[House Report 106-850]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-850

======================================================================



 
TO AMEND SECTION 274 OF THE IMMIGRATION AND NATIONALITY ACT TO IMPOSE 
  MANDATORY MINIMUM SENTENCES, AND INCREASE CERTAIN SENTENCES, FOR 
  BRINGING IN AND HARBORING CERTAIN ALIENS AND TO AMEND TITLE 18, 
  UNITED STATES CODE, TO PROVIDE ENHANCED PENALTIES FOR PERSONS 
  COMMITTING SUCH OFFENSES WHILE ARMED

                                _______
                                

 September 14, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 238]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 238) to amend section 274 of the Immigration and 
Nationality Act to impose mandatory minimum sentences, and 
increase certain sentences, for bringing in and harboring 
certain aliens and to amend title 18, United States Code, to 
provide enhanced penalties for persons committing such offenses 
while armed, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           3
Background and Need for the Legislation....................           3
Hearings...................................................           4
Committee Consideration....................................           4
Committee Oversight Findings...............................           4
Committee on Government Reform Findings....................           4
New Budget Authority and Tax Expenditures..................           4
Congressional Budget Office Cost Estimate..................           4
Constitutional Authority Statement.........................           7
Section-by-Section Analysis and Discussion.................           7
Changes in Existing Law Made by the Bill, as Reported......           8
Dissenting Views...........................................          11

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. MANDATORY MINIMUM SENTENCES FOR BRINGING IN AND HARBORING 
                    CERTAIN ALIENS.

    Section 274(a)(1) of the Immigration and Nationality Act (8 U.S.C. 
1324(a)(1)) is amended--
            (1) in subparagraph (B), by striking ``A person'' and 
        inserting ``Except as provided in subparagraphs (C) and (D), a 
        person''; and
            (2) by adding at the end the following:
    ``(C)(i) Except as provided in clauses (ii) and (iii), a person who 
violates subparagraph (A) shall, for each alien in respect to whom such 
a violation occurs--
            ``(I) in the case of a violation of clause (i), (ii), 
        (iii), or (iv) of subparagraph (A) in which the offense was 
        done for the purpose of commercial advantage or financial gain, 
        be fined under title 18, United States Code, imprisoned not 
        less than 2 years nor more than 10 years, or both;
            ``(II) in the case of a violation of subparagraph (A)(v) in 
        which the offense was done for the purpose of commercial 
        advantage or financial gain, be fined under title 18, United 
        States Code, imprisoned not less than 1 year nor more than 5 
        years, or both;
            ``(III) in the case of a violation of subparagraph (A) in 
        which the offense was done for the purpose of commercial 
        advantage or financial gain and during and in relation to which 
        the person causes serious bodily injury (as defined in section 
        1365 of title 18, United States Code) to, or places in jeopardy 
        the life of, any person, be fined under title 18, United States 
        Code, imprisoned not less than 5 years nor more than 25 years, 
        or both; and
            ``(IV) in the case of a violation of subparagraph (A) in 
        which the offense was done for the purpose of commercial 
        advantage or financial gain and resulting in the death of any 
        person, be punished by death or imprisoned for any term of 
        years or for life (but not less than 20 years), fined under 
        title 18, United States Code, or both.
    ``(ii) In the case of a violation of subparagraph (A) in which the 
offense was done for the purpose of commercial advantage or financial 
gain after 1 prior conviction for any other such violation of 
subparagraph (A) has become final, the minimum term of imprisonment 
shall be not less than two times the minimum term specified in clause 
(i).
    ``(iii) In the case of a violation of subparagraph (A) in which the 
offense was done for the purpose of commercial advantage or financial 
gain after 2 or more prior convictions for any other such violations of 
subparagraph (A) have become final, the minimum term of imprisonment 
shall be not less than five times the minimum term specified in clause 
(i).
    ``(D) In no case may any penalty for a violation of subparagraph 
(A) be imposed on any person based on actions taken by the person to 
render emergency assistance to an alien found physically present in the 
United States in life threatening circumstances.''.

SEC. 2. ENHANCED PENALTIES FOR PERSONS COMMITTING OFFENSES WHILE ARMED.

    Section 924(c)(1) of title 18, United States Code, is amended--
            (1) in subparagraph (A)--
                    (A) by inserting after ``device)'' the following: 
                ``or any violation of section 274(a)(1)(A) of the 
                Immigration and Nationality Act''; and
                    (B) by striking ``or drug trafficking crime--'' and 
                inserting ``, drug trafficking crime, or violation of 
                section 274(a)(1)(A) of the Immigration and Nationality 
                Act--''; and
            (2) in subparagraph (D)(ii), by striking ``or drug 
        trafficking crime'' and inserting ``, drug trafficking crime, 
        or violation of section 274(a)(1)(A) of the Immigration and 
        Nationality Act''.

SEC. 3. EFFECTIVE DATE.

    The amendments made by this Act shall take effect 90 days after the 
date of the enactment of this Act, and shall apply to offenses 
committed after the termination of such 90-day period.

                          Purpose and Summary

    To deter and punish alien smuggling, H.R. 238 would set 
mandatory minimum sentences for alien smuggling crimes 
committed for commercial advantage or financial gain and 
enhance penalties for alien smuggling committed while armed.

                Background and Need for the Legislation

    Some aliens entering the United States illegally do so on 
their own, while others employ the services of professional 
alien smugglers. Alien smuggling is a serious and rapidly 
growing problem, according to numerous media reports and a 
recent comprehensive audit done by the U.S. General Accounting 
Office (Alien Smuggling: Management and Operational 
Improvements Needed to Address Growing Problem, May 2000, GAO/
GGD-00-103).
    In recent years the strong U.S. economy and low 
unemployment have increased the economic incentive for aliens 
to immigrate illegally to the United States. Rising wages and 
greater job opportunities spur illegal immigration.
    In addition, Congress has greatly increased U.S. 
Immigration and Naturalization Service resources for additional 
Border Patrol agents, special agents, and detention and 
deportation officers. This enforcement buildup has made it more 
difficult for illegal aliens to enter the United States 
undetected.
    Both the rising economy and more effective law enforcement 
have led to increased reliance by illegal aliens on 
professional alien smugglers. Smuggling fees have gone up, and 
the smugglers have become increasingly better organized and 
more ruthless.
    Smuggled aliens often endure inhumane treatment at the 
hands of smugglers and employers. For example, recent media 
reports describe Mexican alien smugglers who abandon aliens in 
the desert, without food or water, to avoid apprehension. Other 
aliens have died or suffered serious injuries when locked by 
smugglers into trucks and cargo containers.
    Chinese alien smugglers charge exorbitant fees--as much as 
$60,000 per alien--that the aliens must pay through long 
periods of indentured servitude in sweatshop conditions in 
places like New York City's Chinatown. Smugglers often coerce 
indebted aliens into drug trafficking, prostitution, and other 
illegal activities. Aliens who fail to cooperate with smugglers 
suffer severe penalties.
    However, under current law, individuals convicted of alien 
smuggling crimes often receive lenient sentences. GAO's recent 
report stated that convicted smugglers, including those 
responsible for death or serious injury, receive an average 
sentence of only 10 months, which may be suspended, plus an 
average fine of about $140.
    Lenient sentences have contributed to the upsurge in alien 
smuggling. Organized crime syndicates realize that the risk of 
punishment for smuggling aliens is far less than the risk for 
smuggling drugs or committing other serious crimes.
    H.R. 238 would strengthen the punishment and deterrence 
directed against alien smuggling by establishing mandatory 
minimum sentences for alien smuggling crimes, increased 
sentences for persons who cause serious bodily injury or 
jeopardy to life while committing alien smuggling crimes, and 
increased sentences for repeat offenders. It would also enhance 
penalties for persons who use or carry firearms while 
committing alien smuggling crimes.

                                Hearings

    The committee's Subcommittee on Immigration and Claims held 
one day of hearings on H.R. 238 on May 18, 1999. Testimony was 
received from Rep. Rogan, the bill's author, Mr. Bo Cooper, 
Acting General Counsel for the U.S. Immigration and 
Naturalization Service, and Captain Anthony S. Tangeman, Chief 
of the Office of Law Enforcement for the U.S. Coast Guard.

                        Committee Consideration

    On March 8, 2000, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
bill H.R. 238, as amended, by voice vote, a quorum being 
present. On July 19, 2000, the committee met in open session 
and ordered favorably reported the bill H.R. 238 with amendment 
by voice vote, a quorum being present.
    Two amendments were adopted by the committee. The first, 
offered by Rep. Jackson Lee, provided that H.R. 238's mandatory 
minimum sentences shall not be imposed based on actions taken 
to render emergency assistance to an alien in life threatening 
circumstances. The second, offered by Rep. Lofgren, provided 
that H.R. 238's mandatory minimum sentences shall apply only to 
alien smuggling crimes committed for commercial advantage or 
financial gain.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the bill, H.R. 238, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 7, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 238, a bill to 
amend section 274 of the Immigration and Nationality Act to 
impose mandatory minimum sentences, and increase certain 
sentences, for bringing in and harboring certain aliens and to 
amend title 18, United States Code, to provide enhanced 
penalties for persons committing such offenses while armed.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Democratic Member
H.R. 238--A bill to amend section 274 of the Immigration and 
        Nationality Act to impose mandatory minimum sentences, and 
        increase certain sentences, for bringing in and harboring 
        certain aliens and to amend title 18, United States Code, to 
        provide enhanced penalties for persons committing such offenses 
        while armed.

                                SUMMARY

    H.R. 238 would establish mandatory minimum prison sentences 
for certain crimes involving the transportation of illegal 
aliens into the United States. Assuming appropriation of the 
necessary amounts, CBO estimates that implementing the bill 
would cost $160 million over the next five years to accommodate 
more prisoners in federal prisons. Enacting H.R. 238 would 
affect direct spending and receipts, so pay-as-you-go 
procedures would apply, but CBO estimates that any such effects 
would be less than $500,000 annually.
    H.R. 238 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect state, local, or tribal governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The following table summarizes the estimated budgetary 
impact of H.R. 238. The costs of this legislation fall within 
budget function 750 (administration of justice).

                                     By fiscal year, in millions of dollars
----------------------------------------------------------------------------------------------------------------
                                                              2000     2001     2002     2003     2004     2005
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending for Prison Construction and                          3,669    3,809    3,926    4,046    4,168    4,292
Operations Under Current Law
  Estimated Authorization Level\1\
  Estimated Outlays                                           3,463    3,677    3,822    3,973    4,110    4,246

Proposed Changes                                                  0        1        8       14       17       20
  Prison Operations
    Estimated Authorization Level
    Estimated Outlays                                             0        1        8       14       17       20

  Prison Construction                                             0        0      100        0        0        0
    Estimated Authorization Level
    Estimated Outlays                                             0        0       10       40       45        5

    Total                                                         0        1      108       14       17       20
      Estimated Authorization Level
      Estimated Outlays                                           0        1       18       54       62       25

Spending for Prison Construction and                          3,669    3,810    4,034    4,060    4,185    4,314
Operations Under H.R. 238
  Estimated Authorization Level\1\
  Estimated Outlays                                           3,463    3,678    3,840    4,027    4,172    4,271
----------------------------------------------------------------------------------------------------------------
\1\ The 2000 level is the amount appropriated for that year. The estimated authorization levels for 2001 through
  2005 reflect CBO baseline estimates, assuming adjustments for inflation. Without such adjustments, the current-
  law amounts would remain at about $3.7 billion a year, and the bill's effects on prison operations would be
  about $7 million lower over this period.

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that the bill will be 
enacted near the start of fiscal year 2001, and that the 
necessary funds for prison operating costs will be appropriated 
at or near the beginning of each fiscal year.
Spending Subject to Appropriation
    Prison Operations Costs. According to the U.S. Sentencing 
Commission, the bill's provisions would increase the average 
prison sentence for the relevant offenses from 12 months to 34 
months. The commission estimates that the longer sentences 
required by H.R. 238 would increase the prison population by 
about 1,900 prisoners a year by fiscal year 2005. In 2000, the 
annual cost to detain a federal prisoner is about $9,000. CBO 
estimates that the cost to support additional prisoners under 
this bill would be about $60 million over the 2001-2005 period.
    Prison Construction Costs. It is likely that an additional 
federal prison would be needed to house the number of prisoners 
detained in federal facilities that would be added by this 
bill. Based on information from the Bureau of Prisons, CBO 
estimates that construction of a new prison for this purpose 
would begin in 2002 and total costs would be about $100 million 
over the 2002-2005 period, subject to the availability of 
appropriated funds, for a facility with a capacity of 1,150 
prisoners.
Direct Spending and Revenues
    Because those prosecuted and convicted under H.R. 238 could 
be subject to greater criminal fines, the federal government 
might collect additional fines if the bill is enacted. 
Collections of such fines are recorded in the budget as 
governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and spent in subsequent years. CBO expects 
that any additional receipts and direct spending as a result of 
enacting this bill would not be significant.

                      PAY-AS-YOU-GO CONSIDERATIONS

    The Balanced Budget and Emergency Deficit Control Act sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts. Pay-as-you-go procedures would apply to 
H.R. 238, but CBO estimates that any changes in direct spending 
or receipts would be less than $500,000 for each year.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    The bill contains no intergovernmental or private-sector 
mandates as defined in UMRA and would not affect state, local, 
or tribal governments.

                         ESTIMATE PREPARED BY:

Federal Costs: Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Shelley 
        Finlayson (225-3220)
Impact on the Private Sector: Patrice Gordon (226-2940)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, section 8, clause 4 of the 
Constitution.

               Section-by-Section Analysis and Discussion

    Sec. 1. Mandatory Minimum Sentences for Bringing In and 
Harboring Certain Aliens. Section 1 provides that smuggling an 
illegal alien into the United States, transporting or harboring 
an illegal alien within the United States, or inducing an alien 
to enter the United States illegally, when done for the purpose 
of commercial advantage or financial gain, shall be subject to 
a minimum sentence of 2 years. Conspiracy to commit, or aiding 
or abetting the commission of, any of the preceding crimes 
shall be subject to a minimum sentence of 1 year.
    The minimum sentence shall be 5 years for any of the 
preceding crimes that cause serious bodily injury or jeopardize 
the life of a person, and the maximum sentence for such a crime 
shall be increased from 20 to 25 years. The minimum sentence 
shall be 20 years for any of the preceding crimes that result 
in the death of a person.
    Upon a second conviction for any of the preceding crimes 
the minimum sentence is doubled, and upon a third or subsequent 
conviction the minimum sentence is quintupled.
    Sec. 2. Enhanced Penalties for Persons Committing Offenses 
while Armed. Section 2 adds alien smuggling to the list of 
Federal criminal offenses that receive increased sentences if a 
firearm is involved. (The list currently includes all crimes of 
violence and drug trafficking crimes, see 18 U.S.C. 
Sec. 924(c).) Committing an alien smuggling crime with a 
firearm would add 5 years to the sentence, 7 years if the 
firearm is brandished, or 10 years if the firearm is discharged 
or is a particularly dangerous weapon.
    Sec. 3. Effective Date. Section 3 provides that the 
amendments made by H.R. 238 shall take effect 90 days after its 
enactment and shall apply to offenses committed after the 
termination of such 90-day period.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

           SECTION 274 OF THE IMMIGRATION AND NATIONALITY ACT

                bringing in and harboring certain aliens

    Sec. 274. (a) Criminal Penalties.--(1)(A)  * * *

           *       *       *       *       *       *       *

    (B) [A person] Except as provided in subparagraphs (C) and 
(D), a person who violates subparagraph (A) shall, for each 
alien in respect to whom such a violation occurs--
            (i)  * * *

           *       *       *       *       *       *       *

    (C)(i) Except as provided in clauses (ii) and (iii), a 
person who violates subparagraph (A) shall, for each alien in 
respect to whom such a violation occurs--
            (I) in the case of a violation of clause (i), (ii), 
        (iii), or (iv) of subparagraph (A) in which the offense 
        was done for the purpose of commercial advantage or 
        financial gain, be fined under title 18, United States 
        Code, imprisoned not less than 2 years nor more than 10 
        years, or both;
            (II) in the case of a violation of subparagraph 
        (A)(v) in which the offense was done for the purpose of 
        commercial advantage or financial gain, be fined under 
        title 18, United States Code, imprisoned not less than 
        1 year nor more than 5 years, or both;
            (III) in the case of a violation of subparagraph 
        (A) in which the offense was done for the purpose of 
        commercial advantage or financial gain and during and 
        in relation to which the person causes serious bodily 
        injury (as defined in section 1365 of title 18, United 
        States Code) to, or places in jeopardy the life of, any 
        person, be fined under title 18, United States Code, 
        imprisoned not less than 5 years nor more than 25 
        years, or both; and
            (IV) in the case of a violation of subparagraph (A) 
        in which the offense was done for the purpose of 
        commercial advantage or financial gain and resulting in 
        the death of any person, be punished by death or 
        imprisoned for any term of years or for life (but not 
        less than 20 years), fined under title 18, United 
        States Code, or both.
    (ii) In the case of a violation of subparagraph (A) in 
which the offense was done for the purpose of commercial 
advantage or financial gain after 1 prior conviction for any 
other such violation of subparagraph (A) has become final, the 
minimum term of imprisonment shall be not less than two times 
the minimum term specified in clause (i).
    (iii) In the case of a violation of subparagraph (A) in 
which the offense was done for the purpose of commercial 
advantage or financial gain after 2 or more prior convictions 
for any other such violations of subparagraph (A) have become 
final, the minimum term of imprisonment shall be not less than 
five times the minimum term specified in clause (i).
    (D) In no case may any penalty for a violation of 
subparagraph (A) be imposed on any person based on actions 
taken by the person to render emergency assistance to an alien 
found physically present in the United States in life 
threatening circumstances.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 924 OF TITLE 18, UNITED STATES CODE

Sec. 924. Penalties

    (a)  * * *

           *       *       *       *       *       *       *

    (c)(1)(A) Except to the extent that a greater minimum 
sentence is otherwise provided by this subsection or by any 
other provision of law, any person who, during and in relation 
to any crime of violence or drug trafficking crime (including a 
crime of violence or drug trafficking crime that provides for 
an enhanced punishment if committed by the use of a deadly or 
dangerous weapon or device) or any violation of section 
274(a)(1)(A) of the Immigration and Nationality Act for which 
the person may be prosecuted in a court of the United States, 
uses or carries a firearm, or who, in furtherance of any such 
crime, possesses a firearm, shall, in addition to the 
punishment provided for such crime of violence [or drug 
trafficking crime], drug trafficking crime, or violation of 
section 274(a)(1)(A) of the Immigration and Nationality Act--
            (i)  * * *

           *       *       *       *       *       *       *

    (D) Notwithstanding any other provision of law--
            (i) a court shall not place on probation any person 
        convicted of a violation of this subsection; and
            (ii) no term of imprisonment imposed on a person 
        under this subsection shall run concurrently with any 
        other term of imprisonment imposed on the person, 
        including any term of imprisonment imposed for the 
        crime of violence [or drug trafficking crime], drug 
        trafficking crime, or violation of section 274(a)(1)(A) 
        of the Immigration and Nationality Act during which the 
        firearm was used, carried, or possessed.

           *       *       *       *       *       *       *

                            Dissenting Views

    We dissent from the underlying bill because experience and 
numerous studies have shown that mandatory minimum sentences 
\1\ create unfairness and require judicial and correctional 
expenditures that are disproportionate to any deterrent or 
rehabilitative effect they might have. Studies have also 
highlighted the very high costs of the unnecessary 
incarceration resulting from mandatory minimums.
---------------------------------------------------------------------------
    \1\ H.R. 238 requires a mandatory 1-year minimum sentence for 
transporting or harboring smuggled aliens within the U.S., inducing 
aliens to come to the U.S. illegally, or aiding and abetting alien 
smuggling crimes. A 2-year mandatory minimum sentence is required for 
illegally bringing aliens into the U.S., domestic transport or 
harboring or inducement of smuggled aliens for commercial advantage or 
financial gain, or engaging in an alien smuggling conspiracy. For alien 
smuggling crimes causing serious bodily injuries or placing lives in 
jeopardy, a minimum 5-year sentence is required, and the maximum is 
raised from 20 to 25 years. For alien smuggling crimes resulting in 
death, a minimum 20-year sentence is required. H.R. 238 also provides 
that the mandatory minimums would be doubled for an individual's second 
alien smuggling conviction and quintupled for a third or subsequent 
conviction.
---------------------------------------------------------------------------
    In fact, scientific study has found no empirical evidence 
linking mandatory minimum sentences to reductions in crime. 
Instead, we know that they distort the sentencing process, 
discriminate against minorities in their application and waste 
money. In a study report entitled ``Mandatory Minimum Drug 
Sentences: Throwing Away the Key or the Tax Payers Money?,'' 
the Rand Commission concluded that mandatory minimum sentences 
were less effective than either discretionary sentencing or 
drug treatment in reducing drug related crime, and far more 
costly than either. And in a March 17, 2000 letter to Judiciary 
Committee Chairman Hyde, the Judicial Conference of the U.S. 
reiterated its opposition to mandatory minimum sentencing 
schemes for the 12th time, noting that they ``severely distort 
and damage the Federal sentencing system, . . . undermine the 
Sentencing Guideline regimen'' established by Congress to 
promote fairness and proportionality, and ``destroy honesty in 
sentencing by encouraging charge and fact plea bargains.'' \2\
---------------------------------------------------------------------------
    \2\ Both the Judicial Center in its study report entitled ``The 
General Effects of Mandatory Minimum Prison Terms: A longitudinal Study 
of Federal Sentences Imposed,'' and the United States Sentencing 
Commission in its study report entitled ``Mandatory Minimum Penalties 
in the Federal Criminal Justice System,'' found that minorities were 
substantially more likely than whites under comparable circumstances to 
receive mandatory minimum sentences. The Sentencing Commission study 
also reflected that mandatory minimum sentences increased disparity in 
sentencing of like offenders because they were not applied in 40% of 
the cases and, at the same time, increased costs as a result of the 
rate of trials rising from 13% of defendants to 19% of defendants, with 
no evidence that mandatory minimum sentencing had anymore crime 
reduction impact than discretionary sentences.
---------------------------------------------------------------------------
    Many conservatives have joined us in recognizing the policy 
problems caused by mandatory minimums. Thus, for example, after 
realizing the damage and ineffectiveness of mandatory minimums 
at reducing crime, Democrats and Republicans, in a bi-partisan 
effort repealed Federal mandatory minimum sentencing in 1970. 
Speaking in support of the bill, then-congressman George Bush 
noted that, ``[c]ontrary to what one might imagine, [the bill 
repealing Federal mandatory minimums] will result in better 
justice and more appropriate sentences . . .'' \3\
---------------------------------------------------------------------------
    \3\ David Kopel, Cato Institute, ``Prison Blues: How America's 
Foolish Sentencing Policies Endanger Public Safety,'' Policy Analysis, 
No. 208 May 1994, p.12.
---------------------------------------------------------------------------
    Similarly, Chief Justice Rehnquist, who is not known to be 
lenient on crime, has observed that:

          ``Mandatory minimums are perhaps a good example of 
        the law of unintended consequences, There is a 
        respectable body of opinion which believes that these 
        mandatory minimums impose unduly harsh punishment for 
        first-time offenders', particularly for `mules' who 
        played only a minor role in a drug distribution scheme. 
        Be that as it may, the mandatory minimums have also led 
        to an inordinate increase in the Federal prison 
        population and will require huge expenditures to build 
        new prison space . . .''
          ``Mandatory minimums . . . are frequently the result 
        of floor amendments to demonstrate emphatically that 
        legislators want to `get tough on crime.' Just as 
        frequently they do not involve any careful 
        consideration of the effect they might have on the 
        sentencing guidelines as a whole . . .'' \4\
---------------------------------------------------------------------------
    \4\ David Kopel, Cato Institute, ``Prison Blues: How America's 
Foolish Sentencing Policies Endanger Public Safety,'' Policy Analysis, 
No. 208 May 1994, p.19. (quoting William H. Rehnquist, ``Luncheon 
Address,'' in U.S. Sentencing Commission, Drugs and Violence, pp. 286-
87.).

    The proliferation of harsh mandatory sentencing policies 
has also inhibited the ability of courts to sentence offenders 
in a way that permits a more ``problem-solving'' approach to 
crime, as is being demonstrated in the community policing and 
drug court movements today. By eliminating any consideration of 
the factors contributing to crime or to a range of responses, 
as H.R. 238 does, such sentencing policies fail to provide 
justice for either victims or offenders.
    In light of these concerns, a less draconian approach than 
H.R. 238 would be to increase sentences under the sentencing 
guidelines or enact a legislative directive to the U.S. 
Sentencing Commission to revise their existing sentencing 
guidelines to increase sentences for alien smuggling offenses. 
This would at least permit consideration of aggravating and 
mitigating circumstances. Unfortunately, an amendment along 
these lines offered by Rep. Scott (D-VA) was rejected by the 
Majority.
    Whatever the political benefits of mandatory minimums, as a 
substantive matter it is clear that mandatory minimum sentences 
are ineffectual. They simply do not do what they purport to 
do--deter criminal behavior by guaranteeing that a particular 
penalty will be imposed for a particular crime. Instead they 
impose unfair and harsh results and unnecessarily increase 
prison costs.

                                   John Conyers, Jr.
                                   Robert C. Scott.
                                   William D. Delahunt.
                                   Tammy Baldwin.

                                  
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