[Congressional Record (Bound Edition), Volume 161 (2015), Part 3]
[Senate]
[Pages 3381-3383]
[From the U.S. 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.


[[Page 3382]]


  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 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.

[[Page 3383]]

  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 
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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