[Congressional Record Volume 159, Number 122 (Tuesday, September 17, 2013)]
[Senate]
[Pages S6511-S6513]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      MANDATORY MINIMUM SENTENCES

  Mr. GRASSLEY. Madam President, the Attorney General has recently 
announced that the Department of Justice will not charge certain drug 
offenders in a way that would trigger the

[[Page S6512]]

imposition of mandatory minimum sentences.
  Before outlining some of the concerns that I have with the policy and 
the statement that the Attorney General issued on the subject, I do 
want to note that I agree with a number of the points that he made.
  These are the specific points with which I am in agreement with the 
Attorney General:
  The Department will coordinate with State, local, and tribal law 
enforcement to maximize the operation of Federal resources in criminal 
prosecutions.
  The development of comprehensive anti-violence strategies by the U.S. 
attorneys with input from State and local authorities.
  The designation by the U.S. attorneys' offices of coordinators for 
prevention and reentry.
  Direct Federal assistance to hot spots of violence and the new use of 
COPS grants for school resource officers.
  Creation of a new task force for violence experienced by Indian 
children.
  Providing support for survivors of sexual assault, domestic violence, 
and dating violence.
  Compassionate release of nonviolent inmates who are elderly and have 
served a long part of their sentences is wise.
  And I favor addressing unwarranted racial disparities in sentencing.
  That is quite a bit of agreement. I am pleased that we share some 
common ground.
  But there are other statements of the Attorney General that I cannot 
agree with, and I think it is important to set the record straight.
  Almost 30 years ago the crime situation in this country was far 
different from the 1960's on, crime rates had risen rapidly. One reason 
for that state of affairs was the way sentencing worked. There was 
often little relation between the length of sentence that was imposed 
and the actual time the offender served. Parole often led to release of 
criminals too soon, enabling them to repeat their crimes on other 
unsuspecting victims. Judges had almost limitless discretion in 
sentencing within a broad range. Sentences imposed depended much more 
on which judge was giving the sentence than the nature of the offense 
or the criminal history of the offender. Parole and excessive judicial 
discretion led to unwarranted disparities in sentencing.
  And so in 1984 Congress changed how Federal sentencing operated. We 
adopted truth in sentencing. We added certainty by abolishing parole. 
Now Federal sentences given are the time that is served. Disparities 
due to parole boards were eliminated. Sentencing guidelines were 
established. They reflected the nature of the criminal offense and the 
criminal history of the offender. Those guidelines were normally 
binding on any Federal judge in the country. So no longer would 
sentences turn on which judge a criminal appeared before.
  The guidelines eliminated other disparities as well. Judges could not 
consider factors that often led to wealthier defendants receiving 
shorter sentences for similar crimes than less wealthy defendants. 
Racial bias in sentencing, conscious or unconscious, also was addressed 
through mandatory guidelines. The legislation was passed by wide 
bipartisan majorities. Nearly everyone agreed that some judges were too 
lenient in sentencing and that the excessive discretion they exercised 
produced various unfair disparities.
  Congress, separate from the sentencing guidelines, also increased the 
number of mandatory minimum sentences. Since then, due in part to 
tougher Federal criminal penalties, elimination of parole, increased 
numbers of inmates, better police practices, and other factors, crime 
rates have dropped significantly.
  However, the Supreme Court undermined the excellent sentencing 
legislation that Congress passed. First, the Court created from whole 
cloth a novel interpretation of the Sixth Amendment.
  Second, the Court in a 2005 case called Booker unnecessarily extended 
that line of cases to mandatory sentencing guidelines and held them 
unconstitutional.
  Third, rather than then strike down the guidelines, the Court rewrote 
them. In a particularly egregious example of judicial activism, they 
overrode congressional intent and made the guidelines advisory. It was 
only because the guidelines were clearly intended to be mandatory that 
Congress ever passed them in the first place.
  Following Booker, Congress now has only one available tool to make 
sure that sentences are not too lenient and do not reflect unwarranted 
disparity. That is mandatory minimum sentences.
  Given this background, I do take issue with a number of the Attorney 
General's statements.
  I do not agree with him that prisons today ``warehouse and forget.''
  All kinds of programs and incentives exist for prisoners today to 
improve their behavior when they are released. Sentences can be 
shortened by completion of these programs. And I don't think that the 
solution to a cycle that ends in incarceration is simply to incarcerate 
criminals for less time or to jail fewer criminals.
  For the most part, it is not the case that too many Americans go to 
prisons for too long and for no good law enforcement reason. And the 
Attorney General just is not right when he says that ``[w]idespread 
incarceration at the federal, state, and local levels is both 
ineffective and unsustainable.''
  Increased incarceration has led to less crime.
  I do see that for the first time in 5 years the Obama administration 
has finally found one area of Federal spending that it wants to cut: 
prisons.
  But in the same speech, the Attorney General called on more spending 
on Federal defenders.
  I do not agree with that. Federal defenders play an important role 
and often represent defendants well. But we should be encouraging more 
private attorneys, at lower cost, to represent defendants against the 
Government. And we should consider requiring better training of these 
lawyers before they are allowed to represent defendants.
  The Attorney General correctly notes that ``unwarranted disparities 
are far too common.'' He cited one report that shows that ``black male 
offenders have received sentences nearly 20 percent longer than those 
imposed on white males convicted of similar crimes,'' and that this is 
``shameful.'' But he overlooks the reason for those disparities. They 
exist not so much due to mandatory minimum sentences, which existed 
both before Booker and after. In fact, Congress has reduced mandatory 
minimum sentences since Booker. Rather, the disparities are due 
primarily to the Supreme Court's Booker decision that made the 
sentencing guidelines advisory, rather than to mandatory minimums.
  Since that 2005 ruling, the guidelines have been applied in fewer and 
fewer cases every year. Sentences imposed now turn on which judge the 
offender appears before. And more than before, the quality of the 
lawyer and the other factors that produced disparity before the 
Sentencing Reform Act are now creeping back into sentencing.
  The sentencing commission, in that report that the Attorney General 
referred to, tracked racial disparities in sentencing. It compared 
sentences of African-American and White males at the time the 
guidelines were still mandatory compared to today, when they are 
advisory only. For cases overall, when the guidelines were mandatory, 
African-American males served 11.5 percent longer sentences than White 
males. Now that the guidelines are advisory, African-American men serve 
19.5 percent longer sentences than white males.
  That is a significant difference.
  There are various categories of crimes in which the rendering of the 
sentencing guidelines as advisory has increased disparity. For 
instance, in firearms case, African-American men received sentences 
that were 6 percent longer than White men when the guidelines were 
mandatory. Today, African-American men receive sentences 10 percent 
longer than Whites for these crimes. For drug trafficking, African-
American men received sentences that were 9 percent longer than White 
men in 2005, but since the guidelines were made advisory, they now 
receive sentences that are 13 percent longer.
  It is true that sentences overall are falling since the guidelines 
were made advisory. But as the sentencing commission concluded, 
``Although sentence length for both Black male and female offenders and 
White male and female

[[Page S6513]]

offenders have decreased over time, White offenders' sentence length 
has decreased more than Black offenders' sentence length.''
  And in considering racial disparities in the criminal justice area, 
the race of the victims must also be considered. Despite reductions in 
homicides nationwide in recent years to levels not seen since the 
1960s, this is not true for the number of homicides of African-
Americans. ``The number of black male murder victims rose more than 10 
percent from 2000 to 2010, to 5,942 from 5,307,'' according to the Wall 
Street Journal.
  Two areas that the Attorney General has said are criminal enforcement 
priorities also exhibit disparities. These are financial crimes and 
child pornography possession. As I have said many times before, I wish 
the Department would prosecute even one of the executives of the major 
financial firms whose criminal conduct contributed to the financial 
crisis.
  These two criminal fields both tend to involve White male defendants. 
Too often, the sentences imposed are too lenient. In addition, these 
crimes do not carry mandatory minimum sentences. We should consider 
imposing mandatory minimum sentences for these offenses, both to reduce 
racial disparities and to give prosecutors additional tools to combat 
these serious crimes. Since Booker, there have been press reports of 
people who have been convicted of financial fraud who have received 
very lenient sentences, far below the guidelines. That is leading to 
disparity.
  One report showed that there have been so many financial fraudsters 
in New York who have been sentenced merely to probation that lawyers 
for newly convicted fraudsters have argued that to avoid disparities, 
their clients must also receive probation. Other press accounts have 
shown financial criminals who have persuaded judges that the financial 
benefits these criminals have provided to needy people should be 
considered to lighten their sentences. No poor defendant would be able 
to reduce his sentence based on using a portion of his ill-gotten gains 
to help others.
  Another set of defendants who in the post-Booker world have received 
very lenient sentences is those who are convicted of child pornography 
possession. Too many judges are lenient in their sentencing. Too often 
we are seeing that unless the defendant actually molested a child, a 
judge doesn't impose a serious punishment. More than other Federal 
crimes, defendants in financial and child pornography cases tend to be 
White males. Too many judges have given these criminals only a slap on 
the wrist. After Booker, the only way Congress can control the abuse of 
discretion that judges are showing in these cases is through imposition 
of a mandatory minimum sentence.
  The Attorney General announced a new policy of not charging certain 
defendants with crimes that carry mandatory minimum sentences. That 
raises concerns. Withholding quantities of drugs from indictments may 
not have the effect he desires, since the judge will know the quantity 
in any event when the presentencing report is received. The judge can 
still take that into account when sentencing. Moreover, a dangerous 
precedent may be established by not charging the greatest offense that 
can be proved.
  All Federal crimes now are typically prosecuted at the highest level 
that can result in a conviction, unless a plea agreement is reached. 
This reduces prosecutorial discretion and disparity in charging and 
sentencing. I hope that the new policy will not be applied or extended 
in a way that would increase disparity.
  Mandatory minimum sentences are not new. The first Congress enacted 
mandatory minimum sentences in 1790.
  Nor are they as inflexible as they are often characterized. According 
to the sentencing commission, almost half of all offenders convicted of 
an offense carrying a mandatory minimum sentence are not given such a 
sentence.
  We hear over and over that mandatory minimum sentences are one size 
fits all. We hear that low level and first time offenders always 
receive harsh sentences. Not so. The safety valve provision requires 
judges not to impose mandatory minimum sentences for first time, low-
level, nonviolent drug offenders, who have provided all information to 
the authorities. Mandatory minimum sentences are not imposed on many 
other offenders because they provide substantial assistance to the 
government in prosecuting more serious criminals.
  Congress in 2010 also passed legislation reducing mandatory minimum 
sentences for certain crack cocaine offenses. Contrary to standard 
rules of statutory construction, that law has been interpreted to apply 
retroactively to people who committed their crimes before enactment of 
the law. We need to keep that in mind for any sentencing legislation we 
might enact.
  The combination of mandatory minimum sentences and a reduction for 
substantial assistance provides investigative leads against bigger 
fish. It is a benefit of mandatory minimum sentences that is not always 
appreciated. Were we to meaningfully cut back on mandatory minimums, we 
would lose the ability to bring prosecutions against a large number of 
major criminals. We should always consider what crimes should carry 
mandatory minimum sentences and what the length of those sentences 
should be. But for the reasons I have outlined, it would be a serious 
mistake to eliminate mandatory minimum sentences, either wholesale or 
for a class of drug offenses.
  I am also troubled by a document the Attorney General released along 
with his speech entitled, ``Smart on Crime.''
  In that document the Department favors diversion and supervision 
rather than incarceration for what it terms low-level, non-violent 
offenders. The Department says it encourage U.S. Attorneys to use 
``best practices'' of diversion for non-violent offenders and 
supervision for more serious offenders. The document says, ``Examples 
of eligible defendants are those charged with non-violent bank 
robberies.'' What bank robberies does the Attorney General think are 
non-violent? If a person hands the teller a note that says, ``I have a 
gun, hand over the money,'' but he does not actually have a gun, is 
that a non-violent offense? No, it is not. Robbery always involves 
violence or the threat of violence. There is no such thing as a non-
violent bank robbery. Those who commit that crime should go to jail, 
not be released back into the community under supervision, as the 
Department is advocating.
  There is a danger that some of what the Attorney General is proposing 
is unjustified leniency and would harm public safety.
  Madam President, I appreciate that the Attorney General has offered 
ideas on sentencing. I agree with some. Others are misguided, even 
dangerous. I will work with him where I can. But we cannot have a 
proper debate on sentencing reform without understanding how we have 
reached our current situation, why unwarranted disparities exist, and 
what changes in sentencing would improve rather than harm the 
situation.
  The Judiciary Committee will hold a hearing on mandatory minimum 
sentences and proposed legislation on Wednesday. As I have stated, 
there are some common misunderstandings on this subject. I hope that 
more clarity will emerge as a result of the hearing.

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