[Congressional Record Volume 161, Number 40 (Tuesday, March 10, 2015)]
[Senate]
[Pages S1378-S1380]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MORNING BUSINESS
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MANDATORY MINIMUM SENTENCES
Mr. GRASSLEY. Mr. President, on a number of occasions I have had to
take to the Senate floor to note my opposition to the so-called Smarter
Sentencing Act. Does that mean I am against all sentencing reform? No.
But there are some issues that are particularly wrong with the
suggestions that have been put in bill form so far.
My speeches on this issue have been necessary because there are so
many misconceptions about that legislation and Federal drug sentences
and prisoners. Before addressing them, I want to let my colleagues know
that I do believe there are some inequities in the criminal justice
system, and the Judiciary Committee will be looking at ways to address
them. I will set out that part of the committee's agenda after
discussing sentencing.
The Smarter Sentencing Act would arbitrarily cut in half the
mandatory minimum sentences which are imposed on a host of serious--
very serious--drug offenses. Those offenses include the importation,
manufacture, and distribution of serious drugs, such as heroin, PCP,
LSD, and meth.
As an example, the Governor of Vermont devoted an entire state of the
State address to the heroin epidemic. The Governor of Maryland just
launched an anti-heroin initiative following the near doubling of
heroin overdose deaths in that State in the 2 years between 2011 and
2013.
The Smarter Sentencing Act would cut mandatory sentences in half for
importing, distributing, and manufacturing heroin. It would cut the
sentences for the same activities with respect to LSD, a drug that
causes psychosis and suicide. It would reduce sentences for the drug
trade that two of President Obama's appointees in the Drug Enforcement
Administration and in the Justice Department have warned that the
world's most dangerous terrorist organizations are engaged in this
trade to fund their operations. It would harm the ability of
prosecutors to obtain cooperation from lower level offenders to obtain
intelligence regarding terrorist-planned attacks.
As President Obama's own U.S. attorney for the Southern District of
New York has warned, ``[T]here is a growing nexus between drug
trafficking and terrorism, a threat that increasingly poses a clear and
present danger to our national security.'' The threat should determine
the response. It would be foolhardy to meet the threat of
narcoterrorism by cutting drug sentences.
Under Federal sentencing law, those who are low-level offenders avoid
mandatory minimum offenses. Just under half of all drug courier
offenders were subject to mandatory minimum sentences, but fewer than
10 percent received mandatory minimum sentences. One reason for the
difference is that offenders who cooperate in prosecuting high-level
drug conspirators avoid the mandatory minimum sentences.
As a Federal Law Enforcement Officers Association wrote:
[A]ny change in the mandatory minimum sentencing standard
does a disservice to the brave men and women who are asked to
put their lives on the line to protect us from terrorists and
criminals.
Currently, the system in place allows Federal law enforcement agents
to infiltrate and dismantle large-scale drug trafficking organizations
and to take violent armed career criminals off of the street. In turn,
this allows progression up the scale of criminal organizations from
low-level subjects to higher ranking members through the effect of the
mandatory minimum sentencing act.
A second reason mandatory minimum sentences are not imposed on many
eligible drug couriers is the so-called safety valve. Defendants can
qualify if they have no or a very light criminal history. That means
those who are convicted but are not violent do not serve mandatory
minimum sentences.
The average sentence for a Federal drug courier offender is only 39
months. The offenders who qualify for the safety valve are drug
couriers and drug dealers. They are not people who are in prison for
the possession of drugs. That is because drug possession does not
trigger Federal mandatory minimum sentences, and it is also because,
according to the sentencing commission, almost no citizen is in Federal
prison for mere drug possession.
Eighty-eight percent of the drug possession prisoners were
apprehended along the Southwest border, and the median amount of drugs
in their possession was 48 pounds. I wish to emphasize ``48 pounds.''
These, then, with 48 pounds are not low-level, casual offenders. Only
270 mere Federal drug possession cases were brought anywhere else in
the country in the most recent year for which the sentencing commission
has statistics. And the average sentence for drug possession for
citizens is
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1.3 months. That is months, not years. Most citizens convicted of
Federal drug possession charges receive probation.
The proponents of the bill say there are too many people in prison
and that the bill would save the taxpayers money. Well, it turns out
that is not true. The Congressional Budget Office estimated that the
bill, even while releasing hundreds of thousands of prisoners earlier
than under current law, would increase direct spending by about $1
billion and would reduce revenues by $42 million over 10 years.
The supporters of the so-called Smarter Sentencing Act do not even
attempt to contest my points in opposition--and I have made these
points more than once before the Senate. The supporters do not say
there is not a heroin epidemic. They cannot say citizens are serving
Federal mandatory minimum sentences for possession. But they do say
this: Their major ploy is to paint a picture that poor, innocent, mere
drug possessors are crowding our prisons.
They do not argue that Obama administration officials did not warn of
the link of drug crimes to terrorism and national security threats.
They don't challenge the statistics from the sentencing commission or
the existence of the safety valve or the effect of mandatory minimum
sentences in enhancing prosecution of very serious drug offenders. They
won't take on the Congressional Budget Office's cost estimates. They do
cite CBO's discretionary cost savings of $3 billion, but, in the long
run, entitlement spending can be more costly because entitlement
spending must be paid.
They don't do any of these because they simply can't. They are
committed to a bill as a matter of ideology. The facts simply do not
matter to the supporters. They try to change the subject. All they can
do is resort to rhetoric. In fact, the supporters of that legislation
are even Orwellian in their rhetoric. I mean that literally. George
Orwell wrote a famous essay called ``Politics and the English
Language.'' He said: ``In our time, political speech and writing are
largely the defense of the indefensible.''
The arguments for the Smarter Sentencing Act are merely a weak
attempt to defend the indefensible.
What I have called the leniency industrial complex refers then to the
people who are sentenced to drug mandatory minimum sentences as
``nonviolent.'' They use that term even though any truly nonviolent
offenders would qualify for the safety valve. They gloss over the fact
that even if an offender was not violent in a particular case, he may
have committed a prior violent offense that would make him, in fact, a
violent person. And, of course, many drug-related crimes occur through
force or the threat of force, or are conducted by people in a criminal
enterprise that relies on violence.
The bill's supporters even refer to some drug offenders as
``nonviolent,'' and these people are serving mandatory minimum
sentences for carrying a firearm in the commission of a crime. Few
Americans would call someone who carries a gun while committing a drug
crime nonviolent. And the leniency industrial complex wants people to
think that people who are sentenced to mandatory minimum sentences are
somehow low-level offenders. They neglect to mention that the true low-
level offenders receive the safety valve and avoid mandatory minimum
sentences and that many others avoid them by providing substantial
assistance to law enforcement.
Many of the cases they cite involve repeat offenders. Repeat
offenders are not low level. Lenient sentences did not stop them from
dealing dangerous drugs, and another lenient sentence won't stop their
next drug deal.
When it comes to terms such as ``low level'' and ``nonviolent,''
again quoting Orwell, the bill's supporters have their own private
definition, but allow the hearer to think they mean something quite
different.
Their political language has to consist largely of euphemisms,
question-begging, and sheer cloudy vagueness.
I regret to say that the elements in the media have uncritically
accepted the Orwellian rhetoric surrounding this bill. A recent New
York Times editorial swallowed the ``low-level'' rhetoric whole hog. It
challenged my well-supported conclusion that high-level offenders would
benefit from enactment of the Smarter Sentencing Act, without even
mentioning the serious crimes and drugs the bill applies to. It
editorialized that my opposition to the bill ``defies . . . empirical
data,'' even though my sources are the sentencing commission and the
Obama administration appointees.
When the Times attempted to back up its support for the bill, it
linked not to any authoritative evidence but to the report of an
ideological advocacy group. This is the so-called empirical data that
the Times finds worthy.
Why should taxpayers fund the sentencing commission if the self-
proclaimed paper of record shuns its statistics in favor of those
offered by lobbying groups? The Times said the Federal policymakers
should rely on State experience in reforming sentences, so I would like
to do that.
Only 270 citizens are prosecuted for drug possession in the Federal
system each year, and most receive probation. The States have many drug
possession offenders in prison, so the actions they take for that class
of offenders do not bear on Federal prison populations, nor do the
States prosecute anyone for importation of heroin or LSD or meth or
cocaine. But the Federal Government does, as my colleagues know. So
State drug sentencing changes are not relevant to those prisoners as
well. And it is the Federal Government, much more than the States, that
uses lower level offenders to take down the most serious drug
offenders.
Meanwhile, I have offered to consider legislation that would lower
some mandatory minimum sentences if others could be imposed or raised.
For instance, the sentencing commission has identified child
pornography and financial crimes such as insider trading as areas where
Federal judges are particularly lenient and where no mandatory minimum
sentences exist. But it is the proponents of the Smarter Sentencing Act
who refuse to take me up on that good-faith offer. Their ideology does
not include compromise.
The White House says they want to work with this Senator on these
issues, but then invites other Members of Congress, but not the
chairman of the Senate Judiciary Committee, to a meeting to discuss the
subject. Since then, I have had a discussion with the President
inviting me to come down there and visit with him some time.
But in the New York Times' Orwellian world, this Senator is a
roadblock to sentencing reform. That is upside down and backward.
Problems do exist in the criminal justice system. I plan to have the
Judiciary Committee address some important ones. But rather than
marking up ill-considered and dangerous legislation such as the so-
called Smarter Sentencing Act, we will take up bills that can achieve a
large measure of consensus. I would like to take this opportunity to
address some of the committee's criminal justice agenda, which will
show my commitment to real problem solving through consensus. The first
area we will address is reform of asset forfeiture.
Asset forfeiture can serve a valuable purpose for law enforcement and
society by helping to deprive criminals and criminal organizations of
their money--money from proceeds of their crimes and the
instrumentality of that crime. It also helps to compensate victims who
are injured or who suffer as a result of criminals' wrongdoing. It can
also return that money to law enforcement, which can use it to continue
to combat serious crime and put more bad guys behind bars.
But current law provides perverse incentive that have led to abuses.
Law enforcement can sometimes directly benefit from property that they
seize, sometimes contrary to State law. Those whose property is taken
often do not have access to fair procedures or law enforcement to help
them get that property back. These processes and procedures need real
structural reform. Innocent property owners must be able to challenge
seizures and protect their property from government abuses.
I am also looking into reversing a Supreme Court decision that denies
property owners the opportunity to use their very own money to hire a
lawyer to help defend them against the government. Even though the
administration has made some administrative changes to these practices
and policies in response to widespread criticism, I believe real
legislative reform is needed. I look forward to working with my
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colleagues in a bipartisan way to make those necessary changes.
Second, as a way of looking at reform, I am very concerned that too
many times in America equality under the law is not a reality; that the
poor do not receive the same justice in many instances. For more than
50 years, the Supreme Court has ruled that indigent people accused of
felonies must be afforded counsel. And for more than 40 years, starting
with the decision of Argersinger v. Hamlin, the Supreme Court has found
that the Sixth Amendment of the Constitution requires that Federal,
State, and local governments provide counsel to indigents who are
accused of misdemeanors if their convictions could potentially lead to
imprisonment.
I regret to say that although I am aware of instances where the
Federal Government is responsible, it is particularly at the State
level where the Sixth Amendment is violated numerous times on a daily
basis. I cannot think of any Supreme Court decision that has ever faced
such resistance in magnitude and time as that Hamlin case.
Indigent misdemeanants are being pressured to waive counsel.
Sometimes they are threatened with imprisonment if they seek to have
counsel appointed. There are other ways the decision is violated. Then
there is the question of the competence of the counsel actually
appointed, given how many cases are assigned to an individual lawyer
and how quickly judges resolve them.
I fear some innocent people are being sentenced to prison. There are
other consequences as well. We should make sure there are collateral
consequences imposed on people who are guilty of domestic violence
misdemeanors, for instance. We do not want collateral consequences
imposed on people who did not actually commit misdemeanors.
If people later get in trouble with the law, we don't want them to
qualify for the safety valve because some of their previous convictions
were for misdemeanors in which they did not receive the right to
counsel. We don't want people to have criminal records when they seek
employment when they did not have counsel who could have prevented a
conviction.
In some situations, a misdemeanor will automatically become a felony
if the accused has committed it repeatedly. We don't want a misdemeanor
conviction to render a later crime a felony if questions of innocence
surround the earlier crime.
Third, I want to address databases for criminal records. Those
databases can serve useful purposes, such as enabling background
checks, background checks on people who are being considered for a job
or for volunteering to work with children. There are proposals to
expand the purposes for which the databases can be used, but I am
concerned about the quality and the completeness of the records in the
database. If the database contains erroneous or outdated material, then
the people being checked may unfairly lose out on a job or the ability
to help children.
There are procedures at the Federal level to challenge the
information in the database if the person knows their records are
inaccurate, but that is a very steep climb. The States have their own
procedures for people to challenge the accuracy of criminal records,
but success there may be even harder and may cost more than people can
afford. Records are also sometimes not expunged, even when the law said
they must be expunged.
I do not want to see the arrest record turn up in a background check
and deny someone the ability to work, deny the economy the benefit of
that productivity, and deprive the government of tax revenue from that
work because a background check turned up a record of an arrest from
long ago that never resulted in a conviction.
This is a widespread problem. According to press reports, when
arrests are included, 32 percent of adults in this country have
criminal records that are contained in databases. I am sure we can
reach bipartisan agreement on legislation to address this problem in
some form.
There are dangerous and poorly considered proposals to change the
criminal justice system that are divisive, are not based on reality,
and will never become law. There are also problems in the criminal
justice system that are clear, widely recognized, have serious
consequences, and can be the subject of effective bipartisan
legislative efforts. I will do what I can to make sure the Committee on
the Judiciary devotes its energy to the second category.
I yield the floor.
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