release an armed robber 
     or rapist instead.
       ``Take away their discretion to let out a drug offender and 
     they may have to let out the nonrepentant rapist with a 10-
     to-20-year indeterminate sentence,'' he said.
       Ralph Adam Fine, a judge for the Wisconsin Court of Appeals 
     in Milwaukee, cautions against making policy based on 
     anecdote. ``One can always find anecdotal evidence that will 
     shock and horrify,'' he said, adding that incarceration is 
     the only effective way to deter crime, including drug 
     dealing.
       ``If society wants to legalize the stuff, then we'll have 
     lots of room in the prisons,'' said the author of ``Escape of 
     the Guilty.'' ``Absent that, I think we've got to build 
     more.''
       He said locking up drug dealers and users prevents crime 
     because dealers often commit other crimes like robberies and 
     burglaries.
       ``You get this creep who isn't dealing drugs for the 
     moment,'' he said. ``He's not watching the `McNeil/Lehrer 
     Report,' he's out there burglarizing.''
       He said tales of low-level offenders locked away for 
     unusually long prison terms sometimes sound worse than they 
     are. For example, many of those listed as ``marijuana only'' 
     offenders were actually caught using or dealing in more 
     serious drugs and negotiated a lesser offense.
       ``However, that said, this hysteria that has been whipped 
     up has led to what I consider to be a lack of proportionality 
     in sentencing,'' he said. ``A civilized society does not send 
     someone to prison for 30 years for marijuana dealing and send 
     murderers and rapists to prison for five years.''


                             drug hysteria

       So how did this happen?
       It was the summer of 1986 and the country was obsessed with 
     a new drug called crack cocaine--said to produce a high more 
     intense and addictive than powder cocaine for less than half 
     its cost.
       Late in June, Len Bias, the University of Maryland 
     basketball star, died of a drug overdose, and the obsession 
     became a frenzy. Drugs seemed to be an indiscriminate 
     destroyer.
       ``Everyone was in shock at the death of Len Bias,'' said 
     Eric Sterling, president of the Criminal Justice Foundation. 
     ``This drug was hyped as the great new devil drug of our 
     times.''
       Against the backdrop of Mr. Bias' death and the crack 
     hysteria, House Speaker Thomas P. ``Tip'' O'Neill returned to 
     Washington after a district work period and announced that 
     Congress would put together an omnibus-anti-drug bill, 
     recalls Mr. Sterling, who was then majority counsel to the 
     House Judiciary Committee.
       ``He was looking to the elections and recalling that the 
     Democrats had been beaten up the month before for being soft 
     on crime,'' he said.
       Mr. Sterling said committee staff cobbled the anti-drug 
     package together out of existing bills (such as one that 
     allowed the Drug Enforcement Administration to go after 
     designer drugs) and a handful of new ideas. One of them was 
     mandatory minimum sentences, aimed at sending a message that 
     society would not tolerate drugs--especially crack.
       ``I drafted the mandatory minimum sentences; they came out 
     of my word processor,'' Mr. Sterling said, ``And I know how 
     quickly they were written and that they were not well thought 
     out.''
       For example, penalties are assigned based on the weight of 
     the drug and drug carriers. So the sugar cubes carrying LSD 
     get weighed along with the drug itself.
       Mr. Sterling said the biggest problem with the mandatory 
     minimum laws is they snag ``conspirators''--girlfriends, 
     family members. anyone who might know about drug deals--and 
     hold them responsible for the full weight of the drug 
     involved in the crime.
       The only exceptions to mandatory minimums are for those who 
     exchange information about another's involvement for a lesser 
     sentence.
       Julie Stewart, president of Families Against Mandatory 
     Minimums (FAMM), said that's why so many low-level offenders 
     clog the prisons.
       ``The kingpins do the least amount of time,'' she said. 
     ``The only way to circumvent the minimums is to inform is to 
     inform, and the person who is the most culpable has the most 
     information to exchange.''
       Ms. Stewart founded FAMM in 1991 after her brother, Jeff 
     Stewart, was sent to federal prison for five years for 
     growing 375 marijuana plants with two friends.
       The plants were 2 inches tall when he was arrested, and Ms. 
     Stewart said he and his friends had hope to end up with about 
     4 pounds each of marijuana.
       But two men who were renting Stewart's house told a 
     neighbor about the marijuana. The neighbor reported them to 
     the police. When police arrested the tenants, they told of 
     Stewart's enterprise to avoid prison. Despite prior felony 
     convictions, they got probation because they gave up 
     information leading to another's arrest.
       Now Stewart, a former construction worker, is serving his 
     fourth year in prison.
       ``Prisoners cost $20,000 a year. My brother is costing the 
     taxpayer $100,000. It's nuts,'' she said. ``I'm not against 
     punishing these people, but the sentences should be 
     realistic.''


                          taking a second look

       Rep. E. Clay Shaw Jr., Florida Republican, who fought for 
     mandatory minimums as a member of the Judiciary Committee in 
     1986, said it may be time to reconsider them.
       ``We were doing the right thing at the time,'' said Mr. 
     Shaw, who represents a South Florida district that stretches 
     91 miles from West Palm Beach to Miami. ``We were drowning in 
     the drug problems we were having.
       ``In passing those laws, we were attacking what we felt 
     like was a problem in the system. There was too much plea-
     bargaining going on,'' he said. ``That doesn't mean that we 
     can't go back and look at what we've done--particularly if we 
     are releasing violent people.
       ``In politics as everything else, people have to take a 
     look at what they did, and if they think they made a mistake, 
     correct it,'' said Mr. Shaw, who served on the Select 
     Committee on Narcotics Abuse and Control before it as 
     abolished this year. He said the hope was that stringent 
     sentences would deter drug use and dealing. Now he suggests 
     that Congress take a look and see whether it has.
       Mr. Brown, the drug-control director and former undercover 
     narcotics cop in New York City, said he doesn't think so.
       ``The intent was noble, but the results are not,'' he said. 
     Although casual use of drugs--defined as once a month or 
     less--is down slightly, hard-core use is on the rise, he 
     said.
       Mr. Brown sees two problems with mandatory minimum 
     sentences:
       The racial disparity that results from harsh sentences for 
     crack cocaine. Although 64 percent of cocaine is consumed by 
     whites, as opposed to 26 percent by blacks, he said more 
     blacks go to federal prison for cocaine offenses.
       Too many people go to prison for minor possession of drugs, 
     while more serious violent offenders are let out.
       But, Mr. Brown said, politically it is unlikely that 
     members of Congress, who want to appear tough on crime and 
     drugs, will vote to reduce sentences for drug dealers.
       ``I can't see that,'' he said.
       To illustrate in last week's bloody battle for a crime 
     bill, Republicans targeted a provision that would allow 
     judges out from under mandatory minimums when sentencing 
     first-time offenders. Under the original bill, the provision 
     was retroactive.
       Critics said the provision would turn 10,000 drug criminals 
     onto the streets. In fact, because the provision allows 
     judicial review of sentences, the number would be closer to 
     1,600 according to Mr. Sterling. Part of the deal struck to 
     bring Republicans on board the compromise crime package that 
     passed the House on Sunday was to strip from the bill 
     retroactive review for first offenders sentenced under 
     mandatory minimums.
       Mr. Kopel said the actual numbers are not that important, 
     because any prison beds not taken by dope dealers would be 
     free for violent criminals.
       ``Right now we have a system where a third of the people 
     coming in are drug offenders, as opposed to 7 percent in 
     previous years,'' Mr. Kopel said. ``Would we be safer if the 
     percentage of drug offenders went down and the percent of 
     violent offenders went up?''

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