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FEDERAL  MANDATORY  MINIMUM  SENTENCING 


HEAKING 

BEFORE  THE 

SUBCOMMITTEE  ON 
CRIME  AND  CRIMINAL  JUSTICE 

OF  THE 

COMMITTEE  ON  THE  JUDICIARY 
HOUSE  OP  REPRESENTATIVES 

ONE  HUNDRED  THIRD  CONGRESS 

FIRST  SESSION 


JULY  28,  1993 


Serial  No.  96 


.1  0'2003    I 
BOStO"  rUBLIC  LIBRARY 

GOVERNUe  .  ...aCUHeNTS  D<;PARTMEWT 


GOVT. 

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mPDEN  LAW  LIBRAR 

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Printed  for  the  use  of  the  Committee  on  the  Judiciary 


KF 

9635 
,A2 
F31 
1995 


cc 


U.S.  GOVERNMENT  PRINTING  OFFICE 
WASHINGTON  :  1995 


For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 
ISBN   0-16-047422-1 


FEDERAL  MANDATORY  MINIMUM  SENTENCING 


HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
CRIME  AND  CRIMINAL  JUSTICE 

OF  THE 

COMMITTEE  ON  THE  JUDICIAEY 
HOUSE  OP  REPRESENTATIVES 

ONE  HUNDRED  THIRD  CONGRESS 

FIRST  SESSION 


JULY  28,  1993 


Serial  No.  96 


.    !  0'  2003    j 
BOSTW ^ ;  UBLIC  UBRARY 

GOVERNKf-f  :  ■OCUMEWTSD'iPARTMEWT 


GOVT. 
DEPOSr 


HAMPDEN  LAW  LIBRARY 


FVinted  for  the  use  of  the  Committee  on  the  Judiciary 


KF 

9635 

.A2 

F31 
1995 


cc 


U.S.  GOVERNMENT  PRINTING  OFFICE 
WASHINGTON  :  1995 


For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 
ISBN   0-16-047422-1 


COMMITTEE  ON  THE  JUDICIARY 


DON  EDWARDS,  California 

JOHN  CONYERS  .i»    MirW, 

ROMANO 

WILLIAV 

MIKE  S' 

PATRICl 

DAN  GL 

BARNEI 

CHARLB 

HOWAR 

RICK  B( 

JOHN  B 

GEORGI 

CRAIG  i 

JACK  R 

JERROL 

ROBER] 

DAVID  ] 

MELVUs 

XAVIER 


JACK  BROOKS,  Texas,  Chairman 


DON  EE 
JOHNC 
RAMAN' 
DAN  GL 
GEORG] 
CRAIG  i 
DAVID 


KF  9685  .A2  F31  1995 
Urxited  States.  Congress. 
House.  Cammittee  on  the 
Federal  mandatory  minimum 

DATE  DUE 


HAMILTON  FISH,  JR,  New  York 
CARirJS  J   MOORHRAD,  California 


^R,  Jr., 


■■ 

_., 

^Ivania 
Mina 

CO 

ia 
da 


R,  JR., 


«o 


^Ivania 
1 


HAMPDEN  LAW  LIBRARY 

50  State  St,  P.O.  Box  559 

Springfield,  MA  01102-0559 

(413)  748-7923 


OFMCO 


(ID 


CONTENTS 


HEARING  DATE 
July  28,  1993  1 

OPENING  STATEMENT 

Schumer,  Hon.   Charles  E.,  a  Representative  in   Congress  from  the  State 

of  New  Yorit,  and  chairman,  Subcommittee  on  Crime  and  Criminal  Justice  .  1 

WITNESSES 

Barr,  William  P.,  Shaw,  Pittman,  Potts  &  Trowbridge,  Washington,  DC  81 

Broderick,  Judge  Vincent  L.,  chairman.  Committee  on  Criminal  Law,  Judicial 

Conference  of  the  United  States,  White  Plains,  NY 102 

La  Rotonda,  Joanne,  Flushing,  NY  12 

Richardson,  Nicole,  Alderson  Federal  Prison  13 

Sonnett,  Neal  R.,  chairperson,  American  Bar  Association  Criminal  Justice 
Section,  Miami,  FL,  accompanied  by  Lynn  S.  Branham,  professor  of  law, 

Thomas  M.  Cooley  Law  School,  Lansing,  MI  139 

Stewart,  Julie,  president.  Families  Against  Mandatory  Minimums  14 

Walker,  Judge  John  M.,  Jr.,   president,  Federal  Judges  Association,  New 

York,  NY,  and  circuit  judge.  Second  Circuit  Court  of  Appeals  112 

Wilkins,  William  W.,  Jr.,  Chairman,  U.S.  Sentencing  Commission  62 

Wray,  Henry  R.,  Director,  Administration  of  Justice  Issues,  General  Govern- 
ment Division,  General  Accounting  Office,  accompanied  by  Linda  Willis 
and  Lynn  Gibson  39 

LETTERS,  STATEMENTS,  ETC.,  SUBMITTED  FOR  THE  HEARING 

Barr,  William  P.,  Shaw,  Pittman,  Potts  &  Trowbridge,  Washington,  DC:  Pre- 
pared statement  83 

Broderick,  Judge  Vincent  L.,  chairman,  Committee  on  Criminal  Law,  Judicial 

Conference  of  the  United  States,  White  Plains,  NY:  Prepared  statement  104 

Mazzoli,  Hon.  Romano  L.,  a  Representative  in  Congress  from  the  State  of 
Kentucky:  Article  from  the  National  Journal,  dated  July  24,  1993,  by  W. 
John  Moore,  entitled  "Crime,  Punishment,  and  Then  What?"  7 

Sonnett,  Neal  R.,  chairperson,  American  Bar  Association  Criminal  Justice 
Section,  Miami,  FL,  and  Lynn  S.  Branham,  professor  of  law,  Thomas  M. 
Cooley  Law  School,  Lansing,  MI: 

Letter  dated  July  6,   1993,  to  Attorney  (General  Janet  Reno,  from  the 

American  Bar  Association,  and  documents 140 

Prepared  statement  145 

Stewart,  Julie,  president,  Families  Against  Mandatory  Minimums:  Prepared 

statement  18 

Walker,  Judge  John  M.,  Jr.,  president.  Federal  Judges  Association,  New 
York,  NY,  and  circuit  judge.  Second  Circuit  Court  of  Appeals:  F*repared 
statement  114 

Wray,  Henry  R.,  Director,  Administration  of  Justice  Issues,  General  Govern- 
ment Division,  General  Accounting  Office:  Prepared  statement 41 

Wilkins,  William  W.,  Jr.,  Chairman,  U.S.  Sentencing  Commission:  Prepared 

statement  66 


APPENDIXES 

atement  of  David 
chool  of  Law 

(III) 


Appendix  1. — Statement  of  David  J.  (Gottlieb,  professor.  University  of  Ka^ 
Sch 


IV 

Page 

Appendix  2. — Statement  of  Mitchell  S.  Rosenthal,  M.D.,  president,  Phoenix 
House  ' j^>72 


FEDERAL  MANDATORY  MINIMUM 
SENTENCING 


WEDNESDAY,  JULY  28,  1993 

House  of  Representatives, 
Subcommittee  on  Crime  and  Criminal  Justice, 

Committee  on  the  Judiciary, 

Washington,  DC. 
The  subcommittee  met,  pursuant  to  other  business,  at  10  a.m., 
in  room  2247,  Rayburn  House  Office  Building,  Hon.  Charles  E. 
Schumer  (chairman  of  the  subcommittee),  presiding. 

Present:  Representatives  Charles  E.  Schumer,  Don  Edwards, 
John  Conyers,  Jr.,  Romano  L.  Mazzoli,  Greorge  E.  Sangmeister, 
David  Mann,  F.  James  Sensenbrenner,  Jr.,  Lamar  S.  Smith,  Steven 
Schiff,  Jim  Ramstad,  and  George  W.  Gekas. 

Also  present:  Andrew  Fois,  counsel;  Daniel  Cunningham,  assist- 
ant counsel,  David  Yassky,  assistant  counsel;  Rachel  Jacobson,  sec- 
retary; Aliza  Rieger,  secretary;  and  Lyle  Nirenberg,  minority  coun- 
sel. 

OPENING  STATEMENT  OF  CHAIRMAN  SCHUMER 

Mr.  Schumer.  Let  me  say  a  few  words  and  then  call  on  my  col- 
leagues before  we  begin  the  testimony.  This  is  an  issue  that  has 
become  a  very  prominent  one  in  our  Federal  criminal  justice  sys- 
tem. At  this  hearing  I  hope  to  begin — and  underline  begin — an  ex- 
ploration of  whether  we  should  make  any  changes  in  the  manda- 
tory minimum  sentencing  that  has  become  more  prevalent  as  a 
form  of  sentencing  in  the  last  decade. 

I  think  a  little  history  is  in  order.  Before  1984,  the  vast  majority 
of  the  public  and  Members  of  Congress  believed  that  the  Federal 
criminal  justice  system  wasn't  working.  First,  there  were  huge  dis- 
parities in  sentencing.  People  who  committed  the  same  Federal 
crime:  one  would  get  20  years  and  another  would  get  no  jail  time 
at  all.  That  was  one  reason  that  there  was  a  push  for  a  change. 

But  let's  not  forget  the  second  reason,  which  I  think  is  very,  very 
important.  There  were  large  numbers  of  people  who  were  commit- 
ting crimes  who  did  not  get  much  jail  time  or  any  jail  time  at  all. 
The  public  was  outraged.  Congress  was  outraged.  I  was  outraged. 

In  my  judgment,  the  reason  this  occurred  was  not  so  much  the 
ideology  of  the  judges  and  the  criminal  process,  but  it  was  that  the 
system  was  simply  overloaded.  And  year  after  year,  we  would  try 
to  get  money  to  increase  funding  so  there  would  be  less  plea  bar- 
gaining, less  crowding  and  fewer  people  falling  through  the  cracks. 
But  no  money  came.  And,  as  a  result,  people  came  up  with  an  idea, 
create  mandatory  sentence,  to  make  sure  that,  if  someone  is  con- 

(1) 


victed  of  a  certain  crime,  they  serve  at  least  a  certain  amount  of 
time  in  jail. 

In  my  view,  there  is  not  very  much  support  for  repeal  of  manda- 
tory minimums.  I  don't  think  there  is  very  much  public  support  for 
going  back  to  a  system  where  there  was  no  effective  minimum, 
whether  it  be  a  minimum  mandatory  or  a  sentencing  guideline.  No 
one  wants  to  go  back  to  the  days  when  we  would  read  in  the  news- 
papers, week  after  week,  that  people  who  had  been  convicted  for 
significant  crimes  were  getting  no  or  minimal  sentences. 

In  1984,  Congress  reinstituted  mandatory  minimum  sentences 
and  set  up  a  Sentencing  Commission  to  establish  tough  sentencing 
guidelines.  The  two  came  from  the  same  cause  and  proceeded  on 
the  same  track.  Basically,  they  were  a  response  to  the  people's  de- 
mand that  we  become  tougher  on  violence  and  drug  crime. 

It  is  now  a  decade  later.  When  I  became  chairman  of  this  sub- 
committee, I  began  to  hear  about  the  unreasonableness,  the  draco- 
nian  nature  of  mandatory  minimum  sentences,  particularly  in  first 
offender  drug  cases.  This  criticism  came  fi-om  commentators,  from 
relatives  of  people  who  were  sentenced,  and  most  of  all,  frankly,  it 
came  from  the  Federal  bench  and  the  defense  bar.  And  I  began  to 
study  the  issue. 

At  first  I  thought,  well,  maybe  we  really  have  to  change  things 
dramatically.  I  should  note  here  that  I  am  really  addressing  some 
of  my  remarks  to  those  who  want  change,  because  I  will  tell  you 
my  odyssey  and  what  happened  to  me  as  I  explored  this  issue.  The 
more  I  explored  the  issue  the  less  convinced  of  the  need  for  change 
I  became.  But,  I  have  not  closed  the  book.  My  mind  is  still  open. 
However,  I  have  become  less  and  less  convinced  that  the  problem 
is  severe  as  the  critics  say. 

When  judges  and  defense  lawyers  came  into  my  office,  I  would 
ask  them  to  give  me  examples  of  egregious  sentences.  My  view 
then  was  that  if  the  law  was  resulting  in  egregious  sentences,  we 
would  have  a  hearing,  we  would  expose  these  egregious  cases,  and 
the  public  and  the  Congress  would  see  that  the  law  had  to  be 
changed.  We  made  a  diligent  effort — George,  if  you  could  come  in 
we  could  just  have  the  markup  and  pass  Mr.  Schiff  s  bill  out,  and 
then  I  will  resume  my  opening  statement.  Maybe  I  will  start  over. 

[Laughter.] 

Mr.  Sensenbrenner.  I  object. 

Mr.  SCHUMER.  OK 

[Whereupon,  at  10:07  a.m.,  the  subcommittee  proceeded  to  other 
business.] 

Mr.  ScHUMER.  My  staff— and  I  want  to  commend  them — dili- 
gently reached  out  to  defense  lawyers,  to  judges,  and  to  others,  ask- 
ing them  to  bring  to  us  the  most  egregious  cases.  The  cases  that 
really  will  pluck  at  people's  heartstrings.  What  we  found  was  that, 
when  it  came  time  for  hard  facts  and  examples,  there  weren't  huge 
numbers  of  cases.  We  had  to  sort  of  pull  teeth  to  get  many  of  the 
cases  that  were  truly  egregious. 

Now  there  are  some  egregious  cases,  and  we  will  hear  about 
those  today.  I  think  we  should  do  something  about  them.  But  the 
idea  that  there  are  thousands  and  thousands  of  people  in  the  Fed- 
eral system  who  had  a  small  amount  of  marijuana  in  their  pocket 
and  were  sitting  in  jail  for  5  or  10  years  is  just  not  supportable. 


Let  me  tell  you  the  findings.  As  I  said,  most  cases  were  not  egre- 
gious. Several  of  the  cases  that  were  sent  to  us  involved  armed 
drug  dealers.  Many  of  the  cases  involved  career  criminals  with  long 
records  of  previous  convictions.  Many  of  the  cases  had  less  to  do 
with  mandatory  minimums  and  more  to  do  with  complaints  of  al- 
leged entrapment  and  charging  abuse.  Numerous  of  the  cases  in- 
volved defendants  with  multiple  and  continuing  sales  of  drugs. 

Here  are  a  few  specific  examples  of  the  types  of  cases  that  were 
referred  to  us  as  egregious  cases.  These  cases  were  sent  to  us  by 
reputable  people.  These  were  sort  of  typical.  I  am  not  picking  out 
the  most  extreme. 

The  defendant  in  one  case,  who  was  described  as  a  nice  kid  and 
a  churchgoer,  was  also  a  paid  "protection."  He  accompanied  drug 
dealers  to  transactions  armed  with  a  semiautomatic  assault  weap- 
on. 

In  another  case  the  defendant  operated  a  family  business  with 
his  brother-in-law  who  was  a  chemist.  Unfortunately,  the  family 
business  amounted  to  a  methamphetamine  manufacturing  and  dis- 
tribution conspiracy.  This  wasn't  the  defendant's  first  offense  ei- 
ther; it  was  his  fourth.  He  was  previously  busted  for  marijuana  cul- 
tivation, been  convicted  for  possession  of  cocaine,  which  resulted  in 
a  period  of  unsupervised  probation  which  was  revoked  due  to  a  pre- 
vious arrest  for  methamphetamine  possession. 

One  case  involved  a  marijuana  plantation  of  more  than  1,000 
plants.  The  defendants  insisted  they  weren't  distributing. 

And  a  final  case  involved  a  defendant  who  made  repeated  sales 
of  cocaine  to  undercover  agents,  including  a  deal  for  2  kilos  of  co- 
caine. A  search  of  his  apartment  uncovered  an  additional  200 
grams  of  coke.  At  the  time  of  his  arrest  the  defendant  was  on  pro- 
bation for  the  distribution  of  mushrooms  and  cocaine. 

There  are  two  points  I  would  wish  to  make  here.  There  may  be 
egregious  cases  in  the  State  systems.  I  remember  the  Rockefeller 
drug  laws  in  New  York  State  where  it  was  true  that  somebody  who 
had  a  small  amount  of  marijuana  would  languish  in  jail  for  what 
seemed  to  me  to  be,  on  a  first  nonviolent  conviction,  too  long  a  pe- 
riod of  time. 

But  the  impetus  for  this  hearing  has  come  from  members  of  the 
Federal  bench  and  the  Federal  bar  who  insist  that  these  cases  are 
all  over  the  Federal  system.  We  need  more  egregious  examples, 
folks,  if  we  are  going  to  have  a  dramatic  change  in  either  eliminat- 
ing mandatory  minimums,  which,  as  you  know,  I  don't  support,  or 
even  greatly  reducing  them. 

The  second  point  is  this:  The  critics  have  other  complaints  about 
mandatory  minimums,  aside  from  the  egregiousness  of  the  particu- 
lar cases.  They  tell  us  that  mandatories  are  filling  the  prisons  with 
mostly  first-time  nonviolent  offenders.  I  mean  the  Federal  prisons 
here.  Again,  the  State  systems  may  be  different.  They  tell  us  that 
a  disproportionate  number  of  young  kids  are  convicted  in  crack 
cases.  In  other  words,  that  there  are  a  disproportionate  number  of 
crack  cases  and  these  defendants  are  young  kids.  They  insist  that 
mandatories  have  a  disproportionate  impact  on  minorities,  and 
that  our  prisons  are  forced  to  release  violent  criminals  to  make 
room  for  the  mandatory  drug  convicts. 


Well,  the  frustrating  aspect  of  these  claims  is  that  the  only  sub- 
stantiation we  receive  for  them  are  anecdotes.  But  anecdotes  aren't 
a  good  basis  for  policy.  So  I  have  asked  the  Sentencing  Commis- 
sion, the  GAO,  the  Bureau  of  Prisons,  and  others  for  data  on 
mandatories.  Here  is  what  we  found  out.  It  is  open  to  rebuttal,  but 
these  are  the  facts  from  these,  in  my  judgment,  rather  nonpartisan 
agencies  on  this  issue. 

In  1992,  for  instance,  more  than  38,000  people  were  sentenced 
under  the  guidelines.  Seventeen  thousand  of  those,  it  is  indeed 
true,  were  sentenced  for  drug  offenses.  Of  that  17,000,  3,189  could 
be  classified  as  first  time,  nonviolent  drug  offenders  with  no  aggra- 
vating role  in  the  offense.  That  is  less  than  10  percent  of  all  per- 
sons sentenced  under  the  guidelines.  In  other  words,  we  are  not 
filling  up  the  Federal  jails  with  these  types  of  prisoners.  And,  of 
the  3,189  cases,  only  12.2  percent  were  convicted  for  crack.  It  is  not 
true  that  most  of  the  cases  involve  young  kids  and  crack.  Seventy- 
five  percent  of  them  were  over  25  years  of  age. 

Another  claim  that  has  been  made  is  that  mandatories  have  a 
disproportionate  effect  on  African-Americans.  Forty-three  percent 
of  these  first-time  offenders  were  aliens  who  had  come  to  America 
to  peddle  their  drugs. 

We  learned  from  the  Bureau  of  Prisons  that,  while  States  may 
be  releasing  violent  criminals  to  make  room  for  mandatory  drug  of- 
fenders, the  Federal  prisons  are  not. 

Now,  other  critics  say  that  the  mandatories  are  incompatible 
with  the  sentencing  guidehnes.  I  think  the  two  can  be  made  to 
dovetail  with  each  other  quite  well.  The  concepts  are  not  averse  to 

one  another,  v  j    t  j 

Some  say  that  mandatories  are  inconsistently  applied.  I  wonder 
how,  if  you  compare  the  amount  of  inconsistency  to  the  law  before 
there  were  mandatories  to  now,  what  the  difference  would  be.  And 
admittedly,  the  sentencing  guidelines,  I  think,  have  done  a  great 
deal  positively  to  contribute  to  avoiding  those  disparities. 

And  finally,  critics  insist  that  mandatories  invidiously  discrimi- 
nate against  minorities.  But  as  we  will  hear  this  morning,  the  GAO 
has  done  a  3-year  study  of  mandatories.  They  found  that 
mandatories  are  generally  applied  consistently  with  85  percent  of 
the  offenders  convicted  of  violating  mandatory  minimum  statutes 
receiving  at  least  the  mandatory  sentence. 

GAO  found  no  evidence  of  invidious  racial  discrimination  in  ap- 
plication of  mandatories.  And  most  surprisingly— and  listen  to  this, 
this  has  not  been  stated  before  but  this  one  knocked  my  socks  off. 
The  GAO  found  the  mandatory  minimum  sentence  to  be  higher 
than  what  the  defendant  would  have  received  under  the  sentencing 
guidelines  in  only  5  percent  of  the  cases.  In  95  percent  of  the  cases 
that  the  GAO  studied,  the  amount  of  prison  time  that  the  defend- 
ant was  actually  sentenced  to  was  higher  than  the  mandatory  min- 
imum. 

Well,  where  does  all  this  end  up?  Unless  there  is  overwhelming 
evidence  to  the  contrary,  it  seems  to  me  that  a  repeal  of  mandatory 
minimums  is  not  what  is  called  for. 

Mandatory  minimums  probably  make  sense  and  have  done  a  iob. 
I  think  what  the  facts  support,  in  my  judgment,  is  some  kind  of 


safety  valve  so  that  in  the  truly  small  number  of  egregious  cases 
in  the  Federal  system,  relief  may  be  granted  in  an  adequate  way. 

Something  should  be  done  about  the  kinds  of  cases  we  are  going 
to  hear  about  today.  A  safety  valve  might  be  able  to  be  invoked  by 
a  judge  to  avoid  an  unjust  sentence.  That  is  all  I  think  at  this  point 
the  facts  support. 

Again,  however,  I  want  to  underline,  my  mind  is  open.  I  have 
really  traveled  on  this  issue  quite  a  bit  as  I  have  studied  it,  and 
this  hearing  is  not  going  to  be  the  end  of  that  process.  But  I 
thought  it  was  fair  and  probably  helpful  in  terms  of  formulating  all 
of  our  views  on  this  issue  that  I  throw  out  these  facts  and  give  peo- 
ple who  disagree  a  chance  to  rebut  them. 

The  facts,  as  I  say,  support  a  safety  valve.  They  do  not  now  sup- 
port a  comprehensive  repeal  or  reform  of  mandatory  minimums. 
And  so  it  is  my  hope  in  these  hearings  we  will  receive  constructive 
feedback  on  the  safety  valve  approach,  as  well  as  any  other  ap- 
proaches that  people  think  are  potentially  effective. 

And  with  that  I  yield  to  the  gentleman  and  apologize  for  taking 
longer  than  usual.  I  thought  it  was  worth  having  these  facts  out 
on  the  table.  Mr.  Sensenbrenner. 

Mr.  Sensenbrenner.  Thank  you  very  much,  Mr.  Chairman.  Let 
me  say  at  the  outset  that  I  support  a  continuation  of  mandatory 
minimum  sentences.  Mandatory  minimums  have  been  a  part  of 
American  jurisprudence  since  1790  and  there  has  been  a  manda- 
tory sentence  for  at  least  one  crime  on  the  book  for  most  of  the  his- 
tory of  the  United  States  of  America. 

The  mandatory  minimums  that  we  are  talking  about  today  were 
enacted  about  a  decade  ago  in  response  to  either  a  real  or  perceived 
problem  where  criminal  defense  lawyers  shopped  their  cases 
around  to  judges  that  they  knew  were  light  sentencers,  and  there 
was  a  wide  variation  of  sentences  for  people  who  were  convicted  of 
identical  crimes.  So  as  a  response  to  that,  which  in  my  opinion  if 
it  did  occur  was  an  abuse  of  judicial  discretion.  Congress  passed 
both  the  mandatory  minimums  as  well  as  the  sentencing  guide- 
lines. 

Significantly,  since  1984,  94  percent  of  the  mandatory  minimums 
that  have  been  imposed  by  the  Federal  courts  have  been  for  viola- 
tions of  just  four  Federal  criminal  statutes.  First,  the  statute  crim- 
inalizing the  manufacture  and  distribution  of  a  controlled  sub- 
stance. Second,  the  statute  relating  to  possession  of  a  controlled 
substance.  Third,  the  statute  relating  to  penalties  for  the  import  or 
export  of  controlled  substances.  And  fourth,  the  minimum  sentence 
enhancements  for  carrying  a  firearm  during  either  a  drug  crime  or 
a  violent  crime.  Six  percent  of  the  mandatory  minimums  that  have 
been  imposed  have  related  to  all  of  the  other  convictions  of  the  60 
statutes  containing  mandatory  minimum  penalties. 

So  essentially  what  we  are  talking  about  here  today  is  lightening 
the  penalties  for  those  four  crimes  that  I  have  just  outlined  because 
that  is  where  most  of  the  mandatory  minimum  sentences  are  being 
imposed.  And  in  good  conscience  representing  over  a  half  million 
people  in  southeastern  Wisconsin  I  can't  go  along  with  reducing  the 
sentences  for  any  one  of  these  four  crimes  that  have  been  outlined 
because  they  are  crimes  that  go  at  the  very  fabric  of  society:  the 


manufacture  and  distribution  of  drugs,  the  carrying  of  a  firearm 
during  a  drug  crime  or  a  violent  crime. 

It  seems  to  me  that  if  someone  is  convicted  of  a  crime  Hke  that 
they  ought  to  go  to  jail  for  sure,  and  that  is  why  I  think  the  present 
mandatory  minimum  sentence  system  is  one  that  serves  the  public 
as  best  we  can. 

Now,  of  course,  the  best  type  of  anticrime  program  is  a  crime 
prevention  program,  and  we  will  be  talking  about  that  in  this  com- 
mittee and  in  Congress  later  on  this  year  in  the  context  of  the 
crime  bills  that  will  be  submitted  shortly  by  the  administration. 
But  it  seems  to  me  that  no  matter  how  good  a  crime  prevention 
program  Congress  passes  there  it  will  not  be  100  percent  effective. 
There  will  be  those  that  decide  to  lead  a  life  of  crime  and  those 
that  decide  to  commit  crime  and  those  that  will  be  convicted  of 
those  crimes  by  a  jury  of  their  peers.  And  there  I  think  that  the 
public  is  crying  out  that  for  these  types  of  crimes  prison  is  the 
place  for  these  folks.  They  ought  to  be  removed  from  society  for  at 
least  a  period  of  time,  and  removing  them  from  society  would  act 
as  deterrence  to  others  that  might  be  considering  conducting  them- 
selves in  the  same  manner. 

Thank  you. 

Mr.  SCHUMER.  Thank  you,  Mr.  Sensenbrenner.  Mr.  Mazzoli. 

Mr.  Mazzoli.  Thank  you,  Mr.  Chairman.  I  appreciate  the  chance 
to  join  in  briefly  in  the  comments.  And  let  me  just  salute  you  on 
a  powerful  and  a  very  telling  opening  statement.  That  was  remark- 
able both  for  its  breadth  and  for  its  insight  and  for  its  candor.  And 
in  this  Congress  of  ours  it  is  very  difficult  to  be  able  to  put  all 
those  together.  I  think  the  gentleman  said  that  he  had  traveled  a 
lot  on  this  issue,  and  I  think  that  that  reflects  intellectual  honesty 
because  this  is  an  easy  issue  not  to  travel  on. 

I  haven't  had  a  need  to  travel  very  far  because  I  have  always  felt 
that  mandatory  minimums  were  a  way  to  go,  and  I  would  never 
support  any  wholesale  change,  and  I  am  happy  that  at  best  we 
would  make  discrete  changes  or  some  fine  tuning  of  it,  but  not  to 

abandon  it.  •      i.  • 

And  I  remember,  Mr.  Chairman,  some  years  ago,  not  m  this 
room  but  in  another  hearing  of  another  committee,  and  there  was 
a  group  of  witnesses,  professionals,  out  there  iust  crying  and  weep- 
ing and  gnashing  their  teeth  about  how  terrible  the  situation  was. 
Our  jails  are  so  overcrowded.  What  a  terrible,  tormenting  thing 
that  was  and  what  an  abject  failure  it  was.  And  I  just  couldn't  re- 
strain myself.  I  said  I  think  that  may  be  the  sign  of  success  of  the 
system,  not  of  its  failure.  I  think  the  success  of  the  system  today 
is  that  people  are  being  put  away.  , 

And,  Mr.  Chairman,  with  your  permission,  I  would  like  included 
in  the  record  an  article — well,  a  column  which  appeared  in  the  Na- 
tional Journal  in — earlier  this  month,  as  a  matter  of  fact. 

Mr.  ScHUMER.  Without  objection. 

[This  article  follows:] 


LEGAL  AFFAIRS 


W.JOHHIiOOU 


CRIME,  PUNISHMENT ...  AND  THEN  WHAT? 


Attorney  General  Janet  Reno 
has  made  her  position  on 
crime  perfectly  clear.  "We 
cannot  respond  to  violence  with 
demagogic  promises  to  build  more 
jails  and  put  all  the  criminals  away." 
she  told  Justice  Department 
employees  at  their  first  meeting  with 
their  new  boss.  Since  making  that 
speech.  Reno  has  asked  for  a  review 
of  federal  laws  imposing  mandatory 
minimum  sentences  for  more  than 
100  crimes — mostly  gun  and  dnig- 
related  offenses. 

Reno  is  no  softie  on  crime.  Her 
prberam  has  a  simple  theme,  pre- 
sumably supponed  by  most  people: 
Arrest  the  bad  guys  who  hurt  peo- 
ple. Put  ihem  in  prison.  Keep  the  thugs  there  for  a  long,  long 
time. 

OK.  but  what's  the  best  way  to  accomplish  that?  It's  a  ques- 
tion that  has  kept  criminal  justice  e.xperts  flush  with  federal 
grants  for  years.  During  the  past  12  years  of  Republican  Admin- 
istrations, the  government  spent  billions  building  prisons  and 
locked  away  as  many  people  as  possible.  But  Reno  argues  that 
prisons  are  jammed  with  the  wrong  people. 

In  New  York,  two  senior  federal  judges  have  refused  to  hear 
drug  cases  because  they  object  to  laws  forcing  them  to  send  first- 
time  offenders  to  jail.  Horror  stories  abound.  A  California  mari- 
juana farmer  gets  a  mandatory  life  sentence  in  federal  prison 
although  he  has  no  previous  cnminal  record.  The  latest  batch  of 
statistics  from  the  Bureau  of  Justice  Statistics  in  Renos  depart- 
ment reveals  that  almost  a  third  of  the  people  sent  to  prison  in 
IWO  were  drug  offenders,  up  from  1  l.i  per  cent  in  1977. 

But  those  figures  tell  only  part  of  the  slor\'.  The  e.xplosion  in 
the  prison  population  predated  the  increase  in  drug-related 
crime.  Tougher  gun  control  laws,  a  crackdown  on  white-collar 
crime  and  a  surge  in  charges  for  driving  while  intoxicated  fueled 
a  decade  of  growth  in  state  and  federal  prison  populations. 

Criminal  defendants  are  much  likelier  to  sene  time  behind 
bars  than  they  used  to  be.  From  1473-89.  arrests  climbed  76.5 
per  cent,  but  the  number  of  people  sentenced  to  prison  soared 
221  per  cent,  according  to  a  study  released  this  month  by  the 
U.S.  Advisory  Commission  on  Intergovernmental  Relations 
(ACIR).  A  higher  rate  of  prosecution  for  people  arrested,  as 
well  as  longer  sentences  for  those  convicted,  accounted  for 
almost  rwo-thirds  of  the  increase  In  the  prison  population  dur- 
ing the  past  two  decades,  the  study  said. 

.Although  drug  prosecutions  have  swelled  the  prison  popula- 
tion, drug  offenders  are  a  relatively  small  percentage  of 
inmates.  In  fact,  according  to  the  Bureau  of  Justice  Statistics 
publication  Prisons  anil  Prisoners  in  ihc  L'nncil  Siincs.  most  peo- 
ple in  state  prisiins  in  1991  were  exactly  the  sort  of  dangerous 
felons  that  most  people  want  incarcerated.  Only  7  per  cent  were 
nonviolent,  first-lime  offenders  and  only  a  fourth  of  them  were 
convicted  of  drug  offenses.  Meanwhile.  h(l  per  cent  were  serving 
or  had  served  time  for  violent  crimes.  .Another  .^.i  per  cent  were 
perpetrators  ol  nonviolent  crimes  but  had  been  behind  bars 
hetorc — and  half  of  this  group  was  in  prison  tor  at  least  the 
fourth  limc. 


Washington  lawyer  Paul  J.  McNul- 
ty,  a  Justice  official  in  the  Bush 
Administration  who  is  now  the  exec- 
utive director  of  an  anci-crime  group, 
the  First  Freedom  Coalition,  con- 
tends that  federal  prisoners  are  even 
more  violent  than  most  slate  inmates 
are.  The  number  of  nonviolent  pris- 
oners that  could  safely  be  released  is 
minuscule,  he  said.  "Janet-  Reno 
describes  a  mythical  prisoner."  Even 
nonviolent  drug  offenders  are  partic- 
I  ipants  in  an  activity  that  has  made 
z  some  cities  a  war  zone.  McNulty 
<  added. 

S      Vivian  E.  Watts,  author  of  the 
i  ACIR  study,  cautioned  in  an  inter- 
view that  it  is  not  realistic  to  expect 
that  large  numbers  of  inmates  can  be  released.  But  even  a  10 
per  cent  reduction  would  let  states  save  money  by  closing  some 
facilities,  she  said. 

Even  if  Reno  is  misguided  in  her  criticism  of  mandatory  mini- 
mum sentences,  the  Republicans  didn't  succeed  in  quelling  pub- 
lic concern  over  violent  crime  either. 

And  crime  fighters  in  both  Administrations  have  largely 
ignored  a  key  part  of  the  criminal  justice  system  that  might  help 
address  the  problem  of  repeat  offenders.  Parole  and  probation 
programs  have  not  shared  in  the  windfall  of  tax  dollars  that  the 
rest  of  the  system  has  received.  The  ACIR  study  noted  that  the 
number  of  parole  and  probation  perv)nnei  has  increased  only  half 
as  much  as  has  the  number  of  people  they  must  ovei^e.  With  bt- 
tle  supervision,  a  huge  number  of  convicted  felons,  many  with 
drug  problems  left  untreated  during  their  incarceration,  end  up  in 
prison.  The  number  of  people  locked  up  each  year  after  violating 
their  parole  or  probation  has  soared  69 1  per  cent  since  1974. 

Cnminal  justice  experts  say  that  the  parole  and  probation  sys- 
tem does  not  allow  close  enough  scrutiny  of  criminals  and  does 
not  otfer  enough  services  that  might  prevent  them  from  getting 
into  trouble  again. 

Tougher  supervision  of  parolees  and  probationers,  combined 
with  relatively  inexpensive  drug  treatment  programs  in  prisons, 
could  reduce  crime.  Convicted  felons  typically  meet  with  their 
parole  and  probation  officers  once  a  month  or  less,  leaving 
ample  time  for  straying.  What  they  need  is  the  intimidation  fac- 
tor, said  Mark  A.R.  Kleiman.  a  drug  policy  e.xpen  at  Harvard 
University.  At  a  recent  Urban  Institute  conference.  Kleiman 
said  the  system  needs  to  offer  swift  automatic  punishment. 
Although  cnminals  know  that  they  will  have  to  go  to  prison  if 
they  are  caught  violating  their  probation  or  parole,  they're 
supervised  so  loosely  that  they're  tempted  to  take  the  risk,  he 
said.  "That  s  no  way  to  train  a  puppy. " 

Kleiman.  usually  a  pessimist  when  it  comes  to  drugs  and 
crime,  estimated  that  twice-a-week  drug  testing  for  parolees  and 
probationers,  combined  with  short  jail  terms  for  those  who  flunk 
the  test,  would  cost  S2.5(K)  per  person  a  year,  or  S5  billion  annu- 
ally. But  the  result  would  be  drastic  reduction  in  cocaine  and 
heroin  consumption,  plus  much  lower  prison  costs.  Best  of  all. 
Kleiman  ^Jid.  the  program  could  reduce  drug  sales  and  the 
attendant  violence.  Even  hard-liners  and  softies  might  agree  on 
this  solution.  ■ 


1894  \  ATlONAl.JOl.RNAl 


'  :4  '<• 


8 

Mr,  Mazzoli.  And  it  deals  with  some  of  the  statistics,  indicating 
that  even  at  the  State  level  the  people  who  are  primarily  in  the 
State  prisons  are  violent  offenders.  You  do  not  have  this  category 
of  people  who  are  being  exploited  and  beat  over  by  the  system  and 
worked  over  by  prosecutors  trying  to  cop  pleas  and  everything  else, 
but,  in  fact,  these  are  tJie  people  that  my  constituents  and  my  fam- 
ily want  out  of  circulation. 

And  I  thought  that  the  data  which  the  chairman  talks  about,  the 
38,000  incarcerated  people  and  the  17,000  drug  offenders,  only 
3,189  of  them  were  for  those  apocryphal  nonviolent  people  that  get 
wrapped  up  in  the  system  and  have  the  key  thrown  away  on  them. 

So,  let  me  just  conclude,  Mr.  Chairman,  by  saying  that  I  think 
it  is  very  important  to  have  these  hearings.  I  think  we  need  to  get 
data  on  the  record.  And  I  remember  just  in  the  gentleman's  hear- 
ing just  a  few  days  ago  I  asked  a  question,  and  it  was  unable  to 
be  answered  by  the  panel,  just  exactly  where  are  the  data?  What 
are  the  numbers?  Who  are  these  people?  And  our  witnesses  were 
unable  to  give  those  numbers. 

So  a  lot  of  this  I  think  again  is  apocryphal.  It  has  just  been  sort 
of  constructed.  And  I  think  it  is  important  to  get  the  absolute  num- 
bers and  to  make  sure  that  if  there  are  those  few  people,  and  I 
think  there  will  be  very,  very  few,  who  somehow  are  not  appro- 
priately in  Federal  penitentiaries  or  in  local  prisons  then  try  to 
have  tnem  somehow  released  or  have  other  kinds  of  alternative 
programs. 

But  I  think  it  would  be  folly  on  our  part  to  somehow  make 
wholesale  changes  in  a  law  which  has  in  fact  disabled  people  from 
hurting  us,  which  has  in  fact  put  people  on  ice  where  they  belong 
to  be,  sometimes  for  the  remainder  of  their  natural  life  so  that  they 
don't  maraud  and  they  don't  rape  and  pillage  through  our  streets. 

So,  Mr,  Chairman,  I  congratulate  you  for  having  these  hearings. 
They  are  very  timely,  and  I  look  forward  to  working  with  you  on 
fashioning  that  kind  of  a  finely  tuned  bill  which  may  make  certain 
changes,  but  not  the  wholesale  changes  which  have  been  rec- 
ommended. 

Mr.  ScHUMER.  I  thank  the  gentleman.  Mr.  Ramstad. 

Mr.  Ramstad.  Well,  thank  vou,  Mr.  Chairman.  It  has  been  a  long 
time  since  I  have  seen  such  harmony  on  this  committee,  and  I  too 
appreciate  your  holding  this  oversight  hearing  on  mandatory  mini- 
mums.  I  have  been  a  long-time  advocate  of  properly  targeted  man- 
datory minimums  going  back  to  my  days  in  the  Minnesota  State 
Senate  where  I  worked  to  pass  mandatory  minimums  for  violent 
career  criminals,  including  repeat  sexual  offenders  and  drug  king- 
pins with  repeat  trafficking  offenses. 

Given  that  approximately  6  percent  of  criminals  arrested  commit 
up  to  70  percent  of  today's  serious  violent  crimes,  it  is  vital  that 
we  get  career  criminals  off  the  streets  and  the  revolving  door  pris- 
on system,  and  lower  the  rate  of  recidivism.  Mandatory  minimums, 
as  has  been  said  today,  are  an  expression  of  the  public's  growing 
frustration  with  inadequate  crime  control  and  a  desire  to  send  a 
message  that  repeat  violent  criminal  behavior  will  not  be  tolerated 
by  society. 

As  I  said  to  a  group  of  Boys'  Nation  delegates  last  night — future 
leaders  of  our  country,  17-year-old  high  scnool  juniors  from  each 


State  in  the  Nation  here  in  Washington  to  learn  more  about  gov- 
ernment, prepare  themselves  to  be  future  Presidents — our  current 
President  was  once  a  Boys'  Nation  delegate — as  I  told  them,  prob- 
ably the  most  serious  question  they  will  face  is  the  crime  problem. 
That  no  civilized  society  in  the  history  of  mankind  has  ever  toler- 
ated a  woman  being  raped  on  the  average  of  every  4  minutes.  That 
our  society  cannot  continue  to  exist  as  we  know  it  if  violent  crime 
continues  to  be  out  of  control  and  if  we  don't  do  something  about 
it. 

And  obviously,  we  need  a  broader  approach  to  the  crime  problem 
than  just  mandatory  minimums  and  incarceration.  We  also  need 
more  emphasis  on  prevention,  drug  treatment,  and  education,  as  I 
think  everyone  understands. 

So  at  the  outset  of  this  hearing,  Mr.  Chairman,  with  all  due  re- 
spect to  our  colleague  from  California,  Mr.  Edwards,  I  do  not  be- 
lieve his  bill  which  abolishes  all  mandatory  minimums  is  the  cor- 
rect path  for  us  to  follow.  However,  I  do  share  the  strong  concerns 
expressed  by  law  enforcement  officials  like  Attorney  General  Reno 
about  prison  overcrowding.  But  the  solution,  in  my  judgment,  is  not 
to  let  violent  criminals  go  free  to  prey  on  more  innocent  victims. 

Like  Attorney  General  Reno,  I  am  interested  in  exploring  alter- 
native sentencing  proposals  for  nonviolent  first-time  drug  offenders 
such  as  broader  application  of  boot  camps  and  other  alternatives. 

Therefore,  Mr.  Chairman,  I  look  forward  to  the  testimony  of  our 
distinguished  panels  today  and  appreciate  your  calling  this  hear- 
ing. I  trust  that  we  will  emphasize  targeting  mandatory  minimums 
effectively. 

Thank  you,  Mr.  Chairman. 

Mr.  SCHUMER.  Thank  you,  Mr.  Ramstad.  Mr.  Sangmeister. 

Mr.  Sangmeister.  Well,  thank  you,  Mr.  Chairman.  I,  too,  appre- 
ciate your  calling  this  hearing.  Although,  after  I  hear  all  of  the 
opening  statements  here,  including  your  own,  I  am  not  quite  so 
sure  that  this  panel  is  going  to  be  that  open-minded. 

As  a  former  prosecutor,  I  think  mandatory  minimums  are  nec- 
essary and  would  certainly  support  them.  I  did  when  I  was  in  the 
Illinois  Senate.  I  can  remember  when  we  passed  a  bill  in  the  early 
1980's,  where  first-time  burglary  was  a  mandatory  2  years.  Since 
then,  we  have  seen  a  lot  of  cases  come  through  the  system.  For  ex- 
ample, some  17-  or  18-year-old  person  might  get  drunk  and  break 
into  a  house  or  some  business.  He  or  she  might  have  no  prior 
record  at  all,  not  even  a  traffic  ticket,  and  yet  there  was  no  discre- 
tion. If  you  committed  a  burglary,  and  were  charged  with  that 
crime,  the  sentence  had  to  be  the  minimum  2  years. 

Among  us  in  the  senate,  we  would  talk  about  that  bill  as  the 
years  went  by.  We  would  say:  "Gee,  did  we  really  do  the  right  thing 
when  we  did  that?"  But  I  will  tell  you  one  thing,  from  a  political 
standpoint,  there  is  no  way  you  will  ever  change  that.  They  have 
tried  in  Illinois  to  offer  bills  to  change  that,  but  politically  you 
can't.  The  people  out  there  that  we  represent — and  I  don't  blame 
them  at  all — ^have  the  mentality  that  we  should  lock  them  up  and 
send  them  away  forever.  That  is  the  attitude  we  have  out  there. 
I  think,  as  representatives  of  the  people,  we  have  to  respond  to 
that. 


10 

So,  it  may  be  beneficial  that  you  are  having  this  hearing.  How- 
ever, I  understand  it,  we  are  hearing  this  on  the  basis  of  Mr.  Ed- 
ward's bill.  Is  that  the  reason  that  we  are  having  this  hearing? 

Mr.  ScHUMER.  No.  Mr.  Edwards'  bill  is  one  which  abolishes  the 
mandatory  minimums.  I  think  we  should  explore  the  whole  issue, 
not  just  say  whether  they  should  be  abolished  or  kept  exactly 
where  they  are  now. 

Mr.  Sangmeister.  Well,  vou  certainly  have  the  people  here  to  do 
that.  You  have  a  distinguished  panel. 

My  observations  are,  however,  that  we  are  not  going  anywhere 
with  this,  but  we  ought  to  have  the  facts  out  on  the  table. 

Mr.  ScHUMER.  Thank  you,  Mr.  Sangmeister.  Mr.  Schiff. 

Mr.  Schiff.  Thank  you,  Mr.  Chairman.  Mr.  Chairman,  I  was  a 
career  criminal  prosecutor  before  being  elected  to  Congress,  and  I 
also  did  2  years  of  criminal  defense  work.  And,  as  a  result  of  all 
those  years,  I  am  in  full  agreement  with  the  movement  that  pro- 
duced something  like  sentencing  guidelines.  In  my  judgment,  crimi- 
nal sentencing  was  totally  arbitrary  in  the  courts.  By  that  I  am  not 
accusing  individual  judges  of  being  arbitrary,  but  without  any  kind 
of  basis  to  act  upon,  the  sentence  for  the  same  criminals  convicted 
of  the  same  crimes  with  the  same  background  would  be  widely  dif- 
ferent depending  upon  how  an  individual  judge  felt  that  serious 
that  crime  was.  A  judge  who  felt  that  one  crime  is  serious  would 
give  the  maximum,  another  judge  who  felt  that  same  crime — ex- 
cuse me — was  not  serious  would  give  probation. 

And  it  seems  to  me  that  the  courts  should  have  some  kind  of  col- 
lective social  framework  upon  which  to  impose  sentences.  So  I  am 
very  strongly  a  proponent  of  sentencing  guidelines. 

Now,  I  also  have  supported  mandatory  minimum  sentences. 
However,  I  have  noted  as  you  have  the  objections  that  have  been 
stated  to  mandatory  minimum  sentences,  particularly  the  objection 
that  they  themselves  create  disparity  in  sentencing.  I  mean  the  ar- 
gument for  sentencing  guidelines — we  want  to  have  sentences  more 
cohesive.  The  argument  is  that  mandatory  minimums  can  do  the 
opposite.  For  example,  a  high  ranking  person  in  drug  trafficking 
and  a,  comparatively  speaking,  low  ranking  person  in  the  same 
drug  trafficking  enterprise  can  receive  the  identical  sentence  when 
some  degree  of  fairness  suggests  that,  one,  that  the  high  ranking 
person  receive  a  heavier  sentence  than  the  person  who  is  lower 
ranking.  . 

And  I  think  because  of  these  objections  you  are  entirely  correct 
to  hold  this  hearing  today,  so  that  we  can  explore  the  objections. 
We  can  explore  what  alternatives  may  exist  to  decide  what 
changes,  if  any,  we  think  should  be  made. 

But  I  would  conclude  by  stating  that  I  am  willing  to  look  at  man- 
datory minimum  sentencing  from  the  point  of  view  for  the  offenses 
we  are  talking  about  as  to  whether  there  should  be  some  adjust- 
ment in  the  amount  of  required  prison  time.  That  is,  some  individ- 
uals in  drug  trafficking,  perhaps,  should  have  a  minimum  prison 
time  different  than  others. 

But  I  think  there  are  others  in  our  body  who  wish  to  introduce 
legislation  that  would  allow  probation,  nonprison,  for  some  of  these 
offenses  for  which  prison  is  mandatory.  I  don't  agree  with  that  at 
all.  In  fact,  I  don't  believe  that  we  should  use  the  words  nonviolent 


11 

in  the  same  phrase  in  which  we  are  referring  to  anyone  who  is  in- 
volved in  drug  trafficking. 

Drug  trafficking  is  a  very  violent  enterprise,  and  anyone  who  vol- 
untarily participates  in  that  enterprise  is  no  more  nonviolent  than 
the  individual  who  drives  the  getaway  car  from  the  scene  of  an 
armed  robbery.  That  individual  may  not  personally  carry  a  firearm 
but  that  individual  is  voluntarily  participating  in  a  violent  enter- 
prise where  people  are  killed  every  day. 

So  although  I  think  you  are  correct  that  we  should  inspect  the 
law  and  we  should  analyze  it,  if  it  needs  any  changes  I  think  the 
debate,  if  any,  should  be  over  how  long  individuals  should  be  in 
prison  compared  to  others.  The  debate  should  never  become  wheth- 
er individuals  should  spend  time  in  prison. 

Thank  you,  Mr.  Chairman.  I  yield  back. 

Mr.  SCHUMER.  Mr.  Mann. 

Mr.  Mann.  I  have  no  opening  statement,  Mr.  Chairman, 

Mr.  ScHUMER.  Mr.  Gekas. 

Mr.  Gekas.  I  thank  the  Chair.  I,  too,  go  on  the  side  of  the  draco- 
nian  approach  with  respect  to  mandatory  sentencing  and  feel  that 
they  have  a  rightful  place  in  our  judicial  system.  I  would  yearn  for 
the  day,  as  all  of  us  would,  that  we  would  need  them  no  longer. 
But  for  the  time  being  they  are  a  necessary  part  of  our  societal 
structure. 

I  remember  when  I  was  in  the  Pennsylvania  Senate  we  had 
crafted  two  very  tough  minimum  mandatory  sentences  for  felons 
using  guns  and  for  repeats,  career  criminals,  and  we  were  very 
proud  of  our  work,  and  I  presented  them  in  a  package  to  the  then 
Governor,  the  later  Attorney  General  of  the  United  States,  Dick 
Thomburgh,  and  asked  him  to  support  these  mandatory  sentences. 
He  told  me  that  he  could  not  support  them. 

Here  was  a  tough  prosecutor  from  the  Western  District  of  Penn- 
sylvania and  whose  prosecutorial  bent  was  well  known  to  everyone 
in  the  world  who  opposed  them.  Why?  He  said  I  cannot  support 
those  unless  we  accompany  them  with  additional  prison  space.  And 
he  insisted,  and  we  acquiesced,  that  we  would  run  together  on  a 
double  track  mandatory  sentences  with  the  additional  space  in  the 
Commonwealth  to  take  care  of  what — ^the  expected  prison  load  that 
that  would  create. 

My  point  in  stating  this  to  you  is  this.  That  I  will  not  very  easily 
succumb  to  the  entreaties  of  the  Attorney  General  or  anyone  else, 
our  present  Attorney  General,  that  because  our  prison  situation  is 
so  critical  that  we  ought  to  by  bits  and  pieces  begin  to  abandon  our 
mandatory  sentencing  structure.  Rather  we  ought  to  be  seeing 
what  the  Sentencing  Commission  can  do  within  the  system,  and 
where  and  if  necessary  to  go  on  the  line  as  I  did  then  and  will  do 
again  to  accord  our  society  additional  prison  space  to  get  these  peo- 
ple out  of  the  way,  if  that  is  going  to  be  the  result  of  our  continued 
effort  to  fight  crime. 

I  also  want  to  state  that  the  Sentencing  Commission,  as  I  recall, 
was  formed  substantially  because  we  wanted  to  eliminate  disparity 
in  sentencing,  as  Mr.  Schiff  has  already  articulated.  And  we  aban- 
doned parole  for  the  same  reason.  I  worry  about  the  reintroduction 
of  these  concepts  in  the  work  of  this  subcommittee  or  the  Congress 


12 

generally  if  indeed  we  are  going  to  look  at  this  whole  situation 
carefully. 

Yet,  on  the  other  hand,  I  look  at  the  Sentencing  Commission  as 
my  personal  and  our  congressional  consultants  in  this  whole  range 
of  problems,  and  I  am  looking  forward  to  their  testimony  to  deter- 
mine possibly  a  course  of  action  to  meet  some  of  these  concerns. 

I  thank  the  Chair. 

Mr.  SCHUMER.  Thank  you,  Mr.  Gekas.  Mr.  Edwards  has  waived 
his  opening, 

OK  Let's  call  the  first  panel  forward.  They  are  Ms.  La  Rotonda, 
Ms.  Richardson,  and  Ms.  Stewart. 

Ms.  La  Rotonda  wasn't  here  when  we  began  the  hearing.  Is  she 
here  now?  Please  come  forward,  Ms.  La  Rotonda. 

Our  first  panel  consists  of  three  people  whose  lives  have  been  af- 
fected by  the  mandatory  minimum  sentence.  As  I  mentioned  in  my 
opening  statement,  these  are  among  the  most  egregious  cases  that 
came  before  us,  cases  that  a  safety  valve  might  be  aimed  at.  I  ap- 
preciate you  being  here. 

Ms.  Joanne  La  Rotonda's  son  was  convicted  of  participation  in  a 
large  drug  deal.  He  is  currently  serving  a  mandatory  10-year  sen- 
tence. 

Ms.  Nicole  Richardson  is  herself  a  prisoner,  currently  serving  a 
mandatory  minimum  sentence  at  Alderson  Federal  Prison. 

And  Ms.  Julie  Stewart  is  president  and  founder  of  Families 
Against  Mandatory  Minimums,  a  national  organization  of  17,000 
citizens  working  to  repeal  mandatory  sentencing.  Ms.  Stewart 
founded  the  organization  in  March  1991  after  her  brother  was  sen- 
tenced to  5  years  in  Federal  prison  for  growing  marijuana. 

I  want  to  thank  each  of  you  for  testifying  this  morning.  Your  pre- 
pared remarks  will  be  read,  without  objection,  into  the  record  in 
their  entirety,  and  each  of  you  will  have  5  minutes  for  your  presen- 
tation. 

We  will  start  with  Ms.  La  Rotonda.  Then  Ms.  Richardson.  Then 
Ms.  Stewart. 

Ms.  La  Rotonda,  you  may  begin. 

Ms.  La  Rotonda.  That  is  OK. 

STATEMENT  OF  JOANNE  LA  ROTONDA,  FLUSfflNG,  NY 

Ms.  La  Rotonda.  Good  morning.  Before  I  start,  I  would  like  to 
first  thank  Congressman  Schumer  and 

Mr.  Schumer.  Ms.  La  Rotonda,  if  you  could  just  pull  the  micro- 
phone a  little  more  closely  to  you.  It  is  a  crowded  room  today.  I 
want  everyone  to  hear. 

Ms.  La  Rotonda.  Good  morning.  Before  I  start,  I  would  like  to 
first  thank  Congressman  Schumer  and  Mr.  Dan  Cunningham. 
Thank  you. 

As  the  sentencing  minutes  clearly  stated,  my  son  was  a  minimal 
participant  in  a  large  drug  deal.  Influenced  by  the  promise  of 
$2,000  by  a  childhood  friend,  my  son  went  along.  Although  he  knew 
it  was  drugs,  he  did  not  know  the  amount,  and  the  amount  was 
never  mentioned  to  him.  Also,  these  meetings  were  going  on 
months  prior  to  my  son  being  there  that  night.  For  that  one  night 
my  son  received  10  years  and  his  so-called  friend  received  5,  for 


13 

which  he  will  be  released  in  about  4  months  and  my  son  will  still 
have  5V2  years  to  go  without  parole. 

A  brief  background.  Mark's  father  died  in  1984  from  an  overdose 
of  medicine.  He  had  a  muscle  disease.  Between  the  pain  and  de- 
pression, he  committed  suicide.  But  before  he  died  he  made  sure 
to  destroy  all  we  had.  Besides  the  clothes  and  a  12-inch  black  and 
white  TV,  we  began  to  continue  with  our  lives  with  nothing.  Little 
by  little,  I  was  able  to  start  buying  furniture,  et  cetera. 

Mark  left  school  to  go  to  work.  He  wanted  to  help  me.  He  re- 
ceived his  G.E.D.  and  was  accepted  into  the  electricians'  union. 
Mark  had  excellent  reports  from  his  employer  and  also  with  the 
union.  One  mistake  and  his  whole  young  life  is  to  be  spent  incar- 
cerated. 

I  love  my  son  very  much,  and  because  I  know  that  he  has  been 
unjustly  sentenced,  I  will  continue  to  fight  for  his  freedom. 

From  the  sentencing  minutes — on  page  15,  line  2,  the  judge  stat- 
ed, "Now,  as  far  as  I  am  concerned,  this  defendant  really  had  noth- 
ing to  do  with  this  crime."  How  then  can  someone  who  is  totally 
involved  get  5  years  and  someone  who  had  nothing  to  do  with  it 
get  10? 

Page  24,  Hne  21:  "The  court's  hands  are  tied.  The  court  believes 
that  the  defendant  should  be  sentenced  to  less  than  10  years."  Why 
is  the  judge  there  if  he  cannot  sentence  a  person  according  to  his 
involvement? 

The  (Jovemment  stated,  page  8,  line  1,  "The  Government  does 
not  object  to  Mr.  La  Rotonda  being  deemed  a  minimal  participant." 
My  son  made  a  terrible  mistake.  He  acknowledges  this  already. 
But  to  receive  10  years  for  a  first  offense,  nonviolent  crime,  I  ask 
you  is  this  a  just  sentence?  I  think  not. 

It  costs  an  average  of  $700  per  week,  with  the  final  cost  after  8V2 
years  of  $400,000,  to  keep  my  son  in  a  camp.  This  amount  does  not 
include  seven  transfers  within  2V2  years,  which  I  know  is  costly 
also.  Every  day  I  read  the  paper,  and  occasionally  I  read  how  the 
prisons  are  overcrowded  and  violent  criminals  are  being  released  to 
make  room  for  nonviolent  offenses.  What  is  happening  to  our  jus- 
tice system?  The  scales  of  justice  are  being  tripped  in  the  wrong 
way.  People  should  be  punished,  but  let  the  punishment  fit  the 
crime. 

Last,  but  by  far  not  least,  if  changes  are  to  be  made  in  whatever 
form,  reform  must  be  retroactive,  or  thousands  of  people,  like  my 
son,  will  be  lost  forever.  I  urge  you  as  Members  of  Congress  to  re- 
peal mandatory  minimum  sentences. 

Sincerely  I  thank  you  for  the  opportunity  to  speak  here  today. 

Mr.  ScHUMER.  Thank  you,  Ms.  La  Rotonda. 

Ms.  La  Rotonda.  Thank  you. 

Mr.  ScHUMER.  Ms.  Richardson. 

STATEMENT  OF  NICOLE  RICHARDSON,  ALDERSON  FEDERAL 

PRISON 

Ms.  Richardson.  My  name  is  Nicole  Richardson  and  I  am  21 
years  old. 

Mr.  ScHUMER.  If  you  could  again,  Ms.  Richardson.  We  want  to 
make  sure  everyone  can  hear  what  you  have  to  say. 


14 

Ms.  Richardson.  My  name  is  Nicole  Richardson  and  I  am  21 
years  old.  I  am  a  first  offender,  and  I  am  serving  10  years  in  prison 
for  a  drug  conspiracy. 

I  am  in  prison  because  I  dated  a  drug  dealer  and  on  a  few  occa- 
sions I  was  in  the  car  when  he  would  make  a  transaction.  And 
what  mainly  is  the  conspiracy  of  my  charge  is  a  telephone  call  of 
someone  wanting  to  know  where  my  boyfriend  was  and  relating  to 

a  drug  deal. 

Mr.  ScHUMER.  That  wasn't  because  of  you,  Ms.  Richardson. 

Ms.  Richardson.  And  everyone  got  indicted  and  got  charged, 
and  my  boyfriend  did  before  me.  And  I  went  to  trial  because  I 
didn't  feel  that  I  was  guilty  because  I  never  bought  or  sold  any- 
thing to  anybody. 

And  I  was  found  guilty  at  my  trial.  Everyone  that  was  in  my  case 
was  brought  in  to  testify  against  me,  and  because  of  their  testi- 
mony they  got  larger  breaks  on  sentence  reductions.  Three  people 
are  out  on  the  street  right  now.  They  found  me  a  minor  partici- 
pant, and  they  dropped  my  guidelines  4  points.  I  still  got  10  years. 
The  most  that  was  given  in  my  case  was  5  years. 

Mr.  ScHUMER.  Thank  you,  Ms.  Richardson. 

Ms.  Stewart. 

STATEMENT  OF  JULIE  STEWART,  PRESIDENT,  FAMILIES 
AGAINST  MANDATORY  MINIMUMS 

Ms.  Stewart.  Good  morning.  Chairman  Schumer,  and  thank  you 
for  inviting  me  to  be  here  today. 

Afler  listening  to  your  opening  statements,  I  sincerely  hope  your 
minds  are  open,  because  this  is  not  such  a  cut  and  dried  problem. 
And  I  want  to  make  it  clear  that  we  are  not  talking  about  either 
putting  people  in  prison  under  mandatory  sentences  for  drug  of- 
fenses or  letting  them  out.  That  is  not  the  choice  here,  and  I  hope 
that  our  contributions  and  the  ones  you  will  hear  afterwards  make 
that  clear, 

I  don't  have  any  problem  with  prison.  My  brother  is  in  prison  for 
5  years  for  growing  marijuana,  and  I  have  no  problem  with  the  fact 
that  he  went  to  prison.  It  has  been  the  best  thing  that  happened 
to  him  that  he  got  arrested  and  that  he  went  to  prison.  It  was  the 
wake-up  call  that  he  needed.  And  I  hear  this  from  parents  all  over 
the  country  all  the  time.  But  1  year  in  prison  would  have  been 
enough  to  punish  and  rehabilitate  my  brother. 

So  our  objection  here  is  not  to  say  we  don't  like  prison  or  don't 
put  these  drug  offenders  in  prison.  The  question  is,  what  sentence 
is  appropriate  for  the  crime?  And  do  mandatory  minimum  sen- 
tences let  judges  take  into  account  the  things  that  are  needed  to 
determine  what  the  appropriate  sentence  is? 

I  am  really  speaking  here  on  behalf  of  FAMM's  17,000  members 
whose  voices  are  never  heard  in  these  chambers,  but  whose  voices 
need  to  be  heard  in  this  chamber.  We  want  to  help  the  members 
of  this  subcommittee  understand  how  these  laws  are  manipulated 
to  maximize  the  sentence  len^h  that  a  defendant  will  get. 

I  am  not  saying  that  the  intention  of  Congress  was  bad  in  the 
1980's  when  these  laws  were  made.  I  think  that  the  Members  of 
Congress  were  responding  to  a  -necessary  need  and  I  understand 
where  they  came  from,  and  the  idea  of  putting  drug  kingpins  and 


15 

major  dmg  offenders  away  is  fine.  But  as  you  have  heard  fi-om  Ni- 
cole's testimony  and  Joanne's  already,  we  don't  always  get  just  the 
kingpin.  And,  in  fact,  mandatory  minimum  sentences  prevent  a 
judge  or  anyone  from  being  able  to  determine  and  discriminate  be- 
tween who  is  the  kingpin,  who  is  the  mule,  who  is  the  addict,  and 
then  determine  the  appropriate  sentence. 

Mandatory  minimum  laws  create  such  a  simple  black  and  white 
sentencing  scheme  that  they  cannot  really  accommodate  the  veiy 
complex  circumstances  of  each  case  or  the  motives  of  each  individ- 
ual, and  those  are  the  sorts  of  factors  that  we  have  taken  into  ac- 
count for  200  years  in  this  country  under  the  criminal  justice  sys- 
tem that  we  have  been  very  proud  of. 

My  brother's  case  is  a  perfect  example  of  a  typical  drug  offense 
that  receives  a  mandatory  minimum  sentence.  He  was  growing 
marijuana  with  three  of  his  friends — two  of  his  friends.  The  friends 
were  living  in  the  house  where  the  marijuana  was  growing.  When 
they  were  arrested  they  turned  my  brother  in.  Both  of  them  had 
prior  felony  convictions.  In  exchange  for  their  testimony,  they  both 
got  probation.  My  brother,  who  was  a  first  offender,  got  the  5  years 
without  parole.  He  has  done  3  years  of  his  sentence  already  in  pris- 
on. 

But  another  aspect  of  his  case  is  also  very  important,  and  this 
is  driven  by  mandatory  minimum  sentences.  There  was  no  reason 
his  case  should  have  gone  into  Federal  court.  He  was  arrested  by 
local  authorities.  He  never  crossed  State  lines.  There  was  no  reason 
that  the  Federal  Grovemment  needed  to  be  involved  in  his  case. 

The  only  reason  he  is  in  Federal  prison  today  is  because  the 
prosecutors  knew  that  he  would  get  a  longer  sentence  under  Fed- 
eral laws  than  he  would  under  State  laws.  Chief  Justice  Rehnquist 
recently  voiced  a  similar  opinion  at  the  Sentencing  Commission 
conference  when  he  stated  that  "Federal  laws  often  provide  stricter 
sentences  for  drug  possession  and  distribution  than  their  State 
counterparts,  so  State  and  Federal  prosecutors  funnel  more  and 
more  of  their  drug  cases  into  Federal  courts."  Or  if  you  want  it  in 
Ross  Perot's  lingo,  that  "giant  sucking  sound"  you  hear  is  all  of  the 
State  drug  cases  being  pulled  into  the  Federal  courts  because  of 
mandatory  minimum  sentences. 

But  where  a  case  ends  up  is  just  one  of  the  ways  that  mandatory 
minimum  sentences  manipulate  the  length  of  the  sentence  the  de- 
fendant will  get.  There  are  others;  for  instance,  the  schoolyard  of- 
fense. If  you  sell  drugs  within  1,000  feet  of  a  schoolyard.  Now  that 
sounds  like  a  very  good  law.  Of  course,  we  want  to  get  people  who 
are  selling  drugs  to  children. 

But  what  happens  if  the  undercover  agent  sets  the  buy  up  within 
1,000  feet  of  a  schoolyard  because  he  knows  it  will  give  you  an  en- 
hanced sentence?  What  happens  if  the  school  is  a  mail-order  Bible 
school  that  is  located  on  the  third-floor  walk-up  between  two  tav- 
erns? Or  what  happens  if  you  live  within  1,000  feet  of  a  schoolyard 
and  you  are  using  the  drugs  in  your  own  house? 

Those  are  the  sorts  of  things  that  in  practice  the  laws  do  affect. 
I  mean  when  you  make  these  laws  here  you  have  one  thing  in 
mind.  But  what  happens  when  they  actually  get  on  the  street  is 
a  very  different  issue. 


16 

Crack  cocaine  sentences  do  have  many  flaws,  as  Chairman  Schu- 
mer  has  already  pointed  out.  I  think  that  the  biggest  problem  is 
that  the  sentence  for  crack  cocaine  is  one  hundred  times  greater 
than  that  for  powdered  cocaine,  and  that  disparity  is  racist  in  its 
application  and  lends  itself  to  being  manipulated  by  unscrupulous 
law  enforcement  officers. 

For  instance,  in  New  York  last  year  the  DEA  arranged  a  cocaine 
buy  from  Miguel  Rosario.  After  Miguel  delivered  the  1  kilo  of  pow- 
dered cocaine  to  the  undercover  officers,  they  said,  "Oh,  no.  We 
wanted  it  in  crack  form."  And  he  said,  "Well,  I  don't  know  how  to 
make  crack  cocaine."  And  they  said,  "Well,  here.  We  will  show 
you."  So  they  showed  him  how  to  make  the  crack  cocaine.  He 
cooked  it,  and  after  he  cooked  it,  they  arrested  him.  Now  he  is  sit- 
ting in  prison  for  12  vears  because  of  the  weight  of  the  crack  co- 
caine. If  he  had  been  busted  with  the  1  kilo  of  powered  cocaine,  he 
would  have  been  doing  closer  to  5  years. 

The  crack  cocaine  law  also  has  some  very  serious  racial  over- 
tones, simply  because  99  percent  of  the  people  who  are  arrested  for 
crack  cocaine  are  black.  It  is  very  troubling  that  we  are  sentencing 
so  much  more  severely,  those  who  use  crack  cocaine  than  those 
who  use  powdered  cocaine.  That  is  not  an  issue  I  want  to  get  into 
in  detail  today,  but  I  think  it  is  something  that  this  committee 
should  look  at  much  more  in  depth. 

I  know  that  talking  about  guns  is  sort  of  a  taboo  subject  on  the 
Hill,  but  I  am  going  to  mention  it  simply  because  I  think  it  is  an- 
other example  of  how  mandatory  minimum  sentences  manipulate 
the  sentence  that  the  defendant  will  get — ^how  they  are  used  as  a 
manipulative  tool. 

The  Armed  Career  Criminal  Act  requires  a  15-year  mandatory 
minimum  for  felons  in  possession  of  a  firearm.  Again,  it  sounds  like 
a  very  good  law.  We  don't  want  felons  out  there  shooting  people — 
you  know,  using  guns  again.  But  what  happens  if  the  gun  is  not 
being  used  in  any  sort  of  crime? 

For  instance.  Bill  Keagle  from  Texas,  from  El  Paso,  had  four 
prior  felony  convictions  back  in  1978  and  1979  when  he  was  17 
years  old.  In  1990  when  he  was  30-something  he  was  married  and 
had  two  children.  He  took  two  hunting  guns  that  he  had  bought 
from  a  friend  to  shoot  doves  with.  He  took  them  to  a  pawnshop  to 
pawn  them  because  he  needed  the  money.  The  police  in  El  Paso 
ran  a  routine  check  of  the  pawnshop  transaction  and  found  out 
that  he  was  a  felon  who  was  in  possession  of  these  firearms.  They 
turned  his  case  over  to  BATF  and  now  Bill  Keagle  is  sitting  in  Fed,- 
eral  prison  under  the  Armed  Career  Criminal  Act. 

Congressman  Schumer  has  already  mentioned  cases  where  the 
DEA  actually  asks  someone  to  bring  a  gun  to  the  drug  transaction 
and  then  when  they  bust  him,  he  gets  time  for  the  gun  as  well  as 
time  for  the  drugs.  That  is  how  the  mandatory  minimums  are  ma- 
nipulated. 

There  are  lots  of  extreme  cases.  I  could  go  on  and  on.  I  will  give 
you  one  more,  just  to  show  you  the  extreme  to  which  these  laws 
are  being  misapplied. 

It  is  the  case  of  Gary  Scott  and  his  brother  Wayne.  These  two 
brothers  were  counterfeiting  Disney  World  tickets — and  selling 
them  to  a  supplier.  Disney  World  found  out  about  it  and  was  in- 


17 

censed  and  alerted  the  law  enforcement  agencies.  The  DEA  actu- 
ally found  the  supplier,  which  was  probably  not  that  hard  to  do, 
and  they  said,  "We  would  like  to  buy  1,500  tickets  from  you,"  and 
so  the  supplier  said,  "Fine." 

And  he  went  to  the  Scott  brothers  and  they  did  this  deal,  so  the 
DEA  could  have  arrested  them  after  that  transaction  for  counter- 
feiting the  Disney  World  tickets.  Instead  the  agents  came  back  to 
the  supplier  and  said,  "Well,  now  we  would  like  to  buy  5,000  Dis- 
ney World  tickets  from  you,  but  we  don't  want  to  pay  cash.  We 
want  to  pay  in  cocaine.  And  the  supplier  said,  "Well,  the  Scott 
brothers  only  want  cash.  They  don't  want  cocaine.  And  I  don't  real- 
ly know  how  to  turn  this  cocaine  into  cash  to  give  to  them."  And 
the  DEA  agent  said,  "Well,  don't  worry.  If  you  can't  get  rid  of  it 
we  will  help  you  get  rid  of  it." 

So,  of  course,  tney  do  this  transaction,  and  the  supplier  and  the 
two  Scott  brothers  get  arrested.  Miraculously,  the  supplier,  some- 
how his  case  was  dropped,  although  he  had  three  or  four  prior  fel- 
ony convictions.  But  the  two  Scott  brothers  are  now  in  prison  for 
10  years  each  under  the  cocaine  conspiracy  mandatory  minimum. 

If  they  had  been  busted  after  the  first  transaction  that  did  not 
involve  drugs,  they  each  would  have  gotten  14  months  in  prison. 
There  was  no  need  to  introduce  drugs  into  that  transaction. 

So  with  the  exception  of  the  last  case  I  have  cited,  these  are  very 
typical  examples  of  the  cases  we  have — more  than  7,000  cases  in 
our  office.  I  know  you  say  you  can't  find  very  many  good  ones.  I 
know  I  supplied  your  subcommittee  staff  with  some  cases  that  I 
thought  were  very  good.  The  problem  is  that  "good"  is  very  relative. 

What  I  am  saying  is  none  of  these  people  are  choirboys.  My 
brother  broke  the  law.  He  deserves  to  go  to  prison.  I  don't  have  any 
problem  with  that.  These  two  both  broke  the  law.  They  need — 
there  are  people  who  need  to  go  prison. 

Nicole  may  need  to  go  to  prison,  but  the  point  is  for  how  long? 
And  should  Members  of  Congress  be  micromanaging  the  judges  so 
that  they  have  no  discretion?  Or  should  Congress  allow  the  judges 
to  use  the  discretion  that  is  available  to  them  in  the  guidelines  and 
try  to  fit  an  appropriate  sentence? 

Finally,  I  don't  believe  that  there  is  any  safety  valve  that  prop- 
erly addresses  the  many  problems  caused  by  mandatory  minimum 
sentences.  I  think  that  they  create  a  systemic  problem  that  infects 
the  entire  criminal  justice  system  from  the  arresting  officer  to  the 
prosecutor  to  the  defendant,  the  judge,  the  court  docket,  the  prison 
population,  and  no  minor  adjustment  is  going  to  address  all  of 
those  inequities. 

I  do  support  Congressman  Edwards'  bill — I  am  sure  that  comes 
as  no  surprise  to  most  of  you  here— because  I  think  that  if  Con- 
gress wants  to  see  the  punishment  be  swift  and  certain  and  free 
of  horror  stories  we  have  to  get  rid  of  mandatory  minimum  sen- 
tences. We  have  to  allow  the  guidelines  to  work  free  from  the  dis- 
torting influence  of  mandatory  minimums,  and  they  have  never 
been  allowed  to  do  that  from  their  inception.  The  guidelines  have 
been  tinkered  with  and  altered  because  of  mandatory  minimum 
sentences. 

But  having  said  that,  if  I  had  to  accept  some  kind  of  safety  valve, 
the  only  one  that  I  would  accept  would  be  for  nonviolent  first  of- 


18 

fenders  to  be  completely  exempt  from  any  mandatory  minimum 
sentence. 

I  think  that  is  pretty  much  all  I  have  to  say.  I  just  want  to  make 
it  clear  that  we  don't  oppose  prison.  We  just  want  the  punishment 
to  fit  the  crime.  Thank  you  for  letting  me  have  my  say  here  today. 

[The  prepared  statement  of  Ms.  Stewart  follows:] 

Prepared  Statement  of  Juue  Stewart,  President,  Families  Against 

Mandatory  Minimums 

Good  morning,  Chairman  Schumer  and  members  of  the  subcommittee.  Thank  you 
for  inviting  me  to  speak  to  you  during  this  oversight  hearing  on  mandatory  mini- 
mum sentences. 

Youll  hear  from  a  number  of  criminal  justice  experts  today,  who  will  argue  the 
pros  and  cons  of  mandatory  minimum  sentences.  My  role  here,  as  a  lay  person,  is 
to  help  you  better  understand  WHO  is  going  to  prison  under  the  current  mandatory 
sentencing  laws  and  HOW  these  laws  are  manipulated  to  maximize  sentences  fo- 
minor  drug  offenders. 

My  interest  in  this  issue  started  as  a  personal  one.  In  February  of  1990,  my  only 
brother,  Jeff,  was  arrested  for  growing  marijuana  with  some  friends.  The  marijuana 
was  growing  in  a  house  that  he  owned,  but  the  friends  lived  in.  When  JefTs  friends 
were  arrested  at  the  house  with  the  marijuana,  they  gave  the  police  JefTs  name. 
As  a  result  of  their  cooperation,  they  both  received  probation,  even  though  both  of 
them  had  prior  felony  convictions.  My  brother,  a  first  offender,  received  a  five  year 
mandatory  minimum  sentence,  without  parole.  He  has  now  served  nearly  three 
years  in  prison. 

When  Jeff  was  arrested  and  told  me  what  sentence  he  faced,  I  was  incredulous. 
It  made  no  sense  to  me  that  a  nonviolent,  first  offender  would  receive  five  years 
for  his  offense.  I  didn't  object  to  him  being  punished,  or  going  to  prison,  but  I  did 
object  to  the  length  of  the  sentence.  I  began  to  research  the  laws  that  required  Jeff 
to  sit  in  prison  Tor  five  years,  and  found  that  they  originated  from  this  very  sub- 
committee, during  a  period  of  heightened  drug  hysteria  in  the  mid-1980's. 

I  believe  the  intention  of  the  members  of  Congress  was  good;  to  lock  up  major 
drug  traffickers  and  kingpins,  but  the  method  was  wrong.  Mandatory  minimum  sen- 
tences don't  discriminate  between  the  drug  kingpin,  the  mule,  or  the  addict.  Cul- 
pability no  longer  matters.  Length  of  the  defendant's  involvement  in  the  crime, 
aoesn't  matter.  There  are  only  two  variables  that  a  judge  can  consider  at  sentenc- 
ing— the  type  of  drug  and  its  weight.  This  simple  black  and  white  sentencing 
scheme  cannot  accommodate  the  complex  circumstances  of  each  case  or  the  motives 
of  each  individual. 

I  understand  how  good  these  sentences  sound  when  you're  creating  them  and  vot- 
ing for  them.  But  what  happens  to  them  once  they  leave  Washington?  Let  me  give 
you  some  examples  of  how  mandatory  minimum  laws  are  applied  m  the  real  world. 

My  brother's  case  is  perfect  example  of  a  typical  drug  offense  that  receives  a  five- 
year  mandatory  minimum  sentence.  He  was  guilty  of  growing  375  marijuana  plants 
and  the  estimated  weight  of  those  plants,  called  for  a  sentence  of  5  years.  But  an- 
other aspect  of  JefTs  case  is  also  typical — that  it  should  never  have  gone  into  federal 
court. 

He  was  arrested  by  the  local  police.  His  crime  did  not  involve  interstate  traffic. 
His  case  is  in  the  federal  system  only  because  the  prosecutors  knew  that  he  would 
do  more  time  under  federal  laws,  than  in  the  state  of  Washington.  As  Chief  Justice 
Rehnquist  recently  remarked,  "federal  laws  often  provide  stricter  sentences  for  drug 
possession  and  distribution  than  their  state  counterparts,  [so]  state  and  federal 
prosecutors  funnel  more  and  more  of  their  drug  cases  into  federal  courts."  Or  to  put 
it  in  Ross  Perot's  lingo,  that  "giant  sucking  sound"  you  hear  are  all  of  the  state  drug 
cases  being  sucked  into  federal  courts  by  mandatory  minimum  sentences. 

Where  a  case  ends  iip,  is  just  one  of  the  ways  that  mandatory  minimum  sentences 
are  manipulated  to  effect  sentence  length.  There  are  many  more.  The  mandatory 
minimum  sentence  for  selling  drugs  within  1000  feet  of  a  school  sounds  like  a  good 
law.  But  what  happens  if  the  undercover  agents  set-up  the  buy  within  1000  feet  of 
a  school,  or  the  school  happens  to  be  a  mail-order  bible  school  located  on  the  third 
floor  of  a  building  between  two  taverns,  or  you  live  999  feet  from  a  school  yard?  As 
Jim  Miller,  Timothy  Pharr,  Huey  Johnson,  and  others  defendants  have  found  out, 
you  still  get  the  enhanced  sentence. 

The  crack  cocaine  mandatory  minimum  sentence  calls  for  a  sentence  100  times 
greater  than  that  for  powdered  cocaine.  This  provision  is  also  susceptible  to  manipu- 
lation by  unscrupulous  law  enforcement  officers  bent  on  maximizing  punishment.  At 


19 

the  time  the  law  was  passed,  crack  cocaine  was  a  new  problem  in  our  inner  cities 
and  policymakers  wanted  to  stop  it.  However,  when  DEA  agents  arrested  Miguel 
Rosa  Rio  in  New  York  last  year,  I  doubt  they  were  focused  on  inner  city  decay.  After 
delivering  powder  cocaine  to  undercover  DEA  agents,  Miguel  was  instructed  by  them 
to  turn  it  into  crack  cocaine.  They  even  showed  him  how  to  do  it,  because  he  didn't 
know  how.  After  making  the  powder  into  crack,  he  was  arrested.  He's  now  serving 
12  years  in  prison. 

The  crack  cocaine  law  also  has  serious  racial  overtones  because  it  is  overwhelm- 
ingly appHed  to  blacks,  who  predominantly  use  crack.  I  hope  this  subconmiittee  will 
soon,  ii  not  now,  consider  eliminating  the  disparity  in  crack  and  powder  cocaine  sen- 
tences. 

I  know  that  talking  about  mandatory  minimum  sentences  for  gun  offenses  is  kind 
of  taboo,  but  I  think  it's  important  for  you  to  know  how  these  mandatory  minimums 
are  also  applied. 

The  Armed  Career  Criminal  Act  (ACCA),  which  requires  a  15  year  mandatory 
minimum  for  a  felon  in  possession  of  a  firearm,  again  sounds  good  on  its  face.  But 
ask  Bill  Keagle  from  Texas  why  he's  sitting  in  prison  today.  He  had  four  prior  felo- 
nies for  unarmed  robbery  in  1978  &  1979  at  age  17.  By  1990,  he  was  married  with 
two  children  to  care  for.  He  took  two  hunting  guns  (a  shot  gun  and  a  rifle  that  he 
had  bought  from  a  friend  to  shoot  doves)  to  a  pawn  shop  because  he  needed  the 
money.  The  El  Paso  police  ran  a  routine  check  on  the  pawn  shop  transaction  and 
discovered  he  was  a  felon.  Keagle  is  now  in  prison  under  the  Armed  Career  Crimi- 
nal Act. 

Another  Texan,  23-year-old  Timothy  Evans  was  encouraged  by  the  DEA  who  had 
set  up  a  buy,  to  bring  a  gun  along  for  his  nrotection.  When  he  arrived  at  the  pre- 
arranged location,  the  DEA  first  showed  Timothy  how  to  use  the  chemicals  tney 
were  selling  him  to  make  methamphetamines.  After  mixing  the  chemicals,  they  ar- 
rested him.  He  is  now  serving  nve  years  for  the  gun  and  five  years  for  the 
methamphetamines. 

Probably  the  most  bizarre  example  of  the  abuse  of  mandatory  minimum  sentences 
is  the  case  of  Gary  Scott  and  his  orother,  Wayne.  The  Scott  brothers  were  counter- 
feiting Disney  World  tickets  and  selling  them  to  a  supplier.  Disney  World  alerted 
various  law  enforcement  agencies  and  soon  the  ticket  supplier  was  found.  The  un- 
dercover DEA  agent  told  the  supplier  he  wanted  some  tickets  but  could  only  pay 
him  in  cocaine.  The  supplier  knew  that  the  Scott  brothers  only  wanted  cash  for  the 
tickets,  so  he  wasn't  very  interested.  He  even  told  the  DEA  that  he  didn't  know  how 
to  convert  the  cocaine  into  cash  to  pay  Gary  and  Wayne,  so  the  DEA  agent  offered 
to  sell  the  cocaine  for  him  if  he  had  any  trouble  getting  rid  of  it.  After  the  trans- 
action, they  arrested  the  supplier  and  the  Scott  brothers.  Oddly,  the  DEA  dropped 
charges  against  the  supplier  but  sentenced  the  Scott  brothers  to  10  years  eacn  in 
prison  for  a  cocaine  conspiracy.  Had  they  arrested  them  for  merely  counterfeiting, 
the  brothers  would  have  done  about  14  months  each  in  prison. 

With  the  exception  of  the  last  case  I've  cited,  these  are  very  typical  examples  of 
the  7,000  cases  we  have  in  my  office.  None  of  these  people  are  choir  boys,  and  all 
deserve  to  be  punished  for  their  illegal  activities.  But  for  how  long,  and  who  should 
decide?  Should  Congress  micro  manage  judges,  or  should  they  be  allowed  to  use  the 
discretion  available  to  them  under  the  sentencing  guidelines? 

I  don't  believe  that  there  is  any  "safety  valve"  that  can  correct  the  many  abuses 
caused  by  mandatory  minimum  sentencing.  The  problem  is  a  systemic  one  that  in- 
fects the  entire  criminal  justice  system,  from  the  arresting  officer,  to  the  prosecutor, 
to  the  defendant,  the  judge,  the  court  docket,  and  the  prison  population.  No  minor 
adjustment  can  adequately  address  all  of  these  problems. 

I  fully  support  Cfongressman  Edwards'  bill,  the  Sentencing  Uniformity  Act  of 
1993.  If  the  members  of  Congress  want  to  see  punishment  be  swift  and  certain  and 
free  of  "Tiorror  stories,"  mandatory  minimum  sentences  must  be  eliminated.  We  need 
to  allow  the  sentencing  guidelines  to  work  unfettered  by  the  conflicting  mission  of 
mandatory  minimum  sentencing  laws.  The  guidelines  are  not  perfect,  but  they're 
the  only  realistic  and  effective  alternative  we  have  to  mandatory  minimum  sentenc- 
ing and  we  need  to  give  them  a  chance  to  work. 

If  I  had  to  accept  some  kind  of  "safety  valve"  short  of  the  abolition  of  mandatory 
minimums,  the  only  one  I'd  accept  is  one  that  would  exempt  nonviolent,  first  offend- 
ers from  mandatory  minimum  sentences.  But  as  I've  already  made  clear,  that  would 
serve  as  only  a  partial  remedy  to  the  many  problems  inherent  in  mandatoiy  mini- 
mum sentences. 

As  a  final  note,  I  want  to  stress  that  I  don't  oppose  prison  sentences.  What  hap- 
pened to  my  brother,  Jeff,  was  in  some  ways  the  best  thing  that  could  have  hap- 
fiened — it  was  the  wake  up  call  he  needed  to  get  his  life  on  track  again.  I  hear  this 
rom  parents  all  over  the  country.  Families  Against  Mandatory  Minimums  does  not 


20 

oppose  prison  punishments,  we  simply  want  the  punishment  to  fit  the  crime.  Thank 
you. 

MANDATORY  MINIMUM  CASES 
from  the  FAMM  Foundation  files 


Michael  Irish  is  a  44  year-old  carpenter  from  Portland,  Oregon,  married  with  two  children.  He 
is  serving  a  12  year  sentence  for  conspiracy  to  import  hashish.    First  offense. 

Michael's  role  in  this  crime  was  to  unload  hashish  from  a  boat  to  a  truck.  He  was 
unaware  of  the  operation  until  72  hours  before  he  unloaded  the  hashish.  That's  when  the 
captain  of  the  boat  asked  him  if  he  would  like  to  work  for  "three  hours  for  as  much  money 
as  you  would  earn  in  a  year."  Michael's  wife  had  cancer  two  years  earlier  and  her 
treatment  wiped  them  out  financially.  Knowing  that  his  family  needed  the  money,  Michael 
agreed  to  unload  the  boat  load  of  hashish.  His  three  hours  of  work  are  now  costing  him 
12  years  of  bis  life. 


Nicole  Richardson  is  a  20  year-old  from  Mobile,  Alabama,  serving  a  10  year  mandatory 
minimum  sentence  for  an  LSD  offense.    First  offense. 

Nicole  was  a  senior  in  highschool  when  she  fell  in  lave  with  Jeff,  a  small  time  dealer 
at  a  local  bar.  When  Jeff  was  arrested  ,  Nichole  was  charged  with  conspiracy  to  distnbute 
LSD.  Her  crime  was  telling  an  informant  in  a  taped  phone  conversation,  where  to  find  her 
boyfriend  to  finalize  an  LSD  sale.  Because  she  had  no  information  to  trade  for  a  reduction 
in  sentence,  she  is  sitting  in  prison  for  ten  years.  Her  boyfriend  cooperated  with  the 
prosecutor  and  reduced  his  sentence  to  5  years. 


Marvin  McCoy  is  a  homeless,  drug  addict  from  Portland,  Oregon.  He  is  serving  a  15  year 
sentence  for  aiding  and  abetting  one  crack  cocaine  transaction  involving  22  grams.  First 
offense. 

Marvin  was  befriended  by  a  government  informant  who  was  paid  thousands  of 
dollars  to  go  to  Portland  and  mingle  with  the  black  community  and  portray  himself  as  a 
drug  dealer.  He  provided  Marvin  with  drinks,  drugs,  meals,  and  asked  him  to  introduce 
him  to  cocaine  sellers.  Marvin  made  some  introductions  for  him  and  his  involvement, 
though  minor,  cost  him  IS  years  of  his  life. 


Mark  Youn^  is  a  42  year-old  from  Indiana,  serving  a  mandatory  minimum  sentence  of  life 
without  parole  for  his  third  drug  offense. 

When  Mark  was  20  and  22,  he  was  convicted  of  two  minor  drug  offenses:  trying  to 
get  a  false  prescription  filled  for  someone  else,  and  possession  of  quantities  of  quaaludes. 
Twenty  years  later  he  was  convicted  on  a  marijuana  conspiracy.  Mark  falls  into  the  "three 
time  loser"  category  and  although  he  is  a  nonviolent  offender,  he  is  now  serving  his  life 
sentence  at  the  most  violent  prison  in  the  federal  system-Leavenworth. 


21 


Patricia  Williams  is  serving  a  ten  year  mandatory  minimum  sentence  for  possession  of  120 
grams  of  heroine.    First  offense. 

Patricia  was  a  heroine  addict  whose  family  died  15  years  ago  leaving  her  with  a 
sizeable  esute.  For  two  years  before  she  was  arrested,  a  paid  informant  followed  her 
waiting  until  she  bought  some  heroine.  The  informant  had  a  written  contract  guaranteeing 
her  a  percentage  of  assets  seized  from  Patricia's  arrest  After  her  Arrest,  Patricia  was 
offered  a  substantially  reduced  sentence  if  she  would  testify  against  one  particular  person. 
She  knew  the  person,  but  he  had  not  been  involved  in  her  drug  offense  so  she  refused  to 
testify  against  him.  Patricia  asks,  "How  many  cooperators  with  a  better  grasp  of  their  own 
self  interest  provide  the  carefully  coached  and  solicited  lie?  In  this  way  how  many  barely 
guilty,  or  at  times  innocent,  people  serve  long  sentences?"  Among  the  assets  seized  from 
Patricia  was  a  fiiUy-oocupied  apartment  building  in  Manhattan  that  she  had  purchased  with 
her  inheritance  13  years  prior  to  her  arrest  and  in  which  she  never  lived. 


O.  Maffett  Pound  is  a  52  year  old  from  Mississippi,  who  a  serving  a  20  year  mandatory 
minimiun  sentence  under  the  career  criminal  eruerprise  law.   First  offense. 

For  20  years,  Matfet  owned  and  ran  a  lake-side  resort  in  Mississippi,  where  he  lived 
with  his  wife  and  kids.  Between  1986  and  1989,  he  purchased  approximately  300  pounds 
of  marijuana  for  his  consumption  and  to  sell  to  friends.  He  was  arrested  after  one  of  his 
buyers  was  arrested  and  turned  him  in.  The  buyer  had  a  previous  felony  record  and 
admitted  in  court  that  he  had  sold  drugs  for  15  years.  In  exchange  for  his  testimony,  the 
buyer  was  given  immunity  and  allowed  to  keep  his  assets.  Maffet  was  considered  a  career 
criminal  because  his  offense  occurred  over  several  years,  so  he  received  the  mandatory  20 
year  sentence.  Maffet's  wife  was  sentenced  to  5  years  in  prison  for  knowing  about  his 
activities  and  not  turning  him  in.  She  did  not  smoke  marijuana. 


Keith  Edwards  is  a  20  year  old  from  New  York,  serving  a  10  year  mandatory  minimum 
sentence  for  possession  with  intent  to  distribute  more  than  SO  grams  of  crack  cocaine.  First 
offense. 

When  Keith  was  19  years  old,  he  sold  crack  cocaine  to  a  paid  informant.  The 
transaction  was  observed  by  numerous  law  enforcement  officials.  Instead  of  arresting  Keith 
after  the  first  buy,  they  set  up  four  more  buys  from  him,  one  within  1000  feet  of  a  school. 
After  Keith  sold  the  informant  a  combined  total  of  more  than  50  grams  of  crack  cocaine, 
he  was  arrested.  The  combined  weight  of  50  grams  of  crack,  forced  the  judge  to  give  Keith 
a  ten  year  mandatory  minimum  sentence. 


22 

FAMM  FACTS 


PRISON  OVERCROWDINO 


*  Id  1992.  America  bad  12  oiillioo  people  behind  ban.  The  United  Sutes  imprisons  more  of  iu  dtizens  per 
capiu  than  any  other  country  in  the  world.  Per  100,000  people,  the  United  Sutes  imprisons  433,  with  South 
Africa  in  second  place  with  311.  In  other  words,  one  in  every  300  Americans  is  in  prison-not  jail,  probation. 

or  parole-but  in  prison.  (Tht  Smumteuif  Pnfa.  Amtncam  BthuU  Ban:  Ojm  Yur  Lour.  1992) 

*  From  1980  to  January  1993,  the  federal  prison  population  grew  by  57,000  inmates-from  24.000  to  81.000. 
At  the  current  rate  of  incarceration,  by  1993  the  federal  prison  population  will  reach  100,470,  and  by  the  year 
2000  there  will  be  136,980  people  in  federal  prisons.  (Bunm  af/uaut  Siaaaia.  Sourabook  I99i.  p.  679) 

*  Convictions  for  federal  drug  offenses  increased  213  percent  between  1980  and  1990.  (BwwmefJumetStmimeM. 

NmoHMi  Updai*.  Jamurj  1992.  p.6) 

*  Drug  offenders  currently  make  up  57  percent  of  the  federal  inmate  population,  up  from  22  percent  in  1980. 
By  1995.  nearly  70  percent  of  federal  inmates  will  be  drug  offenders.  (Ttawmmf  by  famm  bop  imav.  /  Uiekad 

QumlsK.  pvmi  at  ftbnutff  26,  1992  to  Haut  Apfnfnanom*  Sitheammiam) 

*  In  1990.  more  than  half  of  the  federal  inmates  serving  mandatory  minimum  sentences  were  first  offenders. 

(Bunmt  ofJumc*  Staama,  Sctuniook  1991.  p.J42) 

*  Average  federal  sentences  in  1990  for  the  following  offenses  werr. 

Drugs  offenses:  6.5  years.  Sa  offenses:  5.8  years.  Manslaughter  3.6  years.  Assault:  3.2  years.  (BwmafJuak* 
SiaOMKt .  Sotmtbock  1991.  p.332) 


EXCESSIVE  TAXPAYER  COSTS 

*  The  average  cost  of  incarcerating  a  federal  prisoner  is  $20,072  per  year,  or  approximately  $55  per  day. 

(Suiwmi  of  Pruani.  Stan  of  Of  Bitnm  1991.  Summm  1992) 

*  To  house,  feed,  clothe,  and  guard  the  81.000  federal  inmates,  taxpayers  pay  a  hefty  S4J  million  oerdav  or 
$1.6  biUioB  per  year. 

*  At  the  sute  level,  taxpayers  cover  incarceration  cosu  as  high  as  $6.8  million  per  day  in  California  where 
over  100.000  people  are  behind  bats  at  an  average  of  $25,000  per  inmate  per  year.  (Th*  OtUhmim  iui^Mk.  Jul, 

1991.  p.9) 

*  Sutes  spend  more  of  their  budgeu  on  justice  programs  (6.4%)  than  on  housing  and  the  environment  (3.8%) 
and  nearly  as  much  as  they  spend  on  hospitals  and  health  care  (8.9%)  {B-nm  afiumc,  Sianma.  Jumct  LamUium 

AEmvimmmi.  1990.  Sfi.  1992) 

*  The  federal  drug  program  budget  for  FY  1993  was  $12  billion.  (OffUt  ef  Nma-i  On«  Oxmoi  Fatcft 

*  Federal  spending  for  corrections  increased  44  percent  between  1989  and  1992.  from  $1J  billion  to  2.2 
billion  per  year.  (U.S.  Bii4imFf9X  rmt  i.  p.i9ti 

*  The  Bureau  of  Prisons'  authorized  budgets  increased  U50  percent  between  1982  and  FY  1993.  from  $97.9 

million  to  $1.42  billion  per  year.  (Ntacnai  Dnf  Ommd  Sim^r  Bttdgm  Summary.  1991  p.2I2) 

*  It  cosu  more  to  send  a  person  to  federal  prison  for  four  years  than  it  does  to  send  him  lo  a  private 
university  (tuition,  fees,  room,  board,  books  &  supplies)  for  four  years.  (Souom.  ftdmaJ  Bunm,  of  Phjou.  ThtCoO^ 

Board) 

*  Figures  are  not  yet  available  for  the  tax  revenue  bss  from  former  tax-paying  inmates,  or  the  increased  cost 
of  social  servKes  needed  by  uimates'  families  that  were  previously  supported  by  the  inmate. 


23 


PRISON  CYCLE 

Statistics  show  that  people  who  have  been  in  prison  are  more  likely  to  have  children  who  will  end  up  ia 
prison.   Lx>ng  oundaiory  prison  sentences  are  sowing  the  seeds  for  the  next  generation  of  inmates. 

*  More  than  half  of  the  juveniles  in  state  and  local  jails  have  an  immediate  family  member  who  is  a  felon. 

*  More  than  one-third  of  the  adults  in  state  prisons  and  local  jails  have  an  immediate  family  member  who 
is  a  felon. 

*  Relative  to  the  general  population,  inmates  are  more  than  twice  as  likely  to  grow  up  in  a  single  parent 
family.   Seventy  percent  of  juvenile  o£fenders  and  52  percent  of  adult  offenders  bad  one,  or  no,  parent 

(Sonrctt:  Bwmm  af/uaUt  StMBia.  Sunn  of  Youih  in  Cuaody  1987.  PnHlt  of  Jail  Inmma  1999.  Sufvtv  of  Inmaitt  in  Slait  Cofncnonat 
Faaiaa  l9B6.i 

PUBLIC  ATnrUDES 

*  toward  crime:  61%  prefer  attacking  social  problems,  32%  want  more  prisons  &  law  enforcement. 

*  toward  purpose  of  prison:  48%  think  it  should  rehabilitate,  38%  think  it  should  punish. 

*  toward  spending  more  money  tt  effort  in  fight  against  illegal  drugs:  40%  prefer  teaching  the  young,  28% 
work  with  fore^  govenuneats,  19%  arrest  sellers,  4%  help  overcome  addiction,  4%  arrest  users. 

(Sauna:  Bunau  of  Juaict  Simmcs  Sourabook  1991.  ppJOl  210,  243) 

VS.  SENIENCING  OCHMMISSION  FINDINGS  ON  MANDATORY  MINIMUMS 

*  Sentencing  power  has  been  transferred  from  the  courts  to  the  prosecutors.  The  Commission  reports  that, 
'Since  the  charging  and  plea  negotiation  processes  are  neither  open  to  public  review  nor  generally  reviewable 
by  the  courts,  the  honesty  and  truth  in  sentencing  intended  by  the  guidelines  system  is  compromised* 

*  Mandatory  minimum  sentences  create  disparities  based  on  race.  Blacks  and  Hispanics  are  charged  with 
and  receive  mandatory  minimum  sentences  more  often  than  whites.  The  Sentencing  Commission  reports  that 
this  racial  disparity  'reflecu  the  very  kind  of  disparity  and  discrimination  that  the  Sentencing  Reform 
Act...was  designed  to  reduce.'  For  defendants  arrested  for  similiar  crimes.  Blacks  receive  mandatory 
minimum  sentences  68  percent  of  the  time;  Hispanics  57  percent  of  the  time:  and  Whites,  54  percent  of  the 
time. 

Crack  cocaine  sentences  also  cause  race-based  disparities.  These  sentences  are  100  times  greater  than 
those  for  powder  cocaine.  Possession  of  5.01  grams  of  crack,  results  in  a  five  year  sentence.  It  takes  500 
grams  of  powder  cocaine  to  get  a  five  year  sentence.  In  1992,  92.6  percent  of  all  defendants  sentenced  for 
federal  crack  cocaiae  offenses  were  Black.  All  of  the  defendants  sentenced  for  possession  of  crack  were 
Black. 

*  Mandatory  minimuins  are  ineffective-km  level  participants  receive  mandatory  minimums  more  often  than 
top  level  kingpins.  Street-level  participants  receive  mandatory  minimums  70  percent  of  the  time:  mid-level 
62  percent  of  the  time:  and  top-level  importers,  60  percent  of  the  time. 

*  Mandatory  minimums  create  'diffis'  in  sentencing  based  on  small  differences  in  weight  Possession  of  5.0 
grams  of  cocaine  requires  a  sentence  of  up  to  one  year,  but  possession  of  5.01  grams  of  cocaine  requires  a 
sentence  of  alleast  five  years. 

{Souictc  U.S.  Stnumeu^  Commuatm  Rtpoft  lo  Congrta  an  ManJatary  Muiiimim  Stnumea. 
Aufut  1991.  and  US.  Sammcuig  Comimmat  Mcmaav^  Dau  Filu.  Afni  1  ■  hi/  1992) 


24 


COMPARATIVE  OFFENSES 

Keep  in  mind:  Federal  guidelines  equate  one  marijuana  plant  to  one  kilo  (22  pounds)  of  marijuana, 
regardless  of  the  size  of  the  plant  at  arrest  In  LSD  cases,  the  guidelines  include  the  weight  of  the  paper,  or 
the  sugarcube.  or  the  orange  juice  in  which  the  LSD  is  mixed,  to  determine  the  total  drug  weight  on  which 
scntencug  is  based. 

Level  24:   4J  years  to  5 J  years 

S80  mfllinn  worth  of  larceojr,  embeslemenl,  other  foraa  of  theft.  Kkhupping  ihAminn,  nnlawfiil  rrlnint 

176  pounds  of  marijuana.  800  mg.  of  LSD.  400  grams  (less  than  1  lb.)  of  cocaine  powder. 

Level  26:  5  J  years  to  6.6  years 

Robbery  with  life-threatening  injury. 

220  pounds  of  manjuana,  1  gram  (half  the  weight  of  one  dime)  of  LSD,  500  grams  (a  little  over  1  lb.)  of 

cocaine. 


Level  28:  6.6  years  to  a  8.1  years 

Coiupiracy  or  aoUdtatJon  of  murder. 

880  pounds  of  marijuana.  4  grams  (almost  the  weight  of  2  dimes)  of  LSD,  8.7  pounds  of  cocaine  powder. 

Level  30:   8.1  years  to  10.1  years 

Kidnapping,  abduction,  oalawful  re«nuat  whta  raimo  dwiiand 

1540  pounds  of  marijuana.  7  grams  (a  little  over  3  dimes  weight)  of  LSD,  8.7  pounds  of  cocaine  powder. 

Level  38:    19.6  yean  to  24.4  years 

Selling  or  baying  of  childrea  fornae  in  the  pradnctioa  of  pomognpfay. 

66,000  pounds  of  marijuana.  300  grams  (approz.  3/4  lb.)  of  LSD,  330  pounds  of  cocaine  powder. 

(SotiKt:  as.  S*nim»eu^  Commumm  GttiJtIutm  HmmaL  Noomtbtr  1.  1992) 


SOME  ORGANIZATIONS  THAT  OPPOSE  MANDATORY  MINIMUM  SENTENCES 
The  United  Slates  Seotendng  Coannr  ana 
The  Federal  Courts  Study  ^~— '^"^ 
The  American  Bar  Aandatioa 
Each  of  the  1 1  Judicial  Coafercaoea  of  Federal  Judges 
The  National  Aasodation  of  Ciminal  Defease  Lawyers 
The  American  Civil  Liberties  Union 


25 

Mr.  SCHUMER.  OK.  Thank  you,  Ms.  Stewart.  And  I  want  to  thank 
all  three  witnesses. 

Ms.  Richardson,  I  want  to  bring  out  a  little  bit  in  your  situation. 
You  were  convicted  primarily  because  of  a  tape-recorded  telephone 
call  in  which  you  gave  a  government  informant  your  boyfriend 
Jeffs  phone  number  so  he  could,  ostensibly,  pay  Jeff  for  drugs. 

Ms.  Richardson.  Yes. 

Mr.  ScHUMER.  Why  did  you  give  him  Jeffs  number? 

Ms.  Richardson.  Afler  that  drug  deal  that  had  gone  bad  that  I 
was  in  the  car  with  him,  the  person  that  Jeff  had  got  the  drugs 
from,  he  owed  him  a  lot  of  money  and  he  didn't  have  it.  And  he 
wouldn't  take  me  home  and  he  made  me  go  with  him  over  to  his 
house.  And  when  he  threatened  me  and  my  bojdfriend  with  a  gun, 
I  was  worried  about  my  life.  My  mom  was  out  of  town  at  the  time 
and  I  didn't  have  anybody  to  turn  to.  And  so  when  he  finally  did 
call  I  was  very  interested  in  getting  him  in  touch  with  my  boy- 
friend so  nothing  would  happen  to  him  or  me. 

Mr.  ScHUMER.  Now,  aside  from  that  phone  call,  did  you  ever  par- 
ticipate in  any  drug  transactions? 

Ms.  Richardson.  No,  sir. 

Mr.  Schumer.  And  five  of  the  codefendants  testified  you  had 
never  had  anything  to  do  with  any  drug  transaction  prior  to  that 
phone  call;  is  that  correct? 

Ms.  Richardson.  That  is  right. 

Mr.  Schumer.  To  shed  some  additional  light  on  the  egregious- 
ness  of  your  case,  I  would  now  like  to  read  into  the  record  some 
of  the  things  that  the  judge  said  about  your  case  at  sentencing.  He 
said:  "Now  I  have  before  me,  I  believe,  the  sentences  in  every,  not 
only  every  codefendant  but  everyone  that  was  involved  in  this  con- 
spiracy," and  then  he  goes  through  the  names.  John  Colgan  was 
the  most  involved,  and  Barnes  who  was  heavily  involved.  Lyle 
McGahagan  who  was  substantially  involved,  and  Jeff  Thompson 
who  was  substantially  involved.  Well,  now  Colgan  got  60  months, 
Barnes  got  24,  McGahagan  got  only  24,  Thompson  got  only  48, 
Taunton  got  only  24,  and  Michelle  Taunton  who,  from  my  limited 
experience  did  not  cooperate  with  the  Government 

Ms.  Richardson.  Right. 

Mr.  Schumer  [continuing].  Got  60  months,  5  years. 

"I  feel  that  this  would  be  a  gross  miscarriage  of  justice  to  sen- 
tence this  young  woman  to  12  years  and  7  months  without  parole 
considering  the  fact  that  all  of  the  real  factors  in  this  case,  none 
of  them — of  the  real  actors  in  this  case,  none  of  them  have  gotten 
more  than  5  years.  Some  have  cooperated  extensively  and  deserve 
it.  But  even  so,"  and  I  am  taking  excerpts  here,  "it  is  just  a  mis- 
carriage of  justice  to  pick  one  who  may  be  the  least  involved  of  all 
and  sentence  her  to  six,  over  six  times  the  time  of  William  Barnes 
and  Lyle  McGahagan.  Something  is  drastically  wrong  with  that." 
And  so  I  think  that  bears  understanding. 

OK,  Ms.  Stewart,  just  a  couple  of  questions,  and  then  one  for  the 
whole  panel.  First,  I  just  want  to  correct  you  on  a  couple  of  things. 

The  minimum  sentence  on  a  first-time  gun  offense  is  not  15 
years,  it  is  5.  The  case  you  brought  up  must  have  been  repeated 
gun  offenses. 


26 

Ms.  Stewart.  I  believe  I  said  the  Armed  Career  Criminal  Act, 
which  is  a  15-year  mandatory  minimum. 

Mr.  SCHUMER.  Only  after  repeated  violations.  The  first  one  is  5, 
I  believe. 

Ms.  Stewart.  Right.  That  is  right. 

Mr.  SCHUMER.  OK. 

Ms.  Stewart.  If  I  stated  that  incorrectly,  I  apologize. 

Mr.  Schumer.  Second,  just  one  other  fact  about  Ross  Perot  suck- 
ing everyone  into  the  system.  Ten  years  ago  before  mandatories, 
about  5  percent  of  all  the  drug  cases  were  at  the  Federal  level,  95 
percent  at  the  State  and  local.  That  is  the  same  as  today.  So  maybe 
there  is  a  change  in  the  types  of  cases,  but  the  percentage  that  are 
done  federally  versus  State  and  local  have  stayed  the  same. 

Ms.  Stewart.  You  have  those  figures? 

Mr.  Schumer.  Yes. 

Ms.  Stewart.  OK.  Well,  I  can't  address  that  because  that  is  not 
my  expertise. 

Mr.  Schumer.  Now,  my  question  to  all  three  of  you.  You  have 
brought  up  what  I  believe  is  to  be  some  truly  egregious  cases.  As 
I  have  said  before,  I  think  something  should  be  done  about  these 
kinds  of  cases.  Although  I  just  want  the  record  to  show  there  were 
375  marijuana  plants  at  Mr.  Stewart's  brother's  house. 

Ms.  Stewart.  That  is  right. 

Mr.  Schumer.  This  was  not,  you  know,  a  little  marijuana.  That 
is  a  huge  amount  of  marijuana. 

Ms.  Stewart.  I  think  again  that  is  very  relative.  But  granted  it 
is  enough  for  him  to  go  to  prison.  I  don't  doubt  that. 

Mr.  Schumer.  Right.  I  just  don't  want  anyone  to  feel  that  he  had 
a  marijuana  cigarette  in  his  pocket  or  in  his  drawer  and  got  that 
kind  of  sentence. 

But  here  is  my  question.  We  could  easily  have  had  some  egre- 
gious cases  on  the  other  side.  We  could  have  easily  had  a  mother 
of  a  child  who  was  shot  by  someone  premandatory  sentencing, 
presentencing  guidelines,  by  someone  who  was  let  out  on  probation 
by  a  judge  for  whatever  reason. 

So  why  are  you  lobbying  to  repeal  mandatory  sentences,  either 
in  one  type  of  offense  or  all,  rather  than  try  and  correct,  as  I  said, 
the  relatively  small  number  of  egregious  cases  that  exist? 

Why  is  it  the  repeal  of  all  mandatory  minimums  you  seek?  Or 
better  put,  wouldn't  a  safety  valve  better  solve  the  problem? 

Go  ahead.  You  want  to  answer  that  first,  Ms.  Stewart. 

Ms.  Stewart.  Yes,  because  I  think  that  it  is  a  very  critical  ques- 
tion and  it  is  a  good  one. 

For  one  thing,  I  just  spent  my  5  or  6  minutes  of  testimony  giving 
you  examples  of  how  mandatory  minimums  drive  the  criminal  jus- 
tice system.  It  is  not  just  a  matter  of  cases  that  have  sentences 
that  are  too  long.  The  mandatory  minimum  sentences  are  actually 
a  tool  used  by  law  enforcement  in  a  very  abusive  way.  That  is  one 
reason  I  would  like  to  see  them  gotten  rid  of 

The  other  is  that  we  don't  need  them.  We  have  guidelines.  We 
have  the  sentencing  guidelines  that  this  committee  and  the  rest  of 
the  Congress  felt  was  the  right  thing  to  do  in  1984  to  create  fair 
and  just  sentencing  that  would  eliminate  disparities,  and  then  they 


27 

were  never  given  the  chance  to  operate  unfettered,  without  manda- 
tory minimums. 

Mr.  ScHUMER.  So,  in  other  words,  you  would  support  maintain- 
ing the  guidelines  as  is? 

Ms,  Stewart.  I  certainly  do.  I  think  that  we  will  never  go  back 
to  the  days  where  we  had  no  guidelines  at  all. 

Mr.  ScHUMER.  Do  you  agree  with  that,  Ms.  La  Rotonda? 

Ms.  La  Rotonda.  I  agree. 

Mr.  ScHUMER.  And  how  about  you,  Ms.  Richardson?  Yes. 

In  a  lot  of  the  cases  you  brought  up  really  the  problem  is  not 
with  the  mandatory  sentence,  at  least  in  my  judgment,  but  with 
police  entrapment,  perhaps.  Someone  uses  a  gun  or  carries  a  lot  of 
crack  because  a  DEA  undercover  agent  told  him  to  do  that,  he  is 
still  doing  something  very  severe.  And,  if  the  police  went  overboard 
in  encouraging  the  person  to  do  it,  it  seems  to  me  we  ought  to  deal 
with  that  in  an  entrapment  setting  rather  than  blaming  the  guide- 
lines. Because  for  everyone  of  those  cases,  I  would  argue,  there 
were  probably  many  where  there  was  no  undercover  officer  present, 
and  somebody  did  the  same  thing. 

Ms.  Stewart.  Well,  I  think  that — I  have  already  forgotten  your 
question,  frankly. 

Mr.  Schumer.  Most  of  the  cases  you  have  sent  us  seem  to  me 
to  be  not  criticism  of  the  mandatory  guideline 

Ms.  Stewart.  Oh,  OK  Yes,  I  will  tell  you  why. 

Mr.  Schumer  [continuing].  But  rather  of  police  behavior — en- 
trapment. 

Ms.  Stewart.  What  you  are  just  saying  is  exactly  the  problem. 
The  judge  should  be  able  to  determine  did  this  guy  bring  this  gun 
because  the  DEA  told  him  to,  but  he  can't.  All  the  judge  can  do  is 
say,  OK,  there  is  a  gun.  I  have  got  to  give  5  years. 

AJid  you  are  a  lawyer,  I  am  not.  But  entrapment  is  very  hard  to 
prove. 

Mr.  Schumer.  OK.  Well,  then  maybe  that  is  what  ought  to  be 
changed. 

I  have  only  one  other  point  I  would  make  for  your  consideration. 
As  I  mentioned  in  my  opening  statement,  the  GAO  will  testify  that 
the  differences  between  the  minimum  mandatories  and  the  guide- 
lines are  small.  That  only  in  5  percent  of  all  the  cases  where  the 
minimum  mandatory  kicks  in  is  it  going  to  be  greater  or  would  it 
have  been  greater  than  the  guidelines  sentence. 

That  to  me,  again,  argues  that  we  should  focus  on  those  5  per- 
cent of  the  cases,  but  not  repeal  the  minimum  mandatory  for  the 
other  95  percent  where  the  guidelines,  which  you  support,  are  actu- 
ally kicking  in  a  tougher  sentence  than  the  minimum  mandatory. 

Ms.  Stewart.  I  would  just  respond  to  that  by  saying  that  the 
guidelines  are  high  because  of  the  mandatory  minimums.  That 
when  Congress  gave  the  Sentencing  Commission  the  mandatory 
minimums,  the  Commission  raised  the  guidelines  to  meet  them. 
And  so  they  are  high  because  of  the  mandatory  minimums,  again 
driven  by  them. 

One  more  thing.  Although  we  are  only  talking  about  3,189  non- 
violent first  offenders  under  your  configuration 

Mr.  Schumer.  It's  GAO's,  really.  It  is  not  mine. 


28 

Ms.  Stewart.  OK  Those  are  human  beings,  live  individuals, 
whose  lives  are  being  destroyed  for  10  years,  like  Nicole's.  They  are 
people.  They  are  not  just  a  figure,  and  I  think  it  is  very  important 
to  remember  that. 

Of  course,  it  is  hard  as  politicians  to  stand  in  front  of  the  cam- 
eras and  let  your  constituents  see  that,  gee,  you  might  be  sounding 
soft  on  criminals.  But  that  is  not  what  is  happening.  If  you  got  rid 
of  mandatory  minimums,  they  would  still  get  stiff  sentences  under 
the  guidelines.  And  those  are  human  beings  we  are  talking  about. 

Mr.  SCHUMER.  Ms.  Stewart,  I  want  to  deal  with  the  problems 
that  you  have  brought  up  and  that  is  why  we  have  this  hearing. 
But  I  don't  want  to  open  the  law  wide  open  so  that  there  will  be 
cases,  that  are  not  terribly  egregious,  that  then  don't  get  the  appro- 
priate sentence. 

Ms.  Stewart.  But  they  would  under  the  guidelines. 

Mr.  Schumer.  And  repeal  of  minimum  mandatories,  in  my  judg- 
ment, does  just  that. 

Ms.  Stewart.  OK  And  in  my  judgment,  the  guidelines  would 
take  care  of  it. 

Mr.  Schumer.  I  understand.  OK. 

Ms.  Stewart.  Thank  you. 

Mr.  Schumer.  Why  don't  we  go  vote  and  then  we  will  come  right 
back? 

So  we  are  recessed  for  10  minutes.  We  will  try  to  resume  at  20 
after. 

[Recess] 

Mr.  Schumer.  Mr.  Sensenbrenner  will  resume  the  questioning. 

Mr.  Sensenbrenner.  Thank  you  very  much,  Mr.  Chairman. 
First  of  all,  let  me  apologize  for  naving  to  leave  the  hearing  after 
my  round  of  questions.  But  Governor  Thompson  is  waxing  eloquent 
downstairs  on  the  subject  of  NAFTA,  and  this  is  kind  of  a  compul- 
sory attendance,  since  he  is  the  Grovernor  of  my  State. 

But  I  do  want  to  ask  you,  Ms.  Stewart,  you  have  given  some  pow- 
erful testimony  and  you  have  appended  to  your  testimony  a  num- 
ber of  examples  from  the  files  of  your  foundation.  And  in  reading 
those  over,  it  appears  that  an  issue  of  either  entrapment  or  abuse 
by  law  enforcement  officials  could  have  been  raised  at  trial. 

Were  those  issues  raised  at  trial  in  any  of  these  cases,  to  your 
knowledge?  And  if  so,  what  was  the  disposition  of  those  claims? 

Ms.  Stewart.  Entrapment  was  probably  raised  in  some  of  those 
cases,  because  I  do  know  that  we  get  cases  where  they  said  they 
tried  to  plead  entrapment.  But  I  am  not  a  lawyer — Congressman 
Schumer  mentioned  this  earlier,  the  entrapment  issue — but  it  is 
very  hard  to  prove  in  court.  And  you  must  be  a  lawyer,  so  you  may 
know  that  that  is  true.  But  entrapment  very  seldom  works,  unfor- 
tunately. 

Mr.  Sensenbrenner.  Well,  the  reason  entrapment  is  not  pleaded 
very  often  is  because  anyone  who  pleads  entrapment  has  to  admit 
that  he  or  she  had  done  the  crime,  but  would  not  have  done  so  if 
it  were  not  for  the  actions  of  the  law  enforcement  officials.  So  you 
are  rolling  the  dice,  and  if  you  win  you  are  off,  but  if  you  lose  you 
don't  have  any  other  leg  to  stand  on.  And  that  is  one  of  the  reasons 
why  few  criminal  defense  lawyers  use  the  entrapment  plea. 


29 

However,  more  frequently  used  is  abuse  of  discretion  by  law  en- 
forcement officials,  where  you  don't  have  to  place  your  client  at  as 
great  risk,  and  I  am  wondering  if  that  was  brought  up  at  any  of 
these  cases. 

Ms.  Stewart.  I  have  never  heard  that  referred  to  in  any  of  our 
cases. 

Mr.  Sensenbrenner.  Secondly,  and  again  this  amplifies  on  some 
of  the  questions  Mr.  Schumer  posed  to  you,  and  that  is,  with  Mr. 
Schumer's  evidence  it  appears  that  using  the  sentencing  guidelines 
would  result  in  a  higher  sentence  than  using  the  mandatory  mini- 
mums  for  those  folks  who  were  convicted  of  crimes.  How  do  you  re- 
spond to  that? 

Ms.  Stewart.  He  asked  this  question  while  you  were  absent,  and 
my  response  is  that  the  sentencing  guidelines  were  raised  to  meet 
the  mandatory  minimums  when  they  were  both  established.  That 
the  guidelines  were  actually  raised  once  Congress  gave  the  manda- 
tory minimums  to  the  Sentencing  Commission.  So  that  is  why  the 
sentencing  guidelines  are  so  high.  Again,  they  were  driven  by  the 
mandatory  minimums. 

Mr.  Sensenbrenner.  Do  you  quarrel  with  the  assertion  that  es- 
tablishing sentences  is  a  legislative  decision  rather  than  a  judicial 
decision? 

Ms.  Stewart.  No,  I  don't  quarrel  with  that.  I  quarrel  with 
micromanaging  the  judges.  I  do  think  that  the  sentencing  guide- 
lines serve  a  very  good  purpose,  and  I  think  that  that  is  the  way 
that  we  should  let  the  criminal  justice  system  work. 

Mr.  Sensenbrenner.  The  problem  is  that  the  judges  weren't 
being  managed  by  anybody  back  10  years  ago 

Ms.  Stewart.  I  realize  that. 

Mr.  Sensenbrenner  [continuing].  And  that  is  the  response  of 
Congress.  I  think  that  a  lot  of  us  who  support  the  concept  of  man- 
datory minimums  are  awful  afraid  of  the  consequences  of  what 
would  happen  if  the  judges  were  let  loose  on  their  own  again. 

Ms.  Stewart.  But  that  is  what  I  hope  that  every  one  of  the 
members  of  this  subcommittee  understands  that  the  judges  would 
not  be  let  loose  if  we  got  rid  of  mandatory  minimums.  They  would 
be  tied  to  the  sentencing  guidelines,  which  are  very  strict,  and 
most  judges  hate  them. 

Mr.  Sensenbrenner.  Yes.  Yes,  they  hate  them.  And  my  father- 
in-law  is  a  Federal  judge,  and  that  and  the  issue  of  Federal  pay 
raises  are  not  talked  at  the  dinner  table  over  there  anymore. 

Mr.  Schumer.  Which  more,  Jim? 

Mr.  Sensenbrenner.  Well,  we  have  agreed  to  disagree  on  those 
issues,  Mr.  Chairman.  But  the  point  is  that  there  are  a  number  of 
judges  that  would  love  to  be  given  the  excuse  to  declare  the  sen- 
tencing guidelines  unconstitutional,  which  would  put  us  right  back 
to  square  one  with  all  of  the  abuses  that  occurred  prior  to  1984. 

So  just  be  aware  that  we  in  Congress  are  not  arguing  this  issue 
in  a  vacuum.  We  have,  I  think,  felt  we  have  been  burned  once  by 
what  we  felt  was  judicial  indiscretion  and  which  the  majority  of  the 
American  people  thought  was  judicial  indiscretion,  where  people 
who  were  convicted  of  the  same  crimes  got  widely  disparate  sen- 
tences. So  both  the  sentencing  guidelines  and  the  mandatory  mini- 
mums were  attempts  to  rope  our  friends  in  an  equal  and  coordinate 


30 

branch  of  government  in  a  little  bit  in  terms  of  how  they  admin- 
ister the  criminal  law  to  people  who  have  already  been  convicted 
of  crimes  by  the  jury. 

Ms.  Stewart.  I  understand  that.  I  just  want  to  reiterate  again 
that  mandatory  minimums  are  not  necessary  because  we  have  sen- 
tencing guidelines.  And  I  don't  think  there  will  ever  be  a  consensus 
to  get  rid  of  sentencing  guidelines,  so  I  don't  think  you  have  to 
worry  about  judges  with  unfettered  discretion. 

Mr.  Sensenbrenner.  I  yield  to  the  chairman. 

Mr.  SCHUMER.  If  the  gentleman  would  yield — I  have  heard  from 
a  good  number  of  judges  that  they  are  opposed  to  both  the  manda- 
tory minimums  and  the  guidelines. 

Ms.  Stewart.  No,  I  agree.  I  just  don't  think  that  the  members 
of  this  subcommittee  or  Congress  would  ever  give  judges  full  power 
again.  I  think  they  will  always  keep  their  hands  tied  somewhat, 
and  the  sentencing  guidelines  seem  to  be  the  best  way  to  do  that. 

Mr.  Sensenbrenner.  Thank  you  very  much. 

Mr.  ScHUMER.  Mr.  Edwards. 

Mr.  Edwards.  Thank  you,  Mr.  Chairman.  And  thank  you,  Mr. 
Chairman,  for  holding  these  very  important  hearings.  The  wit- 
nesses are  most  useful,  and  especially  Ms.  Stewart  who  is  very 
knowledgeable.  It  seems  to  me  that  her  point  that  the  Sentencing 
Commission  needs  oversight  is  irrefutable.  I  was  a  member  of  the 
subcommittee  that  wrote  the  bill  establishing  the  Sentencing 
Board — Commission — and  we  had  all  kinds  of  reservations  about  it. 
It  needs  overseeing,  Mr.  Chairman;  oversight,  which  it  has  not  re- 
ceived to  date,  and  I  am  delighted  that  you  are  going  to  look  at  the 
Commission  because,  as  Ms.  Stewart  said,  the  minute  they  start 
setting  sentences  they  use  the  mandatories.  And  the  consequences, 
they  are  just  horrific. 

We  built  29  new  prisons,  Federal  prisons,  since  1979,  and  they 
are  all  overcrowded  and  they  want  7  or  8  more.  A  lot  of  it  has  to 
do  with  our  drug  policies,  and  we  have  to  review  them.  I  am  going 
to  put  in  a  bill  establishing  a  commission  to  give  us  some  g^dance 
as  to  how  we  can  handle  the  drug  problem  in  this  country,  because 
I  assure  you  we  are  not  doing  a  very  good  job. 

We  have  just  recently  passed  both  South  Africa  and  Russia  in 
the  number  of  people,  proportionately,  that  we  have  locked  up  in 
prison,  and  most  of  the  new  people  in  prison  were  sentenced  under 
our  drug  statutes. 

I  think  what  you  said  is  irrefutable,  Ms.  Stewart.  That  is,  we  set 
up  with  great  respect  the  sentencing  guidelines  and  the  Commis- 
sion, and  then  we  turn  around  and  micromanage  it.  We  ought  to 
do  one  or  the  other  and  not  tell  them  what  to  do.  We  ought  to  every 
year  review  what  they  have  been  doing,  talk  to  them  and,  if  nec- 
essary, change  some  of  their  rules  and  regulations. 

It  is  very  serious  what  is  going  on  with  these  mandatory  mini- 
mums plus  the  drug  bills  and  how  Congress  behaves.  We  get  a  cri- 
sis like  the  famous  war  on  drugs  that  started  in  the  earlv  1980's 
and  any  bill  that  comes  before  the  House  or  the  Senate,  has  stiff 
penalties  for  anv  drug  offense.  I  am  surprised  we  don't  have  50- 
year  sentences  for  anybody  walking  around  with  a  joint  or  some- 
thing like  that.  That  is  what  happens.  Members  really  don't  want 


31 

to  go  home  and  say  that  they  didn't  vote  for  a  horrendous  penalty 
for  drug  use. 

We  should  be  more  civilized  than  that.  And  I  think  with  the 
quiet  study  that  this  committee  is  engaging  in  and  with  the  wis- 
dom of  all  the  members  and  the  staff,  and  especially  the  chairman, 
that  we  are  going  to  get  somewhere.  It  seems  to  me  that  your  mod- 
est suggestion  is  something  that  we  could  not  possibly  turn  down, 
which  is  that  a  first  offender,  nonviolent  offenders,  should  get  some 
very  different  treatment.  We  should  not  just  put  them  in  jail  and 
throw  the  key  away  as  we  do  now. 

So  thank  you  very  much. 

Mr.  SCHUMER.  Thank  you,  Mr.  Edwards.  Mr.  SchiflF. 

Mr.  ScHiFF.  Thank  you,  Mr.  Chairman.  Mr.  Chairman,  since  this 
panel  was  presented  to  us,  these  witnesses  were  presented  to  us  as 
examples  of  egregious  cases,  if  I  understood  the  Chair.  I  would  like 
to  ask  the  panel  members  a  little  bit  more  about  their  particular 
cases,  and  I  know  this  is  personally  difficult,  and  I  am  not  seeking 
to  retry  the  case  in  any  way,  I  just  would  like  a  little  bit  more  in- 
formation, if  I  could. 

If  I  may  begin,  Ms.  Stewart,  I  believe  that  the  individual  you  are 
referring  to  is  your  brother. 

Ms.  Stewart.  Yes,  that  is  right. 

Mr.  SCHIFF.  And  the  offense  which  resulted  in  his  conviction  re- 
sulted in  his  growing  marijuana  in  the  backyard  of  a  house  he  lived 
in  with  others. 

Ms.  Stewart.  Inside  the  house.  He  didn't  live  in,  but  his  friends 
did. 

Mr.  ScfflFF.  And  speaking  first  of  your  brother — then  I  would 
like  to  ask  about  the  others — I  assume  he  was  growing  these  for 
the  purpose  of  selling  them,  or  is  that  not  correct? 

Ms.  Stewart.  He  was  growing  the  marijuana  with  his  friends 
and  hoping  that  they  would  each  end  up  with  4  pounds  of  mari- 
juana once  they  had  harvested  it.  He  would  have  smoked  way  too 
much  of  it  himself  and  he  would  have  sold  some  to  his  friends  as 
well.  He  was  35  at  the  time  of  his  arrest. 

Mr.  SCHIFF.  Had  he  done  this  previously?  Had  he  completed  a 
crop,  so  to  speak? 

Ms.  Stewart.  No,  he  never  had.  He  had  been  smoking  marijuana 
on  and  off  since  high  school. 

Mr.  SCHIFF.  But  this,  he  never  completed,  that  you  know  of,  an 
actual  crop? 

Ms.  Stewart.  He  never  was  engaged  in  growing  it  before. 

Mr.  SCHIFF.  Ms.  Richardson,  I  would  like  to  come  back  and — I 
am  sorry.  Pardon  me,  Ms.  Stewart.  Can  I  just  come  back  a  second? 
I  apologize. 

There  were  two  others,  I  believe,  involved  and  they  got  different 
sentences  than  your  brother  did? 

Ms.  Stewart.  They  got  probation  because  they  turned  him  in. 
There  was  actually  a  fourth  person  who  set  the  lights  up  in  the 
house,  and  he  received  a  sentence  of  23  months,  24  months,  some- 
thing. 

Mr.  SCHIFF,  Ms.  Richardson,  you  say  that  your  involvement  was 
participating  in  one  phone  conversation,  is  that  right? 

Ms.  Richardson.  Yes. 


32 

Mr.  ScraFF.  Would  you  tell  us  again  exactly  what  that  phone 
conversation  was? 

Ms.  Richardson.  OK.  When  I  told  you  before  that  I  was  in  the 
car  when  he  made  one  of  his  transactions,  the  transaction  went 
bad,  he  didn't  bring  the  money  back.  Mv  boyfriend  told  me  what 
he  had  done  and  how  much  he  owed  and  who  he  owed  me  to,  and 
then  he  took  me  to  his  house  and  he  threatened  his  life  and  my 
life  if  we  didn't  get  the  money  back. 

So  about  4  days  later  the  guy  that  owed  JeflF  the  money  calls  my 
house  and  he  wants  to  know  where  my  boyfriend  is.  Well,  by  this 
time  this  guy  has  been  calling  my  house  and  threatening  me  and 
coming  over  there,  and  I  didn't  know  what  to  do. 

Mr.  SCHIFF,  Who  owed  the  money  to  whom?  Did  your  boyfriend 
owe  the  money  or  was  he  owed  the  money? 

Ms.  Richardson.  Jeff  owed  the  money  to  the  person  he  got  it 
from. 

Mr.  SCHIFF.  Pardon  me.  Is  Jeff  your 

Ms.  Richardson.  Is  my  boyfriend,  yes.  And  someone  owed  the 
money  to  him  to  pay  to  that  guy. 

Mr.  SCHIFF.  OK. 

Ms.  Richardson.  And  when  he  called  asking 

Mr.  SCHIFF.  So  Jeff  was  not  paid  by  someone  and  therefore  still 
owed  someone  else. 

Ms.  Richardson.  Right. 

Mr.  SCHIFF.  OK.  Right.  All  right. 

Ms.  Richardson.  Right.  And  I  was  worried  for  my  life  and  my 
boyfriend's,  and  sure  I  am  going  to  give  him  the  number  as  to 
where  my  boyfriend  was.  And  I  had  asked  him  what  had  happened. 

Mr.  SCHIFF.  This  was  4  days  later? 

Ms.  Richardson.  It  is  about  3  days  later.  Two  or  three  days. 

Mr.  SCHIFF.  And  other  people  who  were  in  that  situation,  how 
were  they  sentenced,  compared  with  your  own? 

Ms.  Richardson.  I  was  found  a  minor  participant,  and  it  was 
proven  throughout  my  trial  that  no  one  ever  bought  anything  from 
me  and  I  never  sold  anything  to  anyone,  never  carried  drugs  for 
the  conspiracy,  anything  like  that.  The  major  players  in  the  case — 
let's  see — two  that  were  my  boyfriend  on  this  little  ladder,  they  got 
5  years.  My  boyfriend,  who  was  under  them,  got  4  years.  The  first 
people  that  got  busted,  that  turned  in  my  boyfriend,  got  2  years. 

Mr.  SCHIFF.  How  much  time  did  you  receive? 

Ms.  Richardson.  Ten  years. 

Mr.  Schiff.  So  you  got  the  most  sentence,  incarceration  of  every- 
one involved? 

Ms.  Richardson.  Exactly. 

Mr.  Schiff.  Thank  you.  Ms.  La  Rotonda,  your  statement  about 
your  brother 

Ms.  La  Rotonda.  My  son. 

Mr.  Schiff.  Son.  I  beg  you — please  excuse  me.  Of  course. 

It  says  everything  except  what  exactly  he  did.  In  other  words,  it 
said  that  if  the  promise  was  $2,000  he  got  involved  as  a  minimal 
participant  in  a  large  drug  case,  exactly  what  was  he  paid  $2,000 
to  do? 

Ms.  La  Rotonda.  His  friend  asked  him  that  one  particular  night 
to  take  a  ride  into  Manhattan,  and  my  son  being  a  friend  of  his 


33 

from  childhood  said,  OK,  and  the  amount  of  $2,000  was  mentioned 
as  an  influence  to  let  him  come  with  him,  and  that  is  all  he  did. 
He  sat  in  the  car.  He  didn't  even  leave  the  car  other  than  to  let 
his  friend's  friend  know  that  he  arrived.  He  went  back  into  the  car 
and  that  was  it. 

He  wasn't  even  arrested  that  night.  He  left. 

Mr.  SCHIFF.  What  was  he  paid  $2,000  or  offered  $2,000 

Ms.  La  Rotonda.  He  would  have  been  paid  $2,000  just  to  take 
the  ride  with  his  friend.  Unfortunately,  which  is  not  brought  up  be- 
cause we  did  not  go  to  trial,  his  friend's  father  owned  an  import- 
export  business  and  he  was  well-to-do.  And  through  my  son's  child- 
hood, kindergarten,  first,  second  and  third  grade,  et  cetera,  we 
weren't  capable  of,  unfortunately,  buying  everything  for  my  son,  so 
his  friend  would  offer  to  buy  him  a  pair  of  sneakers  or  take  him 
to  a  movie  or  whatever. 

So,  even  though  the  money  was  mentioned,  my  son  was  more  or 
less  doing  a  favor,  also.  He  did  know  it  was  drugs.  Unfortunately, 
he  had  no  idea  the  amount.  It  was  4.9  kilos  of  heroin  and  I  don't 
think — and  I  know  my  son  would  have  never  went  for  no  amount 
of  money. 

Mr.  SCHIFF.  And  the  other  participants  were  also  sentenced;  is 
that  right? 

Ms.  La  Rotonda.  The  informant  received  nothing.  His  friend  re- 
ceived 5  years.  My  son  did  get  10  years.  And  the  major  Colombians 
involved  did  get  15. 

Mr.  SCHIFF.  All  right.  Mr.  Chairman,  before  I  yield  back  I  would 
like  to  make  two  brief  observations.  The  first  is  a  common  thread 
here  remains  that  all  of  the  individuals  involved  voluntarily  par- 
ticipated in  some  way  in  drug  trafficking,  and  therefore  are  legiti- 
mately susceptible  to  serving  time  in  prison,  I  think. 

However,  there  is  one  other  aspect  of  this  that  I  think  has  been 
pointed  out  by  all  three  of  these  witnesses,  and  that  is — and  I 
think  it  is  an  extremely  significant  one  and  perhaps  a  subject  for 
another  hearing,  if  you  choose.  There  really,  no  matter  whether  one 
agrees  with  mandatory  sentences  or  doesn't  agree,  there  really  is 
no  such  thing  as  a  mandatory  sentence,  because  a  mandatory  sen- 
tence only  takes  place  if  the  prosecutor  chooses  to  charge  the  of- 
fense that  results  in  a  mandatory  sentence. 

If  someone  commits  an  offense  that  Congress  says  upon  convic- 
tion ought  to  be  a  matter  of  minimum  sentence,  if  the  prosecutors 
choose  to  make  pretrial  agreements  or  testimony  or  whatever  and 
not  make  the  charge,  then  the  prosecutors  have  eliminated  the 
mandatory  minimum  sentence. 

And  one  of  the  complaints  I  have  heard  over  and  over  again  is 
that  the  prosecutors  at  times  misuse  that  authority.  We  all  under- 
stand who  have  practiced  criminal  law  that  the  use  of  criminals  to 
testify  against  other  criminals  is  a  necessary  part  of  criminal  law 
practice.  I  never  had  a  case  like  the  old  Perry  Mason's  where  some- 
one stood  up  in  the  back  of  the  courtroom  and  confessed  55  min- 
utes after  the  program  began. 

Mr.  SCHUMER.  That  is  why  there  was  never  a  program  about 
Steve  Schiff  the  prosecutor. 

Mr.  SCHIFF.  That  is  right.  Although  I  don't  know  how  that  dis- 
trict attorney  got  reelected.  He  never  won  a  case. 


34 

Mr.  ScHUMER.  Hamilton  Burger. 

Mr.  ScHiFF.  Hamilton  Burger  never  won.  I  won  a  few  when  I  was 
a  prosecutor. 

But  here  is  the  point  I  am  making.  The  point  I  am  making  is  one 
of  the  complaints  about  mandatory  minimums  is  that  the  prosecu- 
tors misuse  the  legislation  in  the  sense  that  oftentimes  a  more 
egregious  criminal  is  used  to  testify  against  the  less  egregious 
criminal  resulting  in  the  more  serious  offender  getting  less  of  a 
sentence  because  the  charge  is  dropped.  And  what  that  suggests  is 
a  hearing  on  criminal  charging  policy  by  the  U.S.  attorney's  office. 
How  are  they  using  this  law,  since  they  can  manipulate  it? 

I  thank  you,  Mr.  Chairman,  and  I  yield  back. 

Mr.  ScHUMER.  Thank  you,  Mr.  Schiff,  once  again  for  your 
thoughtful  questions.  We  will  see  if  we  can,  within  the  docket  of 
our  busy  jurisdiction,  look  into  that. 

Mr.  Mazzoli. 

Mr.  Mazzou.  Thank  you  very  much,  Mr.  Chairman.  And  let  me 
thank  our  panel  for  coming.  I  know  this  is  not  easy  for  anyone  of 
you  to  come  forward  and  talk,  particularly  on  a  day  in  which  the 
cameras  and  the  lights  and  this  type  of  attention.  But  we  appre- 
ciate it,  because  if  we  are  going  to  do  the  right  thing,  we  want  to 
learn  of  the  egregious  cases,  as  Chairman  Schumer  has  said. 

I  would  just  make  a  few  comments  and  maybe  ask  a  question. 
One,  when  the  chairman  corrected  you,  Ms.  Stewart,  about  the 
penalties  for  using  a  gun,  you  said  that  that  is  not  your  expertise 
and  you  yielded  to  him  on  that  point.  The  first-time  offender  was 
5  years  and  only  multiple. 

I  would  just  with  great  affection  suggest  that  you  be  very  careful 
about  your  use  of  any  statistic,  because  I  think  one  of  the  big  prob- 
lems we  have  in  this  whole  affair  is  trying  to  figure  out  what  in 
fact  is  going  on,  who  is  getting  the  15-year  sentence  and  who  is, 
in  fact,  getting  the  5-year  sentence.  So  it  is  extremely  important  to 
be  very  accurate  in  what  you  are  saying  because — not  just  with  re- 
spect to  your  brother,  but  with  respect  to  the  organization  you 
head,  you  don't  want  to  be  adding  to  the  misinformation  and  the 
mythology  that  I  think  has  grown  up  around  this  subject.  You  want 
to  be  absolutely  accurate. 

So  I  would  suggest  that  in  your  statement  that  from  hence  for- 
ward that  whenever  there  is  any  reference  to  data  that  it  be  actu- 
ally tested  out. 

Ms.  Stewart.  May  I  respond  to  that? 

Mr.  Mazzoli.  Yes.  Certainly. 

Ms.  Stewart.  I,  because  I  am  nervous  and  testifying,  I  am  not 
sure  what  I  said.  But  certainly  in  my  written  statements  I  made 
it  very  clear  that  the  15-year  sentence  was  for  an  armed  career 
criminal  act  and  that  a  gun  just  at  a  drug  offense  on  a  first  time 
will  get  a  5-year  sentence.  I  am  quite  clear  on  that. 

Mr.  Mazzoli.  I  thank  you  very  much. 

Ms.  Stewart.  And  I  do  appreciate  your  comments.  I  have  also 
taken  great  caution  in  making  sure  that  we  at  FAMM  don't  mis- 
represent the  facts,  and  I  don't  believe  that  I  have  in  any  of  my 
written  statement.  If  I  said  something  in  error  orally,  I  apologize. 


35 

Mr.  Mazzoli.  Of  course,  a  career  criminal  contemplates  several 
earlier  offenses.  So  I  mean  in  that  setting  it  would  be  well  to  say 
that  there  is  a  buildup  to  that  15  years. 

But,  in  any  event,  I  just  mention  that.  Just  be  sure  that  the 
numbers  are  correct. 

I  think  in  that  setting  too,  I  believe  it  was  Ms.  La  Rotonda  men- 
tioned that — somewhere  in  your  statement,  I  believe,  that  it  is  not 
a  happy  thing  when  violent  criminals  are  released  to  make  room 
for  nonviolent  offenders.  Are  you  aware  that  is  actually  happening? 

Ms.  La  Rotonda.  I  have  seen  it  in  the  papers.  I  have  an  article 
at  home  that  states,  I  think  it  is  under  the  State,  I  might  be  incor- 
rect, that  they  are.  But  still  a  criminal,  no  matter  if  it  is  a  violent, 
they  shouldn't  be  let  out,  and  this  is  what  is  happening  under  the 
State  level.  What  is  the  difference  Federal  or  State?  To  me,  I  don't 
know.  But  I  know  if  a  violent  criminal  is  being  let  out,  a  nonviolent 
is  put  in 

Mr.  Mazzoli.  I  intend  to  ask  because  I  think  what  we  need  is 
a  collection  of  accurate  data  to  show  how  many  and  what  cases  are 
being  let  out.  I  would  say  parenthetically,  and  the  chairman  I  have 
talked  about  this  over  the  years,  and  that  is,  that  when  you  talk 
about  nonviolent  criminals,  and  here  is  a  chairman  that  sits  on  the 
Banking  Committee,  we  have  some  wonderfully  nonviolent  crimi- 
nals who  I  would  hate  to  see  let  out 

Mr.  ScHUMER.  I  am  not  on  the  Banking  Committee  any  longer, 
Mr.  Mazzoli. 

[Laughter.] 

Mr.  Mazzoli.  Let  me  rephrase,  Mr.  Chairman.  Obviously,  the 
people  that  you  all  fingered  are  the  ones  that  I  am  talking  about. 
But  the  S&L,  the  big  shot  swindlers  of  the  S&L's  and  the  bank  and 
the  desperadoes  that  have  left  Americans  in  many  cases  impover- 
ished because  of  their  messing  around  with  their  invested  money, 
and  I  would  hate  to  see  these  people  released — they  are  nonviolent. 
I  mean  they  didn't  commit  any  act  of  violence.  But  they  certainly 
have  done  something  terrible  to  American  society  and  they 
shouldn't  be  let  out  either. 

So  when  we  are  talking  about  having,  for  example,  first-time 
nonviolent  offenders  to  be  given  some  kind  of  careful  treatment  or 
even  just  a  little  pat  on  the  wrist  you  have  got  to  be  very  careful, 
because  some  of  the  first-time  nonviolent  offenders  are  the  very 
people  we  have  to  put  away  from  a  long  period  of  time  to  make  an 
example  that  just  because  you  wear  a  white  collar  instead  of  a  blue 
collar  that  somehow  you  are  going  to  be  exempted  from  it.  So  I 
think  we  have  to  look  at  it. 

And  I  would  say — Chairman  Schumer  mentioned  that  much  of 
what  has  struck  him  as  being  these  egregious  cases  have  in  part 
resulted  from,  perhaps,  prosecutorial  overreaching  or  in  some  cases 
maybe  abuse.  I  think,  Ms.  Stewart,  you  used  the  term  "unscrupu- 
lous law  enforcement  officers."  I  am  not  sure  exactly  what  you 
meant,  but  I  assume  you  meant  prosecutors  who  sometimes  manip- 
ulate or  do  this.  And  certainly  we  don't  want  to  let  that  happen. 

But,  on  the  other  hand,  I  don't  think  we  ought  to  be  too  prone 
to  change  mandatory  minimums  or  sentencing  guidelines  because 
they  are  used  mischievously  by  prosecutors.  It  gets  to  the  point 
that  we  need  to  deal  with  those  prosecutors,  clean  them  out,  give 


36 

them  orders,  make  sure  that  they  follow  the  instructions  from  their 
superiors  and  from  eventually  Washington,  but  not  necessarily  to 
change  the  guidelines  because  they  may  not  be  what  is  at  fault.  It 
may  be  just  simply  the  lack  of  the  right  kind  of  prosecutor  at  the 
local  level. 

Mr.  Chairman,  let  me  just  read  a  few  data,  and  I  would  ask  that 
they  be  verified  at  some  point,  and  that  the  chairman  allow  me  to 
put  it  in  the  record.  It  is  a  July  study,  July  1993,  issued  by  the 
U.S.  Advisory  Commission  on  Intergovernmental  Relations, 
USACIR,  dealing  with  State  prisons  in  1991 — State  prisons  1991. 

The  data  says:  Most  people  in  State  prisons  in  1991  were  exactly 
the  sort  of  dangerous  felons  that  we  think  ought  to  stay  in.  Only 
7  percent  of  those  in  State  prisons  in  1991  were  nonviolent  first- 
time  offenders.  Only  7  percent.  Only  25  percent  were  convicted  of 
drug  offenses.  Only  25  percent.  Sixty  percent  were  serving  or  had 
served  time  for  violent  crimes.  Sixty  percent  of  all  of  the  people  in 
the  prisons  at  the  State  level  in  1991  had  served  time  for  violent 
crimes.  Thirty-three  percent  of  that  group  were  nonviolent  offend- 
ers but  had  been  behind  bars  before.  They  had  been  earlier  incar- 
cerated. And  50  percent  of  that  group  was  in  prison  at  least  the 
fourth  time. 

We  made  need  to  verify  that  data  to  show  whether  it  is  accurate 
or  not,  and  note  that  is  for  State  prisons,  it  is  not  the  level — for 
Federal  prisons.  But  that  does  amplify  what  Chairman  Schumer 
has  said.  We  may  be  dealing  with  a  myth.  We  may  be  dealing  with 
a  chimera  that  has  somehow  risen  in  the  background  here,  and  we 
need  not  make  great  changes  if  we  are  not  dealing  with  that. 

Mr.  Chairman,  thank  you. 

Mr.  Schumer.  Thank  you,  Mr.  Mazzoli.  Mr.  Conyers. 

Mr.  Conyers.  Thank  you,  Mr.  Chairman.  First  of  all,  I  commend 
you  for  undertaking  this  reexamination  of  the  problem  between 
mandatories  and  the  uniform  sentencing  guidelines.  Just  between 
the  witnesses,  we  are  in  one  heck  of  a  mess  up  here,  because  in 
our  zeal  to  punish  all  these  bad  people,  as  Don  Edwards  pointed 
out,  we  seem  to  have  more  bad  people  than  any  other  country  on 
the  face  of  the  Earth.  We  have  now  conflicted  our  self  with  our  own 
laws  because  the  mandatories  supersede  the  uniform  guidelines. 
Well,  the  uniform  guidelines  were  supposed  to  create  the  level 
playing  field  that  has  been  referred  to  as  what  was  required  be- 
cause there  were  too  many  people  coming  before  "soft"  judges  that 
were  actually  taking  into  cognizance  the  facts  of  the  matter  of  each 
case,  the  unusual  circumstances,  the  background  of  the  defendant, 
and  people,  we  were  told,  were  enraged. 

Also,  it  is  very  political  to  be  tough  on  crime.  I  know  this  does 
not  come  carefully  to  your  attention,  but  politicians  love  to  brag 
about  how  much  tougher  they  are  on  crime  than  their  weak-kneed, 
sofl-bellied,  liberal  opponent  who  is  easy  on  crime  by  inference,  al- 
though he  may  be  saying  he  is  tough  on  crime  too,  and  so  we  get 
into  the  usual  bidding  war. 

"I  voted  for  15  mandatory,  new  mandatory  death  penalties  in  the 
crime  bill." 

"Oh,  is  that  all?  I  voted  for  20." 

"Well,  I  voted  for  10  others  in  another  bill  that  weren't  in  there, 
so  I  am  still  tougher  on  crime  than  you." 


37 

In  the  meantime,  crime  keeps  going  up.  Michigan  went  bankrupt 
with  a  good  Grovernor  because  we  built  so  many  State  prisons  that 
we  couldn't  even  open  them  up  after  we  had  built  them  because  we 
had  no  money  to  staff  them.  It  took  another  12  to  16  months  to 
open  up  the  prisons  that  we  busted  ourselves  in  tax  effort  trying 
to  do. 

So  the  problem  that  the  chairman  has  caused  us  to  come  to- 
gether around  is  not  only  a  serious  substantive  public  matter  about 
how  we  deal  with  crime  in  our  society,  but  it  is  also  fraught  with 
political  implications. 

Now,  what  do  we  do?  Well,  if  I  read  my  colleagues  correctly, 
what  we  are  saying  is  enough  of  the  bidding  war  game.  Let's  begin 
to  examine  this  matter  on  the  basis  of  the  efficacy  of  the  particular 
laws.  We  are  not  so  caught  up  in  our  own  arrogance  that  we  can't 
say  some  laws  do  not  work  as  well  as  other  laws,  and  we  are  going 
back  in  an  attempt — and  this  is  not  the  first  hearing  on  this,  in  an 
attempt  to  sort  these  kinds  of  considerations  out  in  a  serious  way. 
And  so  your  presence  as  witnesses  is  very,  very  important. 

In  a  previous  hearing  this  subcommittee  had  members  of  the  ju- 
diciary telling  us  what  their  experience  was  among  their  brethren 
on  the  bench,  and  it  was  very  important  to  us  because  they  were 
representing  as  officers  in  the  judicial  center,  the  Federal  judicial 
center,  they  were  representing  judges  who  tell  them  of  the  enor- 
mous problems  that  they  have  in  trying  to  just  administer  the  law 
as  we  have  told  them  what  the  law  ought  to  be. 

And  so  this  is  a  continuing  series.  It  is  very  important.  And  I 
would  like  to  ask  you  to  just  tell  me  a  little  bit  about  the  effort  of 
citizens  like  yourselves  whose  family  members  are  caught  up  in 
these  legal  tragedies  and  what  you  are  trying  to  do  about  it. 

Ms.  Stewart.  Well,  I  guess  I  will  speak  for  this  group  because 
all  three  of  us  are  members  of  Families  Against  Mandatory  Mini- 
mums  and  I  believe  we  are  the  only  organization  in  the  country 
working  to  change  these  laws. 

Our  effort  is  first  and  foremost  to  get  the  people  who  have  been 
affected  by  mandatory  minimums  to  realize  that  they  are  not  alone 
and  that  there  is  an  organization  working  to  help  them  change  the 
law,  and  to  use  their  cases — and  we  have  nearly  7,000  cases  in  our 
office  of  people  serving  mandatory  minimum  sentences — ^in  forums 
like  this  to  help  the  Members  of  the  Congress  understand  who  is, 
in  fact,  going  to  prison  under  the  mandatory  sentencing  laws,  to 
help  the  media  when  they  want  to  do,  stories  on  this  issue,  to  give 
them  examples.  Nicole's  case  was  brought  to  my  attention  by  ner 
mother  who  called  and  said  that  she  was  frantic.  Her  daughter,  her 
only  daughter  was  going  to  prison  for  10  years,  first  offense,  no 
guns  or  anything. 

I  talked  to  her  mother  and  realized  this  was  a  perfect  example, 
so  we  got  more  information  and  Nicole  agreed  to  let  us  use  her 
case,  to  publicize  it  and  to  have  her  be  here  today  to  talk  about  it. 

So  our  effort  is  really  two  pronged — to  educate  the  American 
public  so  that  they  realize  that  these  mandatory  sentences  exist, 
and  that  they  are  unnecessary  because  the  guidelines  can  do  the 
job  just  as  well,  if  not  better;  and  to  educate  the  Members  of  Con- 
gress and  help  them  understand  that  they  have  constituents  who 
have  been  affected  by  these  laws. 


38 

Mr.  CONYERS.  Well,  thank  you  very  much. 

Mr.  Chairman,  I  had  erroneously  stated  that — it  was  in  our  com- 
mittee that  we  had  had  hearings  on  the  Federal  judiciary. 

Mr.  SCHUMER.  I  asked  my  staff  had  they  been  holding  hearings 
and  I  wasn't  invited. 

[Laughters.] 

Mr.  CONYERS.  Members  have  occasionally  thought  of  that,  but  we 
checked  ourselves  immediately  upon  someone  having  made  that 
suggestion.  But  it  was  our  colleague  Bill  Hughes,  the  former  Chair 
of  the  Crime  Subcommittee. 

But  I  thank  you  for  your  description.  I  think  we  are  doing  some- 
thing important.  That  a  lot  of  Members  are  beginning  to  see  now 
that  in  a  way  the  fruits  of  our  work  have  gotten  terribly  com- 
plicated. There  is  nobody  I  know  on  this  committee,  in  the  Con- 
gress that  is  soft  on  crime.  I  mean  we  have,  particularly  those  of 
us  who  come  from  regions  that  are  more  affected  by  the  ravages 
of  criminal  conduct,  that  is  the  last  thing  that  you  are  going  to  run 
into,  any  softies  around  here. 

But  what  we  are  trying  to  do  is  be  sensible  about  dealing  with 
crime.  Emotionalism  is  not  going  to  reduce  the  pattern  of  crime, 
and  doing  the  wrong  things  to  people  who  violate  the  existing  stat- 
utes is  not  going  to  reduce  the  crime  numbers  or  the  objective  that 
originally  was  the  point  of  incarceration;  namely,  to  rehabilitate 
the  individual.  So  I  am  very  happy  to  be  a  part  of  these  hearings, 
and  I  thank  you  very  much. 

Mr.  SCHUMER.  Thank  you,  Mr.  Conyers.  We  appreciate  your 
being  here  and  your  input  and  your  experience. 

OK.  Well,  I  want  to  thank  the  panel.  As  I  think  a  number  of 
Members  have  mentioned,  it  is  not  easy  to  come  here  and  testify. 
But  I  think  you  elucidated  a  part  of  the  problem  that  we  ought  to 
be  examining,  and  I  thank  you  very  much  for  coming. 

Ms.  Stewart.  Thank  you. 

Ms.  Richardson.  Thank  you. 

Mr.  ScHUMER.  OK.  We  would  ask  Mr.  Henry  Wray  to  come  for- 
ward. While  I  am  asking  Mr.  Wray  to  come  forward,  I  found  a — 
it  is  not  just  a  29-cent  pen  but  a  very  nice  black  pen  up  here.  So 
if  someone  left  it  up  here  they  may  come  up  and  get  it.  I  don't 
know  what — what  kind  of  pen  is  this  called?  A  Cross  pen. 

Mr.  SCHIFF.  I  think  it  is  mine,  Mr.  Chairman. 

Mr.  ScHUMER.  OK.  Is  that  yours?  Whoever  said  there  was  no  bi- 
partisanship on  this  committee? 

OK.  Our  second  panel  consists  of  one  witness  and  he  is  accom- 
panied by  two  others.  Our  witness  is  Mr.  Henry  Wray.  He  is  the 
Director  of  Administration  of  Justice  Issues  within  the  Greneral 
Government  Division  of  the  U.S.  General  Accounting  Office.  His  Di- 
vision provides  legal  support  for  the  GAO's  audit  work  with  the  ad- 
ministration of  justice,  and  he  will  testify  today  about  a  very  com- 
prehensive 3-year  study  performed  by  the  GAO  on  mandatory  mini- 
mum sentencing.  As  I  mentioned,  I  don't  think  the  full  report  is 
scheduled  to  be  out  until  about  September,  is  that  right,  Mr.  Wray? 

Mr.  Wray.  Yes.  We  will  get  it  out  in  September. 

Mr.  Schumer.  ok.  Well,  thank  you  for  coming.  We  have  received 
your  prepared  remarks.  They  will  be  entered,  without  objection. 


39 

into  the  record,  and  you  will  have  5  minutes  to  make  your  presen- 
tation. 

I  would  just  note  you  are  accompanied  by  two  of  your  associates, 
Linda  Willis  and  Lynn  Gibson,  who  is  the  Associate  Greneral  Coun- 
sel of  the  GAO.  We  welcome  both  of  you. 

Mr.  Wray,  you  may  proceed. 

STATEMENT  OF  HENRY  R.  WRAY,  DIRECTOR,  ADMINISTRA- 
TION OF  JUSTICE  ISSUES,  GENERAL  GOVERNMENT  DIVI- 
SION, GENERAL  ACCOUNTING  OFFICE,  ACCOMPANIED  BY 
LINDA  WILLIS  AND  LYNN  GIBSON 

Mr.  Wray.  Thank  you,  Mr.  Chairman.  I  am  pleased  to  be  here 
today  to  discuss  the  results  of  our  work  for  the  subcommittee  on 
mandatory  minimum  sentences.  At  your  request,  we  reviewed 
whether  offenders  convicted  of  crimes  carrying  a  mandatory  mini- 
mum sentence  received  that  sentence,  how  local  practices  influence 
mandatory  minimum  charging  decisions,  the  relationship  between 
the  sentencing  guidelines  and  mandatory  minimums,  and  race, 
gender,  criminal  history  and  other  characteristics  of  individuals 
who  received  mandatory  minimum  sentences. 

We  reviewed  900  cases  in  eight  judicial  districts  where  the  of- 
fender was  convicted  of  a  drug  or  a  firearms  offense,  and  where  ac- 
cording to  the  arrest  records  the  potential  existed  for  carrying  a 
minimum  mandatory  sentence.  In  595  of  these  cases  the  offender 
was,  in  fact,  convicted  of  an  offense  carrying  a  mandatory  mini- 
mum sentence.  In  the  remaining  305  cases  the  offender  was  con- 
victed under  a  statute  that  did  not  carry  a  mandatory  minimum. 

I  will  briefly  summarize  the  results  of  our  review  of  the  595 
cases  that  resulted  in  convictions  under  the  mandatory  minimum 
statutes.  More  detailed  information  is  presented  in  various  tables 
appended  to  my  statement. 

In  all  of  the  595  cases  the  defendant  was  either  sentenced  to  at 
least  the  mandatory  minimum  amount  of  prison  time  required  by 
the  statute  or  received  a  lesser  sentence  as  a  result  of  a  substantial 
assistance  motion.  The  mandatory  minimum  statutes  permit  an  ex- 
ception to  imposing  the  mandatory  minimum  sentence  where  the 
prosecution  files  a  motion  for  a  lesser  sentence  based  on  the  de- 
fendant providing  substantial  assistance  in  the  investigation  or 
prosecution  of  another  party  and  the  judge  grants  the  motion  and 
agrees  to  depart  from  the  mandatory  minimum  sentence.  There 
were  a  total  of  104  substantial  assistance  motions  in  the  595  cases 
we  reviewed,  and  91  of  those  motions  resulted  in  a  sentence  below 
the  mandatory  minimum. 

How  prosecutors  viewed  substantial  assistance  varied  in  the  dis- 
tricts we  reviewed,  as  did  the  number  of  departures  granted  in 
each — or  the  proportion  of  departures  granted  in  each  district.  In 
the  remaining  305  of  the  900  cases  we  reviewed  the  defendants 
were  not  convicted  of  charges  carrying  a  mandatory  minimum  sen- 
tence. Either  these  defendants  were  never  actually  charged  with  a 
mandatoiy  minimum  offense  or  such  an  offense  was  charged  ini- 
tially and  later  dropped  or  changed  to  some  other  offense  that 
didn't  carry  a  mandatory  minimum. 

On  the  basis  of  the  information  in  the  case  files  we  reviewed  we 
couldn't  determine  for  individual  cases  why  a  mandatory  minimum 


40 

charge  was  dropped  or  never  brought  in  these  cases.  However,  ac- 
cording to  a  Justice  Department  official,  key  concerns  that  may  re- 
sult in  mandatory  minimum  charges  not  being  pursued  in  specific 
cases  include  the  quality  of  the  evidence,  district  workload  and  the 
relationship  of  the  particular  case  to  the  prosecution  of  more  impor- 
tant cases. 

In  addition,  we  did  identify  several  general  charging  policies 
within  some  of  the  districts  tnat  influenced  decisions  on  whether 
to  pursue  mandatory  minimum  convictions  against  certain  cat- 
egories of  defendants.  For  example,  the  Eastern  District  of  New 
York  has  a  large  number  of  drug  cases  involving  couriers  who  are 
apprehended  at  J.F.K.  International  Airport  with  drug  amounts 
that  would  indicate  a  mandatory  minimum  violation.  However,  the 
district's  general  policy  is  to  charge  couriers  under  a  statute  that 
does  not  carry  a  mandatory  minimum  sentence. 

We  also  found  that  at  one  time  the  Southern  District  of  Texas 
avoided  the  application  of  mandatory  minimums  by  eliminating  the 
evidence  to  be  considered  in  prosecuting  a  case,  such  as  the  quan- 
tity of  a  drug  seized.  However,  this  practice  of  eliminating  proof 
was  abandoned  in  October  1991. 

Prosecutors  in  the  Central  District  of  California  and  the  South- 
ern District  of  California  stated  that  they  sometimes  avoid  manda- 
tory minimums  by  charging  defendants  under  a  drug-related  stat- 
ute that  doesn't  carry  a  mandatory  minimum. 

We  found  that  some  U.S.  attorney's  offices  have  declination  poli- 
cies that  establish  drug  thresholds  for  prosecution  that  exceed  the 
mandatory  minimum  amounts.  Prosecutors  in  some  districts  told 
us  that  their  declination  guidelines  were  based  primarily  on  re- 
source considerations.  They  also  noted  that  the  declination  guide- 
lines were  adhered  to  only  generally,  and  that  cases  not  prosecuted 
at  the  Federal  level  may  still  be  prosecuted  in  State  court.  It 
wasn't  possible  for  us  to  determine  how  often  this  actually  hap- 
pened in  the  cases  we  reviewed. 

We  also  looked  at  the  relationship  between  mandatory  mini- 
mums and  the  Federal  sentencing  guidelines  established  under  the 
Sentencing  Reform  Act  of  1984.  The  earlier  statements  and  testi- 
mony have  touched  on  this  quite  a  bit.  The  guidelines  prescribe 
base  offense  levels  for  Federal  crimes  consisting  of  a  range  of 
months.  A  range  is  then  fixed  for  purposes  of  sentencing  based  on 
the  defendant's  criminal  history  and  a  series  of  potential  upward 
or  downward  adjustments  which  take  into  account  such  factors  as 
the  defendant's  role  in  the  offense  and  other  aggravating  or  miti- 
gating factors. 

The  Commission  used  mandatory  minimums  to  anchor  the  base 
offense  levels  under  the  guidelines  for  drug  offenses.  For  example, 
when  Congpress  enacted  a  mandatory  minimum  for  an  offense  in- 
volving a  specified  quantity  of  drugs,  the  Commission's  guidelines 
prescnoed  a  base  offense  level  that  approximated  the  minimum 
sentence  established  by  the  statute. 

Sentences  are  first  calculated  using  the  guidelines  system  re- 
gardless of  whether  a  mandatory  minimum  charge  is  involved. 
When  the  defendant  is  convicted  under  a  statute  that  carries  a 
mandatory  minimum  sentence  exceeding  the  guidelines  sentencing 
range  afler  it  has  been  determined  through  the  application  of  the 


41 

various  adjustments  that  are  called  for  in  the  guidelines,  the  man- 
datory minimum  in  effect  trumps  or  supersedes  the  guidelines  sen- 
tence range  and  becomes  the  sentence  imposed. 

As  the  chairman  mentioned  earlier,  this  happened  only  in  about 
5  percent  of  the  cases  we  reviewed.  In  approximately  70  percent  of 
the  drug  cases  carrying  mandatory  minimum  sentences,  the  guide- 
lines sentencing  range  exceeded  the  mandatory  minimum  required 
by  statute,  and  consequently  was  the  sentence  imposed.  In  the 
other  25  percent  of  the  cases  the  guidelines  range  encompassed  the 
mandatory  minimum,  so  the  mandatory  minimum  would  have  been 
set  within  that  range. 

The  average  sentences  in  the  drug  cases  we  reviewed  signifi- 
cantly exceeded  the  mandatory  minimum.  Drug  offenders  convicted 
under  statutes  carrying  a  60-month  mandatory  minimum  who  did 
not  receive  a  substantial  assistance  departure  were  sentenced  to  an 
average  of  81  months,  as  opposed  to  the  60  months  that  the  man- 
datory minimum  would  have  called  for.  For  those  convicted  under 
statutes  with  a  120-month  mandatory  minimum,  the  average  sen- 
tence was  167  months.  Again,  these  various  findings  from  our  re- 
view are  laid  out  in  the  attachments  to  my  prepared  statement. 

Offenders  receiving  mandatory  minimum  sentences  in  the  eight 
districts  we  reviewed  had  several  common  characteristics.  In  all 
districts  they  were  most  frequently  male  and  between  the  ages  of 
21  and  40.  In  five  districts  the  majority  were  first-time  offenders, 
although  in  one  district  over  80  percent  were  repeat  offenders.  In 
five  districts  Hispanics  were  most  frequently  represented;  in  two 
districts,  blacks;  and  in  one  district,  whites.  Most  offenders  had 
less  than  a  high  school  education.  But  again,  these  profiles  differed 
in  some  respects  by  the  districts  that  we  looked  at. 

Again,  our  findings  in  terms  of  the  characteristics  of  the  offend- 
ers are  summarized  on  table  1  of  my  full  statement  and  then  fur- 
ther detail  is  provided  in  the  appendix.  I  would  emphasize  that  we 
did  the  best  compilation  we  could  in  terms  of  the  characteristics  of 
these  defendants.  The  findings  that  we  have  in  terms  of  race  and 
other  factors  are  not  really  generalizable  beyond  the  limits  of  the 
cases  we  had.  They  don't  really  indicate  whether  there  is  or  is  not 
some  overriding  pattern  of  racial  or  other  disparity  in  the  applica- 
tion of  the  minimum  sentences. 

That  concludes  my  statement,  Mr.  Chairman.  We  would  be 
happy  to  answer  any  questions. 

[The  prepared  statement  of  Mr.  Wray  follows:] 

Prepared  Statement  of  Henry  R.  Wray,  Director,  Administration  of  Justice 
Issues,  General  Government  Division,  General  Accounting  Office 

Mr.  Chairman  and  Members  of  the  Subcommittee: 

I  am  pleased  to  be  here  today  to  discuss  the  results  of  our  work  for  this  sub- 
committee on  mandatory  minimum  sentences.^  At  your  request  we  reviewed: 
Whether  offenders  convicted  of  crimes  carrying  a  mandatory  minimum  sentence  re- 
ceived that  sentence;  how  local  prosecutorial  practices  influenced  mandatory  mini- 
mum charging  decisions;  the  relationship  between  the  federal  sentencing  guidelines 


'^Mandatory  minimum  sentences  are  those  for  which  a  minimum  period  of  incarceration  is 
specified  by  statute.  For  defendants  convicted  under  statutes  containing  mandatory  minimum 
provisions,  judges  are  required  to  impose  a  period  of  imprisonment  not  less  than  the  minimum 
number  of  years  specified.  These  defendants  cannot  receive  probation  or  suspended  sentences. 


42 

and  mandatory  minimums  sentences;  and  race,  gender,  age,  criminal  history,  and 
education  characteristics  of  ofTenders  receiving  mandatory  minimum  sentences. 

We  reviewed  900  selected  cases  in  8  judicial  districts  in  which  defendants  were 
convicted  of  a  federal  offense  and,  according  to  arrest  records,  the  potential  existed 
for  a  charge  carrying  a  mandatory  minimum  sentence.  Specifically,  we  selected 
cases  where  the  offender  was  arrested  for  an  offense  involving  either  a  mandatory 
minimum  amount  of  drugs  or  the  presence  of  a  firearm.*  In  595  of  the  cases,  the 
offender  was  convicted  of  an  offense  carrying  a  mandatory  minimum  sentence.  In 
the  remaining  305  cases  the  offender  was  convicted  under  a  statute  not  carrying  a 
mandatory  minimum. 

Background 

Traditionally,  Congress  has  established  in  statute  broad  sentencing  ranges  for 
specific  crimes.  Judges  then  imposed  a  sentence  within  the  statutory  range.  Judges 
had  wide  discretion  to  sentence  in  accordance  with  their  own  theories  of  justice  and 
rehabilitation.  However,  with  enactment  of  the  Sentencing  Reform  Act  of  1984,  Con- 
gress made  fundamental  changes  to  federal  sentencing  policy  in  an  attempt  to  bring 
more  certainty  to  sentences  and  to  reduce  sentencing  disparity.  The  act  created  the 
United  States  Sentencing  Commission  and  required  it  to  develop  a  system  of  sen- 
tencing guidelines. 

In  1984  and  subsequent  years,  growing  concern  over  drug  use  and  associated 
crime  also  led  Congress  to  enact  mandatory  minimum  sentences  as  a  way  to  get 
tough  on  drug  crimes  and  as  a  means  of  meting  out  sure  and  certain  punishment. 
Mandatory  minimum  sentences  were  intended  to  send  to  those  involved  in  violence 
and  drug  activities  a  different  message  that  convictions  under  those  statutes  will 
result  in  specific  periods  of  incarceration. 

Most  Frequently  Imposed  Mandatory  Minimum  Sentences 

As  of  December  31,  1991,  there  were  about  100  federal  mandatory  minimum  pen- 
alty provisions  included  under  60  different  criminal  statutes,  dating  back  to  the 
18th  century.  However,  four  recently-enacted  statutes  dealing  with  drugs  and  fire- 
arms account  for  more  than  90  percent  of  all  mandatory  minimum  convictions. 
These  four  statutes  encompass  the  following  offenses: 

Manufacturing  or  distributing  controlled  substances:  conviction  under  21 
U.S.C.  841  carries  minimum  sentences  of  5,  10,  20  years,  or  life  imprisonment, 
depending  upon  the  quantity  of  drugs  involved,  whether  death  or  serious  bodily 
injury  occurred,  and  whether  the  offender  has  previous  convictions  under  this 
or  other  statutes. 

Possessing  a  mixture  containing  a  cocaine  base:  conviction  under  21  U.S.C. 
844  carries  a  sentence  of  not  less  than  5  or  more  than  20  years  for  amounts 
exceeding  5  grams  if  this  is  the  offender's  first  conviction  under  the  statute,  and 
for  lesser  amounts  if  the  offender  has  previous  convictions  under  the  statute. 
Importing/exporting  controlled  substances:  conviction  under  21  U.S.C.  960 
carries  minimum  sentences  of  not  less  than  5,  10,  20  years,  or  life  imprison- 
ment, depending  upon  the  quantity  of  drugs  involved,  whether  death  or  serious 
bodily  injury  occurred,  and  whether  the  oflender  has  previous  convictions  under 
this  or  other  statutes. 

Using  or  carrying  a  firearm  during  certain  drug  or  violent  crimes:  conviction 
under  18  U.S.C.  924(c)  carries  a  mandatory  minimum  sentence  of  5,  10,  20,  30 
years  or  life  imprisonment  depending  upon  the  type  of  firearm  involved  and 
whether  the  offender  has  previous  convictions  under  this  statute. 

Mandatory  Minimum  Sentences  Imposed  When  Warranted  by  Conviction 

Our  review  of  the  595  cases  in  our  sample  in  which  the  offender  was  convicted 
of  violating  a  statute  carrying  a  mandatory  minimum  sentence  showed  that  the  de- 
fendant was  generally  sentenced  to  at  least  the  mandatory  minimum  amount  of 
prison  time.  Tne  exceptions  were  cases  in  which  the  prosecution  filed  a  motion  for 


'These  900  cases  represent  all  cases  that  met  these  criteria  during  the  randomly  selected 
months  of  February,  May,  September,  and  October  1990.  The  eight  judicial  districts  we  selected 
the  cases  from  were  the  eastern  district  of  New  York  (EDNY),  the  southern  district  of  New  York 
(SDNY),  the  southern  district  of  Florida  (SDFL),  the  southern  district  of  Texas  (SDTX),  the 
central  district  of  California  (CDCA),  the  southern  district  of  California  (SDCA),  the  northern 
district  of  Illinois  (NDIL),  and  the  district  of  Nebraska  (NEB).  The  results  of  our  work  apply 
only  to  those  cases  we  reviewed.  They  are  not  generalizable  to  other  cases  in  the  eight  districts, 
nor  to  all  districts  nationally. 


43 

a  lesser  sentence  based  on  the  defendant  providing  substantial  assistance  in  the  in- 
vestigation or  prosecution  of  another  party,  and  the  judge  agreed  to  depart  from  the 
mandatory  minimum  sentence. 

The  substantial  assistance  motion  allows  departure  from  both  drug  and  firearm 
mandatory  minimum  sentences.^  The  impact  of  a  substantial  assistance  motion  on 
the  length  of  sentence  can  be  significant  because  it  eliminates  any  statutory  or 
guideline  sentencing  requirements.  However,  judges  are  not  required  to  sentence 
below  the  mandatory  minimum  if  a  substantial  assistance  motion  is  filed. 

In  every  district,  prosecutors  filed  motions  for  substantial  assistance — allowing 
judges  to  sentence  below  the  mandatory  minimum.  All  104  of  the  substantial  assist- 
ance motions  in  the  cases  we  reviewed  were  part  of  plea  bargaining  agreements.  In 
91  of  these  cases,  the  sentence  imposed  was  below  the  mandatory  minimum. 

\aEWS  ON  SUBSTANTIAL  ASSISTANCE  MOTIONS  DIFFERED 

How  prosecutors  viewed  substantial  assistance  varied  in  the  districts  we  re- 
viewed, as  did  the  number  of  departures  granted.  According  to  prosecutors  in  the 
southern  district  of  New  Yorit,  they  are  "generous"  with  substantial  assistance  mo- 
tions. Conversely,  motions  for  substantial  assistance  occur  less  frequently  in  the 
central  district  of  California.  In  this  district,  a  substantial  assistance  motion  re- 
quires the  defendant's  lull  cooperation,  willingness  to  testify  before  a  grand  juiy  or 
any  other  trial  jury,  provision  of  information  leading  to  other  significant  offenders, 
and  admission  of  culpabilitv  in  the  offense. 

In  most  of  our  cases,  judges  were  receptive  to  motions  for  substantial  assistance. 
In  seven  out  of  eight  districts,  judges  departed  from  the  mandatory  minimum  sen- 
tence for  most  or  all  defendants  who  received  a  substantial  assistance  motion.  In 
contrast,  in  the  northern  district  of  Illinois  judges  did  not  depart  from  a  mandatory 
minimum  for  8  out  of  17,  or  almost  half,  of  the  defendants  for  whom  substantial 
assistance  motions  were  filed.  District  specific  results  on  substantial  assistance  are 
detailed  in  table  I.l  in  the  appendix. 

District  Policies  and  Practices  Influenced  Charging  Decisions 

In  305  of  the  900  cases  we  reviewed,  the  defendants  were  not  convicted  of  charges 
carrying  mandatory  minimums.  In  198  of  the  305  cases,  charges  carrying  mandatory 
sentences  were  originally  filed  but  later  dropped,  and  the  defendant  was  convicted 
under  a  statute  without  a  mandatory  minimum  provision.  In  the  remaining  107 
cases,  no  mandatory  minimum  charge  was  ever  brought.  Most  of  the  charges 
dropped,  reduced,  or  never  filed  were  drug  charges.  Tables  1.2  and  1.3  in  the  appen- 
dix provide  a  district  breakout  of  these  cases  and  illustrate  the  type  of  charges  ei- 
ther dropped/reduced  or  never  filed. 

Prosecutors  consider  many  factors  in  making  charging  decisions.  On  the  basis  of 
the  information  in  the  case  files  we  reviewed,  we  were  unable  to  determine  for  indi- 
vidual cases  why  a  mandatory  minimum  charge  was  dropped,  reduced,  or  never 
brought.  According  to  Justice  officials,  key  concerns  that  may  result  in  mandatory 
minimum  charges  not  being  pursued  in  specific  cases  include  the  quality  of  the  evi- 
dence, district  workload,  and  the  relationship  of  the  particular  case  to  the  prosecu- 
tion of  other  more  important  cases. 

We  did  identify  several  district  charging  policies  and  practices  that  influenced  de- 
cisions whether  to  pursue  mandatory  minimum  convictions  against  certain  cat- 
egories of  defendants. 

couriers 

The  eastern  district  of  New  York  had  a  large  number  of  drug  cases  involving 
couriers  who  are  apprehended  at  J.F.K.  International  Airport  with  drug  amounts 
that  indicated  a  mandatory  minimum  violation.  However,  the  district's  general  pol- 
icy was  to  charge  couriers  under  a  statute  that  did  not  carry  a  mandatory  minimum 
sentence. 

According  to  district  prosecutors  there  were  three  reasons  why  they  generally  did 
not  charge  these  couriers  under  mandatory  minimum  statutes: 

Resources  are  limited,  i.e.,  with  the  number  of  drug  courier  cases  in  the  east- 
enn  district  of  New  York  if  prosecutors  were  to  charge  them  with  mandatory 
minimum  drug  amounts  ana  increase  the  number  of  cases  going  to  trial  the 
court  would  be  overwhelmed; 
Most  couriers  have  limited  culpability,  and 


3  All  substantial  assistance  motions  in  our  sample  involved  drug  ofTenses. 


44 

Judges  in  the  district  generally  disliked  sentencing  such  low-level  offenders 
to  mandatory  minimums. 

"LIMITING  PROOF" 

In  the  southern  district  of  Texas  we  found  that  some  plea  agreements  included 
the  practice  of  "limiting  proor  or  limiting  the  evidence  to  he  considered  in  prosecut- 
ing a  case.  This  often  had  the  effect  of  reducing  the  amount  of  drugs  on  which  the 
sentence  is  based.  According  to  a  senior  prosecutor  in  the  district,  Hmiting  proof  was 
originally  used  to  avoid  mandatory  minimums  because  of  the  belief  that  the  sen- 
tences were  too  severe.  Prosecutors  also  limited  proof  to  expedite  case  disposition 
and  to  account  for  their  lack  of  confidence  in  the  technique  used  to  determine  drug 

amounts.*  ,  ,  ,-      .       i-m  i-     • 

In  October  1991,  the  U.S.  Attorney's  office  in  the  southern  district  of  Texas  elimi- 
nated the  practice  of  limiting  proof  as  a  means  of  avoiding  mandatory  minimum 
sentences.  Other  practices  aimed  at  avoiding  or  reducing  mandatory  minimum 
charges — such  as  dividing  the  "load"  between  codefendants  in  order  to  reduce  the 
criminal  exposure  of  each,  dismissing  the  mandatory  minimum  gun  count  to  secure 
a  plea,  or  refraining  from  seeking  an  enhancement  that  is  readily  provable — were 
also  eliminated.* 

ALTERNATIVE  CHARGES  BROUGHT 

Prosecutors  in  the  central  and  southern  districts  of  California  state!  that  they 
sometimes  avoided  drug  mandatory  minimums  by  charging  defendants  under  21 
U.S.C.  843(b)  for  use  ofa  communication  facility  (usually  a  telephone)  with  intent 
to  commit  a  drug  offense.®  For  example,  in  some  instances  the  charge  was  used  for 
low-level  defendants  in  cases  where  higher  level  defendants  had  been  convicted.  Ac- 
cording to  prosecutors,  this  expedited  the  prosecution  of  the  lower  level  defendants 
and  allowed  them  to  focus  on  more  significant  cases. 

PROSECUTIVE  THRESHOLDS 

Prosecutive  guidelines  generally  govern  the  types,  level,  and  severity  of  cases  a 
U.S.  Attorney's  office  will  prosecute  or  decline  to  prosecute.  We  found  that  some 
U.S.  Attorneys'  offices  had  declination  policies  that  established  drug  thresholds  for 
prosecution  that  exceeded  mandatory  minimum  amounts.  Accordingly,  they  have  de- 
clined to  prosecute  cases  involving  a  mandatory  minimum  amount  of  drugs.  In  addi- 
tion, federal  investigators  told  us  that  some  cases  involving  a  mandatory  minimum 
amount  of  drugs  may  not  have  been  referred  for  federal  prosecution  if  the  agent 
knew  the  amount  of  drugs  involved  is  below  the  threshold  for  prosecution  in  a  par- 
ticular district.  ,  ,     ,  , ,.  ,     ,  x-  j  i- 

Five  of  the  eight  districts  we  reviewed  had  established  prosecutive  guidelines 
based  on  specific  drug  amounts.  Of  these  five  districts,  three  had  declination  policies 
with  drug  thresholds  for  some  drugs  that  were  higher  than  the  mandatory  mini- 
mum threshold  drug  amounts.  Prosecutors  in  some  districts  said  that  their  case  ac- 
ceptance policies  were  based  primarily  on  resource  considerations.  Prosecutors  said 
that  the  acceptance  criteria  were  viewed  as  guidelines  and  were  adhered  to  only 
generally.  If  a  case  was  not  prosecuted  at  the  federal  level,  it  may  have  been  pros- 
ecuted in  state  court.  However,  it  was  not  possible  for  us  to  determine  how  fre- 
quently cases  were  referred  to  the  states  for  prosecution. 

GuiDEUNES  Sentences  Versus  Mandatory  Minimums 

The  Sentencing  Reform  Act  of  1984  required  the  United  SUtes  Sentencing  Com- 
mission to  develop  sentencing  guidelines  that  apply  to  defendants  convicted  of  of- 
fenses occurring  on  or  after  November  1,  1987.  Under  the  statute,  all  sentencing  de- 
cisions for  convicted  felons  must  comply  with  the  sentencing  guidelines.  The  guide- 
lines required  that  sentencing  should  be  neutral  as  to  race,  gender,  creed,  national 
origin,  and  socioeconomic  profile  of  offenders,  while  taking  into  account  the  nature 
of  uie  circumstances  of  the  offense  and  the  criminal  history  of  the  offender. 


<  According  to  a  senior  prosecutor  in  the  southern  district  of  Texas,  DEA's  weighing  technique 
relies  on  a  sampling  method  for  the  quantity  of  drugs  and  the  quantity  of  packaging. 

« 18  U  S  C  924<c)  is  an  example  ofa  statute  that  operates  as  an  enhancement  If  a  conviction 
is  obUined  for  both  the  underlying  olTense  and  section  924(c),  the  924<c)  penalty  must  be  made 
consecutive  to  the  sentence  for  the  underlying  offense. 

"The  relevant  sentencing  guideline  was  amended  as  of  November  1,  1990,  to  take  into  account 
the  severity  of  the  underlying  drug  offense  committed,  thus  exposing  the  defendant  to  a  higher 
sentence.  Our  sample  of  defendants  were  all  sentenced  prior  to  the  amendment  date. 


45 

While  the  Commission  was  compiling  data  and  calculating  guidelines,  Congress 
enacted  additional  statutes  requiring  mandatory  minimum  sentences  for  certain 
drug  and  firearms  violations.  Tne  Commission  used  mandatory  minimums  to  "an- 
chor" the  guidelines  for  drug  offenses.  Where  Congress  enacted  a  mandatory  mini- 
mum for  a  specific  drug  amount,  the  Commission  set  the  guidelines  for  similar  of- 
fenses at  a  base  offense  level  that  reflected  the  minimum  sentence  established  in 
the  statute. 

When  a  defendant  is  convicted  under  a  statute  that  carries  a  mandatory  mini- 
mum sentence  that  exceeds  the  guidelines  sentencing  range  (after  any  adjustments, 
e.g.,  for  role  in  offense),  the  mandatory  minimum  becomes  the  sentence  to  be  im- 
posed. 

In  the  595  mandatory  minimum  cases  we  reviewed,  573  were  for  drug  related  of- 
fenses. In  402  of  these  cases  (70  percent),  the  offender's  minimum  guidelines  sen- 
tence was  higher  than  the  statutory  minimum.  In  142  of  the  cases  (25  percent),  the 
guidelines  sentence  range  included,  the  mandatory  minimum.  In  only  5  percent  of 
these  cases  was  the  mandatory  minimum  sentence  imposed  higher  than  the  maxi- 
mum guidelines  sentence.  This  finding  also  varied  by  district;  district-specific  re- 
sults are  provided  in  table  1.4  in  the  appendix. 

Drug  offenders  convicted  under  statutes  cairying  a  60-month  mandatory  mini- 
mum who  did  not  receive  a  substantial  assistance  aeparture  were  sentenced  to  an 
average  of  81  months.  For  those  convicted  under  statutes  with  a  120-month  manda- 
tory minimum,  the  average  sentence  was  167  months.  Table  1.5  in  the  appendix  pro- 
vides a  district  breakdown  of  the  offenders  in  each  category  and  the  average  sen- 
tences. 

Offender  Profiles 

Offenders  receiving  mandatory  minimum  sentences  in  the  eight  districts  we  re- 
viewed had  several  common  characteristics.  In  all  districts  they  were  most  fre- 
?[uently  male  and  between  the  ages  of  21  and  40.  In  four  districts  the  majority  were 
irst-time  offenders,  although  in  one  district  almost  80  percent  were  repeat  offend- 
ers. In  five  districts  Hispanics  were  most  frequently  represented,  in  two  districts 
blacks,  in  one  district  whites.  Most  offenders  had  less  than  a  high  school  education. 
As  with  other  findings  in  this  report,  in  many  cases  this  profile  varied  by  district. 
Table  1  provides  an  overview  of  the  offenders  in  the  cases  we  reviewed.  Tables  1.6— 
1. 11  in  the  appendix  provide  offender  data  by  district. 


46 


Table  1:   Overview  of  Offenders* 


Characteristic 

Number  of 
Offenders 

Percentage 
of 

Offenders^ 

Gender:       Male 

516 

''   87 

Female 

78 

13 

Race:         Black 

144 

24 

White 

120 

"20 

Hispanic 

316 

53 

Other 

14 

2 

Age:           <  21 

17 

3 

21  -  30 

214 

36 

31  -  40 

211 

35 

1                41-50 

120 

-  20 

>  50 

33 

6 

Education:     <  High  School 

301 

51 

High  School 

122 

21 

>  High  School 

164 

28 

HISTORY  OF  SUBSTANCE 
ABUSE:        Drugs 

145 

24 

Alcohol 

53 

9 

•Nc :  all  attributes  could  be  determined  for  all  offenders. 
"Percentages  do  not  add  due  to  rounding. 


Conclusions 

In  summary  Mr.  Chairman,  we  found  that  when  an  offender  was  convicted  under 
a  statute  that  carried  a  mandatory  minimum  sentence,  the  judge  generally  imposed 
at  least  that  sentence. 

Offenders  in  our  cases  convicted  of  offenses  carrying  a  mandatory  minimum  sen- 
tence of  60  months  received  an  average  of  87  months.  For  those  convicted  of  120- 
month  mandatory  minimums,  the  average  sentence  was  164  months. 

The  exceptions  were  cases  where  the  judge  granted  a  departure  for  substantial 
assistance.  Different  district  interpretations  on  what  constituted  substantial  assist- 
ance influenced  how  often  substantial  assistance  departures  were  requested  by  the 
prosecution  in  individual  districts.  In  some  districts  we  reviewed,  the  requirements 
were  stringent,  in  others  liberal. 

We  identified  several  district  prosecutorial  pwlicies  and  practices  that  influenced 
whether  mandatory  minimum  charges  were  pursued  against  certain  categories  of  of- 
fenders. These  included  a  policy  not  to  charge  certain  drug  couriers  in  one  district 
and  district  prosecutive  thresholds  for  certain  drugs  that  were  higher  than  the  man- 
datory minimum  threshold. 

All  offenders  are  to  be  sentenced  under  the  federal  sentencing  guidelines.  In  those 
cases  where  the  maximum  guidelines  sentence  would  be  lower  than  the  statutory 
minimum,  the  mandatory  minimum  becomes  the  guidelines  sentence  and  is  the  sen- 
tence to  be  imposed.  This  happened  5  percent  of  the  time  for  the  drug  cases  we  re- 


47 

viewed.  In  approximately  70  percent  of  the  drug  cases  carrying  mandatory  mini- 
mums  sentences  that  we  reviewed,  the  guidelines  sentencing  range  was  longer  than 
the  mandatory  minimum  and  consequently  was  the  sentence  imposed. 

That  concludes  my  statement  Mr.  Chairman.  We  would  be  happy  to  respond  to 
any  questions. 


APPENDIX 


DISTRICT-SPECIFIC  ANALYSIS  RESULTS 


Table  I.l:   Substantial  Assistance  Motions  and  Departures 


District 

Defendants 

Convicted 

Under 

Mandatory 

Minimum 

Statutes 

Substantial 
Assistance 
Motions 
Filed 

Offenders 
Sentenced 
Below  the 
Mandatory 
Minimum 

EDNY 

74 

14 

14 

SDNY 

79 

17 

17 

SDFL 

155 

15 

14 

SDTX 

89 

14 

11 

CDCA 

81 

8 

8 

SDCA 

52 

15 

14 

NDIL 

54 

17 

9 

NEB 

11 

4 

4 

Total 

595 

104 

91 

Table  1.2:   Mandatory  Minimum  Charges  Not  Pursued 


District 

Number  of 

Defendants 

(Total) 

Defendants 

with 

Mandatory 

Minimum 

Charges  Not 

Filed 

Defendants 
with 

Mandatory 
Minimum 
Charges 

Dropped  or 
Reduced 

EDNY 

125 

72 

53 

SDNY 

25 

7 

18 

SDFL 

5 

1 

4 

SDTX 

57 

7 

50 

CDCA 

15 

7 

8 

SDCA 

66 

11 

55 

NDIL 

4 

0 

4 

NEB 

8 

2 

« 

Overall 

305 

107 

198  II 

48 


Table  1.3:   Offenders  With  Mandatory  Minimum  Charges 
Dropped/Reduced  or  Not  Filed  by  Offense  Type'' 


District 

Drug  Charges 

Firearms  Charges'" 

Dropped/ 
Reduced 

Not 

Filed 

Dropped/ 
Reduced 

Not 
Filed 

EDNY 

50 

68 

3 

4 

SONY 

17 

6 

1 

1 

SDFL 

4 

1 

0 

0 

SDTX 

43 

1 

7 

6 

CDC  A 

5 

0 

3 

7 

SDCA 

50 

8 

5 

3 

NDIL 

4 

0 

0 

0 

NEB 

4 

2 

2 

0 

Overall 

178 

86 

21 

21 

•An  offender  may  have  had  more  than  one  charge  dropped/reduced  or 
not  filed. 

"Eight  offenders  with  firearms  charges  dropped/reduced  also  had 
drug  charges  dropped/reduced. 


Table  1.4:  Guidelines  Versus  Mandatory  Minimum  Sentences 
Drug  Offenses  Only 


District 

Total 

Offenders 

(Number) 

Minimum 

Guidelines 

Sentence 

More  Than 

Mandatory 

Minimum 

Guidelines 

Sentence 

Range 

Included 

Mandatory 

Minimum 

Maximum 

Guidelines 

Sentence 

Less  Than 

Mandatory 

Minimum 

EDNY 

70 

46  (66%) 

18  (26%) 

6  (9%) 

SDNY 

77 

61  (79%) 

14  (18%) 

2  (3%) 

SDFL 

155 

102  (66%) 

46  (30%) 

7  (5%) 

SDTX 

86 

60  (70%) 

21  (24%) 

5  (6%) 

CDCA 

74 

57  (77%) 

14  (19%) 

3  (4%) 

SDCA 

49 

34  (69%) 

11  (22%) 

4  (8%)  1 

NDIL 

52 

36  (69%) 

15  (29%) 

1  (2%) 

NEB 

10 

6  (60%) 

3  (30%) 

1  (10%) 

Overall 

573 

403  (70%) 

142  (25%) 

28  (5%) 

49 


Table  1.5:   Average  Sentences  for  Mandatory  Minimum  Drug 
Defendants  with  No  Departure  for  Substantial  Assistance. 


District 

60-Month  Mandatory 
Minimum  Convictions 

120-Month  Mandatory 
Minimum  Convictions 

Offenders 
(Number) 

Average 
Sentence 

Imposed 
(Months) 

Offenders 
(Number) 

Average 
Sentence 

Imposed 
(Months) 

EDNY 

41 

87 

15 

130 

SDNY 

38 

83 

22 

160 

SDFL 

75 

68 

58 

179 

SDTX 

49 

86 

21 

167 

CDCA 

17 

86 

47 

162 

1  SDCA 

18 

85 

16 

165 

NDIL 

25 

86 

10 

177 

1  NEB 

2 

101 

4 

190 

1  Overall 

265 

81 

193 

167 

Table  1.6: District  Analysis  of  Offenders  By  Racial  Category 


District 

Total 
Number  of 
Offenders 

White 
Offenders 

Black 
Offenders 

Hispanic 
Offenders 

Other* 

EDNY 

74 

13 

20 

34 

7  ! 

SDNY 

79 

4 

28 

43 

3  1 

SDFL 

155 

25 

28 

102 

0 

SDTX 

89 

16 

6 

67 

0 

CDCA 

81 

15 

37 

26 

3 

SDCA 

52 

28 

3 

21 

0. 

NDIL 

54 

15 

16 

23 

0 

NEB 

11 

4 

6 

0 

1 

Overall 

595 

120 

144 

316 

14 

•Other  =  Native  American,  Asian,  and  all  others 


50 


Table  1.7:   District  Analysis  of  Offenders  bv  Gender 

District 

Total 
Number  of 
Offenders 

Male 
Offenders 

Female 
Offenders 

EDNY 

74 

68   (92%) 

6   (8%) 

SONY 

79 

73   (92%) 

6   (8%) 

SDFL 

155 

125   (81%) 

30  (19%) 

SDTX* 

89 

81   (91%) 

7   (9%) 

COCA 

81 

65   (80%) 

16  (20%) 

SDCA 

52 

47   (90%) 

5  (90%) 

NDIL 

54 

46   (85%) 

8  (15%) 

NEB 

11 

11   (100%) 

0   (0%) 

Overall 

595 

516   (87%) 

78  (13%) 

'Gender  could  not  be  determined  for  one  offender. 
Table  1.8:   Offender  Criminal  History 


District 

Total 
Offenders 

First 

Time 

Offenders 

Repeat  Offenders         1 

Drugs 

Gun 

Other 

EDNY 

74 

55 

5 

7 

7  1 

SONY 

79 

56 

14 

4 

5  1 

SDFL 

155 

123 

21 

8 

3  i 

SDTX 

89 

44 

20 

3 

22 

CDCA 

81 

41 

13 

9 

18 

SDCA 

52 

16 

11 

2 

23 

NDIL 

54 

27 

17 

7 

3 

NEB 

11 

3 

2 

1 

5 

Overall 

595 

365 

103 

41 

86 

Table  1.9:   Offender  Age 


51 


District 

Total 

Offenders 

(Number) 

Age 

<21 

21-30 

31-40 

41-50 

>50    i 

EDNY 

74 

1  (1%) 

26  (35%) 

34  (46%) 

9  (12%) 

1 
4   (5%)  1 

SONY 

79 

5  (6%) 

35  (44%) 

25  (32%) 

12  (15%) 

2   (3%) 

SDFL 

155 

3  (2%) 

43  (30%) 

49  (32%) 

41  (26%) 

19  (12%) 

SDTX 

89 

3  (3%) 

36  (28%) 

29  (33%) 

18  (20%) 

3   (3%)  i 

CDCA 

81 

3  (4%) 

30  (37%) 

34  (42%) 

12  (15%) 

2   (3%) 

SDCA 

52 

0 

21  (40%) 

15  (29%) 

14  (27%) 

2   (4%) 

NDIL 

54 

2  (4%) 

16  (30%) 

22  (41%) 

13  (24%) 

1   (2%) 

NEB 

11 

0 

7  (64%) 

3  (27%) 

1   (9%) 

0 

Overall 

595 

17 

214 

211 

120 

33 

Table    I .10:      Offender   Education   Level 


District 

Offenders 
( Number ) 

<High 
School 

High 

School 

Graduate 

>High 
School 

Don' t 
Know 

EDNY 

74 

36  (49%) 

11  (15%) 

27  (36%) 

0  (0%)  i 

SONY 

79 

50  (63%) 

11  (14%) 

16  (20%) 

2  (3%)  i 

SDFL 

155 

68  (44%) 

36  (23%) 

50  (32%) 

1  (1%) 

SDTX 

89 

54  (61%) 

15  (17%) 

19  (21%) 

1  (1%) 

CDCA 

81 

37  (46%) 

21  (26%) 

23  (28%) 

0  (0%) 

SDCA 

52 

27  (52%) 

8  (15%) 

14  (27%) 

3  (6%) 

NDIL 

54 

26  (48%) 

14  (26%) 

13  (24%) 

1  (2%) 

NEB 

11 

3   (27%) 

6  (55%) 

2  (18%) 

0  (0%) 

Overall 

595 

301  (51%) 

122  (21%) 

164  (28%) 

8  (1%) 

52 


Table  I. 11:  Offenders  with  Indications  of  Substance  Abuse 


District 

Offenders 

(Total) 

Offenders 

With 

Indications 

Of  Drug  Abuse 

Offenders  With 
Indications  Of 
Alcohol  Abuse 

EDNY 

74 

15 

5 

SONY 

79 

31 

4 

SDFL 

155 

15 

6 

SDTX 

89 

14 

7 

CDCA 

81 

29 

8 

SDCA 

52 

19 

11 

NDIL 

54 

16 

9 

NEB 

11 

6 

3 

Overall 

595 

145 

53 

53 

Mr.  SCHUMER.  Thank  you,  Mr.  Wray.  I  want  to  compliment  GAO, 
yourself  and  your  associates.  I  think  you  have  done  an  excellent 
job. 

As  Mr.  Mazzoli  has  reminded,  I  think,  all  of  us,  if  we  are  going 
to  do  something  on  this  we  have  to  do  it  on  the  basis  of  fact.  You 
have  provided  us  with  some  very  important  facts. 

I  would  urge  all  of  my  colleagues  and  anybody  else  who  is  inter- 
ested in  this  issue  to  look  over  your  charts  that  just  lay  out  the 
numbers,  which  are  dry  but  interesting. 

[Laughter.] 

Mr.  Wray.  Thank  you,  I  think. 

Mr.  ScHUMER.  It  is  like  champagne.  Call  them  the  champagne  of 
the  GAO — dry  but  interesting. 

Anyway,  let  me  first  ask  you  this  question.  Did  your  study  indi- 
cate that  mandatory  minimums  interfere  with  the  sentencing 
guidelines?  And  could  you  address,  as  related  to  that,  the  point  Ms. 
Stewart  brought  up  and  I  am  sure  Judge  Wilkins  will  when  he 
next  testifies,  that  perhaps  the — when  Congress  passed  a  manda- 
tory they  raised  the  sentencing  guidelines  to  keep  the  discretion 
element  but  at  the  same  time  be  consonant  with  the  statute  that 
had  a  mandatory  minimum? 

Mr.  Wray.  Well,  as  she  mentioned  and  as  we  found,  the  manda- 
tory minimum  ranges  are  embedded  in  the  sentencing  guidelines. 
So  it  is  certainly  not  surprising  that  the  sentences  you  would  get 
under  the  guideHnes  would  approximate  the  mandatory  minimums 
themselves. 

In  terms  of  the  interplay,  the  most  interesting  thing  from  our 
point  of  view  is  that  the  mandatory  minimums  in  terms  of  their 
length  may  be  harsh  and  may  have  adverse  effects,  but  one  of  the 
concerns  is  that  the  mandatory  minimums  interfere  with  the  oper- 
ation of  the  other  factors  applied  under  the  guidelines.  And  based 
on  our  analysis  we  found  that  that  happened  in  a  very  limited 
number  of  cases.  Again,  there  is  a  certain  circular  effect  to  this. 
The  mandatory  minimums  are  reflected  in  the  guidelines,  but  then 
there  are  a  series  of  mechanisms  under  the  guidelines  to  justify 
lesser  or  greater  sentences.  There  hasn't  been,  at  least  based  on 
the  cases  we  reviewed,  a  substantial  interference. 

Mr.  ScHUMER.  Pretty  strong  disparity,  too.  If  the  minimum 
mandatories  were  regarded  universally  by  the  Sentencing  Commis- 
sion as  too  high,  they  obviously  could  have  made  the  band  nar- 
rower. I  think  you  said  when  the  minimum  mandatory  was  120 
months  the  average  sentence  was  167.  I  don't  remember  the  num- 
bers. 

Mr.  Wray.  That  was  the  average  that  came  out  after  all  the  fac- 
tors were 

Mr.  ScHUMER.  Right.  But  it  is  not  122  or  123,  but  a  significant 
4  years  higher,  which  is  quite  a  range  and  buttresses  your  state- 
ment and  the  belief  of  many  on  this  committee,  myself  included, 
that  the  two  are  not  out  of  consonance  with  one  another. 

Mr.  Wray.  Well,  I  think  we  found  that  the  interplay,  the  addi- 
tional factors  in  the  g^delines  have  not  been  undercut  by  the  man- 
datory minimums 

Mr.  SCHUMER.  OK 


54 

Mr,  Wray  [continuing].  Although,  obviously,  the  sentence  levels 
in  the  guidelines  were  drawn  with  reference  to  the  minimums. 

Mr.  ScHUMER.  Now,  you  noted  in  your  testimony  that  mandatory 
minimum  charging  policies  and  practice  varied  between  districts 
you  studied.  Of  course  it  is  true,  wouldn't  you  agree,  that  dif- 
ferences exist  with  regard  to  other  crimes  where  there  is  no  man- 
datory minimum  as  well,  probably  to  a  greater  extent,  if  anything? 

Mr.  Wray.  Well,  presumably.  Obviously,  there  are  a  lot  of  factors 
that  go  into  this  beyond  mandatory  minimums;  generally,  the  law 
enforcement  and  prosecutive  practices. 

Mr.  ScHUMER.  Right.  And  you  mentioned  the  Eastern  District  of 
New  York  in  which  I  live,  and,  of  course,  which  is  not  a  typical  dis- 
trict because  it  has  the  airports,  Kennedy  and  La  Guardia,  which 
have  so  much  drug  traffic  coming  in  and  coming  out.  But  you  indi- 
cated they  decline  to  prosecute  the  mule  cases  under  the  statutes 
carrying  the  mandatory  minimum,  and  you  gave  the  three  reasons. 
One  of  them  indicated  just  an  overcrowding.  That  it  was  just  too 
burdensome.  They  would  be  forced  to  go  to  trial  each  time  and  they 
didn't  have  room  to  do  that.  The  other  two  were  more  policy  ori- 
ented. That  perhaps  these  are  the  wrong  sentence. 

Did  one  outweigh  the  other  two? 

Mr.  Wray.  No,  I  really  couldn't  pinpoint  it  more.  Again,  we  basi- 
cally did  the  case  reviews  and  then  conducted  some  interviews  in 
terms  of  the  policies.  But  I  really  don't  think  I  could  pin  that  down 
anymore. 

Mr.  ScHUMER.  OK  Did  your  study  indicate — and,  by  the  way,  I 
did  not  make  that  point  in  opening  statement,  but  there  is  another 
policy  issue  here  which  is  underlying  all  of  this,  and  I  think  \ye 
ought  to  make  that  clear.  Some  are — ^you  know,  the  main  thrust  in 
the  media  of  the  mandatory  minimums,  eliminating  them  or  chang- 
ing them  issue,  has  been  the  egregious  case,  which  as  I  have  men- 
tioned neither  statistically  nor  evidentiary  in  terms  of  the  individ- 
uals I  have  found  to  be  preponderant  or  overwhelming.  There  are 
some  and  I  think  we  should — my  judgment  is  we  should  try  to 
move  with  those. 

But  there  is  another  argument,  and  that  is  that  for  certain  types 
of  drug  offenses  the  minimum  mandatory  might  be  too  high.  In 
other  words,  perhaps  a  mule,  even  a  mule  carrying — and  this  is 
something  I  would  have  to  think  about,  we  would  all  have  to  think 
about — carrying  a  significant  amount  of  crack  cocaine  ought  to  not 
get  a  minimum  of  5  years,  but  maybe  a  minimum  of  2  or  3  years 
on  the  theory  that  it  is  the  people  at  the  top  who  are  running  this 
drug  enterprise  and  they  will  just  find  another  mule,  and  maybe 
that  burglar  in  Mr.  Sangmeister's  district,  I  mean  we  go  nuts  at 
our  local  level — a  burglar,  I  guess  I  am  mixing  State  and  Federal. 
But  other  types  of  criminals  should  spend  more  of  the  composite 
amount  of  prison  time  than  these  people. 

That,  however,  is  a  different  argument  than  the  huge  injustice. 
To  me — I  am  not  going  to  get  on  it.  It  is  an  argument  of  resources 
as  opposed  to  "Oh,  this  poor  mule  carrying,  you  know,  30  tons  of— - 
30  kilos  of  crack  got  a  5-year  sentence?"  My  heart  doesn't  go  out 
to  that  person.  It  just  may  be  that  when  there  is  a  limited  amount 
of  prison  space  that  person  ought  to  be  in  jail  for  3  years  rather 


55 

than  5,  and  somebody  who  was  hitting  somebody  over  the  head 
ought  to  be  in  for  the  10  years  rather  than  the  7. 

Any — that  is  my  own.  OK, 

Did  you  find  any  evidence  of  racial  disparity  in  the  way  manda- 
tory minimums  are  apphed? 

Mr.  Wray.  Well,  as  I  mentioned,  we  looked  at  the  race 

Mr.  SCHUMER.  I  know  you  did. 

.Mr.  Wray  [continuing].  In  our  figures,  we  don't  really  have  a 
finding  one  way  or  another  on  that  issue.  It  wouldn't  be  fair  to 
characterize  these 

Mr.  ScHUMER.  Right 

Mr.  Wray  [continuing].  Figures  as  showing  any  patterns. 

Mr.  ScHUMER.  OK.  Now  did  you  review  the  Sentencing  Commis- 
sion's report  on  mandatory  minimums?  They  did  a  study  in  1991. 

Mr.  Wray.  Yes. 

Mr.  ScHUMER.  OK  You  analyzed  the  methodology  in  that  report, 
I  know.  In  la)rman's  terms,  could  you  summarize  your  findings? 
Were  there  problems  that  might  limit  the  usefulness  of  that  report 
from  your  accounting  point  of  view? 

Mr.  Wray.  Well,  firom  our  point  of  view  the  one  difference  was 
they  gave,  they  tended  to  count  more  than  we  did  cases  where  a 
mandatory  minimum  would  seem  to  be  indicated  by  the  arrest  doc- 
uments but  not  by  the 

Mr.  Schumer.  The  preindictment. 

Mr.  Wray.  Yes,  by  the  preindictment  documents.  That  is  one  dif- 
ference. Actually,  our  findings,  I  think,  are  fairly  similar  in  some 
of  these  respects.  But  we  just  counted  cases  where  a  mandatory 
minimum  sentence  was  not  actually  charged  on  the  basis  that 
there  could  have  been  a  number  of  factors  that  went  into  that  deci- 
sion, related  to  the  quality  of  the  evidence  and  similar  factors,  that 
could  make  that  a  case  where  nobody  would  seek  a  mandatory  min- 
imum if  you  don't  think  you  can  obtain  a  conviction  in  the  first  in- 
stance. 

Mr.  Schumer.  OK 

Mr.  Wray.  But  I  think  beyond  that  they  have  made  conclusions 
that  we  don't  have.  We  are  basically  not  making  any  conclusions 
about  this. 

Mr.  Schumer.  Right. 

Mr.  Wray.  But  in  terms  of  the  methodology  that  was  the  main 
difference. 

Mr.  Schumer.  Do  you  want  to,  Ms.  Willis? 

Mr.  Wray,  Do  you  want  to  elaborate  on  that? 

Ms.  Willis.  The  major  difference  was  how  they  treated  cases 
without  convictions  for  mandatory  minimums  and  how  we  chose  to 
treat  them. 

Mr.  Schumer.  Would  you  just  elaborate  a  little  on  that?  They  in- 
cluded them  in  the  total  statistical  base? 

Ms.  WiLUS.  Right.  They  looked  at  a  universe  of  cases  where  the 
arrest  record  and  other  records  indicated  that  there  was  a  manda- 
tory minimum  behavior  involved  and  included  in  their  evaluation 
all  of  those  cases  whether  there  was  an  actual  conviction  or  not. 
We  chose  to  take  a  more  conservative  approach  based  on  concerns 
raised  by  the  Justice  Department  and  others  that  you  may  not 


56 

have  been  able  to  obtain  a  conviction  in  those  cases  based  on  the 
quaHty  of  the  evidence  and  other  factors. 

Mr.  SCHUMER.  So,  in  other  words,  one  could  argue  that  the  Sen- 
tencing Commission  study,  they  used  too  broad  a  universe  because 
they  used  cases  where  the  mandatory  minimum  never  really  bid  in 
because  the  indictment  wasn't  done  at  that  phase. 

Mr.  Wray.  Probably.  You  have  to  be  very  careful  with  these  sta- 
tistics. 

Mr.  ScHUMER.  Right. 

Mr.  Wray.  I  think  probably  the  actual  facts  lie  in  between.  I 
think  undoubtedly  we  have  cases  where  a  mandatory  minimum 
wasn't  charged  because  of  one  of  these  policies,  not  because  of  ques- 
tions about  the  quality  of  the  evidence.  We  just  weren't  able  to  pin 
those  down. 

Mr.  Schumer.  But  aren't  there  fewer  cases  where  it  wouldn't  be 
charged  and  should  have  than  where  it  was  charged  and  never  was 
effectuated? 

Mr.  Wray.  Well,  possibly. 

Mr.  Schumer.  You  don't  know. 

Mr.  Wray.  It  is  really  hard 

Mr.  Schumer.  OK 

Mr.  Wray.  It  is  very  hard  to  say. 

Mr.  Schumer.  OK.  I  understand  that.  OK,  thank  you.  Again,  I 
want  to  thank  you,  Mr.  Wray,  and  Ms.  Willis,  Ms.  Gibson,  for  your 
help  in  this  very  difficult  issue. 

Mr.  Schiff. 

Mr.  Schiff.  Thank  you,  Mr.  Chairman.  Mr.  Wray,  I  would  like 
to  go  over  two  areas.  I  would  like  to  talk  about  your  view  of  sen- 
tencing, mandatory  minimum  sentencing  were  imposed,  and  then 
where  cases  are  pled  or  waived  by  the  U.S.  attorneys'  offices. 

From  what  you  saw  where  mandatory  minimum  sentences  are 
imposed,  the  case  has  already  gone  to  a  plea  or  to  a  trial,  got  a  con- 
viction, it  is  my  understanding  that  in  the  overwhelming  majority 
of  cases,  I  think  95  percent  cited  by  our  chairman,  your  findings 
are  that  the  sentence  imposed  under  the  minimum  mandatory 
guidelines  would  have  been  at  least  imposed  by  sentencing  guide- 
lines had  there  been  no  minimum  mandatory;  is  that  correct? 

Mr.  Wray.  Well,  in  fact,  in  most  of  those  cases  a  sentence  was 
a  sentencing  guidelines  sentence  rather  than  a  mandatory  mini- 
mum. 

Mr.  Schiff.  Because  it  was  higher. 

Mr.  Wray.  Yes,  that  is  right. 

Mr.  Schiff.  Right.  So  in  other  words,  sentencing  guidelines  actu- 
ally produced  a  higher  sentence  than  minimum  mandatories? 

Mr.  Wray.  Yes,  in  most  of  the  cases.  Of  course,  again  that  is  a 
factor  of  the  base  offense  levels  under  the  guidelines. 

Mr.  Schiff.  Sure.  I  understand.  But  it  suggests  to  me  that  man- 
datory minimums  are  not  causing  great  amounts  of  disparities  in 
sentencing  and  egregious  cases,  if  the  sentencing  guidelines  would 
have  produced  at  least  that  same  sentence. 

Mr.  Wray.  That  is  right.  I  think  we  would  say  in  terms  of  the 
process  envisioned  by  the  sentencing  guidelines,  that  process  has 
not  been  preempted  by  the  mandatory  minimums,  except  5  percent 
of  the  cases. 


57 

Mr.  SCHIFF.  I  emphasize  that  because  one  of  the  proposals  that 
is  out  there  is  a  proposal  to  eliminate  mandatory  minimum  sen- 
tences in  favor  of  placing  the  same  sentence  over  on  the  sentencing 
guidelines,  and  it  sounds  to  me  like  that  wouldn't  make  that  much 
difference  if  we  actually  did  that. 

Mr.  Wray.  That  would  be  one  possible  remedy  that  would  allow 
the  sentencing  guidelines  process  to  work  on  the  additional  5  per- 
cent. 

Mr.  ScHiFF.  With  the  5  percent. 

Mr.  Wray.  Yes. 

Mr.  ScHiFF.  The  second  area  I  would  like  to  ask  you  about  is 
where  the  minimum  mandatory  sentence  is  not  used  because  the 
prosecutor  chooses  either  not  to  charge  the  offense  or  to  file  a  sub- 
stantial assistance  motion  under  the  law.  If  I  understood  you  cor- 
rectly, there  is  at  least  one  district  in  your  study  where  the  drug 
courier,  so  to  speak,  which  is  a  person  trafficking  in  drugs,  is  not, 
is  routinely  not  charged,  at  least  not  charged  under  that  minimum 
mandatory  statute;  is  that  right? 

Mr.  Wray.  They  generally  don't  do  that.  That  is  right. 

Mr.  SCHIFF.  So  that  means  that  in  that — I  don't  remember  which 
district  it  was. 

Mr.  Wray.  It  is  the  Eastern  District  of  New  York. 

Mr.  SCHIFF.  It  is  the  Eastern  District  of  New  York. 

Mr.  SCHUMER.  Brooklyn  and  Queens,  to  wit. 

[Laughter.] 

Mr.  ScHlFF.  I  wasn't  being  personal,  Mr.  Chairman,  honestly. 

Mr.  ScHUMER.  I  haven't  had  much  say  on  who  is  appointed  there 
in  a  long  time. 

Mr.  ScHiFF.  I  understand.  Take  it  while  you  have  got  it. 

I  want  to  say,  though,  but  in  that  district  or  any  other  district 
with  that  policy  that  particular  minimum  mandatory  just  doesn't 
exist;  is  that  right?  I  mean  if  it  is  not  charged  routinely  then  it 
never  gets  into  u\e  procedure. 

Mr.  Wray.  Well,  for  that  particular  type  of  activity.  As  the  gen- 
eral practice,  too.  I  take  it  they  don't  necessarily  follow  that  in  all 
cases.  It  is  a  general  guideline  that  they  have  based  on  resource 
and  other  factors. 

Mr.  ScHiFF.  The  point  I  am  getting  at  is  really  at  the  other  end 
of  the  scale  here.  Where  we  have  a  minimum  mandatory  sentence, 
and  we  do  in  drug  trafficking,  where  one  district,  the  U.S.  attorney 
chooses  to  charge  routinely  if  they  have  the  evidence,  and  one  juris- 
diction the  U.S.  attorney  chooses  not  to  charge  it  routinely  even  if 
they  have  the  evidence,  essentially  you  have  a  disparity  in  sen- 
tences between  those  two  districts;  right? 

Mr.  Wray.  Well,  certainly  disparities  can  result  from  charging 
practices. 

Mr.  SCHIFF.  Right. 

Mr.  Wray.  Under  the  guidelines  and  in  other  contexts.  Yes. 

Mr.  ScHiFF.  Sure.  In  the  course  of  your  study,  which  I  think  was 
a  3-year  study,  did  it  conclude — may  I  ask  when  it  concluded? 

Mr.  Wray.  Well,  the  data  we  have  go  back  to  late  1990,  I  think. 

Mr.  ScHiFF.  Does  it  include  any  portion  of  this  year  also? 

Mr.  Wray.  No.  We  don't  have  any  cases  fVom  this  year. 


58 

Mr.  SCHIFF.  Well,  did  you  determine — does  the  Justice  Depart- 
ment in  those  years,  did  it  have  any  policy  that  you  discovered  in 
terms  of  advising  the  U.S.  attorneys  about  how  to  charge  when 
minimum  mandatory  sentencing  is  involved? 

Mr.  Wray.  Well,  they  had  general  guidance  in  the  form  of  a 
Thomburgh  memorandum  that  dealt  with  how  to  charge  under  the 
sentencing  guidelines,  which  is  the  charge — the  most  serious,  read- 
ily provable  charge  in  most  cases,  with  some  exceptions.  There 
were  certain  cases  where 

Mr.  SCHIFF.  But  you  found  a  whole  district  that  didn't  charge,  at 
least  as  far  as  couriers  go. 

Mr,  Wray.  Well,  in  these  particular  cases,  that  is  right.  Now,  re- 
source considerations  and  workload  are  factors  under  the 
Thomburgh  memo  and  they  may  have  been  thinking  of  that  in  the 
Eastern  District  of  New  York. 

Mr.  ScHlFF.  Well,  just  to  follow  up  once  more  on  that,  did  you 
find  any — in  the  Thomburgh  memorandum  was  reference  given  to 
making  sure  that,  or  in  any  way  a  reference  to  using  more  serious 
offenders  to  testify  against  less  serious  offenders?  Did  you  see  that? 
Because  it  has  come  out — if  there  is  any  disparity  in  the  three 
cases  you  heard  earlier,  in  my  judgment,  the  problem  is  not  by  it- 
self sentences  for  the  three  individuals  involved  who,  even  though 
you  might  play  it  down,  first  offender,  childhood  friend,  minimal  in- 
volvement, they  have  all  three  voluntarily  involved  themselves  in 
drug  trafficking  and  knew  what  that  meant. 

The  disparity  is  what  happened  to  other  offenders  who  may  have 
been  more  involved  in  the  same  situation  but  got  less  of  a  sentence 
for,  perhaps,  testifying  against  them.  Did  you  find  anything  in  the 
Thomburgh  memorandum  that  said  don't  do  that?  If  you  have  got 
a  more  serious  offender,  don't  give  that  up  to  make  sure  you  con- 
vict the  less  serious  offender.  Do  you  remember  that  being  there? 

Mr.  Wray.  I  don't  think  that  it  deals  specifically  with  that  issue. 
Obviously,  there  are  a  lot  of  law  enforcement  issues  that  go  into 
the  charging  decisions. 

Again,  I  should  emphasize  that  our  review  was  done  on  the  basis 
of  looking  at  statistics  in  cases.  It  really  wasn't  possible  for  us  to 
talk  to  the  prosecutors  in  particular  cases  and  really  nail  down  in 
any  individual  case  what  their  reasoning  was. 

Mr.  SCHIFF.  All  right.  Mr.  Chairman,  before  yielding  back  I 
would  just  like  to  conclude  that  I  agree  with  my  colleague.  Con- 
gressman Mazzoli,  that  perceived  difficulties  in  charging  by  pros- 
ecutors is  not  a  reason  by  itself  to  change  the  sentencing  guide- 
lines, particularly  if  the  difference — with  mandatory  minimums,  if 
the  difference  in  sentencing  guidelines  is  minimal. 

But  I  don't  think  we  can  talk  about  sentencing  policy  imposed  by 
Congress  without  talking  about  the  charging  policies  of  the  Justice 
Department.  Again,  I  would  reiterate  that  I  would  welcome  a  hear- 
ing with  the  appropriate  Justice  Department  officials  about  what 
their  prosecutors  are  doing  with  the  laws  that  we  g^ve  them.  And 
I  yield  back. 

Mr.  SCHUMER.  Thank  you,  Mr.  Schiff.  Mr.  Mazzoli. 

Mr.  Mazzoli.  Thank  you  very  much,  Mr.  Chairman.  I  would  like 
to  return  the  favor  to  my  colleague  from  New  Mexico.  I  have  writ- 
ten down  on  the  little  paper  I  nad  your  statement  earlier  today, 


59 

which  is  something  to  the  effect  that  drug  activity  is  inherently  a 
violent  enterprise,  and  I  think  we  always  have  to  bear  that  in 
mind.  That  wnen  we  are  talking  about  drug  couriers  and  first-time 
this  and  second-time  that  we  are  talking  about  actors  in  a  violent 
drama  that  has  consumed  assets  and  resources,  both  financial  and 
human,  in  our  Nation's  cities  and  townships  to  the  point  that  some 
say  that  we  may  not  ever  be  the  same  as  a  nation.  So  I  think  we 
have  to  be  very  carefiil. 

Mr.  Wray,  let  me  thank  you  and  your  colleagues.  GAO  once 
again  has  g^ven  us  much  food  for  thought  and  much  information 
that  will  help  us,  because — ^you  may  have  been  in  the  audience — 
my  steady  theme  this  mornmg  is  we  need  data.  We  need  reliable 
information  about  who  is  doing  what  to  whom,  and  who  is  suffering 
and  who  is  not  suffering,  and  until  we  have  that  data  we  really 
can't  make  many  judgments. 

And  in  that  setting,  let  me  go  back  over,  just  briefly,  a  few 
things.  You  studied  900  cases.  Something  like  595  wound  up  in  the 
mandatory  minimum  category.  Three  hundred  and  five  were  cases 
that  were  outside  the  mandatory  minimum  or  they  were  not  pur- 
sued, I  think  is  how  you  say  it. 

Mr.  Wray.  Yes.  There  was  a  conviction  of  a  Federal  offense  but 
not  one  carrying  a  mandatory  minimum. 

Mr.  Mazzou.  So  that  is  roughly  one-third,  305  out  of  900.  So  you 
are  roughly  talking  about  one-third.  Because  one  of  the  myths  that 
has  grown  up  I  think  in  this,  if  you  are  just  reading  the  general 
material,  is  that  the  Federal  prosecutors  are  slavishly  devoted  to 
mandatory  minimums,  and  they  have  got  that  scourge  and  they 
have  that  sword,  and  they  are  just  going  to  go  out  there  and  cut 
somebody's  head  off  every  time  they  have  the  first  opportunity. 

Here  we  have  305  cases  where  by  all  indices  they  could  have  fit 
into  the  mandatory  minimum,  but  either  because  of  substantial  as- 
sistance or  declinations  or  whatever  they  wound  up  outside  that 
category,  which  I  think  supports  the  idea  that  these  are  not  used 
slavishly.  Is  that  a  fair  statement? 

Mr.  Wray.  Yes.  The  only  point  I  would  make  there 

Mr.  Mazzoli.  Please. 

Mr.  Wray  [continuing].  Is  the  substantial  assistance  cases  would 
actually  come  into  play  when  someone  was  convicted  of  a  manda- 
tory minimum  you  could  still  get  the  substantial  assistance 

Mr.  Mazzoli.  The  declination  part  would  be  the 

Mr.  Wray.  Right. 

Mr.  Mazzoli.  And  let  me  get  into  that  for  just  a  moment,  be- 
cause  

Mr.  SCHUMER.  I  would  just — if  the  gentleman  would  yield? 

Mr.  Mazzoli.  Yes.  Sure. 

Mr.  SCHUMER.  It  is  a  point  I  made  in  my  opening  statement  but 
it  is  worth  reiterating.  This  deals  more  with  the  overcrowding  issue 
and  the  role  that  mandatory  minimums  is  playing.  But  the  total 
number  of  mandatory  minimums  in  the  year  that  was  studied  by 
the  Sentencing  Commission,  there  were  38,000  people  sentenced 
under  the  guicfelines  and  3,189  were  under  the  guidelines.  That  is 
less  than  10  percent  of  all  people  sentenced. 

It  is  not  exactly  the  point  the  gentleman  was  making,  but  it  is 
an  important  one  when  we  are  being  told  that  the  Federal  prison 


60 

system  is  just  so  filled  up  with  people  under  the  mandatory  mini- 
mums  that  there  is  no  room  for  anybody  else. 

Mr.  Mazzoli.  That  is  a  very  good  point,  and  I  think  it  also — ^it 
indicates  that  this  is  a  multifaceted  problem.  It  isn't  as  simple  as 
some  might  paint  it  to  be. 

And  I  think  based  on  what  my  colleague,  Mr.  Conyers,  had  said 
earlier,  I  think  it  was  the  gentleman  from  New  Jersey's  hearing 
that  I  had  myself  referred  to  earlier  at  which  we  heard,  from  Fed- 
eral judges  and  people  involved  in  this  situation,  and  I  have  a  dis- 
tinct mental  recollection,  and  I  will  try  to  bolster  it  by  reading  the 
transcript,  where  someone  at  that  panel  or  some  of  the  people  said 
using  drug  mules,  using  the  Eastern  District  of  New  York  as  a  case 
in  point,  by  saying  how  terrible  it  was  because  some  of  these  drug 
mules — and  I  say  that  they  are  part  of  a  violent  enterprise  but  this 
individual  more  or  less — how  terrible  it  was  that  these  people 
wound  up  in  the  slammer  for  x  number  of  years,  all  they  were 
doing  is  just  acting  as  the  lowest  level  of  this  enterprise.  They  were 
the  bottom  rung  people. 

And,  first  of  all,  I  think  that  there  is  an  inherent  fallacy  in  that 
argument.  But  beyond  that,  from  what  I  gathered,  for  resource  is- 
sues and  proof  issues  and  you  name  it  the  U.S.  attorneys  in  the 
Eastern  District  of  New  York  have  routinely  not  gone  mandatory 
minimum  with  respect  to  these  drug  mules  or  couriers.  Is  that  cor- 
rect? 

Mr.  Wray.  That  is  what  they  told  us  in  interviews.  We  can't  re- 
late that  to  specific  cases.  But  we  were  told  that  was  their  general 
policy, 

Mr.  Mazzoli.  Well,  then  one  of  the  arguments  that  was  made 
that  day,  it  seemed  to  me,  in  favor  of  our  scrubbing  up  this  thing 
or  maybe  eliminating  mandatory  minimums  or  doing  something 
along  those  lines  was  the  fact  that  the  drug  mules  wound  up  get- 
ting mandatory  minimum  treatment  by  these  ardent  Federal  pros- 
ecutors because  they  couldn't  give  any  information.  Up  the  food 
chain  is  where  you  have  got  people  who  can  get  to  the  kingpin.  So, 
if  you  were  at  the  bottom  rung,  you  couldn't  give  them  anything, 
so  they  put  the  real  heat  to  you.  But  if  you  could  give  them  some- 
thing, they  went  easy  on  you.  But  these  data  dont  seem  to  show 
that,  at  least  for  the  Eastern  District  of  New  York. 

Mr.  Wray.  Well,  for  the  Eastern  District  of  New  York.  It  might 
be  very  different  in  other  districts. 

Mr.  Mazzoli.  And  I  think  my  friend  has  said  that  is  where  a  big 
amount  of  this  activity  takes  place,  coming  and  going  out  of  J.F.K. 
and  La  Guardia. 

Mr.  SCHUMER,  The  mules.  Very  democratic,  though. 

Mr.  Mazzoli.  Very  democratic.  That  is  right. 

Mr.  SCHIFF.  If  the  gentleman  would  yield  for  just  one  second  at 
this  point  I  would  appreciate  it. 

Mr.  Mazzoli.  Certainly. 

Mr.  SCHEFF.  It  is  even  worse  if  there  is  a  downward  agreement. 
In  other  words,  it  is  even  worse  if  somebody  who  is  here  in  the 
chain  is  given  a  break  to  testify  to  convict  someone  who  is  less  cul- 
pable. It  seems  to  me  if  they  have  this  person  here  they  should 
keep  that  person  for  the  maximum. 

I  yield  back.  Thank  you. 


61 

Mr.  Mazzoli.  And  I  think  a  couple  of  points  have  been  borne  out. 
One  that  there  is  an  awful  lot  of  murky  data  that  we  really  have 
to  clear  up  and  clarify  and  delineate.  Secondly,  there  is  a  lot  of 
mvth  that  has  grown  up  on  this  subject,  and  I  think  a  lot  of  this, 
I  believe,  in  mandatory  minimums  stems  from  the  whole  idea  of 
sentencing  guidelines  and  the  idea  that  people  just  don't  want  to 
be  told  what  to  do  in  a  court  setting.  They  want  to  have  that  lee- 
way or  discretion  which,  to  some  extent,  has  been  deprived  by  rea- 
son of  these  activities. 

And  I  think  it  also  is  borne  out  that  some  of  the  cases,  and  peo- 
ple just  routinely  say  violent  criminals  are  being  released  to  make 
room  for  nonviolent  offenders.  Well,  you  know,  that  is  against  apple 
pie  and.against  motherhood  and  the  Fourth  of  July  and  everything 
that  America  stands  for.  But  we  don't  really  have  a  lot  of  numbers 
to  bolster  that  as  an  in  fact  activity. 

My  last  question  therefore,  Mr.  Chairman,  to  GAO  is  have  you 
done  studies  on  what  I  said  earlier  today  about  ACIR  did  with  re- 
gard to  State  level  prisons?  The  last  question.  Have  you  done  stud- 
ies or  can  you  do  studies? 

Mr.  Wray.  We  have  done  some  work  along  those  lines.  Actually, 
we  are  undertaking  a  body  of  work  now  that  looks  more  broadly 
at  how  priorities  are  set  in  the  law  enforcement  area  and  the  rela- 
tionships between  State  and  Federal  prosecutions,  and  the  prison 
population. 

Mr.  Mazzoli.  Can  someone  tell  me,  either  GAO  or  maybe  some- 
one in  this  room,  or  the  Federal  Prison  Commissions  or  Bureau  of 
Prisons,  how  many  people  in  the  Federal  prisons  right  now  are 
nonviolent  first-time  offenders? 

Mr.  ScHUMER.  If  the  gentleman  would  yield?  I  only  have  the  an- 
swer for  that  one  year.  But  I  wanted  to  correct  it.  That  is  for  non- 
violent first-time  offenders,  the  3,189.  And  the  others  who  were 
sentenced  under  the  guidelines  might  be  second-time  or  violents. 

Mr.  Mazzoli.  This  was  a  very  discrete  study.  I  mean  they  went 
into  various  categories.  Now,  I  have  another  recollection  of  the 
Hughes  hearing  in  which  one  of  the  panelists  said  it  is  very  much 
more  difficult  to  do  that  at  the  Federal  level.  Why  I  don't  know. 
But  I  would  love,  if  you  can  supply  it,  or  anyone  can,  the  number 
of  nonviolent  first-time  offenders  in  the  Federal  prisons. 

Now,  I  don't  understand  what  Alderson  is,  whether  that  is  con- 
sidered a  Federal  prison  or  a  correctional  institution  or  a  halfway 
house  or  whatever  it  is.  But  what  I  would  like  to  know  is  what  con- 
stitutes a  Federal  prison,  the  number  of  nonviolent  first-time  of- 
fenders, the  number  of  those  incarcerated  in  Federal  prisons  who 
are  there  because  of  drug-related  offenses,  the  number  of  those  who 
are  serving  time  for  violent  crimes,  the  number  of  those  who  have 
been  behind  before,  in  effect  are  recidivists  and  multiple  offenders, 
and  then  this  one  last  category  that  this  ACIR  study  says  is  the 
number  of  the  people  who,  in  this  case,  are  in  the  fourth  time.  I 
mean  the  ones  who  have  made  crime  their  way  of  life. 

What  we  need  is  to  know — I  go  back  to  it — are  violent  criminals 
being  released  to  make  room  for  nonviolent  criminals?  Are  we  now 
putting  behind  bars  forever  people  who  are  choirboys,  to  use  the 
term  that  Ms.  Stewart  used  earlier?  Or  in  fact,  given  what  we  are 
dealing  with,  a  violent  society  with  a  lot  of  marauding  criminals  in 


62 

it,  are  we  doing  a  pretty  job  of  discriminating  between  those  who 
are  threats  to  us  and  those  who  are  not?  I  need  that  information. 

Mr.  SCHUMER.  Do  you  want  to  say  anything  to  that,  Mr.  Wray? 

Mr.  Wray.  Well,  I  am  not  sure  how  much  of  that  is  readily  avail- 
able. We  will  certainly  try  to  obtain  what  we  can  on  it. 

Mr.  ScHUMER.  I  would  just  say  we  have  asked  the  same  ques- 
tions, the  subcommittee  staff"  has.  I  would  just  say  as  follows:  No. 
1,  the  question  how  many  people  in  the  Federal  prison  system  are 
nonviolent  first-time  drug  offenders  we  can't  get  answer  to  because 
until  2  years  ago  they  were  not  keeping  such  records.  They  knew 
how  long  they  were  sentenced  for  but  not  the  methodology  under 
which  their  sentence  came.  For  the  last  2  years  I  think  it  is  avail- 
able and  we  are  trying  to  get  that. 

In  reference  to  the  second  question,  it  is  pretty  clear  that  in  the 
Federal  system  your  statement  is  not  true  that  nonviolent  crimi- 
nals are  bouncing  violent  criminals  out  of  prison.  Whether  that  is 
true  for  certain  State  systems  is  a  different  question  that  I  can't 
give  you  an  answer  on. 

Mr.  Mazzoli.  Thank  you,  Mr.  Chairman. 

Mr.  ScHUMER.  OK  Thank  you,  Mr.  Wray. 

OK.  Now  we  call  our  third  panel,  and  I  want  to  thank  the  third 
panel  for  their  indulgence,  as  well  as  the  fourth  panel,  who  are 
going  to  have  to  indulge  even  more.  We  would  ask  them  to  come 
forward. 

Yes,  there  is  a  fourth.  We  are  changing  the — I  am  sorry.  We  are 
changing  the  order.  Panel  3  will  simply  consist  of  former  Attorney 
General  Barr  and  Judge  Wilkins.  And  then  panel  4  will  be  the  re- 
maining four  witnesses.  We  would  invite  either  Mr.  Wilkins  or  the 
former  Attorney  General  to  join  in  in  that  panel,  if  they  want  to, 
because  we  thought  the  last  panel  would  be  a  little  more  of  a  dis- 
cussion group.  Although,  frankly,  we  have  plenty  of  back  and  forth 
discussion  even  up  to  this  point,  which  I  think  is  good. 

OK.  Then  let  me  introduce  the  Honorable  William  Wilkins.  He 
is  the  Chairman  of  the  U.S.  Sentencing  Commission,  and  U.S.  cir- 
cuit judge  for  the  Fourth  Circuit  Court  of  Appeals.  Before  taking 
his  current  position.  Judge  Wilkins  served  as  a  U.S.  district  court 
judge  for  the  District  of  South  Carolina. 

The  Honorable  William  Barr  served  as  Attorney  General — we  all 
know  him  well  on  this  committee  and  subcommittee — of  the  United 
States  under  the  Bush  administration,  and  he  is  now  a  partner 
with  Shaw,  Pittman,  Potts  &  Trowbridge  in  Washington,  DC.  And 
before  becoming  Attorney  General,  Mr.  Barr  served  as  Deputy  At- 
torney General. 

Judge  Wilkins,  you  may  begin. 

STATEMENT  OF  JUDGE  WILLIAM  W.  WILKINS,  JR.,  CHAIRMAN, 
U.S.  SENTENCING  COMMISSION 

Judge  Wilkins.  Thank  you,  Mr.  Chairman.  First  of  all,  I  would 
like  to  submit,  if  I  may,  for  the  record  a  factsheet  that  profiles  drug 
offenders  sentenced  in  the  Federal  courts  in  the  year  1992.  You 
may  find  it  informative. 

Mr.  ScHUMER.  Please.  And,  without  objection,  it  will  be  entered 
into  the  record. 


63 

Judge  WiLKiNS.  Thank  you  very  much.  I  also  have  for  the  record 
a  legislative  proposal  that  I  would  like  to  discuss  with  you.  And  if 
I  may  I  would  like  to  submit  that  for  the  record. 

Mr.  ScHUMER.  Without  objection,  that  too  will  be  submitted  for 
the  record. 

Judge  WiLKiNS.  Thank  you  very  much.  I  have  iust  a  few  brief  re- 
marks. My  written  testimony  has  been  submitted. 

First  of  all,  let  me  say  that  whatever  concerns  people  may  have 
with  mandatory  minimum  provisions,  there  is  no  support  from  this 
witness  and  no  support  from  the  U.S.  Sentencing  Commission  that 
we  should  retreat  from  the  principle  that  criminal  acts  should  be 
met  with  tough  and  with  certain  sentences. 

Today,  there  exists  a  congressionally  chartered  sentencing  sys- 
tem— that  is,  the  Federal  sentencing  guidelines — that  assure  tough 
and  certain  punishment.  Indeed,  this  type  of  system  and  these  pun- 
ishments would  continue  even  if  for  some  reason  the  mandatory 
minimums  were  to  disappear  today  and  be  taken  from  the  books 
or  substantially  modified. 

For  example,  of  all  defendants — and  I  think  you  have  referred  to 
this  in  earlier  testimony — of  all  defendants  subject  to  the  5-year 
mandatory  minimum  penalty — that  is,  the  60-month  mandatory 
minimum — the  average  sentence  for  these  defendants  is  not  60 
months  but,  under  the  guidelines  88  months.  Those  defendants 
who  are  facing  the  10-year  mandatory  minimum  penalties — that  is, 
120  months — the  average  sentence  is  not  120  months  but,  actually 
197  months.  Of  course,  this  is  because  the  Congress,  by  passing 
mandatory  minimum  statutes,  essentially  sets  the  starting  point  or 
base  offense  level  for  these  type  of  offenses  under  the  Federal  sen- 
tencing guidelines.  Then,  if  aggravating  factors  are  present  in  a 
given  case,  the  guidelines  will  enhance  the  sentence. 

A  defendant  facing  a  10-year  mandatory  minimum  penalty  who 
has  no  aggravating  factors  will  receive  120  months  imprisonment. 
But  those  who  have  aggravating  factors,  such  as  the  use  of  a  weap- 
on or  violence,  or  recidivists  with  long  criminal  records  and  so 
forth,  under  the  guidelines  scheme,  those  sentences  will,  of  course, 
be  increased. 

Importantly,  Congress  should  not  be  distracted  by  off-the-mark 
suggestions  that  this  is  an  issue  of  being  tough  or  being  soft  on 
crime.  I  am  a  former  prosecutor  and  I  chair  an  agency  where  crime 
control  is  the  primary  goal  that  we  have  attempted  to  achieve.  I 
firmly  believe  that  to  effectively  control  crime  we  must  have  a  sen- 
tencing system  that  deals  from  a  position  of  strength.  So  I  put  to 
you  what  I  believe  is  the  real  question  that  we  should  consider: 
What  is  the  most  efficient,  the  most  effective  and  the  fairest  sen- 
tencing system  that  we  can  devise? 

The  old  system  of  sentencing  that  you  talked  about,  Mr.  Chair- 
man, the  unbridled  discretion  of  Federal  judges  that  we  enjoyed  at 
one  time  in  relatively  recent  history,  and  then  with  the  sentencing 
mandatory  minimum  scheme,  if  we  only  had  those  two  choices  I 
would  testify  keep  the  mandatory  minimum  sentencing  scheme  in 
place.  But  fortunately,  we  do  not  and  are  not  limited  to  that  choice, 
for  there  is  a  choice  that  I  would  like  to  suggest  to  you  today. 

So  I  believe  the  solution  will  lie  to  this,  to  the  problem,  and  there 
are  some  problems  with  mandatory  minimums  I  will  be  glad  to  dis- 


64 

cuss.  They  have  many  positive  aspects,  but  they  have  some  nega- 
tive aspects  as  well.  The  solution  lies  in  legislation  that  will  pro- 
mote greater  coordination  between  the  mandatory  minimum  sen- 
tencing scheme  and  the  Federal  sentencing  guidelines  scheme.  I 
propose  for  Congress'  consideration  legislation  that  would,  I  think, 
ook  at  both  of  mese  two  sentencing  schemes  and  then  have  them 
)oth  apply  in  a  more  systematic,  more  logical  and  rational  basis. 

This  is  what  this  legislation  would  call  for,  brieflv.  First  of  all, 
the  bill  would  not  repeal — with  due  respect  to  Mr.  Edwards — would 
not  repeal  mandatory  minimum  provisions  now  on  the  book.  Rath- 
er, it  would  use  them  as  starting  points  with  directions  to  the  U.S. 
Sentencing  Commission  to  start  its  sentencing  system  off.  This  ap- 
proach would  have  the  effect  of  Congress  setting  the  sentence  for 
the  typical  offender,  the  average  offender,  the  one  who  has  no  ag- 
gravating factors  present  and  no  mitigating  factors  present,  allow- 
ing the  guidelines  which  recognize  these  other  important  factors  of 
sentencing  to  take  over. 

Congress  has  a  vital,  and  has  played  a  vital  role,  in  setting  na- 
tional sentencing  policy.  This  legislation,  I  believe,  will  fully  accom- 
modate the  role  that  Congress  shall  continue  to  play  in  setting  na- 
tional sentencing  policy. 

Second  of  all,  this  bill  would  say  that  aggravating  factors  recog- 
nized by  the  guidelines  and  recognized  by  law  today;  that  is,  use 
of  a  weapon  or  a  leadership  role  in  the  offense,  obstruction  of  jus- 
tice, injury  to  a  victim,  and  others  would  continue  to  apply.  This 
means  that  when  aggravating  factors  were  present,  and  proven  by 
the  Government  to  the  satisfaction  of  the  greater  weight  of  the  evi- 
dence as  found  by  the  district  court,  the  guidelines  would  require 
a  sentence  greater,  often  substantially  greater,  than  the  mandatory 
minimum  sentence. 

Third,  in  the  case  in  which  mitigating  factors  recognized  bv  the 
guidelines,  and  recognized  by  law  today;  that  is,  a  defendant's 
minor  role  in  the  offense  or  acceptance  of  the  responsibility  of  the 
criminal  act,  were  applicable,  then  this  proposed  legislation  would 
allow  the  guideline  provisions  to  operate  for  a  proportionate  reduc- 
tion in  the  sentence,  to  accounting  for  the  presence  of  the  mitigat- 
ing factor. 

Mr.  ScHUMER.  Judge,  I  am  sorry  to  interrupt  you. 

Judge  WiLKiNS.  Yes,  sir. 

Mr.  ScHUMER.  How  much  would  proportionate  be? 

Judge  WiLKiNS.  Well,  I  can  tell  you  now,  and  this  works  in  guide- 
lines every  day  without  the  operation  of  mandatories 

Mr.  SCHUMER.  I  think  that  is  an  important  question  for  all  of  us. 

Judge  WiLKiNS.  Let  me  give  vou  an  example.  Let's  take  a  drug 
conspiracy.  It  has  the  leader,  it  has  three  average  participants,  and 
it  has  one  errand  boy,  a  real  minor  participant.  They  are  all  con- 
victed of  the  same  statute  of  conspiracy  to  possess  for  distribution 
purposes  5  or  more  kilograms  of  cocaine.  They  are  all  looking  at 
the  10-year  mandatory. 

Under  the  guidelines,  the  leader  of  this  conspiracy  would  receive 
a  sentence  of  about  16  years,  as  opposed  to  tne  mandatory  mini- 
mum 10-year  sentence.  The  three  average  participants  who  had  no 
aggravating  or  mitigating  role,  would  receive  10  years,  because 
that  is  the  mandatory  provision.  The  minor  participant,  assuming 


65 

this  minor  participant  accepted  responsibility — that  is,  offered  a 
timely  plea  of  guilty  to  the  Government  and  cooperated  wdth  the 
Government,  not  in  the  prosecution  of  others  but  just  in  his  own 
case,  that  plus  the  minor  role  would  reduce  that  person's  sentence 
down  to  approximately  5  years.  So  you  would  have  the  kingpin  at 
about  15  to  16  years,  the  middle  level  participants,  the  average 
participants  at  the  mandatory  minimum,  and  this  minor  partici- 
pant at  5  years. 

I  am  glad  you  asked  me  that  because  when  I  talk  about  a  propor- 
tionate reduction  no  one  is  suggesting  that  these  minor  partici- 
pants in  major  drug  conspiracies  should  not  go  to  prison.  They 
should  go  to  prison.  The  question  is  how  much?  Where  does  crime 
control  reach — when  do  we  achieve  crime  control?  How  do  we  effi- 
ciently use  our  resources?  Are  we  really  contributing  to  crime  con- 
trol or  are  we  fighting  the  drug  war  by  placing  minor  participants 
in  prison  for  extended  periods  of  time  when  a  5-  or  6-year  sentence 
could  serve  the  same  purpose? 

I  might  add  too  that  there  are  only  these  two  mitigating  fac- 
tors— acceptance  of  responsibility  and  role  in  the  offense — that  are 
ever  recognized  by  the  guidelines  in  drug  offenses.  They  are  struc- 
tured, they  are  confined,  and  judges,  when  they  do  apply  these 
mitigation  factors,  apply  them  because  the  facts  dictate  their  appli- 
cation. And,  of  course,  the  judge  is  cabined  by  the  guidelines  so  the 
reduction  is  limited. 

I  will  say  this,  though.  This  proposed  legislation,  as  in  all  other 
cases,  provides  that  in  the  unusual  case  the  judge  can  depart  below 
the  guidelines  by  stating  a  justifiable  reason  on  the  record  and 
then  sentencing  accordingly.  This  is  the  safety  valve  of  the  Sen- 
tencing Reform  Act  that  applies  to  all  cases,  not  just  drug  cases. 
But,  of  course,  it  doesn't  apply  when  a  mandatory  minimum  ap- 
plies. So,  regardless  of  the  mitigating  circumstances  the  judge  can- 
not take  those  into  account. 

I  would  not  be  alarmed  by  giving  judges  that  departure  author- 
ity. They  exercise  it  only  in  6  percent  of  the  cases.  Moreover,  the 
Government  has  the  right  of  appellate  review  in  case  the  judge 
does  something  that  the  Government  disagrees  with. 

In  my  view,  this  proposal  not  only  alleviates  the  structural  prob- 
lems with  mandatory  minimums,  but  it  also  has  two  important  ad- 
ditional benefits.  First,  it  would  increase  fairness  and  proportion- 
ality in  sentencing.  One  of  the  major  problems  with  mandatories  is 
that  they  lack  proportionality  in  sentencing.  A  mandatory  mini- 
mum is  a  flat  tariff.  Regardless  of  the  facts,  regardless  of  the  ag- 
gravating factors  or  mitigating  factors,  mandatory  minimum  pen- 
alties apply  across  the  board. 

My  proposal  would  meet  these  objectives  by  providing  sentencing 
adjustments  under  the  mandatory  Federal  sentencing  guideline  re- 
gime. This  means  that  appropriate  adjustments  for  mitigating  fac- 
tors would  occur  in  a  certain  and  predictable  fashion. 

Second,  by  using  guideline  mitigating  factors,  which  have  now 
been  construed  by  the  courts,  this  approach  would  not  add  a  fur- 
ther tier  of  complexity  to  the  current  sentencing  system.  Indeed, 
my  proposal  would  ease  current  complexities  by  making  mandatory 
minimums  and  the  guidelines  function  in  an  integrated  fashion. 


66 

I  believe  that  what  is  needed  is  this  type  of  corrective  legislation, 
which  would  allow  us — that  is,  us,  the  Congress  and  the  American 
people — to  maintain  the  core  principles  of  mandatory  minimums 
and  provide  certain  and  significant  punishment,  but  not  sacrifice 
proportionality  and  consistency  in  punishment  at  the  same  time. 
Integrating  mandatory  minimums  in  the  guidelines  system,  I 
think,  would  accomplish  these  twin  objectives,  and  would  also  do 
it  in  a  manner  that  would  increase  the  efficiency  of  our  current, 
sometimes  fragmented,  two-tiered  sentencing  system. 

Thank  you  very  much,  Mr.  Chairman. 

[The  prepared  statement  of  Judge  Wilkins  follows:] 

Prepared  Statement  of  Judge  William  W.  Wilkins,  Jr.,  Chairman,  U.S. 

Sentencing  Commission 

Introduction 

Mr.  Chairman,  members  of  the  subcommittee,  my  name  is  William  W.  Wilkins, 
Jr.  I  am  a  judge  on  the  United  States  Court  of  Appeals  for  the  Fourth  Circuit  and 
Chairman  of  the  United  States  Sentencing  Commission.  I  appreciate  the  oppor- 
tunity to  appear  before  the  subcommittee  today. 

Today's  hearing  offers  a  rare  opportunity.  It  is  the  first  congressional  hearing  de- 
voted to  the  important  topic  of  mandatory  minimums  in  nearly  a  quarter  century. 
The  last  time  hearings  of  this  kind  occurred,  they  laid  the  groundwork  for  Congress' 
decision  to  repeal  an  array  of  mandatory  minimums  then  on  the  books.  In  some 
ways,  it  seems  we  have  come  fiill  circle.  Congress  adopted  drug  mandatory  mini- 
mums in  1956,  repealed  them  in  1970,  enacted  more  in  the  1980's,  and  is  being 
asked  to  reconsider  their  wisdom  again  today. 

There  are  critical  differences  between  1970,  the  year  mandatory  minimums  were 
last  repealed,  and  today,  however.  First  of  all,  whatever  concerns  people  may  have 
with  respect  to  mandatory  minimums  today,  there  is  no  support  from  this  witness 
or  from  the  Sentencing  Commission  as  a  whole  for  retreating  from  the  principle  that 
serious  crime  should  be  met  with  tou^  and  certain  punishment. 

Unlike  the  case  in  1970,  today  there  exists  a  congressionally  chartered  sentencing 
system— the  federal  sentencing  guidelines — that  already  assures  tough  and  certain 
punishment  for  serious  offenses  and  would  continue  to  do  so  even  if  mandatory 
minimums  disappeared  tomorrow  or  were  substantially  modified.  This  difference  be- 
tween 1970  and  today  strikes  me  as  highlv  relevant  to  your  deliberations. 

On  the  other  hand,  what  is  similar  about  1970  and  the  events  of  today  is  the 
growing  view  among  close  observers  of  the  federal  sentencing  system  that  reform 
of  mandatory  minimum  laws  is  needed.  The  conference  of  every  circuit  with  criminal 
jurisdiction  ^  in  the  federal  judicial  system,  the  Judicial  Conference  as  a  whole,  the 
U.S.  Sentencing  Commission,  prosecutors  and  defense  attorneys,  federal  corrections 
experts,  as  well  as  such  prominent  individuals  as  Attorney  General  Reno  and  Chief 
Justice  Rehnquist,  have  all  spoken  of  their  concerns  in  this  area. 

It  is  important  to  note  this  developing  consensus  because  we  occasionally  hear  the 
comment  that  criticisms  of  mandatory  minimums  should  be  dismissed  as  coming 
from  judges  who  are  unhappy  about  limits  on  their  discretion.  This  viewpoint  is,  I 
believe,  shortsighted  and  superficial.  True,  mandatory  minimums  limit  the  discre- 
tion of  sentencing  judges,  but  among  the  overwhelming  majority  of  judges  who  have 
come  to  question  the  wisdom  of  mandatory  minimums  are  federal  appellate  judges, 
whose  discretion  is  not  aflected,  and  substantial  numbers  of  district  judges  who  sup- 
port the  federal  sentencing  guidelines,  which  are  mandatory  and  limit  judicial  sen- 
tencing discretion  more  comprehensively  than  mandatory  minimums.  Moreover,  as 
I  have  indicated,  the  spectrum  of  viewpoints  represented  by  those  who  have  con- 
cerns about  mandatory  minimums  is  far  broader  than  the  federal  judiciary.  It  in- 
cludes representatives  of  virtually  all  sectors  in  the  criminal  justice  system.  So,  Con- 
gress should  not  be  led  to  believe  that  the  concerns  being  raised  derive  from  some 
narrow  or  parochial  interest. 

Importantly,  Congress  should  not  be  distracted  by  off-the-mark  sumestions  that 
this  is  a  soft  vs.  tough  on  crime  issue.  I  am  a  former  prosecutor  and  I  chair  an  agen- 
cy that  views  Crime  Control  as  the  most  important  goal  of  sentencing.  I  firmly  be- 
lieve that  to  effectively  control  crime  our  federal  criminal  justice  system  must  deal 


^The  Federal  Circuit  does  not  have  criminal  jurisdiction. 


67 

from  strength.  So  the  real  issue  is  how  to  most  elTectively,  efficiently,  and  fairly, 
achieve  this  important  goal. 

We  should  first  ask  whether  mandatory  minimums  are,  on  balance,  doing  what 
they  are  intended  to  do:  do  they  contribute  to  or  detract  from  the  goal  of  achieving 
a  highly  effective  federal  sentencing  system. 

For  reasons  I  will  detail,  I  think  two  conclusions  are  now  clear.  First,  mandatory 
minimums  are  in  fact  undercutting  effective  sentencing  policy  rather  than  promot- 
ing it.  Second,  the  solution  to  this  problem  lies  not  in  the  abandonment  of  meaning- 
ful and  certain  punishment,  which  mandatory  minimums  are  intended  to  require, 
but  rather  in  greater  coordination  between  mandatory  minimums  and  the  other  con- 
gressionally  chartered  approach  to  mandatory  sentencing  policy,  the  federal  sentenc- 
ing guidelines. 

In  my  remaining  time,  let  me  briefly  outline  what  I  see  as  the  four  principal 
drawbacks  of  mandatory  minimums,  explain  why  I  think  so-called  "safety  valve"  ap- 
proaches will  not  address  these  problems,  and  offer  a  proposal  that  I  thini  will. 

I.  The  Principal  Drawbacks  of  Mandatory  Minimums 

In  its  1990  onmibus  crime  bill,  Congress  directed  the  Sentencing  Commission  to 
submit  a  comprehensive  report  on  mandatory  minimum  penalties.  That  report,^ 
which  contained  exhaustive  legal,  empirical,  and  policy-related  analyses,  identified 
four  principal  problems  with  mandatory  minimums. 

PROBLEM  ONE:  MANDATORY  MINIMUMS  CREATE  UNWARRANTED  "CLIFFS" 

Mandatory  minimums  oflen  create  what  can  be  called  "cliffs"  in  punishment. 
What  this  means  is  that  relatively  minor  and  sometimes  inconsequential  differences 
in  the  facts  of  a  case  can  have  a  huge  impact  on  the  sentence.  To  cite  one  example, 
a  defendant  who  possesses  5  grams  of  crack  can  be  sentenced  to  no  more  than  one 
year  in  prison.  But  a  defendant  who  possesses  even  a  hundredth  of  a  gram  more 
than  that  must  be  sentenced  to  5  years  in  prison.  So,  a  minute  difference  in  the 
anaount  of  crack  involved  requires  at  least  a  four-year  difference  in  the  amount  of 
prison  time  to  be  served.  Can  we  really  defend  as  rational  sentencing  policy  a  law 
that  makes  four  years  of  a  person's  life  (and  tens  of  thousands  of  taxpayer  dollars) 
turn  on  such  an  insignificant  difference  in  drug  quantity.  TTie  sharp  cliffs"  associ- 
ated with  many  of  the  mandatory  minimums  simply  do  not  square  with  a  sentenc- 
ing policv  that  is  fair,  equitable,  and  avoids  unwarranted  disparity  among  otherwise 
similar  defendants. 

PROBLEM  TWO:  MANDATORY  MINIMUMS  GENERATE  SIMILAR  SENTENCES  FOR  OFFENDERS 
WHO  SIGNIFICANTLY  DIFFER  IN  SERIOUSNESS 

A  second  recurring  problem  with  mandatory  minimums  is  that  they  treat  simi- 
larly offenders  who  can  be  quite  different  with  respect  to  the  seriousness  of  their 
conduct  or  their  danger  to  society.  This  happens  because  mandatory  minimums  gen- 
erally take  account  of  only  one  or  two  out  of  an  array  of  potentially  important  of- 
fense or  offender-related  facts.  In  the  drug  area,  mandatory  minimum  penalties  are 
generally  only  concerned  with  the  quantity  of  drugs  involved.  Thus,  the  same  5-,  10- 
or  20-year  mandatoir  minimum  applies  whether  tne  defendant  was  the  kingpin  who 
organized  and  ran  the  drug  conspiracy,  whether  the  defendant  was  the  average  or 
typical  offender,  or  a  bit  player  who,  for  a  few  hundred  dollars,  helped  off-load  the 
boat  or  played  some  other  minor  role  in  the  offense.  Definitions  that  trigger  the  ap- 

J>lication  of  mandatory  minimums  are  oflen  so  broad  that  they  sweep  in  very  dif- 
ierent  kinds  of  offenaers.  For  example,  the  serious-sounding  term  'xrime  of  vio- 
lence," on  which  some  mandatory  minimums  rely,  includes  everything  from  pre- 
meditated murder  to  vandalizing  a  mailbox.  The  bottom  line  is  that  mandatory 
minimums  tend  to  impose  sentence  uniformity  when  sound  policy  calls  for  reason- 
able differences  in  punishment. 

PROBLEM  THREE:  MANDATORY  MINIMUMS  DO  NOT  PROMOTE  CERTAINTY  IN  SENTENCING 

A  key  objective  of  mandatory  minimums  is  to  foster  certainty  in  punishment.  The 
Sentencing  Commission's  analysis  of  over  one  thousand  actual  cases  found  that,  in 
fact,  mandatory  minimums  undercut  certainty  in  sentencing. 

Overall,  the  study  found  that  of  defendants  who  engaged  in  behavior  for 
which  a  mandatory  minimum  appeared  applicable,  40  percent  were  sentenced 
below  the  applicable  penalty. 


"U.S.  Sentencing  Commission,  Special  Report  to  the  Congress:  Mandatory  Minimum  Penalties 
in  the  Federal  Criminal  Justice  System  (August  1991). 


68 

Of  drug  defendants  who  appeared  to  warrant  a  mandatory  sentence  enhance- 
ment due  to  the  presence  of  a  weapon,  no  weapon  charge  was  filed,  in  45  percent 
of  the  cases. 

Of  defendants  for  whom  increased  mandatory  minimum  penalties  appeared 

applicable  due  to  prior  felony  convictions,  the  increased  penalty  was  not  sought 

or  obtained  63  percent  of  the  time. 

In  short,  far  from  fostering  certainty  in  punishment,  mandatory  minimums  result 

in  unwarranted  sentencing  disparity.  One  reason  this  occurs  is  that  the  application 

of  mandatory  minimums  frequently  depends  on  the  subjective  charging  decisions  of 

individual  prosecutors.  One  prosecutor  may  think — and  perhaps  reasonably — that  a 

full  mandatory  minimum  sentence  is  just  too  harsh  for  a  minor  player  in  a  drug 

conspiracy  and  not  seek  the  mandatory  sentence,  while  another,  with  the  identiceu 

case,  will  handle  it  strictly  by  the  statute.  The  point  is  that  mandatory  minimums 

often  allow  the  subjective  views  of  individual  prosecutors  to  set  the  sentence  and 

this  both  undercuts  the  certainty  of  sentencing  and  leads  to  measurable,  unjustified 

sentencing  disparity. 

Much  has  been  said  and  written  in  the  last  several  years  about  how  current  sen- 
tencing policies  shift  discretion  from  judges  to  prosecutors.  To  the  extent  these  con- 
cerns are  directed  at  the  sentencing  guidelines,  they  fail  to  take  into  account  the 
multiple  features  built  into  the  guideline  system  to  keep  the  judge  in  control  of  sen- 
tencing— albeit  with  cabined  discretion — and  to  ensure  that  the  sentence  will  be 
based  on  the  facts  of  the  case  rather  than  the  prosecutor's  charge.  When  it  comes 
to  many  of  the  mandatory  minimums,  however,  the  prosecutor  can  often  dictate  the 
sentence,  and  there  is  little  the  Commission  can  do  to  mitigate  this  transfer  of  sen- 
tencing authority  from  judge  to  prosecutor. 

PROBLEM  POUR:  MANDATORY  MINIMUMS  FREQUENTLY  INTERFERE  WITH  THE 
GUIDELINES  ABILITY  TO  WORK  EFFECTIVELY 

In  1984  Congress  passed  the  Sentencing  Reform  Act.  This  landmark  legislation 
reflected  an  enormous  amount  of  legislative  deliberation  and  thought.  Through  de- 
tailed enabling  legislation  (and  accompanying  legislative  history),  the  Act  abolished 
parole  and  called  for  the  creation  of  the  Sentencing  Commission  to  write  mandatory 
sentencing  guidelines.  The  guidelines  have  been  in  operation  since  1987.  Evalua- 
tions by  the  Sentencing  Commission  and  the  Government  Accounting  Office  found 
that  the  guidelines  are  sound  and  working.  Nevertheless,  the  Commission  con- 
stantly monitors  and  refines  them  as  necessary.  The  guidelines  were  written  to  ac- 
commodate mandatory  minimum  penalty  provisions  to  the  extent  possible,  but  many 
times  the  guidelines  and  mandatory  minimums  simply  are  at  odds  with  each  other. 
This  is  unfortunate  because  the  guidelines  have,  as  Congress  specifically  provided 
for,  been  designed  to  avoid  the  other  three  problems  with  mandatory  minimums 
that  I  just  identified: 

The  guidelines  do  not  cause  cliffs  in  sentencing  because  they  incrementally  in- 
crease punishment  in  li^t  of  aggravating  facts  demonstrating  the  need  for  in- 
creased punishment,  whether  those  facts  oe  a  more  serious  prior  record,  an  ag- 
gravating role  in  the  offense,  an  obstruction  of  justice,  etc. 

The  guidelines  do  not  lump  together  offenders  who  differ  in  seriousness  be- 
cause tney  are  sensitive  to  facts  that  justify  differences  in  sentences.  Thus, 
under  the  guidelines,  the  leader  of  a  drug  trafficking  conspiracy  will  receive  a 
prison  sentence  about  50  percent  longer  than  one  of  his  typical  subordinates, 
and  about  twice  as  long  as  an  underling  with  only  a  minimal  role  in  the  offense. 
The  guidelines  foster  certainty  in  punishment  because  guideline  sentences  de- 
pend far  more  on  the  actual  facts  of  the  case,  as  found  on  the  record  by  a  judge, 
than  on  the  subjective  charging  decision  of  a  particular  prosecutor.  Thus,  the 
guidelines  require  a  proportionate  increase  in  tne  sentence  of  a  drug  trafficker 
if  that  trafficker  carried  a  gun  during  the  offense.  This  will  occur  whether  or 
not  the  prosecutor  charges  the  mandatory  minimum  statute  that  requires  a  fiat, 
five-year  increase  for  weapon  involvement. 
Yet  as  the  guidelines  seek  to  avoid  the  very  kinds  of  problems  mandatory  mini- 
mums cause,  mandatory  minimums  often  block  their  ability  to  do  so.  The  law  re- 
quires that  mandatory  minimums  control  when  they  differ  from  the  guidelines.  So, 
in  precisely  the  areas  where  mandatory  minimums  could  benefit  from  the  rational 
ana  effective  attributes  of  the  guidelines,  the  law  stands  sound  policy  on  its  head: 
instead  of  the  guidelines  operating  to  ameliorate  the  inherent,  structurally  induced 


69 

problems  of  mandatory  minimums,  the  mandatory  minimums  render  inoperative  the 
ameHorative  effects  of  the  guidelines.^ 

II.  "Safety  Valve"  Proposals 

Some  have  suggested  that  the  solution  to  the  concerns  mandatory  minimums 
raise  is  to  leave  the  mandatory  minimums  in  place  but  carve  out,  throu^  a  so- 
called  "safety  valve,"  a  category  of  offenders  who  would  not  be  subject  to  their  pen- 
alties. There  are  two  troubling  flaws  with  this  kind  of  approach.  First,  safety  valves 
would  add  more  complexity  to  an  already  unnecessarily  complex  sentencing  system. 
Today  we  have  the  mandatory  minimum  sentencing  system  built  on  top  of  the 
guidelines  system — each  system  with  its  own  structure  and  rules  of  application. 
Safety  valves  would  add  a  third  layer  of  complexity.  Judges  would  have  to  sort  out 
which  offenders  are  subject  to  which  set  of  penalties,  and  because  the  stakes  could 
be  a  difference  of  many  years  in  prison,  this  third  tier  of  sentencing  law  would  likely 
add  resource  costs  to  our  criminal  justice  system  in  the  form  of  increased  litigation, 
court  time,  and  sentencing  disparity  as  courts  grappled  with  the  conflicting  sets  of 
rules. 

The  second  problem  with  safety  valves  is  that  they  would  leave  largely  intact  the 
four  problems  I  noted  that  mandatory  minimums  cause.  Indeed,  the  problem  of  cliffs 
could  become  even  more  pronounced.  Those  falling  into  the  safety  valve  category 
could  expect  more  lenient  sentences — perhaps  substantially  more  lenient — depend- 
ing on  the  view  of  the  sentencing  judge  while  those  whose  offense  or  offender  char- 
acteristics differed  only  sightly  would  receive  a  far  harsher  penalty.  Again,  a  small 
factual  difference  could  cause  a  substantial  difference  in  punishment. 

Moreover,  under  some  safety  valve  proposals,  cliffs  could  result  from  highly  artifi- 
cial criteria.  For  example,  under  some  proposals  a  prior  felony  drug  conviction  would 
disqualify  an  offender  for  consideration  for  safety  valve  treatment.  Prior  record  is 
an  important  sentencing  consideration,  but  whether  an  offender  had  a  prior  felony 
drug  conviction  is  not,  by  itself,  a  dependable  criterion  on  which  to  base  substantial 
swings  in  punishment.  To  illustrate,  prosecutors  have  historically  entered  into  plea 
bargains  to  give  breaks,  for  example,  to  lower-level  players  in  drug  conspiracies. 
Take  the  example  of  two  defendants  who  committed  the  same  drug  offense  and  both 
were  sentenced  to  six  months  in  prison.  In  one  case  the  prosecutor  agreed  to  accept 
a  plea  to  a  misdemeanor  from  offender  #1.  Another  prosecutor,  with  essentially  the 
same  leniency  goal  in  mind,  agreed  to  a  sentence  bargain  calling  for  the  defendant 
to  plead  guilty  to  a  felony  charge  in  exchange  for  a  recommendation  (or  binding 
agreement)  of  six  months  in  prison.  This  is  a  typical  example  of  two  prosecutors 
faced  with  similar  offenders,  both  seeking  to  achieve  a  desired  sentence  but  using 
different  avenues  to  do  so.  Under  a  safety  valve  approach,  with  its  simplistic  reli- 
ance on  whether  the  prior  offense  to  which  the  defendant  pleaded  was  a  felony  drug 
conviction,  the  nature  of  the  prosecutor's  deal — not  the  actual  seriousness  of  the 
prior  offense — could  translate  into  a  difference  of  five,  ten,  or  even  more  years  in 
prison  for  the  subsequent  offense.  And,  importantly,  in  addition  to  the  federal 
courts,  there  are  50  state  jurisdiction  where  criminal  records  are  established,  juris- 
dictions that  do  not  follow  federal  sentencing  guidelines  and  use  widely  varying  plea 
bargaining  and  charging  practices. 

Some  safety  valve  proposals  compound  these  kinds  of  problems  by  making  the 
safety  valve  a  discretionary  option  with  the  judge.  Discretionary  safety  valves  under 
which  the  judge  would  use  his  or  her  own  subjective  judgment  about  whether  and 
how  much  to  reduce  the  sentence  would  undercut  sentence  certainty  and  reintro- 
duce unwarranted  disparity  the  Sentencing  Reform  Act  and  the  sentencing  guide- 
lines were  designed  to  reduce. 

In  sum,  safety  valves  would  exacerbate  the  complexities  of  an  already  complex 
system,  would  fail  to  address  the  structurally  inherent  problems  of  mandatory  mini- 
mums, and  could  foster  unwarranted  disparity. 


3 For  example,  the  Commission  designed  the  drug  traflicking  guidelines  so  that  a  typical,  first 
ofTender  who  deals  in  a  quantity  of  drugs  corresponding  to  a  mandatory  minimum  will  receive 
a  guideline  sentence  at  or  above  the  statutory  minimum.  But,  then  the  guidelines  provide  an 
array  of  aggravating  factors  to  boost  sentences  higher  for  more  serious  drug  ofTenses.  They  also 
provide  several  important  factors  that  most  people  agree  should  generally  result  in  lower  sen- 
tences— principally  reductions  for  a  less  culpable  role  and  for  a  defendant's  acceptance  of  respon- 
sibility for  the  offense.  In  many  cases,  however,  the  presence  of  these  mitigating  factors  has  ab- 
solutely no  effect  on  the  sentence  because  of  the  mandatory  minimum. 


70 
III.  A  Proposal  To  Bring  About  Greater  Coordination  Between  Mandatory 

MiNIMUMS  AND  THE  GUIDELINES 

I  propose  for  Congress'  consideration  legislation  that  would  address  concerns  over 
mandatory  minimums  for  drug  offenses  in  what  I  believe  is  a  more  systematic  and 
rationally  defensible  manner.  Overall,  this  proposal  would  achieve  its  results  by 
bringing  about  greater  coordination  between  mandatory  minimums  and  the  sentenc- 
ing guidelines.  The  proposal  I  have  put  forweird  is  supported  in  principle  by  the 
memoers  of  the  Sentencing  Commission,  the  Criminal  Law  Committee  of  the  Judi- 
cial Conference,  and  many  others. 

Briefly,  the  legislation  has  these  features: 

First,  recognizing  Congress'  special  concern  regarding  gun-related  offenses, 
the  bill  would  have  no  impact  on  mandatory  minimums  for  firearms.  Although 
sound  policy  arguments  can  certainly  support  expansion  of  the  bill's  general  ap- 
proach, it  affects  only  drug-related  mandatory  mmimums. 

Second,  the  bill  would  not  repeal  current  mandatory  minimums.  Rather,  it 
would  use  them  as  statutorily  set  starting  points  for  guideline  offense  levels. 
This  approach  would  have  the  effect  of  Congress  setting  the  sentence  in  typical 
cases  in  which  no  aggravating  or  mitigating  factors  recognized  by  the  guidelines 
were  applicable.  Congress  has  a  vital  role  to  play  in  setting  national  sentencing 
policy,  and  this  proposal  fully  accommodates  that  role. 

Third,  all  guideline  aggravating  factors — such  as  use  of  a  weapon,  a  leader- 
ship role  in  the  offense,  obstruction  of  justice,  injury  to  a  victim,  etc.— would 
continue  to  apply  as  is  the  case  today.  'This  means  that  when  aggravating  fac- 
tors were  present,  the  resulting  guideline  sentence  would  be  greater — often  sub- 
stantially greater — ^than  the  mandatory  minimum.  I  believe  this  facet  of  the 
proposal  meets  squarely  the  American  public's  rightful  concern  that  serious 
crime  be  answered  with  tough  and  sure  punishment. 

Fourth,  in  cases  in  which  mitigating  factors  recognized  by  the  guidelines — 
such  as  a  defendant's  minor  role  in  the  offense  or  acceptance  of  responsibility — 
were  applicable,  the  guidelines'  provisions  for  a  proportionate  reduction  in  the 
sentence  to  account  for  such  factors  would  be  permitted  in  order  to  draw  distinc- 
tions between  more  and  less  serious  offenders.  This  facet  of  the  proposal  en- 
sures that  while  punishment  will  always  be  tough  it  will  also  always  be  fair  by 
recognition  of  the  important  principles  of  proportionality.  This  does  not  mean 
that  a  minor  participant  in  a  drug  conspiracy  would  not  go  to  prison.  What  it 
does  mean  is  that  because  of  the  existence  of  a  mitigating  factor,  the  sentence 
would  be  somewhat  less  than  the  sentence  for  a  co-defendant  who  did  not  ex- 
hibit the  mitigating  factor. 

Fifth,  in  unusual  cases  with  truly  compelling  circumstances — which  1992  sen- 
tencing data  indicate  occurs  about  six  percent  of  the  time — courts  would  be  per- 
mittee! to  depart  below  the  guideline  range  according  to  well-established  statu- 
tory and  case  law  criteria.  The  government  would  maintain  its  right  to  appeal 
any  such  departure  to  ensure  it  met  these  criteria. 

Finally,  to  further  develop  sound  sentencing  poliQr  with  respect  to  first  of- 
fenders, the  bill  directs  the  Sentencing  Conunission  to  work  closely  with  the  De- 
partment of  Justice  and  others  to  identify  additional  sentencing  options  that 
would  be  submitted  to  Congress  for  your  consideration  and  approval. 
In  my  view,  this  proposal  would  not  only  alleviate  structural  problems  with  man- 
datory minimums,  it  would  have  two  important  additional  benefits.  As  with  all  man- 
datory minimum  reform  proposals,  the  bill  would  seek  to  increase  fairness  and  pro- 
portionality in  sentencing,  but  in  contrast  to  other  proposals,  the  bill  would  meet 
these  objectives  by  providing  sentencing  adjustments  under  the  mandatory  federal 
sentencing  guidelines  regime.  This  means  that  appropriate  adjustments  for  mitigat- 
ing factors  would  not  be  left  to  unguided  discretion,  but  rather  would  occur  in  a  cer- 
tain and  predictable  fashion.  Second,  by  using  guideline  mitigation  factors,  which 
have  been  already  construed  by  the  courts,  the  approach  would  not  add  further  com- 
plexity to  the  current  sentencing  system,  and  indeed  would  ease  current  complex- 
ities by  making  mandatory  minimums  and  the  guidelines  function  in  an  integrated 
manner. 

Conclusion 

In  1984,  before  it  passed  the  Sentencing  Reform  Act  establishing  a  regime  of  sen- 
tencing guidelines.  Congress  examined  the  highly  discretionary  sentencing  system 
then  in  place  and  concluded  that  it  was  haphazard,  unfair,  and  at  times  provided 
results  that  were  disproportionate  to  the  seriousness  of  the  offense.  Congress  deter- 
mined that  sentencing  system  that  operates  in  such  a  fashion  "creat[es]  disrespect 


71 

for  the  law."*  Mr.  Chairman,  I  believe  it  is  time  to  recognize  that  the  outcry  we 
have  recently  heard  over  mandatory  minimums  is  also  due  to  the  fact  that  they  are, 
with  disturbing  frequency,  operating  in  a  haphazard,  unfair,  and  disproportionate 
manner  and  as  a  consequence  are  undercutting  respect  for  the  law.  The  importance 
of  maintaining  the  credibility  of  federal  criminal  enforcement  is  simply  too  great  to 
allow  this  to  happen. 

I  believe  that  what  is  needed  is  corrective  legislation  that  would,  on  the  one  hand, 
maintain  the  core  precepts  of  mandatory  minimums,  namely  that  there  be  certain 
and  significant  punishment,  but  on  the  other  hand,  would  assure  that  proportion- 
ality and  consistency  in  punishment  are  not  sacrificed.  Integrating  mandatory  mini- 
mums and  the  guidelines  along  the  lines  of  this  proposal  would,  1  believe,  not  only 
accomplish  these  twin  objectives,  but  would  do  so  in  a  manner  that  would  signifi- 
cantly increase  the  efliciency  of  our  current,  somewhat  fragmented,  two-tier  sentenc- 
ing system. 

Mr.  Chairman,  I  commend  you  for  convening  this  hearing  on  this  very  important 
topic.  I  appreciate  the  opportunity  to  appear  here  today.  The  Commission  looks  for- 
ward, as  always,  to  woncing  with  you  on  this  and  other  important  matters  in  the 
months  ahead.  Thank  you. 

Section-by-Section  Analysis 

1.  Section  1  cites  the  title  of  the  legislation  as  the  "Controlled  Substance  Mini- 
mum Penalty-Sentencing  Guideline  Reconciliation  Act  of  1993." 

2.  Section  2  instructs  the  Sentencing  Commission  to  establish  minimum  offense 
levels  under  Chapter  Two  of  the  sentencing  guidelines  for  the  most  frequently  pros- 
ecuted controlled  substance  offenses  that  presently  are  subject  to  statutory  mini- 
mum penalties. 

The  directive  correlates  the  drug  quantities  and  existing  statutory  minimum  sen- 
tence of  five  years  with  a  Chapter  Two  guideline  offense  level  of  not  less  than  level 
24.  Similarlj^,  the  drug  quantities  and  statutory  minimum  sentence  often  years  are 
correlated  with  an  oflense  level  of  not  less  than  30.  For  offenses  in  which  death  or 
serious  bodily  injury  results  from  use  of  the  controlled  substance,  the  20-year  statu- 
tory minimum  is  correlated  with  an  offense  level  of  38.  Finally,  for  offenses  involv- 
ing the  simple  possession  of  more  than  five  grams  of  crack,  the  existing  five-year 
statutory  minimum  is  correlated  with  an  oflense  level  of  24.  In  each  case,  the  of- 
fense levels  chosen  are  those  that,  in  the  absence  of  any  mitigating  or  aggravating 
factors  recognized  under  the  guidelines,  would  produce  a  guideline  range  that  con- 
tains the  existing  statutory  minimum  sentences. 

In  the  case  of  the  five-  and  ten-year  statutory  minimum  sentences,  the  minimum 
oflense  levels  designated  in  the  statutory  directive  to  the  commission  are  each  two 
levels  lower  than  those  presently  used  in  the  sentencing  guidelines.  When  initially 
promulgating  the  guidelines  for  drug  trafficking  offenses,  the  Commission  felt  com- 

f)elled  to  use  minimum  oflense  levels  equating  to  sentencing  ranges  with  a  lower 
imit  that  was  above  the  applicable  statutory  minimum  sentence.  Tne  proposed  stat- 
utory directive  would  permit  the  Commission  to  efiect  a  modest  reduction  in  ofliense 
levels,  but  the  resulting  guideline  ranges  applicable  to  first  oflienders  subject  to  no 
aggravating  or  mitigating  factors  under  the  guidelines  would  still  accommodate  the 
statutory  minimum  sentences. 

3.  Section  3  of  the  bill  reconciles  the  operation  of  the  sentencing  guidelines  with 
the  statutory  minimum  sentences  contained  in  sections  841(b),  844(a),  and  960(b) 
of  title  21,  United  States  Code.  These  are  the  minimum  sentences  presently  applica- 
ble to  drug  trafficking  offenses  and  the  simple  possession  of  more  than  five  grams 
of  crack.  The  bill  does  not  repeal  these  statutory  minimum  penalties.  It  retains 
them  for  the  purpose  of  establishing,  pursuant  to  specific  statutory  directives  to  the 
Sentencing  Commission,  base  penalties  under  the  sentencing  guidelines  for  typical 
cases  involving  drug  quantities  that  correlate  with  the  statutory  minimums.  The  ex- 
isting statutory  ban  on  probation  also  would  be  retained. 

Nevertheless,  the  legislation  language  would  permit  the  guidelines  to  operate 
unimpeded  by  the  Statutory  minimums;  i.e.,  any  pertinent  aggravating  or  mitigat- 
ing provision  under  the  guidelines  that  is  applicable  to  the  defendant  under  the 
facts  of  the  case  would  adjust  the  guideline  range  above  or  below  the  statutory  mini- 
mum sentence.  The  court  would  then  impose  a  sentence  within  the  guideline  range. 
Additionally,  if  no  aggravating  or  mitigating  factors  applied,  the  court  could  sen- 
tence at  any  point  within  the  guideline  range  that  incorporates  the  otherwise  appli- 
cable statutory  minimum  sentence,  even  if  the  chosen  sentence  was  lower  than  the 
otherwise  applicable  statutory  minimum.  Furthermore,  if  a  basis  for  sentencing  out- 


■♦S.  Rep.  No.  225,  98th  Cong.,  1st  Sess.  46  (1983). 


72 

side  the  guideline  range  (i.e.,  departure)  existed  under  the  applicable  statute  (i.e., 
18  U.S.C.  §  3553(b)),  pertinent  provisions  of  the  guidelines  and  policy  statements, 
and  relevant  case  law,  the  court  in  its  discretion  could  impose  a  departure  sentence. 
For  example,  a  mother  of  a  child  bom  with  AIDS  who,  for  a  fee  of  $2,000,  agrees 
to  act  as  a  heroin  courier  on  one  occasion  to  get  money  to  pay  for  her  child's  treat- 
ment, could  receive  a  sentence  below  the  guideline  minimum. 

4.  Section  4  of  the  bill  allows  the  reconciliation  of  the  guidelines  and  statutory 
minimum  sentences  to  have  a  limited  retroactive  effect,  notwithstanding  the  provi- 
sions of  1  U.S.C.  §  109.  ,    «       ^  ,       «. 

First  it  would  allow  the  provisions  of  section  3  to  be  applied  after  they  take  elTect 
to  any  caae  not  yet  sentenced. 

Second,  it  would  permit  the  provisions  of  section  3  to  apply  to  any  reconsideration 
of  sentence  authorized  by  the  Commission  under  18  U.S.C.  §  3582(cX2). 

Application  of  the  sentencing  policy  changes  to  cases  previously  sentenced  pre- 
sents a  number  of  practical  problems  that  would  need  to  be  addressed  in  order  for 
this  procedure  to  be  feasible.  The  Commission  will  continue  to  discuss  these  issues 
with  representatives  of  the  various  components  of  the  criminal  justice  system  in  an 
effort  to  find  a  reasonable  means  to  achieve  this  objective. 

5.  Section  5  of  the  bill  allows  the  Commission  reasonable  flexibility  to  implement 
any  specific  statutory  directive  in  a  manner  most  consistent  with  the  sentencing 
guidelines  as  a  whole.  . 

It  also  provides  the  Commission  with  a  general  grant  of  authority  to  effect 
changes  in  guidelines  that  initially  are  constructed  in  fulfillment  of  a  specific  statu- 
tory directive.  When  any  such  changes  are  made,  the  provision  requires  that  the 
Commission  highlight  and  explain  the  modifications  so  that  Congress  can  specifi- 
cally consider  their  advisability.  ,    ,        r     u        • 

Experience  has  shown  a  need  for  such  flexibility  in  light  of  changing  cir- 
cumstances. For  example,  many  beUeve  that  the  guideline  applicable  to  career  of- 
fenders, which  the  Commission  promulgated  pursuant  to  a  specific  directive  in  the 
Sentencing  Reform  Act  (28  U.S.(J.  §994  (h)),  should  be  revisited,  with  the  flexibility 
afforded  by  this  change,  the  Commission  would  have  the  latitude  to  modify  the 
guideline  without  a  specific  amendment  to  the  statute. 

6.  Section  6  requires  the  Commission  to  conduct  a  study  and  report  to  Congress 
within  6  months  on  sentencing  practices  as  they  relate  to  first-offender,  non-violent 
defendants  convicted  of  drug  offenses.  Congress  and  the  Commission  would  then  be 
in  a  more  informed  position  to  consider  further  changes  in  sentencing  policy  that 
may  be  appropriate  for  such  offenders. 


73 


103rd  Congress 
Isi  Session 


DRAFT 
June  11,  1993 


AN  ACT 


SECTION  1.  This  Act  may  be  cited  as  the  "Controlled  Substance 
Minimum  Penalty-Sentencing  Guideline  Reconciliation  Act  of 
1993." 


SEC.  2.  Directive  to  the  Sentencing  Commission  Regarding 
Amendments  to  the  Sentencing  Guidelines  for  Controlled 
Substance  Offenses. 


(a)  Within  sixty  days  of  the  date  of  enactment  of  this  Act,  the 
United  States  Sentencing  Commission  shall  amend  the  sentencing 
guidelines  as  necessary  to  ensure  that  the  Chapter  Two  offense 
level  applicable  to  - 


(1)  a  defendant  whose  offense  involved  a  type  and  quantity 
of  controlled  substance  set  forth  in  section  841(b)(1)(A)  or 
960(b)(1)  of  title  21,  United  States  Code,  is  not  less  than  level  30; 


74 

(2)  a  defendant  whose  offense  involved  a  type  and  quantity 
of  controlled  substance  set  forth  in  section  841(b)(1)(B)  or 
960(b)(2)  of  title  21,  United  States  Code,  is  not  less  than  level  24; 


(3)  a  defendant  subject  to  an  enhanced  penalty  under 
section  841(b)(1)(A),  841(b)(1)(B),  841(b)(1)(C),  960(b)(1). 
960(b)(2),  or  960(b)(3)  of  title  21,  United  States  Code,  for  an 
offense  resulting  in  death  or  serious  bodily  injury  from  the  use  of 
the  controlled  substance,  is  not  less  than  level  38. 


(4)  a  defendant  subject  to  a  niinimum  sentence  of  five  years 
under  section  844(a)  of  title  21.  United  States  Code,  for  the 
possession  of  cocaine  base,  is  not  less  than  level  24. 

(b)  The  Commission  may  make  such  additional  amendments  as  it 
deems  necessary  and  appropriate  to  harmonize  the  sentencing 
guidelines  and  policy  statements  to  any  amendments  promulgated 
pursuant  to  subsection  (a). 

(c)  The  provisions  of  section  994(x)  of  title  28,  United  States  Code, 
shall  not  apply  to  the  promulgation  of  amendments  under  this 
section. 


75 


(d)  The  amendments  to  the  sentencing  guidelines  promulgated  by 
the  Sentencing  Commission  pursuant  to  this  section  shall  take 
effect  sixty  days  following  the  date  of  enactment  of  this  Act. 


SEC.   3.      Interaction   of  Minimum   Penalties  with   Sentencing 
Guidelines. 


(a)  Section  401  of  the  Controlled  Substances  Act  (21  U.S.C.  §  841) 

is  amended  by  inserting  the  following  new  subsection  following 

subsection  (b): 

"Interaction  of  minimum  penalties  with  sentencing  guidelines 

(c)  Notwithstanding  the  minimum  penalties  set  forth  in  subsection 

(b).- 

(1)  the  court  shall  impose  a  sentence  within  the  applicable 
sentencing  guideline  range,  or 


(2)  if  the  court  determines,  in  accordance  with  seaion 
3553(b)  of  title  18,  United  States  Code,  and  any  pertinent  policy 
statement  issued  by  the  Sentencing  Commission,  that  a  sentence 
outside  the  guideline  range  is  warranted,  the  court  may  impose 
such  a  sentence.". 


76 

(b)  Section  1010  of  the  Controlled  Substances  Import  and  Export 
Act  (21  U.S.C  §  960)  is  amended  by  inserting  the  following  new 
subsection  following  subsection  (b): 


"Interaction  of  minimum  penalties  with  sentencing  guidelines 

(c)  Notwithstanding  the  minimum  penalties  set  forth  in  subsection 
(b).- 

(1)  the  court  shall  impose  a  sentence  within  the  applicable 
sentencing  guideline  range,  or 

(2)  if  the  court  determines,  in  accordance  with  section 
3553(b)  of  title  18,  United  States  Code,  and  any  pertinent  policy 
statement  issued  by  the  Sentencing  Commission,  that  a  sentence 
outside  the  guideline  range  is  warranted,  the  court  may  impose 
such  a  sentence.". 


(c)  Section  404  of  the  Controlled  Substances  Act  (21  U.S.C.  §  844) 
is  amended  by  inserting  the  following  new  subsection  following 
subsection  (a): 


"(b)  Notwithstanding  the  five  year  minimum  penalty  set  forth  in 
subsection  (a),- 


77 


(1)   the   court  shall   impose   a  sentence  within   the   applicable 
sentencing  guideline  range,  or 


(2)  if  the  court  determines,  in  accordance  with  section 
3553(b)  of  title  18,  United  States  Code,  and  any  peninent  policv' 
statement  issued  by  the  Sentencing  Commission,  that  a  sentence 
outside  the  guideline  range  is  warranted,  the  court  may  impose 
such  a  sentence.". 


(d)  This  section  shall  take  effect  sixty  days  following  the  date  of 
enactment  of  this  Act. 


SEC.  4.   Effective  Date. 


Notwithstanding  the  provisions  of  section  109  of  title  1, 
United  States  Code,  the  provisions  of  section  3  of  this  Act  shall 
apply  (1)  to  any  defendant  sentenced  on  or  after  the  date  section 
3  of  this  Act  takes  effect;  and  (2)  in  any  determination  under 
section  3582(c)(2)  of  title  18,  United  States  Code. 


SEC  5.  Commission  Authority  to  Modify  Guidelines  Promulgated 
Pursuant  to  Statutory  Directive. 


78 

Section  994  of  title  28  is  amended  by  inserting  the  following 
additional  seaion: 


"(y)  Variance  of  Specific  Statutory  Directive;  Amendment  of 
Guideline  Subject  to  Specific  Statutory  Directive  to  the 
Commission. 


Notwithstanding  any  other  provision  of  law,  the  Commission 
may- 

(1)  in  promulgating  an  amendment  to  a  guideline  or  policy 
statement  pursuant  to  a  specific  statutory  directive,  make  such 
adjustments  as  the  Commission  deems  reasonable  and  necessary  to 
effectuate  the  intent  of  such  directive  in  a  manner  consistent  with 
the  guidelines  and  policy  statements  as  a  whole;  and 

(2)  subsequently  promulgate  and  subnut  to  Congress  an 
amendment  to  a  guideline  or  policy  statement  that  has  been  the 
subject  of  a  specific  statutory  directive,  provided  that  any 
amendment  that  is  at  variance  with  any  statutory  directive  to  the 
Commission    shall    be    specifically    designated    as    such    and 


79 

accompanied  by  a  report  explaining  the  variance  and  the  reasons 
therefor.". 


SEC.  6.  Commission  Report  Relating  to  Sentences  for  First-Time, 
Non-Violent  Offenders. 


(a)  Report.-Not  more  than  six  months  after  the  date  of  enactment 
of  this  Act,  the  Commission  shall  transmit  to  the  respective 
Judiciary  Committees  of  the  Senate  and  House  of  Representatives 
a  report  on  sentencing  practices  as  they  relate  to  offenders 
convicted  of  controlled  substance  offenses  under  title  21,  United 
States  Code,  who  are  first  offenders  and  whose  offense  conduct 
does  not  involve  violence. 


(b)  Components  of  Report-The  report  mandated  by  subsection  (a) 
shall  include  a  consideration  of  the  appropriateness  of  providing  for 
modifications  of  current  sentencing  practices  as  they  relate  to  such 
offenders  and  other  related  matters  as  the  Commission  determines 
appropriate. 

(c)  Consiiltation  with  Criminal  Justice  Authorities.~In  fulfilling  its 
obligations  under  this  section,  the  Commission  shall  consult  with 


80 

the  representatives  of  the  criminal  justice  system  set  forth  in  section 
994(o)  of  title  28,  and  other  persons  as  the  Commission  deems 
appropriate. 


81 

Mr.  SCHUMER.  Thank  you,  Judge  Wilkins,  I  thank  you  for  your 
excellent  and  thoughtful  testimony.  I  have  some  questions  about  it. 

Before  we  get  to  you,  Mr.  Attorney  General,  we  have  a  vote,  we 
have  5  minutes.  We  will  try  to  come  back  by  1  o'clock  and  resume. 

Oh.  Two  5-minute  votes?  Just  two  votes.  OK  Then  we  will  just 
have  to  play  it  by  ear  and  we  will  come  back  as  soon  as  we  can. 

[Recess] 

Mr.  ScHUMER.  I  apologize  for  the  delay.  There  were  indeed  two 
votes. 

And  now.  Attorney  General  Barr,  your  statement  will  be  read 
into  the  record.  We  welcome  you  here.  Proceed  as  you  wish. 

STATEMENT  OF  WILLIAM  P.  BARR,  SHAW,  PITTMAN,  POTTS  & 
TROWBRIDGE,  WASfflNGTON,  DC 

Mr.  Barr.  Thank  you,  Mr.  Chairman.  I  appreciate  the  oppor- 
tunity to  be  here,  and  I  want  to  salute  you  and  the  committee  for 
taking  up  this  important  topic.  It  has  been  a  hot  one,  but  up  until 
this  hearing,  frankly,  there  has  been  more  heat  and  less  light  shed 
on  the  issue.  And,  as  Congressman  Mazzoli  said,  I  really  want  to 
commend  your  opening  statement,  which  was  superb,  and  it  was 
the  first  time  I  really  heard  the  facts  laid  out  on  the  record.  And 
I  agree  that  this  is  a  topic  that  we  really  have  to  deal  with  on  the 
basis  of  the  facts  and  not  allow  myths  to  drive  policy. 

I  am  just  going  to  make  three  quick  points,  and  I  also  want  to 
take  up  the  issue  you  asked  me  to  address,  which  is  this  notion  of 
a  safety  valve  and  some  of  the  practical  concerns  I  have  about  it. 

I  support  the  current  system.  I  think  mandatory  minimums  are 
fair  in  principle,  and  I  think  they  are  being  fairly  implemented,  I 
think  the  data  shows  that  the  notion  that  there  are — ^that  the  sys- 
tem is  generating  significant  numbers  of  cases  where  hapless  vic- 
tims are  being  treated  unfairly  with  draconian  sentences  is  a  myth. 
That  as  you,  I  think,  are  finding,  those  egregious  cases,  as  you  call 
them,  are  few  and  far  between. 

Second,  I  think  it  is  important  to  bear  in  mind  that  this  is  a  pun- 
ishment. These  mandatories  minimums  reflect  the  judgment  of 
Congress  several  years  ago  that  the  punishment  fits  the  crime.  I 
agree  that  the  punishment  fits  the  crime,  and  I  don't  think  any- 
thing has  happened  since  then  to  suggest  it  doesn't.  If  anything,  we 
know  more  and  more  how  devastating  drug  trafficking  is,  the  de- 
struction it  causes.  I  think  the  drug  plague  in  the  United  States 
has  cost  our  societv  more  in  lives  and  treasure  and  spirit  than  all 
the  foreign  wars  that  we  have  ever  fought  as  a  nation.  The  drug 
trade  could  not  go  on  unless  there  were  people  willing  to  engage 
in  trafficking.  And  no  one  who  engages  in  trafficking  these  days 
does  so  unwitting  of  the  danger  of  the  drug  trade,  the  devastation 
it  causes,  and  the  risks  involved. 

We  have  spent  10  years  getting  the  point  across  that  we  mean 
business — that  the  Federal  Government  is  tough  and  there  are  not 
going  to  be  excuses  for  participating  in  this  drug  trade.  And  it  is 
starting  to  sink  in  and  people  are  scared  of  the  Federal  system,  and 
now  is  not  the  time,  in  my  view,  to  be  sending  a  mixed  message. 
People  who  engage  in  drug  trafficking  are  engaging  in  it  with  a 
contumacious  state  of  mind,  and  I  think  that  the  5-year  penalty, 
the  10-year  penalty  is  a  just  penalty. 


82 

The  third  thing — and  I  think  very  important  to  bear  in  mind- 
is  how  important  mandatory  minimums  are  as  a  practical  tool  in 
fighting  the  drug  trade.  Picking  up  again  on  what  Congressman 
Mazzoli  said,  Federal  prosecutors  are  not  in  this  to  nail  mopes  who 
have  nothing  to  offer,  hapless  people.  They  are  going  after  the  or- 
ganizations. That  is  the  objective.  Federal  prosecutors  are  dedi- 
cated people.  They  are  overworked.  They  want  to  stop  the  drug 
trade  and  they  are  going  after  these  organizations. 

And  I  would  say  the  singlemost  important  tool  that  the  prosecu- 
tors have  today  is  mandatory  minimums.  Why?  Because  the  drug 
trade  is  carried  on  through  organizations  that  are  highly  secretive, 
where  there  are  financial  incentives  to  keep  that  secrecy  and  to 
keep  your  mouth  shut  even  if  you  are  caught,  where  there  is  even 
a  risk  to  your  life  if  you  squeal.  You  can  get  executed  by  the  dm<^ 
organization  or  a  related  drug  organization.  And  frequently  there 
are  ties  of  culture.  For  example,  some  of  the  drug  gangs,  the  dis- 
tribution in  the  United  States  are  tied  together  with  culture  and 
language  that  make  it  very  difficult  for  people  to  squeal. 

The  only  way  we  have  to  break  into  these  organizations  is  to 
"turn"  sometimes  the  lowest  level  person  so  that  prosecutors  can 
march  their  way  up  the  chain,  and  what  makes  this  process  pos- 
sible is  the  very  stiff  penalty  of  the  mandatory  minimum.  Now, 
right  now  the  reason  the  Government  can  get  cooperation  is  be- 
cause the  defendant  knows  that  there  is  only  one  way  to  break 
through  the  floor  of  that  mandatory  minimum,  one  way  and  one 
way  only,  and  that  is  to  give  substantial  cooperation  to  the  prosecu- 
tor. 

Now,  what  I  am  concerned  about  is  the  safety  valve  and  what 
impact  that  could  have.  If  there  is  discretion  placed  in  a  judge  to 
reach  the  decision  that  you  can  break  through  that  floor,  even  if 
you  haven't  provided  substantial  cooperation,  I  think  it  is  going  to 
dilute  the  strength  of  this  leverage  that  the  prosecutor  has.  Be- 
cause then  the  defendant  knows  he  has  another  avenue  around  the 
mandatory  minimum,  which  is  to  persuade  a  judge,  not  the  pros- 
ecutor, but  to  persuade  a  judge,  "Hey,  I'm  iust  a  de  minimis  factor 
and  I  don't  have  any  information."  And,  if  he  can  persuade  a  judge 
of  that,  the  rug  is  pulled  out  from  under  the  prosecutor. 

I  would  be  very  cautious  about  a  safety  valve.  But  if  you  deter- 
mine that  this  is  a  sufficient  problem  that  merited  a  safety  valve 
of  some  sort,  then  what  I  would  urge  you  to  consider  is  one  that 
operates  very  much  like  the  substantial  assistance  safety  valve. 
The  prosecutor  has  to  be  in  the  loop.  That  is,  the  prosecutor  files 
a  motion,  iust  as  he  would  file  a  substantial  assistance  motion,  say- 
ing that  this  person  has  tried  to  their  maximum  ability  to  cooper- 
ate. They  have  worn  the  wire  that  we  asked  them  to  wear.  The^ 
have  done  everything  we  have  asked  and,  unfortunately,  haven  t 
turned  up  anything  that  really  amounted  to  substantial  assistance. 
But  they  have  cooperated.  They  have  testified  and  so  forth,  and 
they  were  limited  players. 

And  I  think  there  should  be  a  limit  on  how  much  it  can  be  re- 
duced, so  you  still  have  a  fairly  significant  deterrent  even  for  the 
de  minimis  player.  Because  one  thing  we  have  to  worry  about  is 
the  drug  traffickers  will  use  the  people  who  have  the  least  to  lose. 
They  use  kids.  And,  if  we  say,  "Well,  now  empathetic  girlfi-iends 


83 

are  people  that  are  going  to  get  breaks,  we  are  going  to  see  a  lot 
more  empathetic  girlfriends  involved  in  the  drug  trafficking," 

So  I  still  think  there  has  to  be  a  deterrent.  But  those  are,  in  a 
nutshell,  my  thoughts  on  this  safety  valve  concept.  I  think  it  is  im- 

f>ortant  not  to  iust  shift  it  over  to  the  judges,  and  I  think  if  you 
ook  at  what  tne  prosecutors'  interests  are  here,  prosecutors  are 
getting  around  the  Thornburgh  memo  in  empathetic  cases.  They 
are  trying  to  find  substantial  assistance  and  they  are  doing  other 
things  to  try  to  give  people  a  break.  They  have  no  interest  in 
spending  their  resources  going  after  a  mope  that  really  can't  give 
them  anything.  So  that  in  a  nutshell  are  my  thoughts, 
Mr.  Chairman,  thank  you  again. 
[The  prepared  statement  of  Mr.  Barr  follows:] 

Prepared  Statement  of  William  P.  Barr,  Shaw,  Ptttman,  Potts  &  Trowbridge 

Thank  you,  Mr.  Chairman,  for  inviting  me  to  this  hearing  and  allowing  me  to 
share  my  thoughts  on  the  issue  of  mandatory  minimum  sentences  for  federal  drug 
trafficking  violations.  I  particularly  appreciate  the  opportunity  to  offer  my  perspec- 
tive because  much  of  the  media  attention  given  to  this  subject  has  overfooKed  the 
views  of  law  enforcement.  Perhaps  today's  nearing  will  help  to  remedy  this  situa- 
tion. 

My  purpose  in  being  here  today  is  to  offer  my  support  for  the  mandatory  mini- 
mum sentences  currently  includea  in  federal  drug  control  statutes.  I  firmly  believe 
that  Congress,  with  the  strong  support  of  both  Presidents  Reagan  and  Bush,  acted 
appropriately  when  it  established  these  penalties  in  the  1980's,  and  that  mandatory 
sentences  have  contributed  greatly  to  a  major  shift  in  attitude  over  the  past  five 
years  concerning  drug  abuse. 

The  support  I  offer  for  these  penalties  stands  in  sharp  contrast  to  the  attacks  now 
being  waged  against  them.  A  clear  impression  now  exists  that  a  substantial  portion 
of  the  federal  prison  population  consists  of  non-violent,  low-level  drug  abusers  who 
have  never  before  been  convicted  of  a  felony.  The  picture  being  painted  of  this  sup- 

Sosed  group  is  one  of  essentially  hapless  people  who  have  been  caught  up  in  the 
rug  war  and  are  barely  culpable  of  criminal  wrongdoing.  Moreover,  it  nas  been  sug- 
gested that  this  large  segment  of  the  prison  population  is  displacing  the  real  violent 
criminals  who  are  presently  on  the  streets  because  of  a  shortage  of  prison  beds. 

This  image  of  significant  numbers  of  drug  war  "victims"  sitting  in  federal  prisons 
for  long  periods  of  time  is  simply  a  myth.  Even  a  quick  review  of  the  relevant  infor- 
mation, including  available  statistics,  the  testimony  of  federal  law  enforcement,  and 
federal  law,  reveals  that  this  image  does  not  square  with  the  facts. 

Nearly  80%  of  the  federal  drug  offenders  sentenced  in  1992  were  either  armed, 
recidivists  or  found  by  the  court  to  be  leaders  or  organizers  of  drug  distribution  net- 
works. Of  the  22  of  the  federal  drug  prisoners  not  fitting  this  description,  nearly 
half  are  not  incarcerated  under  a  mandatory  drug  sentence.  This  means  that  less 
than  12%  of  all  drug  traffickers  in  federal  prison  are  serving  mandatory  sentences 
and  were  unarmed  non-leaders  who  had  no  prior  convictions.  It  should  be  noted, 
however,  that  many  in  this  12%  group  could  still  pose  a  significant  threat  to  public 
safety  based  upon  other  factors  such  a  juvenile  convictions  and  prior  arrests. 

These  statistics  would  come  as  no  surprise  to  federal  drug  agents  and  prosecutors. 
Anyone  within  those  ranks  could  tell  you  that  nearly  all  of  the  drug  traflickers  they 
encounter  are  not  merely  misguided  souls  making  their  first  mistake.  Rather,  they 
focus  their  efforts  on  deadly  drug  distribution  organizations  who  often  view  violence 
as  simply  a  part  of  business.  Indeed,  federal  law  enforcement  officials  spend  thou- 
sands of  hours  training  and  preparing  to  dismantle  such  enterprises. 

Finally,  there  is  no  legal  basis  to  the  claim  that  drug  offenders  are  displacing  vio- 
lent criminals  from  federal  prisons.  Here  there  are  two  points  to  keep  in  mind.  First, 
since  parole  was  abolished  in  the  federal  system  in  1987,  it  is  legally  impossible  to 
push  violent  criminals  out  of  prison  early.  Second,  while  there  has  been  a  large 
number  of  drug  offenders  sent  to  federal  prisons  in  recent  years,  there  also  has  been 
an  unprecedented  number  of  violent  criminals  imprisoned  during  this  same  period 
of  time.  "I'roject  Triggerlock"  alone  has  netted  over  12,000  felons  using  firearms  in 
only  the  past  two  years. 

Beyond  these  important  facts  about  the  true  composition  of  the  federal  prison  pop- 
ulation, we  must  not  lose  sight  of  the  severe  threat  drug  abuse  poses  to  tne  public's 
well  being.  In  the  1980's,  Congress  made  the  judgment  that  arug  trafficking  is  a 


84 

heinous  act  and  established  punishment  that  fits  the  crime.  I  still  believe  that  the 
punishment  fits  the  crime. 

Consider  all  that  our  nation  has  been  through  over  the  past  decade  in  the  struggle 
against  drugs — the  virtual  devastation  of  neighborhoods,  the  destroyed  lives  of  drug 
abusers,  the  murdered  law  enforcement  officers  and  their  suffering  wives  and  chil- 
dren, the  newborn  children  who  have  entered  life  as  drug  addicts.  Add  to  these 
numbers  the  hundreds  of  brave  judges,  police  and  soldiers  in  Colombia,  Italy  and 
other  foreign  countries  who  have  died  violent  deaths  fighting  the  drug  lords.  The 
conclusion  is  clear.  The  penalties  Congress  established  for  drug  distribution  unques- 
tionably match  the  destructive  efiects  of  the  crime. 

It  is  difficult  not  to  conclude  that  those  who  continue  to  engage  in  drug  trafficking 
after  all  that  this  nation  has  been  through  must  possess  a  contumacious  state  of 
mind.  In  weighing  the  substantial  risks  involved  against  the  specific  business  oppor- 
tunity, they  display  a  cold  and  calculating  nature.  It  is  obvious  that  such  behavior 
is  completely  inconsistent  with  the  best  interests  of  the  community  in  which  they 
live. 

Not  only  did  Congress  act  justly  in  creating  mandatory  sentences,  but  it  also  gave 
federal  law  enforcement  an  extremely  valuable  tool  for  dismantling  drug  distribu- 
tion organizations.  Drug  trafficking  enterprises  are  highly  integrated  structures. 
Thus,  law  enforcement  officials  frequently  rely  upon  those  within  the  conspiracy  to 
acquire  evidence  of  criminal  violations.  Mandatory  minimum  sentences  have  proven 
to  be  a  very  successful  tool  for  law  enforcement  in  working  its  way  up  in  an  organi- 
zation. 

In  conclusion,  Mr.  Chairman,  I  hope  that  you  and  your  colleagues  will  proceed 
cautiously  in  reviewing  this  issue  and  considering  any  changes  to  the  law.  I  have 
reservations  about  creating  a  safety  valve  which  empowers  the  judiciaiy  to  auto- 
matically nullify  a  mandatory  sentence.  Such  an  exception  could  undermine  the  ef- 
fectiveness of  mandatory  sentences  as  a  law  enforcement  tool  because  defendants, 
knowing  that  the  judge  will  waive  the  tough  sentence,  may  claim  that  they  cannot 
provide  substantial  assistance  to  the  government.  I  trust  you  will  weigh  this  concern 
in  your  future  deliberations. 

Mr.  SCHUMER.  Well,  I  want  to  thank  you  for  your  very  interest- 
ing testimony.  In  this  hearing  we  are  really  trying  to  learn  and 
grope  with  an  issue  that  is  a  difficult  issue.  There  is  no  easy  an- 
swer. And  both,  I  think  both  you.  Judge  Wilkins,  and  you.  Attorney 
General  Barr,  have  helped  with  that. 

Judge  Wilkins,  let  me  ask  you  first  a  couple  of  questions  about 
what  you  mentioned.  If,  in  your  proposal  of  a  safety  valve  going 
below  the  guidelines,  your  general  proposal,  would  there  be  a  limit 
on  how  low  you  could  go? 

Judge  Wilkins.  Absolutely. 

Mr.  ScHUMER.  What  would  that  be? 

Judge  Wilkins.  The  guidelines  now  work  independent  of  manda- 
tory minimums. 

Mr.  SCHUMER.  No,  I  understand. 

Judge  Wilkins.  And  the  same  mitigating  factors  apply  in  those 
cases  that  I  am  suggesting  should  also  be  allowed  to  apply  in  a 
mandatory  minimum  drug  case. 

Mr.  ScHUMER.  So  what  you  are  simply  saying  is  pass  a  manda- 
tory minimum  but  don't  make  that  the  floor,  make  that  sort  of  the 
average,  the  level  for  the  average  person  and  you  can  go  up  a  lim- 
ited amount  and  down  a  limited  amount? 

Judge  Wilkins.  That  is  what  I  am  saying.  That  is  right.  And  it 
would  be  a  structured  up  and  down.  If  it  weren't  structured  up 
now — in  fact 

Mr.  ScHUMER.  Yes,  I  understand. 

Judge  Wilkins  [continuing].  Seldom  is  the  mandatory  minimum 
penalty  the  actual  sentence  imposed  on  a  defendant  who  has  any 
aggravating  role  because  the  sentence  is  going  to  be  structured  up. 


85 

Mr.  SCHUMER.  I  understand.  The  fear  that  this  committee  has, 
most  of  this  committee,  certainly  most  of  the  pubHc,  is  that  if  you 
allow  too  much  discretion  on  the  down  side  people  who  deserve  to 
go  to  prison  won't  or  that  people  who  deserve  to  go  to  prison  for 
a  significant  sentence  will  get  a  slap  on  the  wrist,  the  6-month-type 
situation. 

Judge  WiLKiNS.  That  is  correct. 

Mr.  ScHUMER.  If  that  fear  is  real  I  will  tell  you  what  will  happen 
if  your  proposal  is  passed.  They  will  just  up  the  mandatory  mini- 
mum. So  if  they  worry  that  someone  might  get  2  years  when  they 
think  they  should  get  4,  instead  of  passing  an  8-year  mandatory 
minimum  they  will  pass  a  10-  or  12-year  mandatory  minimum  and 
it  would  be  counterproductive. 

So  one  thing  I  would  urge,  and  I  would  look  forward  to  looking 
at  your  written  submission,  is  that  there  be  some  guaranteed  floor 
as  to  what  the  sentence  could  not  go  below  in  terms  of  a  percentage 
of  the  guideline.  And  that  might  be  helpful,  it  might  not.  I  can't 
tell.  I  would  have  to  talk  to  my  colleagues  and  think  it  over  myself 
in  terms  of  that.  And  right  now  you  don't  have  that 

Judge  WiLKiNS.  Yes,  we  do. 

Mr.  ScHUMER.  You  do. 

Judge  WiLKlNS.  The  guidelines  provide  the  floor,  Mr.  Chairman. 
The  judge  cannot,  facing  a  defendant  who  has  a  very  minor  periph- 
eral role  in  a  drug  conspiracy  and  who  has  accepted  responsibility, 
that  judge  is  not  allowed  to  sentence  to  whatever  sentence  the 
judge  thinks  is  appropriate, 

Mr.  ScHUMER.  Well,  I  understand  that. 

Judge  WiLKlNS.  The  guidelines  will  say,  here  is  the  bottom  line. 

Mr.  ScHUMER.  I  know  what  the  guidelines  do.  In  your  proposal 
it  seemed  more  tentative.  You  don't  mean  that? 

Judge  WiLKiNS.  No,  I  did  not  mean  that. 

Mr.  ScHUMER.  So  in  the  example  you  told,  the  person  who  got 
the  10-year  were  the  average  people,  the  16-year  was  the  ring- 
leader, and  the  5-year  was — I  can't  remember  the — was  it  courier? 

Judge  WiLKlNS.  A  courier. 

Mr.  ScHUMER.  For  a  minor  participant,  the  court  couldn't  go 
below  5  years,  the  judge  could  not  go  below  5  years,  for  instance? 

Judge  WiLKlNS.  Through  the  operation  of  the  guidelines,  that  is 
correct.  That  is  the  minimum.  The  fellow  might  get  a  6V2-year  sen- 
tence  

Mr.  ScHUMER.  I  understand. 

Judge  WiLKiNS  [continuing].  Because  the  judge  has  arranged 
that  that  would  be  the  bottom.  Except,  Mr.  Chairman,  so  there  be 
no  misunderstanding,  under  the  Sentencing  Reform  Act  judges  who 
can  identify  an  aggravating  or  mitigating  factor  not  considered  by 
the  guidelines  can  depart  above  or  below  the  guidelines.  The  judge 
couldn't  use  minor  role  again,  but  some  other  mitigating  factor 
could  be  a  basis  for  the  departure. 

Mr.  SCHUMER.  Right.  Yes. 

Judge  WiLKlNS.  And  there  are  only  a  few  very  limited  factors  rec- 
ognized by  the  courts.  The  judge  then  could  state  that  reason  on 
the  record  and  sentence  below  the  guidelines. 

Mr.  ScHUMER.  Right. 


86 

Judge  WiLKiNS.  That  occurs  in  all  cases  other  than  when 
mandatories  apply.  But  it  only  occurs  in  6  percent  of  all  the  cases. 

Mr.  ScHUMER.  And  that  is  what  you  refer  to  as  the  safety  valve 
in  the  guidelines  itself? 

Judge  WiLKlNS.  That  is  correct. 

Mr.  ScHUMER.  That  is  correct?  OK,  And  that  I  think,  even 
though  it  is  only  6  percent  I  think  that  would  cause  a  great  deal 
of  worry  out  in  the  public  and  with  this  committee.  You  know,  I 
have  some  resentment  of  people  who  think  this  is  what  the  public 
wants  and  all  of  that.  Yes,  it  is  what  the  public  wants  because  they 
have  been  through  a  very  bad  experience  before,  and  there  is  noth- 
ing wrong  with  the  public  wanting  to  be  very  safe.  I  mean  to  me 
the  greatest  failure  our  Government  has,  period,  is  that  we  are  not 
safe.  That  is  what  men  and  women  got  together  to  form  govern- 
ment about:  external — fight  a  war,  have  an  army;  and  internal — 
be  safe  as  you  walk  around. 

Judge  WiLKiNS.  We  share  your  concern. 

Mr.  ScHUMER.  I  know  you  do.  And  I  know  everybody  here  does. 
And  I  accept  my  colleague  from  Michigan's  statement  that  every- 
one wants  to  deal  with  crime  and  there  are  different  ways  to  deal 
with  it,  and  that  is  why  we  are  a  Congress. 

But  the  idea  that  people  who  want  to  be  safe  or  people  who  have 
one  position  are  just  doing  this  out  of  some  malice  I  reject  and  find 
troubling.  Worse  than  troubling,  but  I  can't  think  of  the  right  word. 

OK  Mr.  Barr,  what  do  you  think  of  Judge  Wilkins'  proposal? 

Mr.  Barr.  I  would  oppose  it  because  I  think  that  the  legislature 
should  in  certain  cases  set  a  floor  for  certain  crimes  and  basically 
say  we  are  not  going  to  allow  mitigation  except  under  defined  cir- 
cumstances. And  I  would  not  like  to  see  judges  have  any  appre- 
ciable discretion  to  go  below  that  floor,  and  I  think  the  discretion 
they  have  now  under  the  guidelines  is  a  little  bit  too  malleable  and 
I  am  concerned  of  the  erosion  of  that  floor  and  the  impact  that 
would  have  on  using  it  as  a  hammer  to  open  up  organizations. 

So  for  that  reason  I  would  say  that  if  there  is  going  to  be  a  safety 
valve  the  prosecutor  has  to  move  for  it  under  defined  cir- 
cumstances. 

Mr.  ScHUMER.  All  right.  And  you  made  a  very  important  point 
that  I  appreciated.  And  not  being  a  prosecutor  myself,  I  think  it  is 
an  important  one  that  you  made. 

But  what  do  you  say  to  a  person  like  our  witnesses  here,  particu- 
larly the  young  woman  who  is  incarcerated  herself?  That  to  me  was 
the  worst  case  we  found.  There  are  others  that  are  less  bad,  but 
still  probably  the  sentence  is  a  little  bit  too  long. 

What  do  you  say  to  her?  Go  ahead.  I  don't  want  to  put  any  words 
in  your  mouth. 

Mr.  Barr.  I  don't  know  enough  about — I  don't  want  to  comment 
on  her  case  because  I  haven't  talked  to  the  prosecutor. 

Mr.  Schumer.  Well,  let's  assume  the  prosecutor  was  wrong. 
Maybe  he  made  a  judgment,  for  instance,  that  she  could  lead  him 
to  others.  In  Ms.  La  Rotonda's  care,  it  perked  my  ear  up  that  the 
Colombians  who  were  at  the  top  got  15  years,  and  maybe  the  next 
rung  got  less  because  they  brought  in  the  Colombians. 

Mr.  Barr.  Right. 


87 

Mr.  ScHUMER.  And  that  is  a  justifiable  prosecutorial  decision. 
But  let's  say  in  this  case  here  she  didn't  know  of  anybody  and  the 
prosecutor  made  a  judgment — we  will  squeeze  her,  she  will  turn 
somebody  in — but  tnere  was  nothing  to  squeeze  out  of  her.  What 
do  we  say  to  her? 

Mr.  Barr.  I  think  more  likely  in  this  case,  if  this  is  a  really  em- 
pathetic  case  where  she  was  willing  to  provide  information,  willing 
to  testify  against  her  boyfriend  or  what  have  you,  accepted  respon- 
sibility, that  the  prosecutor  may  have  felt  he  didn't  have  an  alter- 
native under  the  mandatory  minimums  and  that  there  was  such  a 
substantial  amount  of  drugs  involved  that  she  got  hit  with  a  very 
high  sentence,  which  I  think  was  above  the  mandatory  minimum, 
which  suggests  that  there  were  aggravating  factors  involved  in  the 
conspiracy. 

Wasn't  it  12  years? 

Ms.  Stewart.  No.  She  got  10. 

Mr.  ScHUMER.  It  was  12 — was  it  12  years? 

Mr.  Barr.  No.  She  got  10. 

Mr.  Schumer.  She  got  the  10. 

Mr.  Barr.  All  right. 

Mr.  Schumer.  They  asked  for  12,  she  got  10. 

Mr.  Barr.  I  would  say  that  the  safety  valve  that  I  am  suggesting 
would  deal  with  that  because  the  prosecutor  would  be  satisfied  that 
this  just  wasn't  someone  who  was  saying  that  they  had  nothing  to 
provide,  who  was  in  fact  really  willing  to  be  cooperative. 

I  would  also  say,  though,  that  I  am  not  so  ready  to — I  am  wor- 
ried about  the  implication  that  somehow  involvement  in  trafficking 
is  not  culpable  behavior.  Nowadays,  in  my  view,  people  who  hang 
around  and  associate  with  individuals  who  are  engaged  in  large- 
scale  transactions  and  had  sufficient  participation  in  that  to  assist 
in  those  transactions  are  highly  culpable  individuals. 

Mr.  Schumer.  Mr.  Mazzoli  and  Mr.  Schiff,  in  fact,  have  made 
that  point  throughout  the  hearing,  and  I  completely  agree  with  it. 
The  question  is  just  how  long  the  amount  of  jail  time  should  be. 
It  is  certainly  culpable  behavior. 

Mr.  Barr.  Let  me  just  point  out  there  is  also  right  now  a  safety 
valve,  and  I  am  not  suggesting  that  you  just  treat  this  as  the  only 
safety  valve,  but  if  the  current  Attorney  General  and  if  this  admin- 
istration thought  there  were  cases  in  the  Federal  system  where 
there  were  miscarriages  of  justice  they  always  have  the  power  of 
clemency,  and  they  could  commute  this  person's  sentence  to  time 
served  at  any  time. 

Mr.  Schumer.  Right.  Judge  Wilkins,  what  do  you  say  about  At- 
torney General  Barr's  view  that  if  there  are  other  ways  to  get 
below  a  mandatory  minimum,  particularly  in  these  drug  cases  be- 
cause that  is  where  we  are  focusing,  that  the  defendant  will  say, 
well,  I  don't  have  to  wear  the  wire,  I  don't  have  to  do  the  full  co- 
operation, because  I  am  a  low-level  person  I  will  get  a  reduced  sen- 
tence anyway,  because  there  will  be  another  reason  for  it? 

Judge  Wilkins.  My  experience  as  a  prosecutor  and  as  a  trial 
judge  for  about  6  years  tells  me  that  minimal  participants  line  up 
at  the  door  and  beg  to  come  in  to  cooperate  with  the  Government. 
The  problem  is  they  seldom  have  any  real  meaningful  information 
to  give.  Consequently,  they  do  not  receive  the  benefit  of  the  sub- 


88 

stantial  assistance  motions  that  the  law  allows  prosecutors  to 
make.  I  don't  think  there  is  any  question  about  it. 

What  we  are  talking  about  is  a  recognition  that  some  people  who 
are  in  a  minimal  role  should  get  some  proportional  consideration. 
Bill  and  I  agree  on  that.  He  says  it  should  be  structured.  I  say  it 
should  be  structured.  The  guidelines  provide  a  very,  veiy  tight 
structure.  If  you  don't  believe  me,  bring  some  Federal  judges  up 
here  and  they  will  tell  you  how  tight  it  is. 

The  only  difference  I  think  we  have  between  us  in  recognizing 
that  this  is  a  problem  and  there  should  be  some  reasonable  solu- 
tion to  it  is  his  would  turn  on  certification  of  the  prosecuting  attor- 
ney that  this  person  is  a  minor  participant  and  then  the  structured 
reduction  would  occur.  I  am  suggesting,  as  in  all  other  guideline 
cases  that  the  situation  turn  on  a  decision  by  the  district  judge 
based  on  facts  found  on  the  record  subject  to  appellate  review. 

Mr.  ScHUMER.  Right.  Judge,  you  have  told  me  personally,  and  I 
believe  it  is  in  your  written  testimony,  that  you  might  prefer  no 
change.  You  mentioned  before  you  would  prefer  to  keep  the  manda- 
tory minimums  if  there  was  nothing,  if  there  were  no  guidelines  as 
a  buffer. 

And  it  is  true,  I  don't  see  that  the  two  are  that  much  at  logger- 
heads. There  are  different  methods  and  there  are  questions  of  le- 
verage and  there  are  questions  of  egregious  cases,  but  still  they 
came  out  of  the  same  root  problem  and  they  are  not  as  different 
as  some  would  like  them  to  be.  That  the  guidelines  are  all  good  and 
the  mandatory  minimums  are  all  bad,  or  vice  versa.  That  the  man- 
datory minimums  are  the  end-all  answer  and  the  guidelines  won't 
protect  us  from  any  of  that. 

If  you  had  the  choice  of  no  change  versus  a  safety  valve  broadly 
defined,  which  would  you  prefer? 

Judge  WiLKiNS.  Well,  it  is  difficult  to  answer  you,  of  course,  be- 
cause the  broad  application 

Mr.  ScHUMER.  I  shouldn't  say  broadly  defined.  I  should  say 
nondefined.  Just  the  concept. 

Judge  WiLKlNS.  I  would  probably,  without  having  the  specific 
safety  valve  you  are  talking  about,  opt  for  no  change  because  I 
don't  think  we  are  going  to  generate  enough  attention  to  this  prob- 
lem soon  again  to  provide  a  solution  to  it.  If  some  solution  comes 
along  that  is  not  a  good  solution — and  some  safety  valve  ap- 
proaches will  not  be  good  solutions  because  if  they  turn  on  too 
much  discretion,  or  if  they  turn  on  too  much  prosecutorial  discre- 
tion or  too  much  judicial  discretion,  it  is  just  kind  of  a  band-aid — 
then  we  are  going  to  open  up  the  problem,  reintroduce  unwar- 
ranted disparity,  which  is  back  to  the  old  problem  that  we  are  try- 
ing to  solve  with  the  mandatories  or  with  the  guidelines. 

Mr.  ScHUMER.  Would  there  be  some  safety  valves  that  would  be 
better  than  no  change? 

Judge  WiLKiNS.  I  nave  offered  you  one. 

Mr.  ScHUMER.  Well,  that  is  not  quite  a  safety  valve,  but 

Judge  WiLKiNS.  Well,  you  see,  I  think  it  is,  Mr.  Chairman.  That 
is  what  I  am  trying  to  get  across.  What  it  says  is  where  you  have 
established  facts  on  the  record  that  this  person  is  not  your  typical 
offender,  and  you  must  have  had  that  person  in  mind  when  you 
were  talking  about  mandatories,  but  is  a  low-level — the  example  I 


89 

gave  was  an  errand  boy  for  the  drug  conspiracy,  that  person  is  fac- 
ing 10  years.  I  want  this  person  to  go  to  prison.  I  think  everybody 
that  looks  at  it  objectively  thinks  this  person  should  go  to  prison 
because  he  is  involved  in  a  major  drug  conspiracy.  But  the  involve- 
ment is  only  on  a  peripheral  level.  The  safety  valve  applies  to  that 
person  and  would  allow  a  sentence,  as  I  say,  with  two  mitigating 
factors  the  guidelines  recognize,  and  only  two  apply  to  receive 
about  a  5-year  sentence  without  parole.  That  is  a  stiff  sentence  for 
that  type  of  offense,  in  my  judgment. 

Mr.  SCHUMER.  OK.  I  understand  that.  It  is  just  that  it  is  a  dif- 
ferent conceptual  framework.  I  mean  the  safety  valve  to  me  implies 
the  guidelines,  or  the  minimum  is  applied  and  then  there  is  some 
separate  procedure  that  says,  wait  a  minute.  This  was  a  mis- 
carriage. You  get  a  second  bite  at  the  apple  to  prove  under  certain 
limited  circumstances  that  it  was  overdone.  It  is  a  little  different 
than  yours. 

And  I  don't  know  if  it  is  workable,  I  really  don't.  I  am  just  throw- 
ing it  out  here. 

Judge  WiLKiNS.  Well,  you  see,  we  have  been  into  this  now  for  8 
years.  I  know  when  we  start  talking  in  broad  generalities  and  prin- 
ciples and  desirable  goals,  and  then  you  get  down  to  the  actual 
writing,  as  you  do  with  legislation,  you  know  how  difficult  it  gets 
and  you  start  making  fine  cuts.  If  you  are  talking  about  an  individ- 
ual who  is  a  first  offender,  how  are  we  going  to  define  that  first 
offender?  No  contact  with  the  criminal  justice  system.  A  person 
who  wrote  a  bad  check  at  age  17  for  $10  at  the  7-Eleven.  Is  that 
going  to  disqualify  that  person  from  the  safety  valve. 

See,  the  guidelines  use  a  proportional  approach 

Mr.  ScHUMER.  I  understand. 

Judge  WiLKlNS  [continuing].  Taking  in  the  criminal  record  and 
so  forth. 

Mr.  ScHUMER.  It  is  a  tradeoff,  flexibility  versus  certainty.  But  I 
don't  know  if  it  is  undoable. 

I  just  had  one  final  question  for  you,  Judge.  It  is  my  understand- 
ing that  the  Commission  recently  rejected  an  amendment  to  the 
guidelines  that  would  have,  in  effect,  given  judges  the  power  to 
move  on  their  own,  sua  sponte,  to  reduce  sentences  for  defendants 
who  gave  substantial  assistance  to  the  (government.  Right  now 
that  power  is  held  by  prosecutors. 

Why  didn't  that  happen?  Why  was  it  rejected? 

Judge  WiLKiNS.  First  of  all,  as  you  know,  the  statute  provides 
that  the  motion  must  be  made  by  the  prosecuting  attorney 

Mr.  ScHUMER.  I  know.  Right. 

Judge  WiLKlNS  [continue].  To  move  beyond  the  mandatory  mini- 
mum, and  another  statute  directs  the  Sentencing  Commission  to 
have  a  comparable  type  approach  to  it.  It  has  been  suggested  by 
many  that  defendants  who  would  be  able  to  convince  a  judge  that 
they  provided  substantial  assistance  should  get  the  benefit  of  a 
downward  departure,  or  really  a  sentence  outside  the  guidelines. 

It  was  my  judgment  and  the  judgment,  I  think,  of  at  least  the 
majority  of  the  Commissioners  that  this  was  really  going  to  open 
up  the  sentencing  system  to  a  situation  where,  quite  frankly, 
judges  being  unsympathetic  with  mandatory  minimums,  unsympa- 


90 

thetic  with  the  guidehnes,  would  simply  use  that  as  a  way  to  get 
around  some  of  the  tough  sentences  that  the  guidelines  provide. 

Another  reason,  Mr.  Chairman,  and  just  as  important,  it  would 
have  no  effect  on  the  judge's  ability  to  depart  beyond  a  mandatory 
minimum. 

Mr.  ScHUMER.  I  understand. 

Judge  WiLKiNS.  Because  the  statute  requires  a  prosecutor's  mo- 
tion. So  there  may  be  some  movement  there  if  we  were  to  adopt 
that  within  the  guideline  ranges,  but  never  below  the  mandatory. 
So  it  would  have  minimal  effect  anyway. 

Mr.  ScHUMER.  Thank  you.  Judge.  Mr.  Barr,  did  you  find  any  evi- 
dence when  you  were  Attorney  General  that  violent  criminals  ei- 
ther were  not  being  given  jail  terms  or  were  given  reduced  jail 
terms  because  of  the  minimum  mandatory  law  and  first-time  drug 
offenders  taking  their  places  in  prison? 

Mr.  Barr.  First,  emphatically,  in  the  Federal  system  there  is  no 
displacement  going  on.  Violent  criminals  are  not  being  released  be- 
cause of  drug  prosecutions  and  convictions. 

Mr.  ScHUMER.  What  about  at  the  State  level  that  you  might  have 
familiarity  with? 

Mr.  Barr.  I  looked  at  this  somewhat  at  the  State  level.  There  is 
a  problem,  of  course,  with  violent  criminals,  in  my  view,  being  cy- 
cled through  the  revolving  door  too  quickly.  Howeyer,  I  do  not 
think  that  there  is  any  appreciable  displacement  going  on  in  the 
United  States.  I  think  the  best  case  for  it  was  made  in  Florida.  I 
think  a  study  was  done  in  Florida. 

Mr.  ScHUMER.  I  think  it  has  influenced  the  Attorney  General 
some.  I  just  gather  that.  Haven't  talked  to  her  about  it. 

Mr.  Barr.  I  think  that's  a  fair 

Mr.  ScHUMER.  But  it's  in  her  statements.  Yes. 

Mr.  Barr.  That  is  probably  a  fair  assumption.  The  study  was 
done  in  Florida.  I  am  not  a  student  of  that  study,  but  statisticians 
who  have  looked  at  it  for  me  have  told  me  that  it  is  very  inconclu- 
sive and  a  lot  more  investigation  would  have  to  be  done,  just  in 
Florida,  to  determine  whether  in  fact  there  is  displacement  going 
on. 

But  I  would  be  very  surprised  anywhere  in  the  country  if  there 
was  any  significant  displacement  going  on  right  now. 

Mr.  ScHUMER.  Do  you  see  a  distinction  between  drug  and  gun  of- 
fenses when  it  comes  to  mandatory  minimums? 

Mr.  Barr.  I  think  they  both  require  stiff  mandatory  minimums 
but  for  different  reasons.  I  think  one  of  the  reasons  we  want  drug 
mandatory  minimums  is  to  penetrate  the  organization,  as  I  dis- 
cussed. Guns,  I  think  the  level  of  violence  has  reached  such  a 
height  that  we  need  the  most  severe  deterrent  we  can  possibly 
muster  to  prevent  people  from  carrying  guns. 

Also,  I  think  it  is  a  good  proxy  for  violent,  people  with  a  propen- 
sity for  violence,  who  are  the  people  we  should  be  targeting  on  in- 
capacitating by  putting  in  prisons,  and  therefore  I  think  that  the 
incapacitation  argument  is  strongest  for  people  who  are  carrying 
firearms. 

Mr.  ScHUMER.  Thank  you.  I  want  to  thank  both  witnesses  my- 
self 

Mr.  Schiff. 


91 

Mr.  SCHIFF.  Thank  you,  Mr.  Chairman.  Judge  Wilkins,  there  has 
been  a  lot  of  discussion  about  the  so-called  first  offender,  non- 
violent offender — ^first-time  offender,  nonviolent  offender  in  prison 
under  mandatory  minimum  sentences.  Do  you  have  any  figure  as 
to  how  many  individuals  that  actually  is? 

Judge  WlUONS.  I  could  supply  that  for  you.  I  would  hate  to 
offer 

Mr.  Mazzoli.  I  have  asked  for  that  for  weeks  and  weeks  and 
months.  Nobody  seems  to  have  that. 

Mr.  ScHUMER.  Is  that  in  the  Federal  system? 

Mr.  Mazzoli.  Yes. 

Judge  Wilkins.  Well,  I  have  my  staff  director — I  am  sure  we  can 
provide  that  figure.  We  have  all  the  data. 

Mr.  SCHIFF.  If  you  could,  at  your 

Judge  Wilkins.  What  is  it? 

Mr.  ScHUMER.  In  prison?  Yes,  it  is  not  available. 

Mr.  Mazzoli.  We  are  looking  for  the  choirboys  that  are  in  there. 

Mr.  ScHUMER.  It  is  available — if  the  gentleman  would  yield — as 
I  understand  it,  because  we  have  looked  for  this  for  a  while,  they 
could  do  it  for  the  last  2  years,  but,  obviously,  that  is  not  the  whole 
population  of  the  Federal  prisons.  They  have  not  done  it  for  the  2 
years,  but  it  is  doable.  Before  that  they  didn't  keep  records  as  to 
why  the  sentence  occurred  and  whether  there  was  a  minimum.  A 
mandatory  minimum.  Sorry. 

Judge  Wilkins.  I  can  tell  you  this.  Take  our  definition  of  what 
we  call  zero  criminal  history  points,  which  means  no  conviction  or 
convictions  that  are  now  stale  because  of  the  passage  of  time,  10 
or  15  years,  depending.  Take  those  individuals  and  then  look  at 
whether  or  not  they  had  an  aggravating  role  in  the  instant  offense 
for  which  they  are  serving  time,  whether  or  not  there  was  any  vio- 
lence, or  whether  or  not  there  was  any  gun  used.  You  put  those  to- 
gether and  about  34  percent  of  the  prison  population  of  those  sen- 
tenced in  1992  have  none  of  these  aggravating  characteristics. 

But  again,  you  have  to  be  careful  with  that  because  it  is  our  defi- 
nition of  a  zero  point  criminal  history.  You  will  find  some  people 
in  Federal  prison  who  have  a  criminal  history  of  some  time  ago 
that  because  of  the  operation  of  the  guidelines  it  is  no  longer  count- 
ed as  an  aggravating  factor. 

Mr.  ScHiFF.  And  again,  as  you  said,  that  gets  in  the  definitions 
too.  I  am  not  sure  we  would  all  agree  on  who  is  nonviolent,  as  you 
have  heard  in  this  discussion. 

Judge  Wilkins.  That  is  a  very  difficult  thing  to  define,  and  I 
know  this  committee  would  be  very  careful  in  how  it  defines  these 
things.  We  need  to  know  the  question  exactly.  Then  we  would  try 
to  provide  you  the  absolute  data  under  very  strict  research  prin- 
ciples, because  these  things  get  thrown  around  too  loosely  some- 
times. 

The  General  Accounting  Office's  study  seems  to  suggest  that 
those  who  should  get  the  mandatory  minimum  sentence,  by  and 
large,  did  get  that  sentence,  or  I  should  say  at  least  that  sentence 
since  many  times  the  sentence  was  actually  greater.  It  is  my  un- 
derstanding that  the  Commission's  own  report  included  the  oppo- 
site, or  in  the  direction  of  the  opposite.  How  would  you  explain  any 
difference? 


92 

I  think  the  GAO  report  said  that — in  what — in  85  percent  of  the 
time  when  the  mandatory  was  applied  it  was  applied  correctly.  I 
would  hope  it  would  be  higher  than  85  percent.  But  what  our  stud- 
ies did  show  is  that  in  many  cases,  and  it  is  a  difficult  call,  but 
I  would  venture  that  in  at  least  25  percent  of  the  cases  the  manda- 
tory minimum  applied  to  this  defendant  but  for  one  reason  or  an- 
other was  not  sought. 

Indeed,  in  one  area  where  the  statute  requires  that  the  manda- 
tory minimum  is  double  because  of  a  prior  record — specifically  be- 
cause of  a  prior  felony  drug  conviction — that  double  mandatory 
Kenalty  was  sought  in  only  38  percent  of  the  cases  that  it  could 
ave  been  sought.  It  is  not  difficult  to  look  at  that  figure  because 
you  either  had  the  prior  record  or  not.  It  is  not  a  judgment  call  of 
whether  or  not  I  can  prove  the  case  and  so  forth. 

So  I  think  there  are  legitimate  reasons,  of  course,  why  manda- 
tory minimums  are  not  applied  to  a  given  defendant  in  a  given 
case,  and  Attorney  General  Barr  has  indicated  some  of  those.  I  do 
believe,  and  I  know  from  my  own  experience,  that  many  times 
some  prosecutors  look  at  the  case  and  they  say  I  need  a  plea,  I 
won't  charge  a  mandatory.  It  is  just  an  ease  to  move  the  case  out 
of  the  door,  or  sometimes  they  believe  the  mandatory  is  simply  too 
harsh.  We  know  of  some  districts  where  mandatory  minimum  pen- 
alties are  circumvented  as  a  matter  of  course,  whereas,  of  course, 
I  would  suggest  if  we  got  the  law  on  the  books  it  ought  to  be  ap- 
plied uniformly  and  consistently  throughout  the  country. 

Mr.  SCHIFF.  That  brings  me  to  you.  Attorney  General  Barr.  You 
have  spoken  strongly  in  favor  of  structure  in  the  system.  And,  of 
course.  General,  I  agreed  with  you  at  the  very  beginning  of  the 
hearing.  I  stated  my  support  for  sentencing  guidelines  as  some- 
thing that  community  standards  of  some  kind  in  all  of  sentences. 

But  I  think  it  does  raise  the  question  what  is  the  structure  on 
the  prosecutor  in  the  sense  of  that  same  community  standard?  As 
a  former  career  prosecutor,  I  understand  that  it  is  not  always  pos- 
sible to  charge  every  case  in  the  same  way.  There  could  be  dif- 
ferences in  evidence,  strength  of  evidence,  along  with  everything 
else  we  have  heard. 

But  I  haven't  heard  what  really  promotes  the  same  kind  of  cohe- 
sion among  prosecutors  in  the  system  so  that  there  is  not  great  dis- 
parity created  between  differences  between  opinions  of  the  local 
U.S.  attorneys  as  there  used  to  be  great  disparity  between  the 
opinions  and  philosophies  of  different  judges. 

I  wonder  if  you  might  address  that. 

Mr.  Barr.  The  principal  effort  to  enforce  some  uniformity  was 
the  Thornburgh  memorandum,  and  from  time  to  time  there  were 
criticisms,  mostly  from  judges  saying  that  they  thought  the 
Thornburgh  memorandum  was  not  being  followed.  The  Sentencing 
Commission  started  looking  into  that.  Some  jurisdictions  such  as 
the  Eastern  District  of  New  York  were  following  policies  on  couri- 
ers, for  example,  that  seemed  to  depart  from  the  Thornburgh 
memorandum.  And  the  Justice  Department  is  constantly  taking  ac- 
tion to  prod  the  prosecutors  to  adhere  as  best  they  can  to  the 
Thornburgh  memorandum. 

But  I  think  we  have  to  recognize  that  because  of  resource  deci- 
sions you  will  always  have  to  nave  discretion  exercised  by  a  pros- 


93 

ecutor.  A  prosecutor  cannot  prosecute  every  single  potential  viola- 
tion in  the  district.  He  has  to  go  after  the  things  he  considers  the 
most  important. 

So  you  may  have  a  district  where  marijuana  is  the  number  one 
drug  problem.  There  the  threshold  for  prosecuting  marijuana  pro- 
duction may  be  different  than  the  threshold  in  a  jurisdiction  like 
D.C.  where  crack  may  be  the  number  one  problem. 

And  the  Eastern  District  of  New  York  would  say  that  "If  we  pros- 
ecuted every  single  courier  then  we  wouldn't  be  able  to  prosecute 
some  of  the  other  important  drug  cases  where  the  payoff  is  much 
bigger."  So  unless  we  are  willing  to  give  unlimited  resources,  there 
have  to  be  those  kinds  of  decisions  made.  That  leads  to  discretion 
being  exercised  and  disparities  arising  throughout  the  country. 

In  my  view,  that  kind  of  discretion  is  far  superior  and  does  less 
damage  to  the  system  than  shifting  that  discretion  back  to  judges. 

Mr.  SCHIFF.  You  are  not  surprised  if  the  judges  don't  entirely 
agree  with  you? 

Mr.  Barr.  That  is  what  the  whole  debate  is  about.  And  the 
judges,  in  my  view,  the  judges  had  their  run  at  discretion  and  the 
results  were  not  good  for  society, 

Mr.  SCHIFF.  Let  me  ask  you  two  instances  and  then  I  will  yield 
back  to  the  chairman.  Situation — someone  who  is  participating  in 
trafficking,  so  we  are  not  dealing  with  culpability,  is  so  far  down 
the  ladder,  wants  to  cooperate  with  law  enforcement  when  appre- 
hended, has  nothing  to  offer.  You  know,  can't  tell  them  a  dam 
thing.  The  person  above  them,  a  bit  more  involved,  has  some  infor- 
mation for  law  enforcement,  offers  that  information  and  thereby 
gets  a  lower  sentence  than  the — under  a  substantial  assistance  mo- 
tion by  the  prosecutor — than  the  bottommost  individual.  For  the 
bottommost  individual,  could  there  be  some  relief?  Or  is  that  just 
a  you  take  your  chances  kind  of  thing,  and  if  you  can't  offer  any- 
thing of  use,  we  are  very  sorry  but  there  ought  not  be  any  relief? 

How  would  you  view  that  situation? 

Mr.  Barr.  First,  as  to  these  much  ballyhooed  cases  of  couriers 
coming  in  and  not  having  anything  to  offer,  I  would  like  to  see 
some  of  them.  I  think  the  fact  that  Chairman  Schumer  had  some 
difficulty  scrounging  up  empathetic  cases  show  that  these  are  sort 
of  hypothetical  cases  that  are  talked  about  as  debating  points.  But 
couriers  usually  do,  are  in  a  position  to  provide  assistance. 

Mr.  SCHIFF.  Everybody  knows  something,  in  other  words. 

Mr.  Barr.  Right.  Second,  in  my  view,  as  to  a  courier,  the  5-year 
or  the  10-year  penalty,  depending  on  quantity,  is  a  just  sentence 
for  that  individual.  That  is  justice  in  that  case.  The  fact  that  for 
someone  higher  up,  we  are  sometimes  willing  to  reduce  the  sen- 
tence, essentially  give  the  guy  a  break  and  maybe  give  an  "unjust" 
sentence — unjust  in  the  sense  that  it  is  too  lenient — to  that  individ- 
ual in  order  to  go  after  someone  that  we  consider  more  important, 
that  happens  all  the  time  in  numerous  contexts  in  law  enforcement 
and  I  don't  think  it  affects  the  justice  of  the  sentence  given  to  the 
lowest  level  person. 

But  you  raised  a  point  that  is  sort  of  a  permutation  of  that  that 
I  want  to  address,  and  that  is  do  you  give  the  guy  up  the  ladder 
a  break  for  testifying  against  people  down  the  ladder. 


94 

Mr.  SCHIFF.  That  was  my  second  point.  The  allegation  has  been 
made,  I  do  not  know  if  it  is  true,  or  if  it  is  true,  in  how  many  cases 
it  is  true.  The  suggestion  has  been  made  that  the  scenario  you  gave 
exists  not  just  upwards,  which  makes  some  sense,  I  think,  to  every- 
body, but  downwards.  In  other  words,  if  you  are  at  this  level  and 
you  will  testify  to  bring  in  the  people  who  are  imderneath  you,  you 
will  get  the  break,  they  will  go  to  prison  longer. 

I  wonder  if  you  have  any  feeling  whether  that  is  a  correct  criti- 
cism of  the  system? 

Mr.  Barr.  I  don't  think  it  is  a  correct  criticism.  I  would  be  very 
surprised  to  see  any  appreciable  number  of  cases  where  that  oc- 
curs. I  think  what  you  will  find  is  two  different  kinds  of  situations, 
one  where  there  is  a  dispute  as  to  who  is  more  culpable.  As  you 
know,  when  a  drug  organization  gets  busted  everyone  is  pointing 
fingers  at  everybody  else,  and  I  think  there  may  be  a  lot  of  cases 
where  the  guy  says,  "Hey,  I  was  just  the  little  guy  and  that  guy 
is  the  big  guy."  But  there  is  a  dispute  as  to  that. 

The  other  kind  of  case  I  think  you  will  find — ^you  shouldn't  jump 
to  the  conclusion,  and  I  am  not  suggesting  you  are,  but  people 
should  not  jump  to  the  conclusion  that  just  because  in  a  particular 
prosecution  a  top  guy  got  2  years  and  a  bottom  guy  got  5  years 
means  that  the  cooperation  by  the  top  guy  related  to  that  case.  The 
cooperation  by  the  top  guy  could  be  turning  in — giving  valuable  in- 
formation against  another  organization,  perhaps  his  supplier,  the 
Cali  cartel.  That  prosecution  may  not  take  place  for  another  3,  4, 
5  years. 

So  the  cooperation  can  be  as  to  a  broad  range  of  things,  and  I 
certainly  as  a  prosecutor  would  not  take  substantial  cooperation  to 
be  turning  in  someone  who  is  below  you. 

Mr.  SCHIFF.  Let  me  just  say  I  would  agree  with  that.  And  I  don't 
know  if  it  occurs.  It  is  merely  one  of  the  things  that  I  have  been 
told  over  and  over  again  at  least  why  we  are  having  these  hear- 
ings. 

I  want  to  thank  both  witnesses,  and  yield  back  to  the  Chair. 

Mr.  ScHUMER.  Thank  you,  Mr.  Schiff.  Mr.  Edwards. 

Mr.  Edwards.  Thank  you,  Mr.  Chairman.  And  we  are  all  grate- 
ful to  hear  the  testimony  of  these  two  witnesses.  I  think  it  is  rather 
encouraging,  at  least  to  someone  who  worries  about  this  issue  that 
all  the  witnesses  say  the  system  needs  fixing.  At  least — Mr.  Barr 
probably  doesn't  think  very  much  should  be  done,  but  Judge  Wil- 
kins  sees  some  flaws  in  the  system,  and  certainly  the  previous  wit- 
nesses, the  women,  would  like  to  make  some  major  changes. 

Something  you  said.  Judge  Wilkins,  interests  me.  A  prosecutor 
can  look  at  a  case  before  he  has  made  his  decision  on  what  to 
charge  and  he  can  decide  not  to  bring  a  drug  charge.  Instead,  he 
can  bring  a  charge  based  on  some  other  aspect  of  the  crime,  such 
as  carrying  a  gfun,  to  avoid  the  impact  of  the  mandatory  minimum. 
Isn't  that  correct?  Isn't  that  what  you  said.  Judge  Wilkins? 

Judge  Wilkins.  Yes,  sir.  I  did  say  that,  Mr.  Edwards.  The  charge 
selection  many  times  can  be  used,  or  sometimes  at  least  can  be 
used  to  avoid 

Mr.  Edwards.  The  prosecutorial  authority. 


95 

Judge  WiLKlNS.  Either  that  or  failure  to  g^ve  notice  as  to  the 
quantity  of  narcotics  being  sought  in  a  particular  case  by  the  Gov- 
ernment. That  also  triggers  mandatories,  as  you  know. 

Mr.  Edwards.  We  have  heard  that  too,  and  we  have  heard  that 

Eeople  who  have  money  and  the  best  lawyers  in  town  can  do  a  lot 
etter  than  the  poor  person,  often  a  minority,  who  doesn't  know 
how — he  gets  a  public  defender  who  doesn't  know  how  to  plea  bar- 
gain and  who  doesn't  know  how  to  write  all  of  the  important  briefs 
that  apparently  have  some  influence.  How  do  you  respond  to  that? 

Judge  WiLKEMS.  Well,  quite  frankly,  from  my  experience  I  think 
our  Federal  public  defenders  do  an  excellent  job  throughout  the 
country.  Many  times  they  are  more  experienced  than  the  private 
attorney. 

Mr.  Edwards,  I  will  have  to  say  I  don't  really  see  that  as  the 
major  problem  that  I  am  trying  to  address.  It  was  at  one  time.  But 
with  the  advent  of  sentencing  guidelines,  the  guidelines  operate  not 
so  much  on  the  charge  selected  by  the  prosecutor,  but  act  on  the 
real  underlying  misconduct  of  the  offender  who  is  in  the  courtroom 
to  be  sentenced.  This  disparity  that  can  result  from  a  lot  of  charge 
bargaining  and  selection  and  so  forth  is  minimized  because  of  the 
operation  of  the  sentencing  guidelines. 

My  primary  objective  here  today  is  to  say  the  mandatories  are 
here  and  they  work  today  under  the  guidelines  as  aggravating — I 
mean  the  guidelines  aggravate.  But  the  guidelines  are  not  allowed 
to  fully  operate  because  mitigating  factors  are  not  allowed  to  be 
recognized  when  a  mandatory  minimum  offense  statute  is  charged. 

Mr.  Edwards.  Well,  why  do  we  have  to  have  the  mandatory 
minimums  as  long  as  we  have  the  guidelines  which  in  themselves 
have  that  aspect  of  mandatory  minimums? 

Judge  WiLKlNS.  You  are  correct.  We  lose  sight  sometimes  of  the 
fact  that  our  guidelines  are  mandatory  in  nature.  As  I  testified  in 
my  opening  statement,  if  somehow  the  minimum  mandatory  sen- 
tences were  abolished  today,  the  guidelines  would  still  operate  and 
the  same  sentences  being  imposed  today  in  the  Federal  courts 
would  be  imposed  tomorrow  under  the  guidelines.  So  there  would 
be  little  change  in  actual  practice  in  the  courts. 

What  could  change,  of  course,  over  time  is  that  the  guidelines 
could  be  modified,  reduced  or  increased  as  far  as  the  punishment 
is  concerned  by  the  Sentencing  Commission.  I  understand  that 
would  be  a  concern  of  this  Congress.  That  is  why  I  have  suggested 
in  this  proposed  legislation  that  you,  the  Congress,  tell  us  the 
starting  point  with  the  mandatory  minimum  statute,  which  would 
be  in  concrete  and  could  not  be  changed  by  the  Commission.  Then 
we  would  be  allowed  to  aggregate  up  or  mitigate  down  as  the  facts 
would  dictate. 

Mr.  Edwards.  Well,  the  guidelines  can  be  changed  by  Congress 
anytime  Congress  wants  to  change  the  guidelines. 

Judge  WiLKlNS.  They  certainly  can. 

Mr.  Edwards.  Right. 

Judge  WiLKiNS.  Certainlv  can. 

Mr.  Edwards.  So  I  think  you  have  made  a  case  for  what  I  said. 
We  could  eliminate  the  mandatory  minimums  that  we  are  talking 
about  that  some  of  us  feel  have  caused  a  lot  of  trouble  because  this 
issue  is  being  handled  very  nicely  by  the  Sentencing  Commission. 


96 

Judge  WiLKiNS.  They  are  handled  today. 

Mr.  Edwards.  Right. 

Judge  WiLKiNS.  And  the  same  sentences,  I  would  say,  would  re- 
sult tomorrow  even  if  they  were  abolished  today  because  of  the 
structure  of  the  sentencing  guidelines. 

Mr.  Edwards.  I  think  we  ought  to  make  it  a  matter  of  record 
that  when  Congress  puts  into  a  criminal  law  a  mandatory  amount 
that  a  person  must  serve  so  many  years  or  something,  that  amount 
is  usually  not  the  result  of  the  hearing  process  we  have  here  in 
Congress.  It  is  sort  of  an  arbitrary  thing  put  into  the  original  bill. 
Nobody  ever  questions  it.  Whoever  thought  up  the  bill  puts  it  in. 
Well,  I  will  put  in  5  years.  I  will  put  in  10.  And  that  is  it.  And  that 
is  never — I  have  been  here  a  long  time.  I  have  never  seen  any 
thought  given  in  a  committee  such  as  this  or  any  other  committee 
to  whether  we  ought  to  look  at  the  sentence  and  see  what  effect 
it  is  going  to  have  on  society.  Is  that  too  long  or  is  that  not  enough? 
And  get  some  experts  in  to  talk  about  it.  It  is  pretty  important. 

The  last  question  I  have  is,  since  the  celebrated  war  on  drugs 
and  the  mandatory,  a  lot  more  mandatory  minimums  and  the  Sen- 
tencing Commission  have  come  into  being,  starting  I  believe  in 
about  1980.  Then,  we  had  maybe  25,000  Federal  prisoners.  Now  we 
have  about  57,000.  We  will  have  to  correct  this,  but  I  am  with- 
in  

Mr.  ScHUMER.  Eighty  thousand. 

Mr.  Edwards.  All  right.  Now  we  have  80,000  and  the  calcula- 
tions are  we  are  going  to  have  117,000  by  the  turn  of  the  century 
and  so  on.  The  same  increase  going  on  indefinitely. 

Is  that  any  kind  of  a  serious  problem,  Mr.  Barr? 

Mr.  Barr.  No,  I  don't  think  it  is  a  problem. 

Mr.  Edwards.  No  problem. 

Mr.  Barr.  I  think,  first,  that  the  mandatory  minimums  were 
carefully  designed  by  this  committee.  A  lot  of  time  was  taken  with 
DEA  as  to  the  threshold  amounts  and  as  to  the  appropriate  sen- 
tences. They  were  carefully  thought  out. 

Second,  I  think  that  we  backed  off  mandatory  minimums  in  the 
1970's.  We  did  away  with  mandatory  minimums,  and  it  was  during 
the  1970's  that  the  drug  problem  got  way  out  of  control  and  a  lot 
of  damage  was  done  to  our  society.  And  I  think  that  we  are  on  the 
right  track  with  a  very  tough  law  enforcement  system,  including 
mandatory  minimums,  and  the  only  problem  in  this  country  right 
now  is  not  at  the  Federal  level,  it  is  because  the  States  haven't 
caught  up  to  the  Federal  level. 

And  it  does  not  shock  me  that  in  a  country  of— now  approaching 
300  million  people  that  the  Federal  Government  has  about  80,000 
people  in  prison.  That  is  not  any  disparity,  in  my  view,  considering 
that  we  have  the  highest  crime  rate  of  any  advanced  country  in  the 
world. 

Mr.  Edwards.  Thank  you. 

Judge  WiLKlNS.  Mr.  Edwards,  could  I  comment  on  something  you 
said,  very  briefly? 

Mr.  Edwards.  Yes.  Please. 

Judge  WiLKiNS.  The  Sentencing  Commission  has  the  most  exten- 
sive data  set  ever  assembled  by  any  Federal  agency  or  State  agen- 
cy. We  place  ourselves  at  your  disposal  to  respond  to  questions 


97 

seeking  information,  facts  and  data,  so  that  when  decisions  are 
made  on  mandatory  minimums  or  any  other  area  of  the  criminal 
justice  sentencing  system  you  can  have  as  much  information  as  you 
can  gather  so  that  the  decision  will  be  informed. 

We  are  here  and  we  have  data  and  we  can  provide  it  for  you.  I 
might  say  that  in  one  of  the  statistics  I  gave  to  Mr.  Schiff— the  zero 
criminal  history  category — we  have  extensive  data  there.  One  thing 
we  are  missing  that  is  a  factor  that  would  change  things,  I  am 
sure,  is  that  we  don't  know  what  is  the  criminal  history  of  foreign 
nationals  coming  into  this  country.  So  that  figure  of  34  percent 
would  be  changed  somewhat  by  that.  But  we  could  probably,  with 
some  extensive  research  techniques,  exclude  those  people  and  see 
what  it  would  be  if  we  didn't  include  those  and  so  forth. 

But  at  least  we  could  help  try  to  identify  the  safety  valve  or  my 
approach  or  whatever  approach  we  are  looking  at  so  we  all  have 
all  the  information  we  could  possibly  gather. 

Mr.  Edwards.  Wasn't  the  parole  svstem  a  safety  valve? 

Judge  WiLKlNS.  Well,  if  it  was  aesigned  to  reduce  prison  sen- 
tences, it  certainly  was. 

Mr.  Edwards.  Thank  you.  Thank  you,  Mr.  Chairman. 

Mr.  ScHUMER.  Thank  you,  Mr.  Edwards.  And  first.  Judge  Wil- 
kins,  I  am  glad  you  added  in  the  foreign  nationals  because  that  is 
what  I  think  was  the  great  disparity  between  the  statistics  your 
Sentencing  Commission  gave  us  on 

Judge  WiLKlNS.  There  were  other  problems  too, 

Mr.  ScHUMER.  Right.  I  understand. 

Judge  WiLKiNS.  It  was  the  question — you  asked  the  question 
whether  or  not  a  prior  arrest  with  no  convictions  should  be  in- 
cluded or  not,  and  it  was  under  some  runs,  it  wasn't  under  others. 

Mr.  ScHUMER.  Right. 

Judge  WiLKiNS.  But  again,  I  think  it  was  different  people  being 
asked  different  questions. 

Mr.  ScHUMER.  Yes. 

Judge  WiLKiNS.  But  we  can  get  on  the  same  wavelength  and 
have  all  the  facts  given  to  you. 

Mr.  ScHUMER.  Right.  And  that  is  what  I  want. 

I  wanted  to  compliment  you  and  the  Sentencing  Commission  for 
being  always  available  with  the  data  and  everything  else.  We  ap- 
preciate that  and  your  interest  and  concern. 

Mr.  Mazzoli. 

Mr.  Mazzoli.  Thank  you  very  much,  Mr.  Chairman.  It  is  really 
excellent  hearings.  I  want  to  thank  our  two  witnesses  today  for  ex- 
cellent testimony. 

Judge  Wilkin s,  I  wrote  down  just  a  few  things  as  you  were 
speaking  which  impressed  me  a  great  deal.  You  said  what  we  are 
looking  for  is  efficiency,  effectiveness  and  fairness  in  the  applica- 
tion, and  I  think  that  is  what  this  panel  is  looking  for  too,  candidly. 
So  I  think  your  idea  is  something  that  we  could  study.  The  gen- 
tleman from  New  York,  our  distinguished  chairman's  idea  is  some- 
thing we  should  study.  And  I  think  we  could,  maybe,  come  up  with 
something  like  that. 

I  probably  differ  with  you  a  little  bit  on  the  fairly  frequent  use 
of  the  term  minor  or  peripheral  drug  activities  and  minimal  activ- 
ity with  regard  to  some  drug  activity,  or  minimal  contact.  It  just 


98 

seems  to  me  that  we  may  be  minimizing  something  which  is  just 
tearing  America  apart.  I  mean  by  the  very  nature  of  our  terminol- 
ogy. Saying  he  is  just  a  minor  actor.  He  is  just  a  bit  player.  He  is 
just  a  walk-on.  You  know,  he  is  only  a  peripheral  person. 

Unless  you  had  the  drug  courier,  you  don't  have  the  stuff  gotten 
into  the  country  and  therefore  don't  get  it  out  into  circulation.  And 
if  you  don't  have  that,  then  you  don't  have  the  guy  who  shoots  him- 
self or  ingests  it,  and  we  don't  have  people  killing  one  another  in 
the  streets.  So  I  mean  I  think  we  have  to  be  just  a  little  bit  cau- 
tious in  how  we  minimize  that  person's  responsibility  for  the  ulti- 
mate of  the  horrible  violence  and  killing  and  wasting.  And  Mr. 
Barr  had  said  the  lives  and  the  treasures  and  the  spirit  of  our 
country  are  at  risk  as  a  result  of  this. 

So,  anyway,  I  just  was  wondering.  I  just  wonder  if  you,  in  your 
mind  do  you  have  a  picture  of  one  of  these  minor  participants?  You 
know,  could  you  describe  that  he  or  she  looks  like? 

Judge  WiLKiNS.  This  mitigating  role  is  recognized  under  the 
guidelines  today  in  many  areas. 

Mr.  Mazzoli.  No.  But  I  mean  can  you  describe  to  me  the  person 
who  would  fit  the  role  of  minimum  or  peripheral. 

Judge  WiLKiNS.  Yes,  sir.  I  can.  But  I  wanted  to  say,  first  of  all, 
the  sentencing  guidelines  today  identify  a  mitigating  role  for  some 
defendants,  and  so  it  is  just  not  the  judge  saying,  well,  you  look 
kind  of  minor  to  me.  I  am  going  to  give  you  a  break.  It  doesn't  work 
that  way. 

In  fact,  of  all  the  drug  cases,  of  all  the  thousands  of  defendants, 
the  judges  say  you  are  deserving  of  a  mitigating  role  based  on  the 
facts  only  in  16  percent  of  the  cases, 

Mr.  Mazzoli.  Good. 

Judge  WiLKlNS.  And  these  are  the  types  of  individuals  who 

Mr.  Mazzoli.  What  would  that  person  look  like? 

Judge  WiLKiNS.  They  are  on  the  edge  of  the  conspiracy.  It  is  the 
girlfi-iend  of  one  of  the  drug  dealers  wno  is  there,  who  perhaps  an- 
swers the  telephone,  who  may  run  errands.  It  is  the  boat  offloader 
who  is  paid  500  bucks  to  offload  this  boat  and  that  is  it.  He  walks 
away. 

It  is  those  people  who  are  lower  than  the  average  participant. 
They  have  got  nothing  to  do  with  any  policy  decisions,  nothing  to 
do  with  the  money,  nothing  to  do  with  any  decision.  They  are  there 
as  functionaries. 

Mr.  Mazzoli.  Could  I  go  back  to  something.  Judge,  that  is — I 
think  it  is  very  important.  And  I  don't  want  to  be  the  burr  under 
the  saddle  here,  but  I  keep  saying  we  need  to  have  information. 
Can  you  tell  me  how  many  of  those  kinds  of  people,  the  person  who 
offloads — he  is  like  a  day  laborer,  and  he  said  instead  of  offloading 
tomatoes  we  will  offload  cocaine,  and  he  walks  away.  I  mean  how 
many  of  those  reallv  wind  up  in  the  system?  How  many  are  we 
really  talking  aboutr  How  many  girlfriends  of  guys  who  had  noth- 
ing, except  that  they  loved  this  person  and  they  have  no  other  con- 
tact— ^how  many  of  them  are  we  talking  about? 

Judge  WiLKlNS.  Well,  I  think  we  are  talking  about  a  sizable 
number. 

Mr.  Mazzoli.  You  think  so? 

Judge  WiLKlNS.  Yes,  sir. 


99 

Mr.  Mazzoli,  Who  wind  up  in  the  system? 

Judge  WiLKiNS.  Yes,  sir,  who  wind  up  in  the  system,  are  pros- 
ecuted  

Mr.  Mazzoli.  And  who  are  therefore  busted  under  various  mini- 
mum  

Judge  WiLKlNS.  That  is  right.  And  should  be.  Should  be  pros- 
ecuted. Should  be  sentenced.  And  couriers  need  to  be  punished. 

You  know  we  have  got  the  foreign  nationals  coming  in  every  day 
in  our  major  port  cities,  bringing  in  large  quantities  of  narcotics, 
and  they  need  to  be  arrested  and  prosecuted  and  sent  to  prison. 
The  question  is  where  do  we  achieve  crime  control?  By  that  person 
staying  in  prison  for  10  years?  Or  can  we  achieve  it  more  efficiently 
throu^  some  reduced  sentence? 

Mr.  Mazzoli.  Can  I  just  suggest  something?  I  will  be  really  quite 
honest  with  you.  I  am  astonished  that  you  all  who  are  advocating 
major  fundamental  change  in  here  come  in  armed  with  no  statistics 
whatsoever,  Everj^hing  is,  well,  we  think  there  is  a  lot  of  people, 
we  think  that  there  is  a  whole  bunch  of  these  folks,  and  there  is 
quite  a  lot  of  them  but  we  will  have  to  get  the  data  for  you  later. 

Nobody — and  this  is  the  second  time  we  have  been  through  this 
routine.  Nobody  but  nobody  comes  up,  and  the  chairman  himself 
has  said  he  begged  for  the  egregious  cases  and  found  only  two  or 
three  that  fit  that  kind  of  description. 

Judge  WiLKlNS.  This  is  the  first  time  I  have  been  through  it.  You 
just  asked  me  how  many  minimal  or  minor  participants  would 
there  be  and  I  told  you  16  percent.  That  is  what  our  figures  show. 
That  is  who  I  am  talking  about,  as  far  as  the  mitigating  role  is  con- 
cerned. 

Mr.  Mazzoli.  And  those  16  percent,  you  would  tell  me  then, 
Judge,  with  respect,  would  be  the  kind  that  offloaded  the  ship  and 
the  girlfriends? 

Judge  Wilkins.  And  others  who  have 

Mr.  Mazzoli.  And  others  like  couriers,  like  mules — ^right? 

Anyway,  Mr.  Barr 

Mr.  Barr.  Congressman,  could  I  say  something  first? 

Mr.  Mazzoli.  Please.  Go  ahead. 

Mr.  Barr.  I  am  not  advocating  any  change  to  the  system.  I  want 
it  clear  I  am  satisfied  with  the  existing  system.  I  do  not  think  it 
is  a  significant  problem;  that  is,  the  hapless  person  that  we  would 
all  feel  got  imjustly  treated  by  the  system.  I  don't  think  there  are 
sizable  numbers  at  all. 

However,  if  the  committee  comes  to  that  conclusion  and  wants  to 
put  in  a  safety  valve,  then  what  I  am  asking  the  committee  to  do 
is  consider  the  impact  that  has  and  to 

Mr.  Mazzoli.  Exactly. 

Mr.  Barr.  OK. 

Mr.  Mazzoli.  And  I  think  that  is  what — the  chairman  is  just 
looking  for  something  to  put  our  head  on.  You  know,  I  remember 
when  I  was  in  law  school  the  professor  said  "Give  the  judge  or  the 
jury  something — a  peg  to  hang  their  hat  on.  Give  them  some  rea- 
son for  doing  something."  But  I  will  be  quite  honest  with  you.  At 
this  point  I  haven't  really  seen  the  data,  the  hard  numbers,  that 
would  indicate  that  there  are  miscarriages  of  justice  beyond  the 


100 

rare  few,  and  we  have  had  a  couple  of  them,  perhaps,  in  this  room 
today,  I  don't  know. 

Mr.  Barr,  I  have  one  other  question.  Yes? 

Mr.  Barr.  You  know  it  is  interesting.  The  Bureau  of  Prisons  re- 
cently went  through  an  exercise  to  try  to  identify  people  who  they 
would  be  willing  to  put  back  out  into  the  community,  that  they 
would  feel  sufficiently  comfortable  to  put  back  out  into  the  commu- 
nity, and  they  came  up  with  1,600-odd  people  in  the  entire  system. 
That  suggests  to  me  we  are  not  talking  about  very  many  empa- 
thetic,  egregious  cases  in  the  Federal  system. 

Mr.  Mazzoli.  And  then  to  show — and  I  will  wind  up  on  this 
point,  because  I  remember  reading  something.  I  couldn't  find  it  in 
my  notes  here.  That  study  where  they  found  just  a  handful  of  peo- 
ple that  they  would  feel  comfortable  enough  to  really  dump  on  soci- 
ety, which  to  me  demolishes  the  myth  mat  we  have  a  bunch  of 
choirboys  that  are  in  our  Federal  prisons. 

But  let  me  just  go  on  to  this.  On  July  7,  1993,  in  the  Washington 
Post,  what  appears  to  be  like  a  front  page  story,  entitled  "The  Drug 
War  Locks  Up  Prisons,"  and  it  devoted  itself  primarily  to  the  situa- 
tion in  Florida.  Now  these  statistics  are  used  by  the  writer,  a  writ- 
er by  the  name  of  William  Booth,  and  they  are  not  used  editorially 
or  attributed  to  something.  These  are  used  by  him  in  his  writing 
as  if  they  were  standard  fact. 

Fact:  66  percent  of  the  inmates  in  Federal  prisons  broke  drug 
laws.  Sixty-six  percent  of  the  inmates  in  Federal  prison  broke  drug 
laws.  Does  that  sound  realistic? 

Mr.  Barr.  I  think  it  is  about  62  percent.  But  that  doesn't  mean 
that  they  are  in  there  just  for  the  drug  violation.  They  could  be  in 
there  for  other  activity  and  there  was  a  drug  count  as  part  of  their 
conviction. 

Mr.  Mazzoli.  Now,  let  me  try  this  on,  and  maybe  somebody  can 
explain  this.  It  seems  like  it  is  very  inconsistent. 

In  Federal  prisons  70  percent  of  the  inmates,  in  Federal  prisons 
70  percent  of  the  inmates  have  no  history  of  violence. 

Mr.  Barr.  I  don't  know.  The  figure  that  I  used  was — it  is  analo- 
gous to  the  figure  you  used  before,  of  93  percent  in  the  State  sys- 
tem or  either  violent  criminals  or  recidivists.  The  figure  that  I  used 
at  the  Department  of  Justice,  and  it  may  be  dated  by  a  couple  of 
years,  was  88  percent  in  the  Federal  system. 

Mr.  Mazzoli.  If  I  were  to  go  into  a  Federal  prison,  and  there  is 
one  in  Lexington,  and  walk  in  and  take  the  first  10  people  that 
walked  in,  7  of  those  10  would  be  choirboys? 

Mr.  Barr.  No. 

Mr.  Mazzoli.  Judge  Wilkins. 

Judge  Wilkins.  well,  I  don't  think  they  would  be  choirboys. 

Mr.  Mazzoli.  What  does  that  mean? 

Judge  Wilkins.  And  I  don't  know  this  fellow's  statistics,  but  I  do 
know 

Mr.  Mazzoli.  Well,  then  I  think  we  need  statistics,  my  first 
point. 

Judge  Wilkins.  The  question  that  you  put  to  us  is  what  is  the 
percent  of  Federal  prisoners  now  in  the  penitentiaries  throughout 
the  country  that  have  a  prior  history  of  violence?  I  assume  by  that 
you  mean  a  prior  criminal  history  of^^violence. 


101 

Mr.  Mazzoli.  I  would  ask  you. 

Judge  WiLKiNS.  No.  No. 

Mr.  Mazzoli.  You  are  the  expert.  I  would  like  to  figure  out  what 
is  violence.  What  does  that  statistic  mean,  if  it  is  a  reputable  sta- 
tistic? What  does  violence  mean  in  the  context  in  which  70  percent 
of  Federal  prisoners  have  no  history  of  violence? 

Judge  WiLKiNS.  That  is  some  study  you  just  brought  up.  I  don't 
know  whether  it  is  correct  or  not. 

Mr.  SCHUMER.  Would  the  gentleman  yield? 

Mr.  Mazzoli.  I  would  like  to  find  out.  I  am  not  sure  where  Mr. 
Booth  got  his  data. 

Mr.  Barr.  That  data  is  available.  In  fact,  I  recently  saw  a  De- 
partment of  Justice  study  and  I  looked  at  it  this  morning.  I  just 
can't  remember  off  the  top  of  my  head  the  figure  that  is  in  there 
for  violent  offenses. 

Mr.  ScHUMER.  A  good  percentage  are  people  of  white-collar 
crimes,  embezzlements  and  all  of  that,  who  would  almost  exclu- 
sively fit  into  the  nonviolent  category.  I  know  that.  But  I  don't 
know  the  number  either. 

Mr.  Barr.  Correct.  But  that  doesn't  mean  they  are  choirboys. 

Mr.  ScHUMER.  Right.  They  are  certainly  not  choirboys.  Or 
choirgirls. 

Mr.  Mazzoli.  And  they  are  also  not  the  people  the  Government 
would  feel  comfortable  in  releasing  to  the  streets.  If  they  would  re- 
lease 1,600  to  the  streets,  then  where  are  the  other  65,000  or 
67,000  people.  That  means  that  they  are  nonviolent  and  they  have 
done  nothing. 

I  am  really  curious.  These  statistics  appear  totally  contradictory, 
and  I  think  until  we  can  get  to  the  bottom  of  them,  and  I  am  glad 
our  chairman  is  going  to  ask  for  some  clarification,  we  are  operat- 
ing really — and  I  will  complete  my  statement  on  this.  When  Mr. 
Barr  said  we  cannot  allow  mythology  to  draft  policy,  and  I  think 
that  is  what  we  could  do  if  we  are  not  really  careful. 

Thank  you,  Mr.  Chairman. 

Mr.  SCHUMER,  Thank  you,  Mr.  Mazzoli.  This  has  been,  so  far,  a 
really  outstanding  hearing  in  terms  of  bringing  out  issues.  I  want 
to  thank  both  Judge  Wilkins  and  Attorney  General  Barr,  Mr.  Attor- 
ney General  Barr,  for  excellent  testimony  that  I  think  helped  us 
think  on  this. 

So,  gentlemen,  we  appreciate  it.  You  have  been  here  a  long  time. 
I  was  going  to  suggest  you  sit  in  also  on  the  next  panel,  but  you 
have  done  your  duty. 

Will  the  final  panel  come  forward?  And  I  first  want  to  thank  all 
of  them  for  waiting  as  long  as  they  have,  and  we  appreciate  it.  We 
have  been  going  on  about  4  hours. 

OK.  Let  me  introduce  our  panel. 

The  Honorable  Vincent  Broderick  is  the  chairman  of  the  Commit- 
tee on  Criminal  Law  of  the  Judicial  Conference  of  the  United 
States.  He  continues  to  serve  as  the  U.S.  district  judge  in  the 
Southern  District  of  New  York,  a  post  which  he  has  held  since 
1976.  And  before  taking  his  New  York  Federal  judgeship.  Judge 
Broderick  served  as  commissioner  of  the  New  York  City  Police  De- 
partment. He  is  a  distinguished  person  who  cares  a  great  deal 
about  the  law.  We  welcome  you  here.  Judge. 


102 

Judge  Broderick.  Thank  you. 

Mr.  ScHUMER.  Tim  Mullaney  was  supposed  to  be  here,  to  provide 
a  bit  of  an  opposite  point  of  view,  from  the  National  Legislative 
Committee  of  the  Fraternal  Order  of  Police,  and  I  apologize  to 
members.  We  won't  have  that  much  of  a  diversity  of  viewpoint  here 
because  he  is  not  here.  But  the  viewpoint  has  been  very  well  rep- 
resented. He  is  opposed  to  changing  the  law. 

Mr.  Neal  Sonnett  is  the  chairperson  of  the  Criminal  Justice  Sec- 
tion of  the  American  Bar  Association.  He  currently  works  as  a 
partner  with  Sonnett,  Sale  &  Kuhn 

Mr.  Sonnett.  Kuhne. 

Mr.  ScHUMER  [continuing].  Kuhne,  a  Miami-based  law  firm.  Be- 
fore entering  private  practice  Mr.  Sonnett  served  as  an  assistant 
U.S.  attorney  and  chief  of  the  criminal  division  for  the  Southern 
District  of  Florida. 

And  finally,  the  Honorable  John  Walker  is  a  judge  on  the  Court 
of  Appeals  for  the  Second  Circuit,  and  he  is  the  president  of  the 
Federal  Judges  Association.  He  also  served  as  Special  Counsel  to 
the  Administrative  Conference  of  the  United  States  and  as  Director 
of  the  Institute  of  Judicial  Administration. 

I  want  to  thank  all  of  vou  for  coming  and  for  waiting  patiently. 
Your  efforts  are  very  much  appreciated.  We  have  received  your  pre- 
pared remarks,  which  will  be  read  into  the  record,  and  each  of  you 
will  have  5  minutes  for  your  presentation.  Maybe  we  will  do,  just 
in  deference  to  the  invisible  robes,  first  Judge  Broderick,  Judge 
Walker,  and  Mr.  Sonnett. 

Judge  Broderick. 

STATEMENT  OF  JUDGE  VINCENT  L.  BRODERICK,  CHAIRMAN, 
COMMITTEE  ON  CRIMINAL  LAW,  JUDICIAL  CONFERENCE  OF 
THE  UNITED  STATES,  WHITE  PLAINS,  NY 

Judge  Broderick.  Thank  you,  Mr.  Chairman,  and  thank  you  for 
this  opportunity  to  appear  before  this  committee. 

I  am  here  to  express  the  complete  and  unmitigated  opposition  of 
the  Federal  judges  of  this  country  to  mandatory  minimums.  We 
have  had  in  effect  since  1984 — or  at  least  they  have  been  in  effect 
since  1987;  they  were  passed  in  1984 — the  sentencing  guidelines, 
and  you  heard  earlier  from  Chairman  Wilkins. 

The  sentencing  guidelines  were  designed  to  get  Congress  out  of 
the  business  of  micromanaging  sentencing,  and  I  just  want  you  to 
consider  the  whole  concept  of  the  sentencing  guidelines.  The  con- 
cept was  to  structure  sentences  and  to  make  that  structure  a  close- 
to-binding  structure.  Judges  would  have  to  follow  it. 

The  Sentencing  Commission  was  charged  with  preparing  sen- 
tences which  were  proportional  one  to  another,  which  were  honest 
sentences  because  parole  was  abolished  and  a  large  part  of  "good" 
time  was  abolished,  and  they  were  also  to  be  directives,  in  effect, 
to  sentencing  judges.  And  then — and  this  was  the  most  important 
part  of  all  this — ^for  the  first  time  we  had  appellate  review  of  sen- 
tences and  we  introduced  people  like  mv  friend  over  here  on  the 
court  of  appeals.  Judge  Walker,  who  will  review  what  we  sentenc- 
ing judges  do. 

This  is  a  structure  which  I  certainly  concede  aroused  a  furor  in 
the  judges*  community.  But  I  can  assure  you  right  now  that  so  far 


103 

as  I  am  concerned  we  are  convinced  that  the  Sentencing  Commis- 
sion is  here  to  stay,  that  sentencing  guidelines  are  here  to  stay, 
and  we  really  ask  this  committee  and  ask  this  Congress  to  let  the 
Sentencing  Commission  do  what  it  was  charged  with  doing. 

Now,  you  heard  Judge  Wilkins,  and  Judge  Wilkins  talked  about 
his  proposal.  And  my  committee  has  voted  to  support  his  proposal 
in  principle.  But  you  can't  read  the  Sentencing  Commission's  report 
to  Congress  on  mandatory  minimums  without  concluding  that  the 
only  really  sensible  thing  to  do  is  repeal  mandatory  minimums  be- 
cause they  are  upsetting  everything  that  the  Sentencing  Commis- 
sion is  designed  to  do.  They  have  removed  honesty  from  the  proc- 
ess. They  have  removed  fairness  from  the  process.  They  have  re- 
moved proportionality  from  the  process.  And  they  have  prevented 
the  Sentencing  Commission  from  making  a  graded  relationship  be- 
tween various  crimes  and  fixing  the  appropriate  sentence  for  each 
crime. 

I  have  pointed  out  in  my  written  statement  various  specific  ex- 
amples of  the  unfairness  of  the  minimums,  but  what  I  want  to 
stress  here  is  that  the  mandatory  minimums  are  unfair  because 
they  affect  people  who  are  not  covered  by  mandatory  minimums. 
Judge  Wilkins  has  told  you  that  the  guidelines  are  pegged  so  that 
the  mandatory  minimum  will  also  be  the  guideline  sentence.  Well, 
that  is  true.  But  then  bringing  other  sentences  into  proportion  with 
those  highly  pegged  mandatory  minimums  pulls  a  great  many  sen- 
tences up  which  are  not  in  any  way  connected  with  mandatory 
minimums,  and  we  have  people  going  to  prison  today  who  should 
not  be  going  to  prison  because  they  are  nonviolent  first-time  offend- 
ers, and  you,  the  Congress,  has  told  the  Sentencing  Commission 
that  it  should  make  an  effort  to  see  that  first-time  offenders  who 
have  not  committed  violent  crimes  don't  go  to  prison. 

The  Sentencing  Commission  is  a  tough  group  of  people,  and  I 
want  to  tell  you,  gentlemen,  Federal  judges  are  tough  people  too 
and  we  know  how  to  sentence  people  who  warrant  and  deserve  se- 
rious sentences.  One  of  my  criticisms  through  the  years  with  the 
Sentencing  Commission  is  that  in  certain  respects  its  sentences 
have  been  too  lenient,  and  I  haven't  hesitated  to  render  a  sentence 
above  a  sentencing  guideline  if  in  my  judgment  it  was  warranted 
and  if  I  felt  that  I  could  give  reasons  for  going  above  that  guideline 
that  would  pass  muster  with  the  second  circuit. 

The  big  difference — the  sea  change — between  now  and  pre- 1984 
is  (1)  the  Sentencing  Commission  and  (2)  appellate  review. 

I  want  to  say  one  more  thing  about  this  whole  debate  that  I  have 
heard  today.  I  have  listened  to  you  gentlemen  on  the  stand  there 
talk  about  looking  for  a  relief  valve  and  talk  about  how  bad  crime 
is.  Look,  I  know  how  bad  crime  is.  But  I  also  know  that  the  Con- 
gress itself  set  up  the  Sentencing  Commission  after  slaving  over  it 
for  10  years.  It  set  up  a  system  which  has  turned  out  to  be  a  poten- 
tially great  system.  But  it  will  never  be  great  because  it  can  never 
be  effective  unless  we  eliminate  mandatory  minimums. 

Thank  you,  Mr.  Chairman. 

Mr.  ScHUMER.  Thank  you.  Judge. 

[The  prepared  statement  of  Judge  Broderick  follows:] 


104 

Prepared  Statement  of  Judge  Vincent  L.  Broderick,  Chairman,  Committee  on 
Criminal  Law,  Judicial  Conference  of  the  United  States,  White  Plains,  NY 

Mr.  Chairman  and  members  of  the  Subcommittee,  my  name  is  Vincent  L.  Brod- 
erick. I  am  the  chair  of  the  Committee  on  Criminal  Law  of  the  Judicial  Conference. 
I  applaud  your  initiative  in  scheduling  this  hearing  about  mandatory  minimums. 

We  in  the  judiciary  recognize  that  the  ultimate  decisions  concerning  approaches 
to  crime  in  our  society  are  public  policy  decisions  which  must  be  made  by  those  in 
the  popularly-elected  legislative  branch  of  government — the  Congress.  Judges  do, 
however,  see  law  in  action  on  a  daily  basis,  and  we  are  called  upon  to  apply  that 
law.  In  my  judgment,  therefore,  we  are  in  a  position  to  provide  information  and 
even  opinions  to  the  policy-makers  which  will  assist  them  in  coping  with  the  critical 
problems  they  face.  Please  understand,  therefore,  that  however  forceful — and  I  hope 
persuasive — my  presentation  may  be,  it  is  offered  with  a  complete  recognition  that 
the  decisions  which  will  prescribe  policy  for  the  future  are  yours  and  not  ours  to 
make. 

I  am  here  as  an  advocate,  with  very  strong  convictions.  Those  convictions  are 
predicated  upon  my  experience  and  that  of  my  fellow  judges,  and  I  suggest  that  they 
warrant  your  thou^tful  consideration  as  you  mold  public  policy  for  the  future. 

I  urge  that  no  further  mandatory  minimum  sentences  be  prescribed  by  Congress, 
and  that  those  presently  on  the  books  be  repealed. 

The  judges  of  every  federal  circuit  involved  with  criminal  sentencing  have  adopted 
resolutions  opposing  mandatory  minimums,  as  has  the  Judicial  Conference  of  the 
United  States.  I  warrant  that  there  is  no  single  issue  affecting  the  work  of  the  fed- 
eral courts  with  respect  to  which  there  is  such  unanimity:  most  federal  judges,  cer- 
tainly on  the  district  court  level,  and  whatever  their  background,  beUeve — and  this 
is  predicated  upon  their  experience — that  mandatory  minimums  are  the  major  ob- 
stacle to  the  development  of  a  fair,  rational,  honest  and  proportional  federal  crimi- 
nal justice  sentencing  system. 

A  word  about  my  own  background.  I  served  as  a  Deputy  Police  Commissioner  in 
New  York  City  in  the  1950's;  as  Chief  Assistant  United  States  Attorney  (and  for 
a  time  as  interim  United  States  Attorney)  in  the  Southern  District  of  New  Yoric  and 
then  as  Police  Commissioner  of  the  City  of  New  York  during  the  1960*8.  I  have  been 
a  United  States  District  Judge  for  17  years.  I  share  with  every  member  of  Congress, 
and  with  my  fellow  judges,  a  deep  concern  for  the  high  incidence  of  crime  in  the 
United  States.  No  one  has  ever  accused  me  of  being  "soft  on  crime."  I  did  not  hesi- 
tate in  the  days  before  the  advent  of  the  Sentencing  Guidelines  to  impose  a  heavy 
sentence  when  I  deemed  it  warranted.  Since  the  Guidelines  have  become  effective 
I  have  not  hesitated  to  exercise  my  statutory  power  to  depart  upwards,  when  in  my 

{"udgment  the  Guidelines-prescribed  sentence  was  inadequate  as  applied  to  the  crime 
)efore  me.  Nor  did  I,  prior  to  the  advent  of  the  Sentencing  Guidelines,  hesitate  to 
impose  a  sentence  other  than  incarceration  when  in  my  judgment  it  was  warranted. 

I  recognize,  Mr.  Chairman,  that  members  of  Congress  and  federal  judges  approach 
the  problem  of  crime  in  our  land  from  very  different  perspectives. 

Members  of  Congress  must  deal  from  day  to  day  with  a  deeply  concerned  citizeniy 
which  demands  solutions  to  a  complex  web  of  violence  and  to  a  flourishing  illicit 
drug  traffic  which  have  spread  across  the  land.  Part  of  the  Congressional  response 
to  this  macro  demand  has  been  to  legislate  mandatory  minimums. 

A  judge  approaches  the  same  problems  on  a  micro  basis:  whenever  he  or  she  is 
called  upon  for  a  sentencing  decision,  the  criminal  as  an  individual  human  being 
stands  in  the  well  of  the  court,  and  there  are  a  myriad  of  different  considerations 
which  should  go  into  the  judge's  sentencing  decision — the  type  of  crime,  the  victims, 
the  background  of  the  criminal,  the  prospects  that  the  criminal  may  on  the  one 
hand  repeat  his  crime  or  on  the  other  hand  be  rehabilitated,  the  milieu  from  which 
the  criminal  comes,  the  past  criminal  record  of  the  criminal.  Some  of  the  decisions 
which  Congress  has  made  make  it  in  many  cases  impossible  for  the  judge,  today, 
fairly  and  honestly  to  perform  his  or  her  role. 

In  approaching  this  subject,  I  intend  to  focus  first  on  the  unfairness  in  sentencing 
that  results  from  mandatory  minimum  sentences  and  some  of  the  characteristics  of 
the  federal  mandatory  system  that  exacerbate  unfairness,  particularly  for  drug  of- 
fenses. Second,  as  requested  by  the  Chairman,  I  shall  deal  briefly  with  so-called 
"safety  valve"  relief  from  mandatory  minimum  sentences.  Third,  I  shall  suggest  that 
mandatory  minimum  sentencing  has  resulted  in  a  major  misuse  of  limited  federal 
corrections  facilities.  And  finally,  I  shall  discuss  what  I  believe  is  both  a  practical 
and  politically  acceptable  alternative  to  mandatory  minimum  sentencing — the  Unit- 
ed States  Sentencing  Commission  Guidelines. 


105 

A.  Mandatory  Minimums  Have  Introduced  Massive  Unfairness  Into  the 

Federal  Sentencing  Process 

Introduction 

In  1984,  the  Congress  passed  the  Sentencing  Reform  Act  to  create  a  United  States 
Sentencing  Commission  charged  with  the  responsibility  to  establish  federal  sentenc- 
ing policy  through  a  system  of  Guidelines  and  policy  statements  subject  to  review 
by  Congress.  Promulgation  of  the  Guidelines  was  to  trigger  a  shift  to  determinate 
sentencing  without  parole  and  only  15  percent  good  time. 

Before  the  Sentencing  Commission  could  even  promulgate  its  first  set  of  Guide- 
lines, the  Congress  in  1986,  and  every  two  years  thereafter  until  1990,  enacted  addi- 
tional mandatory  minimum  penalties,  generally  concentrated  in  the  areas  of  drugs 
and  violent  crime.  In  1986  sentencing  policy  regarding  drug  offenses  was  signifi- 
cantly altered  by  creating  mandatory  minimum  sentences  pegged  to  the  weight  of 
drugs  and  the  mixtures  or  substances  containing  them.  In  essence,  a  single  factor — 
the  weight  of  the  drugs  plus  the  substance  or  mixture  containing  the  drugs — would 
determine  a  minimum  penalty. 

Today  there  are  more  than  100  federal  mandatory  minimum  penalties  located  in 
sixty  criminal  statutes.  However,  four  of  these  statutes  account  for  94  f>er  cent  of 
the  cases  where  mandatory  minimum  sentences  have  been  imposed:  those  pertain- 
ing to  manufacture  and  distribution  of  controlled  substances,  possession  of  con- 
trolled substances,  importation  or  exportation  of  controlled  substances,  and  posses- 
sion of  firearms  during  drug  or  violent  crimes. 

This  body  of  statutory  mandatory  minimum  prison  terms  and  the  Sentencing 
Commission's  reaction  to  them  set  the  stage  for  the  situation  that  brings  us  to  this 
hearing  today. 

At  the  request  of  the  Congress,  the  Sentencing  Commission  recently  completed  an 
exhaustive  study  and  report  to  Congress  with  respect  to  mandatory  minimum  sen- 
tences. While  the  tone  of  that  report  was  respectful  and  subdued,  its  total  impact 
cannot  be  construed  otherwise  than  as  strongly  suggesting  the  repeal  of  all  manda- 
tory minimums.  The  reasons  I  and  most  federal  judges  strongly  feel  mandatory  min- 
imum prison  terms  result  in  massive  unfairness  in  sentencing  are  fully  supported 
bv  the  Sentencing  Conunission  Report  and  other  scholarly  materials  readily  avail- 
able to  this  Subcommittee. 

Mandatory  minimums  are  unfair  in  various  ways,  some  of  them  overlapping. 

1.  mandatory  minimums  are  inherently  unfair  because  their  application 
depends,  in  most  cases,  upon  the  presence  of  only  one  factor 

There  is,  I  submit,  only  one  justification  for  a  mandatory  minimum  sentence — and 
that  is  that  the  crime  covered  by  the  mandatory  minimum  will  always  warrant  the 
sentence  prescribed,  no  matter  the  circumstances  of  the  crime  or  the  role  of  the 
criminal.  Intentional  murder  or  treason  might,  under  certain  circumstances,  meet 
that  test;  it  probably  also  would  apply  to  the  management  level  drug  lords,  in  this 
country  and  abroad,  who  are  never  found  in  possession  of  the  drugs,  or  to  the 
planned  assassination  of  a  law  enforcement  agent.  None  of  the  mandatory  mini- 
mums that  have  been  enacted  in  the  last  six  years  would  meet  the  test. 

The  most  frustrating  aspect  of  mandatory  minimum  prison  sentences  is  that  they 
require  routinely  imposing  long  prison  terms  based  on  a  single  circumstance  when 
other  circumstances  in  the  case  cry  out  for  a  significantly  different  result.  An  inher- 
ent vice  of  mandatory  minimum  sentences  is  that  they  are  designed  for  the  most 
culpable  criminal,  but  they  capture  many  who  are  considerably  less  culpable  and 
who,  on  any  test  of  fairness,  justice  and  proportionality,  would  not  be  ensnared.  Pro- 
portionality is  bypassed  by  mandatory  minimum  sentences.  The  aggravating  and 
mitigating  factors  which  are  relied  upon  to  fine-tune  proportionality  in  traditional 
sentencing  practices,  including  current  federal  Sentencing  Guidelines,  play  no  role: 
the  same  sentence  is  mandated  for  offenders  with  very  different  criminal  back- 
grounds and  whose  roles  difTer  widely  one  from  another.  They  suffer  from  what  Jus- 
tice Oliver  Wendell  Holmes  described  as  "delusive  exactness:"  they  provide  a  single- 
factor  test. 

Even  in  the  most  compelling  cases — the  possession  or  use  of  a  firearm — the  innu- 
merable variations  of  person  and  circumstances  coupled  with  the  wide  availability 
of  firearms  and  extremely  broad  definitions  of  such  terms  as  "crime  of  violence"  al- 
most guarantee  that  this  single  factor  cannot  fairly  operate  as  the  basis  for  any  pris- 
on term.  There  is  no  room  to  deal  with  the  assault  committed  by  an  abused  spouse 
or  child.  There  is  no  place  for  distinguishing  types  of  weapons,  and  how  they  are 
used.  There  is  no  room  to  distinguish  the  crime  of  passion  from  one  involving  the 
individual  who  makes  a  living  from  crime  with  a  gun.  Indeed,  as  the  Supreme  Court 


106 

recently  held,  there  is  no  flexibility  to  ameliorate  the  long  prison  term  for  the  indi- 
vidual who  simply  traded  the  gun  for  drugs. 

Mandatory  minimum  sentencing  makes  even  less  sense  when  based  on  a  rel- 
atively small  amount  of  drugs  in  the  context  of  a  lucrative  multibillion-dollar  inter- 
national drug  market  serving  millions  of  drug-taking  victims.  That  context  is  inevi- 
tably going  to  attract  participants  from  all  walks  o?  life,  young  and  old,  male  and 
female,  rich  and  poor,  citizen  and  alien,  who  play  greatly  varying  roles  in  the  crime. 
The  variations  are  so  diverse  that  it  defies  eftorts  to  m£j(e  a  reasonably  comprehen- 
sive list  of  the  patently  unjust  sentences  routinely  imposed  in  mandatory  minimum 
drug  cases. 

A  few  statutes  prescribe  mandatory  minimum  sentences  based  on  past  criminal 
record.  Even  here  fairness  and  equity  are  defied:  whether  the  criminal  record  shows 
a  single  minor  drug  offense  years  ago  in  college,  or  a  series  of  recent  convictions 
as  part  of  a  pattern  of  serious  criminal  behavior,  the  mandatory  minimum  fits  all. 

I  am  sure  the  members  of  this  Subcommittee,  as  well  as  judges,  intuitively  know 
that,  however  serious  the  crime,  there  are  differing  levels  of  culpability  as  between 
the  various  persons  engaged  in  that  crime.  Our  sense  of  fairness  compels  us  toward 
the  conclusion  that  punishment  imposed  should  be  tailored  to  a  personal  respon- 
sibility for  the  crime  of  the  defendant  being  sentenced.  Chief  Justice  Rehnquist  has 
characterized  mandatory  minimum  sentences  as  "perhaps  a  good  example  of  the  law 
of  unintended  consequences."  He  noted  that  "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 
drug  distribution  schemes." 

The  Chief  Justice  has  also  pointed  out  that  "one  of  the  best  arguments  against 
any  more  mandatory  minimums,  and  perhaps  against  some  of  those  that  we  already 
have,  is  that  they  frustrate  the  careful  calibration  of  sentences,  from  one  end  of  the 
spectrum  to  the  other  *     *     *." 

2.  UNFAffiNESS  OF  QUANTITY  BASED  MANDATORY  MINIMUM  SENTENCES 

Use  of  the  amounts  of  drugs  by  weight  in  setting  mandatory  minimum  sentences 
raises  issues  of  fairness  because  the  amount  of  drugs  in  the  offense  is  more  often 
than  not  totally  unrelated  to  the  role  of  the  offender  in  the  drug  enterprise.  Individ- 
uals operating  at  the  top  levels  of  drug  enterprises  routinely  insulate  themselves 
from  possession  of  the  drugs  and  participation  in  the  smuggling  or  transfer  func- 
tions of  the  business.  It  is  the  participants  at  the  lower  levels — those  that  transport, 
sell,  or  possess  the  drugs — that  are  caught  with  large  quantities.  These  individuals 
make  up  the  endless  supply  of  low  paid  "mules,"  "runners"  and  street  traders,  many 
of  them  aliens.  It  is  because  we  so  detest  the  drug  trade  that  we  are  enticed  into 
focusing  major  resources  on  and  resorting  to  long  prison  terms  for  minor — and  eas- 
ily replaced — participants. 

3,  UNFAIRNESS  OF  MANDATORY  MINIMUM  DRUG  SENTENCES  BASED  ON  WEIGHT 

WITHOUT  REGARD  FOR  PURITY 

To  exacerbate  the  situation,  mandatory  penalty  statutes  based  on  quantity  are  de- 
termined without  regard  to  purity.  The  weight  of  inert  substances  used  to  dilute  the 
drugs  or  the  weight  of  a  carrier  medium  (the  paper  or  sugar  cube  that  contains  LSD 
or  the  weight  of^a  suitcase  in  which  drugs  have  been  ingeniously  imbedded  in  the 
construction  materials  of  the  suitcase  ^)  is  added  to  the  total  weight  of  the  drug  to 
determine  whether  a  mandatory  sentence  applies.  A  defendant  in  possession  of  a 
quantity  of  pure  heroin  may  face  a  lighter  sentence  than  another  deiendant  in  pos- 
session of  a  smaller  quantity  of  heroin  of  substantially  less  purity,  but  more  weight 
because  of  the  diluting  substance.  Since  the  relation  of  the  carrier  medium  to  uie 
drug  increases  as  the  drug  is  diluted  in  movement  to  the  retail  level,  the  unfairness 
of  imposing  automatic  sentences  based  on  amount  without  regard  to  role  in  the  of- 
fense is  compounded  by  failure  to  take  purity  into  account. 

4.  UNFAIRNESS  IN  APPLYING  CONSPIRACY  PRINCIPLES  TO  MANDATORY  MINIMUM  DRUG 

SENTENCES 

Another  significant  factor  of  unwarranted  unfairness  in  mandatory  minimum  sen- 
tencing is  the  application  of  conspiracy  principles  to  quantity-driven  drug  crimes. 
Under  the  Pinkerton  doctrine  of  conspiracy,  accomplices  with  minor  roles  may  be 
held  accountable  for  the  foreseeable  acts  of  other  conspirators  in  furtherance  of  the 


^United  States  v.  Mahecha-Onofrt,  936  F.2d  623  (1993).  One  wonders  about  the  rationality 
of  a  Bystem  that  even  poses  such  a  question. 


107 

conspiracy.  A  low-level  conspirator  is  subject  to  the  same  penalty  as  the  kingpin. 
Thus  a  crew  of  a  ship  including  the  ship's  cook  was  recently  convicted  of  smuggling 
drugs.  The  cook  was  subject  to  a  mandatory  minimum  sentence  of  twenty  years  be- 
cause of  the  quantity  of  drugs  on  board,  despite  the  fact  that  she  had  little  knowl- 
edge of  the  nature  of  the  cargo  and  was  the  sole  support  of  her  large  family  in  Co- 
lombia. (The  result  was  so  distressing  that  the  prosecutor  agreed  not  to  contest  a 
motion  for  acquittal  n.o.v.) 

5.  UNFAIRNESS  FOR  FAILURE  TO  TAKE  ROLE  IN  THE  OFFENSE  INTO  ACCOUNT  IN  SETTING 

MANDATORY  MINIMUM  SENTENCES 

Failure  to  permit  the  sentencing  judge  to  take  into  account  the  role  of  the  offender 
in  the  offense,  particularly  for  business  enterprise  type  offenses,  is  probably  the 
most  central  unfairness  factor  in  mandatory  minimum  sentencing.  Indeed,  role  in 
the  offense  is  far  more  reflective  than  amount  of  drugs  of  the  dangerousness  and 
culpability  of  the  individual  and  of  his  or  her  reward  from,  and  level  in,  the  criminal 
enterprise.  It  is  periiaps  not  surprising  that  Congress  has  resorted  to  rather  simplis- 
tic single-factor  criteria  for  mandatory  minimums  rather  than  attempting  to  capture 
appropriate  statutoiy  "bright  lines"  to  distinguish  the  various  culpable  levels  in  a 
complex  bureaucratic,  albeit  criminal,  business.  The  difficulties  in  drawing  such 
brignt-lined  distinctions  is  one  of  the  best  ar^guments  for  Congress  to  entrust  to  the 
Sentencing  Commission  the  task  of  arriving  at  appropriate  sentences  for  particular 
offenders  and  offenses. 

6.  UNFAIRNESS  IN  THE  OPERATION  OF  THE  "SUBSTANTIAL  ASSISTANCE"  FACTOR  WITH 
RESPECT  TO  MANDATORY  MINIMUM  SENTENCES 

An  ostensible  purpose  of  mandatory  minimums  is  to  remove  discretion  from  the 
sentencing  process.  It  is  axiomatic  that  there  is  no  departure  from  a  mandatory 
minimum  under  current  federal  law. 

No  departure,  that  is,  unless  the  prosecutor  initiates  it. 

Under  the  law  a  motion  for  a  downward  departure  by  the  prosecutor  must  be 
predicated  on  a  defendant's  "substantial  assistance  in  the  investigation  or  prosecu- 
tion of  another  person  who  has  committed  an  offense."  This  constitutes  the  only 
statutory  basis  for  sentencing  below  a  prescribed  mandatory  minimum.  Title  18 
U.S.C.  Sec.  3553(e)  and  Rule  35(b)  of  the  Federal  Rules  of  Criminal  Procedure  au- 
thorize the  government  to  move  for  a  departure  below  a  mandatory  minimum  sen- 
tence if  the  defendant  provides  substantial  assistance  to  the  government  in  the  in- 
vestigation and  prosecution  of  another  person  who  has  committed  an  offense.  The 
government  (prosecutor)  exclusively  holds  this  authority.  Problems  of  inequities 
arise  for  three  reasons;  the  more  culpable  offenders  have  more  information  to  bar- 
gain with  than  low-level  offenders  who  may  have  limited  contact  with  conspirators; 
there  are  serious  inherent  incentives  to  perjury;  and  prosecutors  indulge  a  wide  va- 
riety of  unstructured  practices  with  respect  to  substantial  assistance  motions. 

Who  is  in  a  position  to  give  such  substantial  assistance?"  Not  the  mule  who 
knows  nothing  more  about  the  distribution  scheme  than  his  own  role,  and  not  the 
street-level  distributor.  The  highly  culpable  defendant  managing  or  operating  a  drug 
trafficking  enterprise  has  more  information  with  which  to  bargain.  Low-level  offend- 
ers, peripherally  involved  with  less  responsibility  and  knowledge,  do  not  have  much 
information  to  offer.  Thus — and  paradoxically — the  more  culpable  offender  is  in  a 
better  position  to  bargain  information  in  exchange  for  relief  from  a  mandatory  mini- 
mum sentence  than  a  less  culpable,  minor  offender.  There  are  few  federal  judges 
engaged  in  criminal  sentencing  who  have  not  had  the  disheartening  experience  of 
seeing  major  players  in  crimes  before  them  immunize  themselves  from  tne  manda- 
tory minimum  sentences  by  blowing  the  whistle  on  their  minions,  while  the  low- 
level  offenders  find  themselves  sentenced  to  the  mandatory  minimum  prison  term 
so  skillfully  avoided  by  the  kingpins. 

Moreover,  the  mandatory  minimum  penalties  are  so  harsh,  and  the  incentives  to 
avoid  them  so  compelling,  that  there  is  a  real  and  constant  danger  that  the  "sub- 
stantial assistance"  in  the  way  of  testimony  by  the  criminal  is  geared  to  his  concept 
of  the  prosecutor's  needs. 

There  is  no  apparent  consistence  or  uniformity  between  various  United  States  At- 
torney's offices  in  the  making  of  'substantial  assistance"  motions.  According  to  the 
1992  Annual  Report  of  the  U.S.  Sentencing  Commission,  in  15.1  per  cent  of  the  cases 
sentenced  during  1992  which  were  subject  to  mandatory  minimums  there  were 
downward  departures  for  "substantial  assistance."  However,  within  this  composite 
figure  there  was  a  wide  variation  by  judicial  district.  For  example,  in  the  District 
of  Columbia  7.1  per  cent  of  the  cases  received  motions  for  substantial  assistance; 
in  the  Eastern  District  of  Pennsylvania  48.8  per  cent;  in  the  Southern  District  of 


108 

Ohio  26.6  per  cent;  in  the  Western  District  of  Michigan  5.5  per  cent;  and  in  the 
Eastern  District  of  New  York  17.0  per  cent.  There  were  no  departures  for  "substan- 
tial assistance"  in  the  Eastern  District  of  Oklahoma. 

These  sentencing  results,  affected  by  decisions  related  to  prosecutorial  discretion, 
raise  concerns  regarding  the  sentencing  objectives  of  certainty  of  punishment,  pro- 
portionality, and  unwarranted  disparity. 

I  paint  this  picture  not  to  discount  the  importance  to  the  government  of  coopera- 
tion on  the  part  of  major  participants  in  the  criminal  enterprise.  Indeed,  as  a  former 
prosecutor,  I  can  voudi  for  the  importance  of  cooperation  with  the  prosecutor  of  ac- 
complices and  co-conspirators  in  eradicating  the  total  criminal  enterprise.  Incentives 
to  promote  such  cooperation  by  holding  out  the  prospect  for  favored  treatment  are 
an  embedded  and  time  honored  part  of  the  investigative  and  prosecutorial  process. 
The  lower  level  participants  are  no  saints  and  certainly  merit  prosecution  and  pun- 
ishment. The  unfairness  and  source  of  frustration  to  judges  comes  from  not  applying 
in  the  mandatory  minimum  sentencing  system  an  equally  embedded  and  time  hon- 
ored principle:  consideration  of  an  oflender's  role  in  the  offense  to  provide  propor- 
tionalpenalties  based  on  the  culpable  responsibility  for  the  criminal  enterprise. 

7.  UNFAIRNESS  IN  APPLICATION  OF  MANDATORY  MINIMUM  SENTENCES 

The  Sentencing  Commission's  research  indicated  that  there  has  been  a  lack  of 
uniform  application  of  mandatory  minimum  penalties  for  a  variety  of  reasons  other 
than  the  manner  in  which  the  substantial  assistance  immunity  operates,  raising 
further  questions  about  the  "mandatory"  auality  of  such  penalties.  In  thirty-five  per 
cent  of  the  cases  where  the  facts  seemed  to  warrant  a  mandatory  minimum  sen- 
tence, the  defendants  involved  pleaded  guilty  to  statutes  or  crimes  carrying  non- 
mandatory  minimum  sentencing  provisions.  This  phenomenon  should  not  come  as 
a  big  surprise.  Stuches  show  that  mandatory  minimum  sentencing  practices  influ- 
ence participants  at  every  level  in  the  process— the  investigator,  the  prosecutor,  the 
jury,  and  the  judges — as  each  reacts  to  ameliorate  broadly  perceived  unfairness. 

8.  UNFAIRNESS  RELATED  TO  EFFECT  OF  MANDATORY  MINIMUM  SENTENCES  ON 

SENTENCING  GUIDELINES 

The  mandatory  minimums  have  also  had  the  effect  of  skewing  onwards  and  up- 
wards the  sentences  which  the  Guidelines  prescribe,  as  the  Sentencing  Commission 
has  attempted  to  achieve  proportionality  while  adapting  to  the  mandatory  mini- 
mums.  The  Sentencing  Commission  has  taken  the  position  that  minimum  sentences 
mandated  by  statute  require  the  Sentencing  Guidelines  faithfully  to  reflect  that 
mandate:  the  Sentencing  Commission  has  accordingly  reflected  those  mandatory 
minimums  at  or  near  the  lowest  point  of  the  Sentencing  Guideline  ranges.  This 
superimposition  of  mandatory  minimum  sentences  within  the  Guidelines  structure 
has  skewed  the  Guidelines  upward. 

The  sentencing  table  in  the  Guidelines  is  essentially  structured  as  a  grid  with  the 
vertical  axis  consisting  of  43  offense  levels  and  the  horizontal  axis  consisting  of  5 
criminal  history  categories.  It  has  the  appearance  of  a  lattice  of  Guideline  ranges. 
When  an  offense  level  has  been  raised  because  of  a  mandatory  minimum  sentence, 
the  Commission,  in  order  to  maintain  proportionality  between  crimes  with  manda- 
tory minimums  and  those  without  such  minimums,  has  proportionately  raised  in  its 
Guidelines  the  offense  levels  for  crimes  not  subject  to  mandatory  minimums.  As  a 
consequence,  offenders  committing  crimes  not  suoiect  to  mandatory  minimums  serve 
sentences  that  are  more  severe  than  they  would  be  were  there  no  mandatory  mini- 
mums. Thus  mandatory  minimum  penalties  have  hindered  the  development  of  pro- 
portionality in  the  Guidelines,  and  are  unfair  not  only  with  respect  to  offenders  who 
are  subject  to  them,  but  with  respect  to  others  as  well. 

B.  A  Safety  Valve  Approach  to  Mandatory  Minimum  Sentences  Is  Not  the 

Answer 

Mr.  Chairman,  I  have  tried  to  focus  attention  on  so-called  "safety  valve"  ap- 
proaches to  taking  the  unfairness  out  of  mandatory  minimum  sentencing  because 
I  know  you  are  particularly  interested  in  such  an  approach.  I  know  from  your  public 
statements  that  you  sincerely  hope  that  if  we  identify  and  deal  with  a  relatively 
small  number  of  "horror  stories,"  the  system  will  be  fixed.  I  wish  that  I  could  awee 
that  such  were  the  case.  On  the  contrary,  Mr.  Chairman,  I  respectfully  submit  that 
the  mandatory  minimum  system  in  place  is  itself  the  "horror"  story. 

I  would  be  remiss,  however,  not  to  inform  this  subcommittee  that  the  Judicial 
Conference,  fearing  that  it  might  be  politically  impossible  to  repeal  the  current  man- 
datory minimum  sentencing  provisions  outright,  has  taken  the  position  that  applica- 


109 

tion  of  "safety  valve"  principles  is  better  than  doing  nothing  at  all.  The  Judicial  Con- 
ference has  not  felt  that  it  was  its  role  to  map  out  the  appropriate  boundary  for 
a  "safety  valve"  proposal  beyond  the  sincere  plea  that  any  proposal  should  seek  the 
maximum  relief  feasible  from  mandatory  minimums.  And  in  all  candor,  I  believe 
any  reasonably  satisfactory  "safety  valve"  would  encounter  the  same  political  resist- 
ance as  repeal  and  should  be  considered  only  as  a  last  resort. 

Having  said  that,  there  are  a  variety  of  approaches  to  mandatory  minimums  I 
have  reviewed  that  would  have  varying  effects  to  ameliorate  the  negative  effects  of 
mandatory  minimum  sentences.  As  I  will  discuss  in  more  detail  later,  the  preferred 
approach  by  far  in  the  view  of  the  iudiciary  is  the  repeal  of  mandatory  minimum 
sentencing  provisions  in  the  criminal  statutes  to  allow  the  UJS.  Sentencing  Commis- 
sion to  set  appropriate  and  proportional  Guidelines  for  federal  offenses. 

Obviously,  there  are  many  "safety  valve"  concepts  that  could  be  studied.  A  simple 
authority  to  the  court  or  to  the  Sentencing  Commission  to  provide  for  departure 
from  mandatory  minimums  "in  the  interest  of  justice" — and  let  these  institutions  fill 
in  the  details — is  a  broad  approach  requiring  Congress  to  trust  non-legislative  insti- 
tutions to  develop  principled  departures.  Another  approach  would  permit  the  Sen- 
tencing Commission  or  the  courts  to  depart  from  mandatory  minimum  penalties  if 
certain  criteria  are  present,  such  as  limited  involvement  in  the  offense,  first-time 
offender,  non-violent  offender,  lack  of  a  recent  prior  criminal  record,  age,  or  any  fac- 
tor deemed  appropriate  for  departure.  The  mandatory  minimum  penalty  statutes 
themselves  could  be  amended  to  meet  the  test  I  suggested  above  to  bring  the  statu- 
tory criteria  into  conformity  with  the  political  rhetoric  by  making  them  applicable 
to  the  relatively  narrow  class  of  offenders  we  all  agree  should  get  the  designated 
sentence,  such  as  managers  of  drug  enterprises.  Drug  quantities  could  be  deleted 
as  requisite  factors  for  applicability  of  mandatory  minimum  sentences  in  favor  of 
consideration  by  the  court  or  the  Sentencing  Commission  of  defendants'  roles  in  the 
offense.  Provision  could  be  made  to  permit  tne  Sentencing  Conmiission  to  deal  effec- 
tively with  the  unfairness  associated  with  consideration  of  the  weight  of  drugs  with- 
out regard  for  purity. 

Judge  Wilkins  has  placed  on  the  table  yet  another  concept  for  reconciling  manda- 
tory minimum  statutes  with  the  Guideline  system. 

I  am  sure  that  there  are  other  proposals  that  could  have  some  ameliorating  effect 
on  application  of  current  mandatory  minimums.  I  just  do  not  believe  any  of  them 
measure  up  to  meeting  the  serious  problems  attributable  to  a  fundamentally  flawed 
and  dysfunctional  system. 

C.  Mandatory  Minimum  Sentencing  Has  Resulted  in  a  Major  Misuse  of 
Limited  Federal  Correction  Facilities 

Since  the  Subcommittee  will  hear  from  Kathleen  Hawk,  Director  of  the  Bureau 
of  Prisons,  this  morning  on  the  situation  concerning  the  effective  use  of  limited  fed- 
eral correctional  facilities  and  the  impact  mandatory  minimum  sentences  have  had 
on  those  institutions,  I  shall  comment  only  briefly  on  this  subject. 

It  is  appropriate  at  this  time  when  we  are  examining  the  current  system  of  man- 
datory minimums  to  assess  whether  we  are  making  the  best  use  of  a  limited  re- 
source— our  facilities  of  incarceration — in  the  best  maimer  to  promote  the  safety  and 
security  of  our  people. 

Mandatory  minimum  sentences  and  related  distortions  of  the  Sentencing  Guide- 
lines have  institutionalized  long-term  incarceration  as  the  preferred  method  of  deal- 
ing with  crime  in  this  country,  particularly  drug  crime.  More  people  are  warehoused 
in  federal  and  state  prisons  than  at  any  other  time  in  our  history.  The  United 
States  has  the  highest  per  capita  incarceration  rate  of  any  of  the  modem  industrial 
countries.  The  population  of  the  Bureau  of  Prisons,  which  was  24,500  in  1980,  is 
approaching  80,000  after  two  large  growth  spurts:  one  between  1980  and  1987;  the 
other  from  1987  to  the  present.  If  trends  continue  as  projected,  by  the  year  2000 
there  will  be  130,000  people  in  federal  prison.  Director  Hawk  attributes  the  initial 
growth  from  1980  to  1987  to  prosecution  initiatives  and  increased  law  enforcement 
efforts.  The  second  and  more  dramatic  spurt  is  primarily  related  to  changes  in  the 
sentencing  structure.  Such  changes  include  mandatory  minimum  sentences  (which 
preclude  the  use  of  probation  as  a  sentencing  option),  Sentencing  Guidelines,  aboli- 
tion of  parole,  and  reduction  of  good-time  credits.  If  current  sentencing  policies  con- 
tinue, tne  upward  incarceration  trend  will  continue  unabated. 

In  1986,  approximately  42%  of  the  convicted  offenders  were  placed  on  probation, 
being  supervised  in  the  community  by  U.S.  probation  officers.  In  1992  only  24%  re- 
ceived probation,  an  interesting  phenomenon  since  51%  of  those  sentenced  that  year 
had  no  prior  record. 


110 

The  average  cost  of  building  one  prison  cell  is  $52,000.  Once  a  prisoner  is  housed 
in  the  cell,  it  costs  an  average  of  $20,803  a  year  to  maintain  that  prisoner.  In  turn- 
ing to  prisons  as  a  primary  answer  to  our  crime  problems,  we  have  embarked  upon 
a  prison  expansion  that  will  cost  hundreds  of  million  dollars  to  build  and  billions 
of  dollars  annually  to  operate.  The  end  is  not  in  sight  unless  we  reassess  our  options 
for  managing  offenders  by  evaluating  less  costly  alternatives  with  two  goals  in 
mind:  cost  to  the  taxpayers  and  safety  in  the  community  for  those  taxpayers. 

My  experience  as  a  judge  has  taught  me  that  lengthy  prison  terms  are  not  always 
necessary.  For  many  offenders  the  impact  of  arrest  is  therapeutic;  for  others  trial 
and  conviction  have  the  same  effect.  For  still  others  a  relatively  short  prison  term — 
shock  incarceration — teaches  a  lasting  lesson.  I  have  had  to  sentence  many  people, 
in  these  past  five  years,  to  mandated  minimum  terms  of  five  and  ten  years  wnen 
I  was  sure  that  those  persons  would  not  transgress  again. 

There  are  a  variety  of  alternative  sanctions  that  can  be  safely  managed  in  the 
community,  ranging  from  low  security  residential  correctional  alternatives  and 
home  detention  with  electronic  monitoring,  to  community  supervision  of  offenders 
who  are  required  to  provide  restitution,  to  submit  urine  tests  for  the  detection  of 
drug  use,  to  perform  compensatory  service,  and  to  pay  fines. 

I  have  had  the  great  privilege,  these  past  three  years,  of  exercising  judicial  super- 
vision over  the  Federal  Pretrial  Services  Officers  and  Probation  Officers.  They  con- 
stitute an  extremely  talented  and  dedicated  body  of  men  and  women  who  can  effec- 
tively control  convicted  criminals  outside  of  penal  facilities. 

What  is  the  cost  of  community-based  corrections  compared  to  the  use  of  prisons? 
In  the  federal  system,  it  costs  an  average  of  $6.03  per  day  to  supervise  an  offender 
in  the  community.  Urine  surveillance  and  treatment  adds  an  average  of  $7.89  per 
day  and  electronic  monitoring  adds  $11.42  per  day.  Compare  the  cost  of  supervising 
an  offender  in  the  community  with  urine  surveillance  at  $13.92  to  imprisonment  at 
$56.84  per  day. 

Cost  is  not,  and  should  not  be,  the  determining  consideration.  The  determining 
consideration  should  be  the  public  weal.  But  I  submit  that  the  public  weal  is  best 
served  if  offenders  are  punished  for  transgression  in  such  wise,  and  under  such 
guidance,  that  they  ultimately  have  the  opportunity  to  become  useful  citizens.  The 
warehousing  approach  of  mandatory  minimums  makes  such  an  approach  impossible. 

Our  prisons  should  be  used  for  those  who  are  a  threat  to  society,  and  to  punish 
those — whether  or  not  a  threat — who  deserve  incarcerative  punishment.  The  former 
need  to  be  put  away  for  a  long  time;  the  latter  may  need  a  relatively  briefer  term. 
But  these  are  judgments  which  can  be  made  by  judges,  subject  to  appellate  review, 
applying  Guidelines  which  will  be  more  realistic  once  the  shackles  of  mandatory 
minimums  are  undone. 

D.  A  Practical  and  Politically  Acceptable  Alternative  to  Mandatory 

Minimum  Sentences 

I  submit  that  there  is  both  a  practical  and  politically  acceptable  alternative  to 
deal  with  the  problems  in  the  current  mandatory  minimum  sentencing  system  craft- 
ed over  the  past  six  years — repeal  the  mandatory  minimums  and  let  tne  Sentencing 
Commission  carry  out  its  mandate  to  fashion  a  fair  and  proportional  sentencing 
structure.  The  case  for  doing  so  is  most  compelling. 

It  certainly  is  true  that  the  Sentencing  Guideline  concept  was  developed  in  large 
part  because  Congress  believed  that  the  exercise  of  unbridled  discretion  by  federal 
district  judges  and  the  operation  of  the  parole  system  had  resulted  in  lack  of  cer- 
tainty and  unwarranted  aisparities  between  the  sentences  imposed  and  those  served 
for  similar  crimes  by  similarly  situated  offenders. 

In  1984,  after  years  of  consideration  and  debate.  Congress  responded  to  these  con- 
cerns by  enacting  the  Sentencing  Refonm  Act,  which  fundamentally  altered  the 
world  of  sentencing.  The  Act  abolished  parole;  it  drastically  reduced  the  good-time 
credits  that  can  be  earned  by  prisoners;  and  it  created  the  U.S.  Sentencing  Commis- 
sion. 

In  establishing  the  Commission,  Congress  contemplated  that  the  members  of  the 
Commission,  who  were — or  would  become — experts,  would  develop  a  reasoned  rela- 
tionship between  the  sentences  to  be  imposed  lor  various  crimes,  taking  into  consid- 
eration various  factors  which  would  serve  to  augment  or  to  decrease  the  ultimate 
sentence  to  be  imposed.  In  brief,  the  Commission  was  charged  with  the  task  of  es- 
tablishing Sentencing  Guidelines  that  would  promote  honesty  and  certainty,  fair- 
ness and  proportionality  in  the  sentencing  process:  honesty  and  certainty  by  provid- 
ing a  prescription  of  the  sentences  generally  applicable  to  particular  crimes  and  a 
delineation  oi  adjustments  for  particular  circumstances;  fairness  by  reducing  unwar- 
ranted disparity  while  providing  sufficient  Hexibility  to  individualize  sentences  in 


Ill 

unusual  circumstances;  and  proportionality  through  a  system  that  provides  appro- 
priately different  sentences  for  criminal  conduct  of  differing  severity. 

Before  Guidelines  amendments  go  into  effect,  they  have  to  be  submitted  to  Con- 

S"ess  for  a  period  of  time  to  provide  an  opportunity  for  Congress  to  override  any 
uideline  with  which  it  disagrees  in  a  process  similar  to  implementing  federal  rules 
of  procedure  and  the  rules  ofevidence. 

In  recognition  of  the  fact  that  even  the  Sentencing  Commission  itself  would  have 
difficulty  micro-managing  a  fair  and  proportional  sentencing  system,  Congress  wise- 
ly authorized  judges  to  depart  from  the  Guidelines — ^up  or  down — where  they  found 
the  existence  of  aggravating  or  mitigating  circumstances  "not  adequately  taken  into 
consideration  by  the  Sentencing  Commission."  A  judge  in  a  particular  case  who  de- 
parts from  a  specifled  Guideline  is  required  to  state  his  reasons  for  imposing  sen- 
tence outside  the  applicable  Guideline. 

A  far-reaching  change  brought  about  by  the  Sentencing  Reform  Act  was  that 
whenever  a  trial  judge  departed  from  an  applicable  Guideline,  the  sentence  imposed 
would  be  subject  to  appellate  review — the  government  could  appeal  a  sentence  below 
and  the  defendant  could  appeal  a  sentence  above  the  applicable  Guideline. 

Congress  presumably  created  the  Sentencing  Commission  and  charged  it  with  de- 
veloping Guidelines,  subject  to  Congressional  oversight,  to  get  the  extremely  cum- 
bersome task  of  determining  appropriate  sentencing  ranges  off  the  Congressional 
agenda.  Yet  before  the  Commission  even  had  an  opportunity  to  present  its  plan,  the 
Commission's  work  was  disrupted  and  destabilized,  if  not  demoralized,  with  passage 
of  a  series  of  statutory  mandatory  minimum  sentences  applicable  to  cases  soon  to 
dominate  the  federal  criminal  docket. 

We  all  agree  that  a  rational  sentencing  policy  provides  serious  penalties  for  seri- 
ous crimes.  I  am  absolutely  persuaded,  alter  some  seven  years  oi  experience  with 
the  Commission,  that  these  aole  public  servants  are  ready  and  willing  to  meet  Con- 
gress' expectation  in  the  complex  and  difficult  task  of  providing  appropriate  sen- 
tences for  those  who  perpetrate  serious  crimes. 

I  submit  that  these  statutory  mandatory  minimums  have  been  adopted  without 
fair  consideration  of  their  effect  on  the  mission  of  the  Sentencing  Commission  and 
have  made  it  impossible  for  the  Commission  to  carry  out  its  mandate.  The  Commis- 
sion's report  on  statutory  mandatory  minimums  is  a  plea  to  Congress  to  return  to 
the  principles  contained  in  the  Sentencing  Reform  Act. 

Accordingly,  I  urge  the  members  of  this  Subcommittee  and  all  Members  of  Con- 
gress to  join  the  judiciary  and  many  organizations  and  individuals  concerned  about 
fair  and  proportional  federal  sentencing  to  support  taking  the  shades  off  the  Sen- 
tencing CTommission  and  let  it  do  the  job  assigned  to  it.  When  it  comes  to  sentencing 
mix,  let  the  Commission  rationalize  appropriate  terms  of  imprisonment  in  the  com- 
plex universe  of  factors  to  be  considered,  including  the  part  of  a  firearm,  amount 
of  drugs,  purity  of  drugs,  substantial  assistance,  role  in  tne  offense,  and  conspiracy 
principles.  Then  we  shall  see  developed  a  rational  sentencing  system. 

Conclusion 

In  sum,  on  behalf  of  the  Judicial  Conference  of  the  United  States,  I  strongly  urge 
the  Congress  for  the  reasons  stated  to  repeal  all  current  mandatory  minimum  sen- 
tencing provisions  and  thereby  to  free  the  Sentencing  Commission  to  carry  out  its 
mandate  to  formulate  a  rational  and  fair  sentencing  structure  for  the  federal  judi- 
cial system. 

I  do  not  underestimate  the  difiiculties  you  face  as  you  confront  the  unfairness  in 
current  mandatory  minimum  sentencing  and  decide  whether  to  reverse  sentencing 
policies  so  recently  enacted.  In  the  final  analysis,  the  policy  decision  is  a  matter 
within  the  responsibility  and  prerogative  of  Congress.  I  hope  that  the  perspective 
presented  here,  which  represents  the  views  of  the  vast  majority  of  federal  judges, 
will  be  of  assistance  to  this  subcommittee  and  the  Congress  as  it  ponders  the  dif- 
ficulties we  are  in. 

Mr.  Chairman,  as  a  final  and  personal  note,  I  am  confident  your  hesitation  to  act 
would  be  significantly  lessened  if  every  Member  of  Congress  could  join  the  federal 
trial  judges  in  New  York,  Brooklyn,  Miami,  Los  Angeles,  the  District  of  Columbia, 
San  Diego  and  other  major  metropolitan  courts  and  grapple  on  a  daily  basis  with 
treating  human  beings  before  them  in  such  an  arbitrary  and  unfair  way.  It  is  a  de- 
pressing and  demoralizing  experience.  I  firmly  believe  that  any  reasonable  person 
who  exposes  himself  or  herself  to  this  system  of  sentencing,  whether  judge  or  politi- 
cian, would  come  to  the  conclusion  that  such  sentencing  must  be  abandoned  in  favor 
of  a  system  based  on  principles  of  fairness  and  proportionality.  In  our  view,  the  Sen- 
tencing Commission  is  the  appropriate  institution  to  carry  out  this  important  task. 
Mr.  Chairman,  I  rest  my  case  and  leave  the  matter  in  your  able  hands. 


112 

Mr.  SCHUMER.  Judge  Walker. 

STATEMENT  OF  JUDGE  JOHN  M.  WALKER,  JR.,  PRESmENT, 
FEDERAL  JUDGES  ASSOCLVTION,  NEW  YORK,  NY,  AND  CIR- 
CUIT JUDGE,  SECOND  CIRCUIT  COURT  OF  APPEALS 

Judge  Walker.  Very  well.  Thank  you  very  much,  Chairman 
Schumer,  and  members  of  the  committee,  for  the  opportunity  to 
testify  on  behalf  of  the  Federal  Judges  Association.  Our  members 
are  70  percent  of  the  Nation's  article  III  circuit  and  district  judges. 
Our  members  have  had  firsthand  experience  with  the  problems  cre- 
ated by  mandatory  minimum  sentences. 

At  the  outset,  I  want  to  reiterate  something  that  Judge  Broderick 
just  said.  Judges  share  Congress'  concern  with  the  serious  prob- 
lems posed  to  our  society  by  drug-related  and  violent  crimes  and 
believe  with  Congress  that  shorter  criminal  sentences  are  not  the 
answer.  I  personally  come  from  a  law  enforcement  background  at 
the  Treasury  and  Justice  Departments.  Our  members  have  no  de- 
sire to  return  to  a  time  when  Congress  and  the  public  received 
criminal  sentencing  as  arbitrary,  disparate  and  too  lenient.  To  the 
contrary,  it  is  precisely  because  mandatory  minimum  sentences  are 
undermining  Congress'  sentencing  goals  that  we  oppose  them. 

Congress  tried  mandatory  minimum  sentencing  in  the  1950's  and 
1960's,  and  rejected  it  as  unworkable  in  1970.  Since  then  critics, 
scholars  and  Congress  have  labored  long  and  hard  to  develop  and 
implement  the  sentencing  guideline  regime  that  is  now  in  place. 

The  guidelines  reflect  Congress'  intent  that  career  criminals  re- 
ceive severe  sentences  and  that  criminals  engaged  in  certain  con- 
duct, such  as  drug  trafficking  and  gun  crimes,  receive  enhanced 
punishments.  The  guidelines  are  also  designed  to  ensure  that  sen- 
tences are  predictable,  uniform  and  proportional  to  the  severity  of 
the  conduct  and  the  dangerousness  of  the  criminal. 

Now,  recently  mandatory  minimums  have  crept  back  into  the 
system.  In  enacting  mandatory  minimums  Congress  wanted  to  nar- 
row judicial  discretion  beyond  the  guidelines  by  prescribing  fixed 
minimum  sentences  for  certain  crimes,  like  drug  trafficking  and 
violent  offenses,  and  to  ensure  that  favoritism,  privilege  and  bias 
would  play  no  role  in  sentencing. 

In  support  of  one  mandatory  minimum  provision,  Senator  Phil 
Gramm  stated  that  all  like  offenders  would  pay  the  same  price  for 
their  crimes,  no  matter  who  your  daddy  is  and  no  matter  how  soci- 
ety has  done  you  wrong — to  quote  Senator  Gramm.  Yet  mandatory 
minimums,  in  our  view,  are  undermining  predictability  and  uni- 
formity in  sentencing.  These  provisions  vest  virtually  unfettered 
discretion  in  the  hands  of  individual  prosecutors  who  have  become 
de  facto  sentencing  judges.  It  is  the  prosecutors  who  decide  on  a 
case-by-case  basis  who  will  or  will  not  be  charged  with  mandatory 
minimum  offenses  and  who  will  escape  them  through  plea  bargains 
or  substantial  assistance  motions. 

Unlike  article  III  judges,  prosecutors  are  free  to  be  lenient  or 
harsh  in  particular  cases  without  publicly  explaining,  let  alone  de- 
fending, tneir  decisions.  And,  in  contrast  to  a  judge's  sentencing  de- 
cisions, which  are  public,  reported  to  the  Sentencing  Commission 
and  subject  to  appellate  review,  the  prosecutorial  decisions  are 
made  off  the  record. 


113 

As  a  result  of  these  decisions,  a  Sentencing  Commission  study, 
the  1991  study,  found  that  about  40  percent  of  the  eligible  Federal 
defendants  do  not  receive  the  applicaole  mandatory  minimum  sen- 
tences. This  grant  of  broad  sentencing  discretion  to  prosecutors  has 
contributed,  in  my  view,  to  a  heightened  perception  that  influence 
and  power  still  determine  whether  a  defendant  will  receive  a  re- 
duced sentence. 

Mandatory  minimum  statutes  are  blunt  instruments  that  are  un- 
dermining goals  of  proportionality  and  sentencing.  For  example, 
with  respect  to  drug  crimes,  the  principal  mandatory  provisions  are 
triggered  only  by  the  weight  of  the  drug  or  mixture.  A  defendant 
convicted  of  5  grams  of  crack  cocaine  faces  a  maximum  penalty  of 
1  year  in  prison,  while  a  defendant  convicted  of  possession  of  5.1 
grams  faces  a  msmdatory  minimum  of  5  years.  And  the  same  pen- 
^•ties  apply  whether  the  defendant  is  a  low-level  player  or  a  king- 
pin. 

The  result  of  mandatory  minimums  is  similar  sentences  for  of- 
fenders who  play  very  different  roles  in  offenses  and  have  different 
criminal  histories.  Even  more  troubling  is  the  fact  that  if  the  man- 
datory minimums  apply,  more  culpable  participants  in  criminal 
schemes,  even  the  most  culpable,  often  receive  lower  sentences 
than  their  subordinates. 

I  understand  that  the  committee  has  heard  from  Nicole  Richard- 
son, who  received  a  10-year  mandatory  sentence  for  giving  her  boy- 
friend's phone  number  to  some  of  his  drug  customers  and  giving  di- 
rections during  a  car  chase.  I  understand  that  was  also  a  factor  in 
the  case.  The  ringleader  and  lieutenants  of  the  boyfriend's  drug 
ring  each  got  no  more  than  5  years  imprisonment  because  they,  un- 
like Richardson,  were  able  to  provide  information  to  the  prosecu- 
tion. 

Richardson  is  not  alone.  Nineteen-year-old  Brenda  Valencia  was 
sentenced  to  over  12  years  solely  because  she  drove  her  aunt,  who 
couldn't  drive,  to  a  drug  transaction.  To  add  insult  to  injury, 
Valencia's  sentence  was  increased  because  her  aunt  had  a  weapon. 

I  have  submitted  several  letters  from  district  judges  with  my  pre- 
pared statement,  which  I  ask  to  be  read  into  the  record,  and  will 
furnish  other  examples  as  they  come  in.  We  have  been  requesting 
these  examples  for  the  last  week  and  we  are  starting  to  get  them 
in,  and  we  will  supply  them  to  the  committee  as  we  get  them. 

Those  who  support  mandatory  minimum  sentences  seek  assur- 
ance that  offenders  who  commit  serious  crimes  will  receive  sen- 
tences that  fit  their  crimes.  The  judges  of  the  Federal  Judges  Asso- 
ciation wholeheartedly  agree  with  this  goal.  However,  mandatory 
minimums  do  nothing  to  further  Congpress'  goals.  Usually  they  do 
not  increase  the  sentence  the  judges  would  otherwise  impose  under 
the  gn^delines,  as  has  been  pointed  out,  in  some  95  percent  of  the 
cases.  And,  I  would  simply  respond  that  if  the  sentences  are  the 
same,  then  why  have  the  mandatory  minimums. 

Yet,  in  a  minority  of  cases,  and  we  are  really  talking  about  a  mi- 
nority of  cases  here.  In  a  minority  of  cases  where  the  guidelines  do 
make  a  difference  from  what  the  sentence  would  otherwise  be,  the 
mandatory  sentences  simply  do  not  match  offenders  or  their  crimes 
and  can  lead  to  injustices.  And  because  prosecutors  have  discretion 
to  nullify  mandatory  minimums  often  the  most  serious  offenders  do 


114 

not  feel  their  impact.  Thus,  mandatory  minimums  frustrate  the 
carefully  thought  out  guidelines  sentencing  regime  that  was  en- 
acted by  Congress  after  years  of  effort. 

The  lesson  Congress  learned  in  the  1950's  and  1960's,  that  man- 
datory minimums  were  not  only  ineffective  but  also  counter- 
productive weapons  in  the  war  on  crime,  is  even  more  true  today. 

I  would  be  happy  to  answer  your  questions. 

Mr.  SCHUMER.  Thank  you,  Judge. 

[The  prepared  statement  of  Judge  Walker  follows:] 

Prepared  Statement  of  Judge  John  M.  Walker,  Jr.,  PREsroENT, 
Federal  Judges  Association,  New  York,  NY,  and  Cmcurr 
Judge,  Second  Court  of  Appeals 


X  cfianX  Chairaor.  Schuner  and  tha  manbars  ef  th«  consit^fee 
cor  tne  opporcu.nlty  to  tasclfy  on  sahalX  o£  tha  Fadaral  Judges 
Aflsoclarion,  a  voluncazy  organlzacion  composad  o*  over  70C,  about 
70%,  of  t£e  nation' I  Articia  ill  circuit  and  district  judgas.  as 
tnost  Charged  vith  iaposing  and  reviaving  criainai  sentcncas  in 
th«  Cadsral  courts,  wa  have  first-hand  arparisnca  vitA  tna 
problams  craatad  by  tha  mandatory  ainimun  aantancing  provisions 
passsd  by  Congrsas  in  recent  years. 

Judges  share  Congress's  concern  with  the  serious  probleos 
posed  to  our  society  by  drug-related  and  violent  crises,  as  well 
a*  Congress's  belief  that  the  ansver  does  not  lie  in  shorter 
criminal  sentences.  Like  aany  of  ay  fellow  judges,  I  have 
devoted  a  substantial  portion  of  ay  career  to  law  enforcement. 
first  aa  a  fedaral  preaacutor  and,  inaadiataly  prior  to  ay 
appointmant  to  tha  federal  bench,  as  an  Xsaistan?  Saeratary  of 
tha  Traaaury,  with  responsibility  for  tha  anforcaaent  of  lave 
against  drugs  and  firaaraa  by  tha  Cuacoaa  Sarvioa  and  tha  Bureau 
of  Aloohol,  Tobaoeo  and  riraarma.   Judgaa  do  net  oppoaa  mandatory 
ainiauma  baoauaa  va  favor  light  sontancaa  for  oonvict«d 
exiainaia.   Naithar  do  wa  wiah  to  return  to  a  tiva  whaa  Congraaa 
and  tba  pubilo  paroaivad  oriminal  a«ntanain9  aa  arbitrary. 


115 


di«p«raca  and  too  laniwit.  To  th«  contrary,  it  !•  prsciMly 
b«caua«  oandatory  ainlBuiui  arc  undaminlng  Congraaa'a  aantancln? 
goals  that  vm   favor  Congraaaional  ra-axanination  of  nandatatv 
ainimuBS. 

Cengroca  axpariaAntad  with  ■andacory  miniauas  in  tha  Boggs 
Xata  of  tha  ISSOa.   Than,  lika  today,  Congraaa  sought  zo   aseura 
rhat  aantanoaa  raflaotad  ^a  gravity  of  oortain  typaa  of  drug 
criaaa,  and  to  aaaura  that  offandara  raoalved  approprlata 
aantancaa.   Iha  aacond  Begga  Act  sat  aandatory  ainiaua  aantenoes 
of  two  yaara  for  a  first  drug  trafficlclng  off  ansa,  fiva  for  a 
sacond,  and  ton  for  a  chlrd,  and  asndacod  a  lifo  santanca  or 
tha  doath  panalty  for  tha  sala  of  horoin  to  a  minor.'  Despite 
the  D««t  intentions  of  congrass,  however,  cne  mandatory  alnlauo 
scnama  proved  over  the  next  decade  to  he  inflexible  and 
ultiaataiy  unvorkahle.  Congresa  becaae  concerned  that  aandatory 
Blnlauas  Interfered  with  the  ability  of  Judgea  to  malce 
individualised  sentencing  deciaions  and  "did  not  result  in  the 
expected  overall  reduction  in  drug  lav  violations."^  The  Bogga 
Act  sentences  were  repealed  in  1970.' 


^    Varcotlo  Control  Act  of  1956,  Pub.  L.  Vo.  84-728.  70 

Stat.  968  (1996),  ««*"'<<""  Pub.  L.  No.  82-25S,  65  Stat.  767  (1951), 
^mnamm^•ti  ^  CoBprshensive  Drug  Abuse  Prevention  and  Control  Act  of 
1370,  Pub.  L.  He.  91-513,  84  Stat.  1336  (1970). 

'     XA-  •«  f  103(a),  70  Stat,  at  568. 

'    2A>  •«  I  107,  70  Stat,  at  971. 

*    8.  Hap.  «e.  613,  91at  Cong.,  let  Saaa.  3  (1»6»). 
g^^  gjlgg^  not*  1. 


116 


Not  long  aftarvardt,  in  the  aarly  19708,  tha  idaa  that 
judgaa'  ■■ntar.cinqr  daciiiona  should  ba  govemad  by  a  body  of  lav, 
and  not  -juifattarad  dlacration,  waa  davalopad  by  than-Judge  Marvin 
Frankal  and  ethara .   Mora  than  a  dacada  larar,  ConTXaas  tnacted 
zha  Santanolng  :iafors  Act  of  1984,  which  aatablished  the 
Santanoing  Guidalinae  ragma  that  is  currantly  In  affact.   The 
Act  raflactad  Congraaa's  appropriata  oonoacn  that  tha  thar- 
current  aontancing  approach  vaatad  virtually  absoluta  diacration 
in  tha  hands  of  aantancing  judgaa  whoaa  deciaicna  vara  for  all 
intants  and  pvrposas  unravlavablw  by  appallata  courta.   Congraaa 
was  dlarraaaad  that  aimilar  offandera  who  angagad  in  ainilar 
crlaea  vara  in  many  caaaa  racaiving  vastly  different  aantancas, 
and  that  tha  paroia  ayscam  mada  it  uncertain  vhather  offandars 
vould  aarva  tha  tiaa  to  which  they  vara  aantancad.  However,  tha 
Guidalinaa'  fraoara  did  not  intend  to  replace  the  pra-Guidalinaa 
regime  with  rigid  mandatory  mininUDs  llXe  those  Congreaa  had 
rejected  over  a  decade  earlier.  Aa  ona  aanator  stated,  "[a]n 
inflexible  acheme  is  hardly  an  improva&ent  on  an  arbitrary 


on*.  ••* 


The  Guidelines  vers  designed  to  further  three  fundamental 


M.S.  Pranicel.  rT^^^^nl■^  santaneaa;   I^w  Without  Order 

(1973);  K.I.  rrankal,  Lawl «■■»**«  Hn  c^nt.nrlng.  41  u.  Cinn.  L. 
Rev.  1  (1973). 

^  Title  ZZ  of  the  Coaprehanaive  Crime  Control  Act  of  1984, 
eh. a,  Pub.  L.  Ko.  9a-473,  98  Stat.  1837  (1984)  (codified  at  18 
U.8.C.  SI  3551-69,  38S1-C<,  3871-74,  3581-86  and  38  U.S.C.  II  991- 
98}  [harainaftar  "Crime  Control  Act"]. 

*     131  Cong.  a«o.  837,584  (atataaen  of  Sen.  Tmmey)  . 


117 


policy  goals:  flrtt,  to  aakc  ■•ntances  nor*  pradictabl*  by 
•llBinating  parol*  and  otherwise  insurir.g  that  parsons  engaging 
in  illegal  conduct  always  receive  appropriate  punishments; 
aecond,  to  promote  •entencing  unifornity  by  isposing  aioilar 
sartancas  upon  siailar  offenders  comnitting  ainilar  crioes;  and, 
third,  to  promota  prcportlonal  sentencing  by  inposing  differing 
••ntencaa  dapandant  upon  the  aavarity  of  criminal  conduce.'  Tha 
Santanoing  Raform  kat   diraetad  tha  aatabliahaent  of  a  Santancing 
Conaiaaion  to  proaulgata  tha  Guidalinas,  monitor  thair 
implemantatlon  and  intaract  with  Cor.qraaa  aa  tha  Cuidalinaa  are 
updatad  through  amandaenta.    Tha  Aot  for  tha  first  tiaa 
provided  for  aaanlngful  appellate  reviaw  of  trial  oourt 
aantencing  decisions,  thus  requiring  district  judgee  to  maJca 
legai  determinations  and  factual  findings  for  ravlav  on 
appeal .  ^^ 

in  sentencing  a  convicted  defendant  under  the  auidalinss,  a 
]udga  detenoines  Che  appropriate  ssntsncing  range  on  a  sentencing 
grid.  Tha  range  is  deterained  by  two  factors:  first,  an  offense 
level  arrived  at  through  exaaination  of  the  defendant's  conduct 
in  relation  to  the  charged  offense,  including  aggravating  and 
Bitigating  factors,  and,  second,  a  criminal  history  category 


*    United  States  Sentencing  CoBB'n,  aenteneina  Manual . 
Ch.l.,  Pt.A,  p.B..  at  2  (1993)  [hereinafter  "U.S.S.G."]* 


"    -—  2B  U.S.C.  I  991. 


AM    18    U.S.C.     I    3742(a):    3.1.     Zippersteln,    fitrtAlll 

UT^nmirf »\nfLyt     Appall ata  Bavlay  fr^A  «-ha  fi*.w<-anelTia  Quidalinaa.    66  S. 
Cal.    L.    Pav.    621,    621-23    (1992). 


118 


dat«rBln«ci  ^nrougn  an  •xamination  or  tn«  darandanci  prior 
criminal  activitlas,  if  any." 

Tha  Sentencing  Conniaeion  promulgated  the  Guidelines  and 
•utnitted  them  to  Congreea  for  review,''  as  it  does  all 
Guidelines  amendsenta.'*  And,  in  developing  Guideline*,  the 
Commission  carefully  considered  and  implemented  Congrees'a  policy 
goals.  Thus,  the  guidelines'  criminal  history  approach  reflacti 
Congress's  intent  that  recidivists  generally  and  career  criminals 
specifically  receive  rhe  most  severe  sentences.^'  And  the 
oftTimm   Laval  calculations  reflect  Congress's  concern  that 
criminals  engaged  in  certain  conduct,  such  aa  drug  trafficking 
and  gun  crimes,  receive  enhanced  p'onlshments/'  The  Suidalinea 
are  alao  daaignad  to  iraure  that  sentanoaa  are  both  unifom  and 
proportional  to  the  nature  of  rha  oriBinal  and  hia  oenduot. 


fla*  U.8.S.O.,  aunra  note  9,  at  286  (sentencing  table). 
For  a  diacuseion  of  the  mechanics  of  sentencing  under  the 
Ouidelinee,  see  B.N.  Selya  k  M.R.  Kipp,  An  Bxamination  of  Enarqino 
Departure  Juriaprudenca  Undar  the  federal  aentancina  Quidalinaa.  67 
Notre  oasM  x..  xev.  i,  3  (I9»i) . 

^'  sea  crlaa  control  Act,  iubCA  '^ota  7,  sentencing  Refers 
Act  of  1984,  f  239(a) (1} (B)  (ii) ,  98  stst.  St  2031-32,  88  aoandad  Dy 
criminal  Lav  and  Procedure  Technical  Amandmants  Act  of  1986,  Pufi. 
L.  NO.  99-646,  i  35(2) (3),  100  Stat.  3392,  3999  (1986). 

^*         iMM   21  a. B.C.  I  994  (p). 

^'  Aft'  f.g..  a.s.s.c,  lUBU  note  9,  at  fi  4B1.1  (career 
offandar  guldalina) ,  4B1.3  (oriminal  livelihood  guideline)/  4B1.4 
(azaad  career  orlainal  guideline) . 

^*  All*  e.g..  id.  at  I  2D1. 1-3.5  (narcotics  guidelines) ;  i^. 
at  If  201.1(b)(1),  2D1. 11(b)(1)  (enhancing  narcotics  offense  levels 
for  vaapons  possession);  ua  Bilfi  id>  8t  I  5X2.6  (policy  statement 
conceming  departures  for  use  of  vaapons  and  dangerous 
instrumental it iea) . 


119 


8«nt«ncing  under  ttia  cuidalinas  cakas  into  account  auch  faetora 
aa  tha  dafandant'a  rola  in  tna  offanaa,'^  tAa  amount  of  druga 
invol76d  in  a  narcotica  crlma/'  and  vbatnar  an  oftandar  cauaad 
&  aarioua  injury/*  Tha  Guidelinaa  alao  conaidar  a  dafandant'a 
criainal  history, *"  aa  wall  aa  his  conduct  follcving  arraat, 
raquirina  anbancad  offonsa  lavals  for  tha  obstruction  of 
juatica,'^  and  lowarad  offanaa  lavels  for  those  offandera  who 
accapt  raaponaibility  for  thair  crimaa." 

Tha  Cuidalinas  ragima  was  upbald  by  tha  Supraoa  Court  in 
1989,   and  has  now  fasan  fully  iapleaantad.  Howavar,  at  tha 
•an*  tiB*  that  tha  Cuidalinas  wara  anactad  and  coming  into  thair 
own,  Congrasa  bagan  to  anaet  a  sariaa  cf  mandatory  ainiDua 
•antancing  provisions  that  oirrorad  tha  schaaa  that  Congrass  had 
pravleusly  disoordad  aa  unfair  and  unworkabla.^*  Today,  thare 


"    14.  at  Ch.3,  Pt.a. 

^'    li.    at  !l  aDl.l(c),  2D1. 11(d). 

^*  fist*  tjA>.r  ld>  at  I  2Dl.l(a)(2)  (whar*  dafandant  is 
cenvlctad  undsr  anuasratad  provisions,  considaring  whathar  daath  or 
sarious  bodily  injury  raaultad  from  usa  of  druga) ;  tfit  alao  a,  at 
I  5X2.2  (policy  stataaent  concaming  daparturas  for  significant 
physical  injurias) . 


20 


SM  id*  at  Ch.4. 
Id.  at  I  3C1.1. 
Id.  at  I  311.1. 

Miatratta  v.  Dnltad  Stafcas.  488  U.S.  361  (1989). 


Sil/  •'?•  -  Criaa  control  Act,  lUBU  nota  7,  Niscaiianaous 
Vlolant  criaa  Anandaanta,  ch.lO,  f  lOOS(a),  98  Stat  2028,  2138 
(codlfiad  at  18  U.8.C.  924(0) ;  aandatory  fiva  yaar  ainiaua  aantanca 
for  poaaassion  of  gun  in  connaotion  with  criaa  of  violanca  or  drug 
offanaa,  coaaacutlva  to  any  othar  aantanoa) t   XA^,    Araad  CAraar 


120 


ar«  over  60  mandatory  mlninua  s«nt«na«B  on  th«  books. ^'  Th«s« 
aandatory  mlnlBuas  verX  at  croas-purpoaaa  to  tha  Suidalinaa, 
undarmlning  tha  vary  goals  of  pradictability,  uniformity  and 
proportior.ality  in  aantanclng  that  Congreas  sought  to  achieve  by 
anaccing  the  Sentencing  Reform  Act. 

Pradtetaailtcv 

In  promulgating  the  Guidelines  regime,  Congress  sought  to 
prcnote  predictability  by  insuring  that  offenders  who  engage  In 
particular  offenses  always  receive  and  actually  serve  appropriate 
sentences.   Predictability  in  sentencing  increases  public 
confidence  in  tha  crininal  justice  systen  and  proBOtes 
deterrence.  Congrass  furthered  this  goal  by  ellainatlng 
parole.**  And  the  Sentencing  Conmisaion  created  a  regime 
designed  to  Insure  that  particular  offense  levels  are 
consistently  applied  to  particular  eriair^al  conduct. 

Zn  enacting  mandatory  Binimuns,  Congress  sought  to  narrow 
judicial  discretion  by  presorlbing  flat  miniBua  puniehnants  for 
oertain  oriaes,  like  drug  traffioking  and  violent  offenaes, 


Criainal  Aot  of  19B4,  oh.LS,  |  1801,  98  Stat,  at  2189  (codified  at 
IS  U.S.C.  I  934C)(l)t  aandatory  fifteen  year  ainiaua  sentence  for 
felon  with  three  prior  violent  felony  or  drug  convictions  convicted 
of  gun  poasaasion  in  violation  of  18  U.S.C.  I  922(g}). 

^  at!  Vnitod  States  sentencing  coaa'n,  speeiai  Report  to 
the  eonarwt  Mandatory  wtnlnum  Penaltlea  in  the  Federal  CrlBlnal 
Juatica  flvetaa  11  (Aug.  1991)  [hereinafter  "sentencing  coma'n 
Report" ] . 

**  D.J.  Tread,  yedaral  sancanclna  In  tha  walta  of  CT.a 
Ouidalinaai  nnaeeaptaUla  l.liilta  on  CBa  Dlacretion  of  SantancarS. 
101  Yale  L.J.  1681,  1689  (1992). 


121 


vithout  r«9ard  to  th«  eirouaatano**  laading  to  th«lr  eoaaiaaior. 
or  any  offandar  charactariatlca.   Congraaa  waa  trying  to  inaura 
that  tavorltian,  prlvllago  and  biaa  would  play  no  rola  in 
dataralnlng  wnac  aantance  a  particular  offandar  racaivad.   In 
aupporting  a  mandatory  minlaiun  for  tha  aala  of  druga  to  ainora, 
Sanator  Phil  Graaa  acacad  that  all  llXa  offandara  would  pay  rha 
Sana  prica  iox   their  cri^ias  no  "nattar  wno  your  daddy  la,  and  no 
nattar  how  sociaty  haa  done  you  wrong.'*'' 

However/  like  the  sandatory  nlniin<jiB  regime  of  the  19908  and 
1960s  before  it,  the  mandatory  minimum  regime  of  the  19S0B  and 
1990s  has  failed  to  function  as  Congress  envisioned  it.  Rather 
than  furthering  predictability  in  sentencing,  the  reverse  haa 
occurred. 

The  oandatory  minimum  scheme  vests  virtually  unfettered 
diacretion  in  tha  hands  of  individual  prosecutors.  Prom  among 
tha  offenders  who  qualify  for  mandatory  minimums,  prosecutors 
daoide  en  a  eaaa-by-oaee  baa is  who  will  actually  receive  them. 

First,  it  is  the  preaeoutor  who  daoidaa  whether  to  charge  a 
defendant  with  a  orlme  carrying  a  mandatory  mlnimuB.  k   1091 
sentencing  CoaBleeien  atudy  found  that,  in  aoae  48%  of 
appropriate  oaaea,  preaecutora  ohooaa  not  to  bring  ohargaa  for 
carrying  a  firearm  in  connection  with  a  violent  erlaa  or  drug 
offenee,*  a  crlae  carrying  a  five  year  ainlauB.^  Second,  in 


^        Cong.  see.  St,888  (dally  ed.  June  27,  1991)  (atateaent  of 


Sen.  Graaa. ) 

"        Senteticlng  con'n  Report,  lusxa  note  as,   at  97. 


122 


the««  €«•••  whar*  a  nandatery  miniaua  offanaa  ia  chargad  in  tha 
indlota«nt,  tha  proaaoutor  fraquantly  chooaaa  to  drop  tha  eharqa 
In  oonr.aotion  with  a  plaa  bargain."  Roughly  9S  zo   90%  of 
criainQl  caaaa  in  ^a  fadaral  oourta  ara  diapoaad  of  by  plaa 
bargain.'^   Finally,  only  tha  proaacutor  con  triggar  a  court's 
downward  departure  from  a  mandatory  miniaun  aantansa  in  return 
ror  a  dafandant'a  "aubatantial  aaaiatanca"  in  -^onnactlon  with  a 
crminal  invaatigatlon."  what  cor.stitutaa  "aubacantlal 
aaaiatanca"  la  oCtan  in  Che  eye  or  tr.e  aenoidar. 

Ur.llKe  judgea'  aancancing  daciaiona,  which  are  puJslic  and  on 
th«  Mcord,  repcrtod  to  the  Sentencing  Conniasion,  and  euijjecc  to 
appellate  review,  proaecutora'  deciaiona  are  a&de  in  private. 
And  the  Sentencing  Connlaaion  atudy  found  that,  aa  a  reault  of 
proaecutorial  deciaiona,  about  40%  of  eligible  federal  defendanri 
did  not  receive  the  applicable  mandatory  niniaum  aentencea. 

Sone  Bay  aay  that,  becauae  large  nunbera  of  defendanta  fail 
to  raceive  mandatory  mlnlBum  aentencea,  the  problem  ia  laaa 
aerioua  than  critlca  auggest.   But  uneven  application  of 
mandatory  ainlawaa  undercuta  Congraaa'a  goala.   The  current 


**  IS  U.8.C.  I  934<e)(l}. 

^        fiAft  flentenoing  Comm'n  Report,   iubsa  note  35,    at  33. 

'^  T.  Dunwerth  k  CO.  Halaaelbarg,  ft  Iff"'"  Caa^a  and  the 
^^m-^»\  em^^m:  Th«  fluld.lin.a  Pxaarianca.  66  8.  Cal.  L.  R*r.  «», 
109    (L99a). 

"  au  18  U.a.C.  i  3553  (a)  {  U.3.3.O.,  fUBSa  «<>*•  •'  ■*  * 
SXl.l. 

"        aoa  sentencing  Comm'n  Report,   aUBSA  "o**  2'*   '*  •*• 


123 


•oh«a«  turns  prosecutor*  into  da  facto  aantanclng  judg«0  —  fr«a 
to  ba  laniant  or  harsh  in  particular  casaa,  without  axplaining, 
lat  alona  dafonding,  thair  daciaions.  lkj\d   thia  grant  of  broad 
■•ntenomg  diacration  to  procaoutora  has  inevitably  eontributad 
to  a  haightanad  paroaption  tha's  influanca  and  povar,  "who  your 
dadd/  la"  —  avan  in  a  criainal  organization  —  atill  dataminas 
wnathsr  a  dafandant  will  rsceive  a  raducad  aantanca. 

uniformity 

Iha  Guidslinas  wars  also  a  responsa  to  tha  vida-apraad 
concsm  that  sisillariy  sltuatad  datandants  were  rscaivlng  vary 
diffsrsnt  ssntsncss  for  slallar  crimss  dspsndlng  on  ths  judgsa 
zhat  hsard  rhsir  cases  or  chs  parts  of  tha  country  in  which  thay 
vara  chargad.'*  Tha  Guldalinaa  vara  designed  to  achieve  uniform 
sentences  for  like  offenders  by  requiring  sentencing  judges, 
vhoever  they  aay  be  and  wherever  located,  to  follow  the  aane 
procedure  in  arriving  at  a  sentence."  In  sentencing 
defandanta,  judgee  now  uniforxly  taXe  into  account  the  nature  and 
severity  of  tha  crioa  of  conviction,  aa  veil  as  any  other 
relevant  criainal  conduct,  the  defendant's  rola  in  the  offenae 
Charged ,   and  the  dafaxtdant's  criainal  history. 


H.B.  rraakel,  flantanalna  fluid^ltnaat  X  Maad  for  Craativ 
Oallaboration.  103,  Yale  Z..J.  2043,  3044  {L9»a)  . 

' —  O.6.S.O.,  lUBU  nota  9,  at  Ch.X/  Pt.A(a) . 


2A*  *^  Ch.3,  Pt.B,  intro.  ooimant. 
^        Id.  at  I  IBl.l  (applieatiea  inatruotiena) 


124 


Mandatory  miniaua  previa ions  thwart  Congraaa's  goal  of 
aantancing  uniforaity  bacauaa  rhay  ara  not  uniforaly  appllad. 
Thoi*  who  hav*  studiad  their  application  ara  convinced  that 
santancing  disparities  have  increacad  along  with  tha 
prollfaratlon  of  mandatory  ainimun  proviaiona.    The  Sentencing 
Conaiaalon  atudy  found  aignificant  gandar  and  racial  dlaparitiaa 
in  tha  application  of  mandatory  ninlnua  proviaiona.   Of  thoaa 

aligibla  to  raoaiva  mandatory  minimum  aantanoaa,  man  ara  mora 

39 
likaly  to  raoaiva  than  than  women,   and  non-whitaa  ara  mora 

likely  to  receive  them  than  whitee.*' 

Even  if  mandatory  minimum  proviaiona  were  uniformly  applied 

to  criminal  dafendanta  proaacuted  in  federal  courts,  we  would  be 

far  from  achieving  the  goal  of  santancing  uniforaity.  The  vaat 

majority  of  drug  and  weapons  offanaea  falling  within  the  an^lt  of 

federal  mandatory  ainlnums  ara  proaecuted  in  state  courts, 

resulting  in  diffsrent,  and  often  far  leas  severe,  punishments. 

Tharafora,  those  offandara  who  are  sentanced  under  federal 

mandatory  minimuma  racelva  atrllcingly  different  sentancaa  from 

moat  others  convicted  for  identical  conduct. 

Proportionality 

Proportionality  la  a  third  congreaaional  aantancing  goal. 
The  Guidelines  oreated  a  nuanced  acheae  to  ensure  that  the 


*    BMM   Sentencing  Comm'n  Report,  MiOXM   note  2B,  at  li. 
"    &MM   id-  st  76-7B. 

40 


Sfe  i^.    at  74,    lO-tS. 


125 


■•verity  of  a  Mntanc*  !■  proportional  to  tha  aavarity  of  tha 
criaa."  For  axaspla,  tha  Guidelinaa  raquira  a  judga  to  adjuat 
an  offanaa  laval  upward  or  downward  baaad  upon  a  dafandant'a  rola 
In  tha  offanaa  of  conviction.^  Organizars  and  laadara  racaiva 
highar  aantancoa  than  ainor  playara.*   And  factors  such  aa  gun 

44 

uaa  and  injuriaa  to  victins  ara  alao  eonaidarad. 

Mandatory  miniBua  atatutaa  ara  much  bluntar  inatrxnsanta . 
Thay  fail  to  taka  into  account  tha  faotora  that  Congraaa 
conaidara  asaantial  to  fashioning  fair  and  unifom  aantancaai  and 
tha  raault  ia  ainilar  santencea  Cor  offandars  who  play  vary 
diCfarant  rolea  in  offenses,  and  have  differing  crifflinal 
hiatorlaa.   For  axanpla,  with  respect  to  drug  crises,  the 
principal  iwndatory  minimum  provisions  ara  triggered  only  by  the 
weight  of  the  drug  or  mixture.*'  And  tne  aane  penaltiae  apply 
whether  the  defendant  ia  a  iow-ieval  player  or  a  )cing-pin. 

Moreover,  the  provisions  can  have  a  bizarre  "cliff"  effect 
whereby  a  defendant  just  above  the  threshold  of  a  mandatory 
minimum  may  face  a  sharply  higher  aantence  than  the  fortunate 
defendant  who  falls  just  below  it.^  For  example,  a  defendant 
convicted  of  possession  of  5.0  grama  of  crack  cocaine  faces  a 


*^  fiM  U.S.8.G. ,  aunra  note  9,  at  2. 

**  AAA  4<i-  at  Ch.3,  Pt.B.  Intro.  eoBoent. 

**  AAA  ^«*-  at  •  3B1.1. 

**  SMM   Idj.  at  II  SX3.fi,  5K2.2. 

^  SMA,    •  ?    31  U.S.C.  I  841(b). 

**  §MM   Senteneibf  Ceam'n  Report,  luasft  "^te  38,  at  30. 


126 


maxinuffl  penalty  ot  on«  year  in  prison/  whil*  a  di«fendant 
convicted  Qt   poeaasslon  of  9.1  gram  faces  a  nandatory  Binimun  of 
five  yeare.*' 

Even  more  troubling  is  tna  fact  tbat,  where  nandatory 
Binintins  do  apply,  aore  culpable  participants  in  criainal 
■chaaes,  even  tbe  most  culpable,  often  receive  lower  sentences 
than  tneir  subordinates.  Exanplss  of  this  are  rife. 

One  case,  brought  to  ny  attention  last  week  by  the  troubled 
sentencing  judge,  is  eoblesatic  of  the  problen.   Nicole 
Richardson's  linited  participation  in  a  drug  ring  consisted  of 
giving  her  boyfriend's  phone  number  to  soae  of  his  drug  custooeri 
and  directions  during  a  car  chase.  The  organization's  ringleader 
and  his  lieutenants  each  received  a  substantial  assistance  motion 
from  the  prosecution  in  return  for  their  cooperation.  The 
longest  sentence  any  of  them  received  was  five  years,  half  as 
long  as  the  otherviaa  applicable  mandatory  minicuB.  Richardson, 
by  far  the  least  culpable  of  those  charged,  was  unabls  to  assist 
the  Sevcrnment.   She  was  the  only  defendant  to  receive  the 
statutorily  mandated  ten  year  sentenoe.  The  sentencing  judge 
called  Richardson's  mandatory  eentenoe  "a  aoat  glaring 
aiacorriage  of  justice.* 

The  Federal  Judges  Association  is  aaaeabling  further 


*'    21  a. B.C.  •  844(a). 


~  Letter  troa  Judge  Hovara,  cnier  u.s.D.ki..  s.u.  ma*.,  (.o 
Judge  Betty  B.  Fletcher,  o.S.c.j.,  9th  dr.,  dated  July  13,  i»93, 
re  I  PHiteea  gfeef  V.  ateain  g^^"**-^-""  included  in  the  apparlix 
to  this  tsstinony. 


127 


•xaaplat  of  cases  danonstrating  problaaa  arising  undar  tha 
nandatocy  ainlBua  proviaiona.  I  includa  aavaral  Isctara  froa 
district  judgaa  sattln?  forth  auch  axanplaa  as  an  appandlx  to 
thla  tastlmony,  and  raguaat  pamiasion  to  aubotit  furthar  axaaplaa 
to  ttia  corunitta*  In  the  futura. 

It  should  b«  noted  rhat  many  lov>laval  participanta  in  drug 
orgar.iiations  vho  off»load  or  transport  narcotica,  known  as 
■ulaa,  ar»  alians  who,  but  for  thair  mandatory  nlnimua  santancaa, 
could  ba  daportad  aftar  •arvin9  ahortar  santancaa,  making  room  In 
priaona  —  vhara  it  coats  (25, COO  a  yaar  or  mora  to  housa  aach 
priaonar  --  for  mora  danforous  and  culpabla  orininala. 

conelualon 

mose  WHO  aupport  nandacory  minimuai  santancaa  saak  assuranca 
that  ofCandara  who  commit  sarioua  criaaa  will  racaiva  santancaa 
that  fit  thair  crimsa.  Tha  ^udgas  oc  tha  Fadaral  Judgas 
Aaaociation  vholahaartadly  agraa  with  thla  goal.  Howavar, 
mandatory  oiniauss  do  not  furthar  it. 

In  tha  Santanclng  Guidalinaa,  Congraaa  anactad  a  ayatam  to 
allBlnata  unvarrantad  santanclng  dlaparlty  and  lanianca.  Tha 
Culdallnas  raflact  Congraaa 'a  viaw  of  tha  aarlouanass  of  drug  and 
gun  criaas,  aa  wall  aa  Congraaa 'a  goal  of  aiuiuring  that  caraar 
ariainala  racaiva  aubatantlal  jail  tlaa.  Aa  a  raault,  wholly 
apart  froa  mandatory  alniauaa,  the  daya  of  arbitrary  or  overly 
laniant  santanclng  are  over. 

Zn  tha  majority  of  casas,  mandatory  alniauB  atatutea  do  not 


128 


incr«as«  tif   ■•nt«nc«a  that  judg«s  would  oth«rvls«  iapos*  under 
th«  suld«XinM.  Yat,  in  a  ainorlty  oi  caa«i,  oandatory  aantancas 
siaply  do  not  match  offanders  or  thalr  crixaa,  and  can  lead  to 
injuatlcea.  And,  bacauaa  proaecutora  have  diacretlon  to  nullify 
■andatory  ninlnuma,  the  ooat  aerlous  offenders  often  do  not  feel 
their  Impact. 

Mandatory  niniBuaa  fruetrate  the  carefully  thought  out 
auldellnee  sentencing  reqiae  enacted  by  Conqreae  after  yeara  of 
effort.   Thue,  the  leeeen  Congreas  learned  in  the  1950a  and  19fi0e 
—  that  mandatory  ainiauaa  are  not  only  ineffective,  but  also 
counterproductive,  weapon*  in  the  ver  on  crice  —  ia  even  aore 
true  today. 


•MMt 


129 


APPENDIX 


UNITIO  STATU  DltTRiCT  COURT 

PORT  LAUOIMOAkl.  FWONIDA  f  ISgi 


Jul/  33.    If 9 3 


Tot  Hon.  John  K.  VftUur 
Sen.  I«tsy  rittehcr 

m  JOM  A.  aensalM,  Jr.^y^ 

R«i  N«nd«tory  Niniaua  8wkmqm 

Attaehad  !•  tA«  JudquMt  Zn  A  crialnai  c«a«  in  unLtafl  gtaf  of 
^■fiea  V.  arTJM  vianeia.  9X«t207-cii-aon«aiai.  ma  datandani, 
■randa  valanoia,  was  eonvlocad  ot  conaplraoy  to  poaaaaa  with  int«nt 
to  diatriiMt«,  posaaailon  t^itb  intaont  to  diatribaca^  and 
4liatrilM«ion  eC  a«  laaat  3  kilooraaa  e<  oooaina.  Purauan«  to  tha 
Pedaral  Santanolnf  (Mldallnao,  Hlaa  Valanoia  raoaivad  a  aantanaa  at 
lil  aantha  (13  yaarS|  aavan  aentha^ . 

Kiaa  Valanoia  had  juat  turnad  it  yaara  old  at  tha  tina  e£  tha  orina 
in  thia  oaaa«  dha  vaa  not  a  *hiq  tiaa*  drug  daalar.  Thava  waa  na 
avidanoa  that  aha  vat  part  or  a  larea  drug  oparation  or  that  aha 
had  baan  involvad  in  thia  fcypa  conduot  ba<ora.  Xt  would  aa  an 
avaracaiiaaant  to  oall  !var  a  ■*iiula,"  aa  aha  vaa  net  avan  a  ra«uiar 
oouriar  of  nareetioa.  Tha  aviddnea  at  trial  ahewad  ona  thing  and 
9na  thinv  only  •  dha  dreva  har  aunt  to  a  drug  daal.  ona  oan  ha  an 
aotiva  Mab«r  ot  t  eriaa  rina  hy  aiaply  balng  tha  drivar«  Kara, 
hovavar,  tha  rridanca  ahowad  that  Branda  Vaiancia't  aunt  aakad  har 
to  driva  baoauaa  aha  haraaK  did  not  driva  a  oar.  To  add  inault  to 
injury «  NIm  Valanoit's  fontanca  waa  alao  incroaaod  baoauaa  titl 
iUfiS  n»d  a  Mtpon. 

•randa  valaneia  vaa  duly  eonvlctad  by  a  13  adsbar  jury.  Guilt  or 
inneoanea  it  net  thd  isaua  hara.  Tha  faota  prevan  at  trial 
illuatratad  thdt  fhd  vtd  ••avara"  or  tha  iltuatlen  dh*  waa  m. 
Bcanda  drova  hdr  annt  tren  thalr  nona  m  Nltai  to  a  ouytr'ft  hona  in 
pais  •aaoft  county.  Tha  avidanoa  Indieatad  that  Xiat  valanoia  knaw 
that  a  drug  tranaactien  waa  to  oeow,  and  aha  willingly 
partiolpatad.  lut  that  la  all.  dbo  waa  a  alninal  participant  in 
thia  acMMi  at  bast,  and  har  racerd  vaa  otharwiaa  unblaaiahod. 

Tha  aandatocy  ainivai  in  thia  eaaa  ^^m  UO  nentha  (axoluding  tha 
gun  ehargo) .  Hm  oahan««Mnt  tox  tno  waapon  waa  alao  oandatory. 
undar  aha  old  ayataaii  I  would  likaiy  hava  givan  Mlaa  valanoia  th»oo 
yoaro,  and  than  pvahatiaa.  Hor  par%ialpa«ion  vaa  ainliaal.  and  aha 
had  no  prior  raoord.  Z  bollavad  than  and  x  boliava  now  that  tha 
aantanea  in  thia  oaaa  vaa  axtroaaly  harah.  Thia  xa  an  axaapla 
vhara  a  aandatery  ainiaua  gava  tha  aantaneing  judgo  no  loaway  u 


130 


faihlon  •  itntMioa  tifaleh  fit  tha  eviat.    fe  Mntanct  «  IB  vtar  old 
wi»  «uidBiLn«  nn99  U  im  outrt««  In  tni«  o.m™         "w-^na  of 


131 


^l«ti»^4-l^. 


-  Mixitzi  S^tatt^  JBtetrict  Court 

^oiiTHCKM  Distrtetor TLORJOA 


L'NrrSO  3TATe3  OP  AMBRtCA 
V. 

aRCNOA  v«l£sc:a  (02) 

«/k/4  Nartna   Conidts 
f3BIB9>004 


JUDGMENT  !N  A  CRIMINAL  CA&E 

(for  OflOTMi  Ou»w«i<UwJ  On  or  Altar  Nevombor  1,  IHT) 
CMtNiMOor:    91 -«1  07.Clt .SONZALC! 

Robert   OuDoff   -   '92S   artckell   A/e., 

fo-207  ■  num.  n    33i:9  


CDen  CoAtn, 


THE  OCFCNOANT; 

C  ple«d»fl6u«ltrtooouni(t) JUL 

X  wit  found  guily  oa  oount(s)  ^M£,    *"'    *■   "'»««   "^    ""^    <  «i<  4  >■«»«..  i 

pl««  e<  rot  guilty. 
AocoraingV.  'f*  ot<aodartt  4  adiudflod  guilty  of  lucA  oounl{i).  wnicn  :nvolv«  the  follcwtng  ononsoa: 


a<i»<  t 


Tii»  a  »*ai9ft 

21:«4« 


2i:a4;(*) 

18.! 


fteftji*  al  M«nM 


CuMiplpaejr  to  poiiati  wUh  intont  to         10/9/91 
4l9tr4touto  at  leait  $  knogrami  of  eocalna. 


Possession  with  Intent  to  distrlbuta  at 
least  S  kDograwi  of  eocilne. 


2l!84l-t4)(1]0tsvriautloa  of  It  1aist  (  kllogrttit  of      ) 
I0i2       coealno. 


10/8/91 
q^/Bi 


On* 
Two 
rhrot 


.3ttMS 


^-:- 


judginnt.  TJ^jfurrerea  t 


Tho  ooitnaant  ra  aomereao  as  provided  :n  oageo  2  truouen i 

impeied  pureuAnt  lo  the  Sentencing  Retorm  Act  ot  1M4.. 

Q  T>« oofondani haa ooon fojnd noi gulUy on eoum(i;  "'^ 

ana  la  dlaonarged  aa  to  such  oeuni(s;.  .  . .  ■ 

a  Coun((s)        H/^ ^_^_-___  (is)(«f*)  dtmlseed on  the  metioA  o(  the  jnHso'Stxias. 

li  II  la  ordered  that  tho  defendant  thaH  pay  a  special  iisaainwnt  of  $    ^^^  '^»  .      ,  for  cogni(s) 

1.    ?  Ji  3   af   thg   indletaant        ,tttM\  stiaA  be  cue  Q  invnedweiy    D  u  feVowa: 

(T  !9  PUrrnen  OROGREO  tnai  the  dola/^dent  shal  notify  tne  UrHsd  SUIM  ettomey  for  this  disttet  wflhin 
layi  of  any  cnange  of  name.  iMidanoe.  or  majfl 
ai«eis<nents  npeeed  by  Me  judomem  are  luky  pa 


30  dayi  of  any  cnange  of  name,  naidanoe.  or  maifing  address  unit  ell  tinea,  roetmitton.  ooils.  tnd  sceeiai 

paid 


Os<«iean(«  ae*.  See.  He..  JH^^iZJULLL 

OsMrteama  Datff  of  nth:  _1^IIZI1___ 


Aorll    10.   1992 


north  Osde  Oeteimaw  Cawter 
mam.   Ftortaa .  . 

OatandarKl  Ream  an  aa  Addreaa: 
5»a  west  iilh  Afe. 


onerattle  Jdie  A.  6enialet.  Jr. 


Heme  &  Tile  tf  JudUai  air«ar 


132 


W  m  I  Wo.  ^  9mt  t  ■  W»r— ««<»«t 


OotansAnt:    Inndi  Vltoncli 
CAMNumtMr      9l-t107«Ct*JAO 


Judomtm-Ctsi . 


IMPRiaONUENT 


Tha  dalorda^t  is  haraby  commtttad  lo  Ihc  cv.stody  of  tna  Unltad  Statea  Qi/«au  of  Priacna  to  ta  imnn»ono9  'Ci 
..,m.^      QUE   HUNOBEC   AMn  fIfTY  OWt    (Ymi    WQKlH^   «*  .tXuftltfi.  COuniJLJUl*,-UA . 
and   thrco   of    tha    tne'ctnant.      Tha   aarionce   1aeo»a4   as    to   eich   covnt    shell 
run   cone jrrent    anm   to    ih«  atnar   for   t   VOTAL    tarm  of   ccn'ineaant   cf   OKE 
rtUNC.R£3  AND   PIF'Y   ONE    (151)    MOUTHS. 


The  ^efanetot  shall 
to  thU  offtnsa. 


racalve   eradit   far  any  tin*  tpant   In  <adara1   cvittod/   it 


□  Tha  court  maksa  tho  loHowing  roaommtndtliortt  to  iha  Buraau  of  Pr*ton»; 


T>t«  oaianoa'V  H  mnaraid  to  i  w  ewnoey  04  iKa  tjniwd  Stataa  mar^w. 
"ito  oflwidim  viaii  lurranMt » ine  umtoa  Siawi  nwtf<a  nr  ith  aiKia. 


a«. 


aun. 


a  u  noiiea  by  aw  IMm  tiaiM  mantwi. 

Tha  oaionaaM  tnat'  nmanoaf  lor  lamua  M  lamanea  u  tfia  'naiMiafl  awanaiafl  by  ma  tJtau  oi  Praort. 
Mora  •  ojfit  ot^  ^i^i^i^^^^^»^^^— 
aa  reulae  by  ra  uwaa  siaiaa  maihai. 


r  WVI1 


Q  umiaeeyrapraMMnMia* 


niruRN 


I  hav«  auiaouttd  tha  judgntani  u  Wto^: 


Ooftndtnt daivafM Oft _ to. 


ft 


...w«haoart«aao«Pr««»'>'a)u«tp»«*^» 


msm 


U«MtrM*>th« 


133 


C*««Numt3«n  B1-I107-CR-JA0 

supsnviMO  niLiAse 

Uoon  reioMo  <fom  impftoonmtni,  ih»  dtfendant  sfwil  be  on  JupervisM  rKttsa  for  a  itm  o( 

*!VE  ?S)  YgARS  n  to  eac  .counts  anc.  two  (  tbr«o  of  tht  tnoiciKen. 
Thti  iinttnc*  iDtn  run  coneurronC,  otcti  count,  ont  <.o  tht  ethtr, 


Whlio  on  iuoof  via 90  rsieeio.  m»  3otot'd«m  shall  not  oomtrJl  tnotfitr  fodorai,  sUto.  or  'ocalcrlrre  arc)  shaii  nai 
i««fl«iV  r^aaeegs  a  cornroii«o  aueatanM.  Tha  flaJanOant  ihal  co/rply  wir  int  aunuard  condldonj  ihaj  ^ava  tOOi 
aoooito  oy  mia  coun  (set  lonn  ooiow).  if  uvs  judgmonl  hipoaaa  a  fostlt.ilon  obllgabon,  ii  gnail  bo  a  conati  on  o' 
iu:iar,!%aa  tsaue  irei  nt  oafandant  say  acy  aucn  raatllutlon  trial  tomaint  unpalo  at  tht  oommenccnoni  o'  the 
i«w  at  auBwtaad  nucast.  TTn  aofandim  shai  comply  with  ih«  loliowing  adduionai  contJiiicns: 

53  Th«  bofonaant  anaii  repcri  in  pof  jon  tc  iP.e  cfouaiion  oiJice  in  tr»  disvict  lo  whicfi  '.he  aefondam  is  rsieasco 
wiihm  72  hour?  of  reiMSC  irom  \m  cuatoey  of  (he  Bureau  ai  f*rimm. 

(fi  TPJ  oaioroant  ahaU  pay  any  finaa  t^8t  remain  unpaid  at  Iho  oommanoamam  o«  mo  icrni  of  tupan/taoo  roioatw 
Qg  Hia  deienflani  araii  not  poaaaaa  a  draarm  or  daal;uctlva  davioa. 


STANDARD  CONOmONS  or  SUPERVtttON 


1)  »M  ftMMMi  *««  *«  i««M  M  ^utfMi  MM  ■•««  uw  ywruMn  ot  mt  CMt « tnaami « 


II  M««<*<<MM  tMl  laMfl  are  tncHancaawii  cbMiwer  Mogungr  roMian  MBwara  ilal  iwuM  I  www  ana  cOTOMiMtr  rt^ 
MUMWVMMOraMniniMt! 

I)  irr  trimmi'iT'i--  -  -"^i  -^b  'Hi  ripiimn  una  i  uTiim  r  ■  iimi  iiii  nfmpmmmmi 

I)  ll*<iltrdti«lMliMhMiflMfMaHMHf*«nMik«ai«naiian>i««(f*irM'&****  ■■•taMA*  ««aMB«M, 

U  IM  »^tDn»tt  Mat  Ml •••»••  (Mh  a^ > »«»«  infilM  *<  >ll»i*  MMtr.  tn«  «■!  Ml  MMCMt  MM  i*f  pMM  IIHia»«  Ul  H$^<t  tA»M 

isaHrlHMnadBMwMeMbti — '^'- 


«  M*  •)•»  ay  M*  MOiili  iMw; 

w»t»<<i»iM*i«i— »—pitMowgi«w— a>  Miwo  Mi  nagrt  »>*<•*—«*»«—*'—'<' t  —  mi""     ««<*». 

la)  a«aMM<»«»iMMitw>wtM«i;»|tMm«m»«^MW>i«lai«*»'«t»M«ltawiaii»»«»*»'Mi»i«m«|tii»»ia»iiitwM''«*iiow«'w»MM.i. 
i«  ■«HWi<>»»»iiaaiii»*««aifcf'«««iMi^«i«i«ittM*»«ii*aiitl»ii>iMi»»M»MirMi«iwpii<>»»»ii<iii<>M»cwi' Ml iMiwy  »»■«»»» 
LtflaaM«(awaaKiwcwwna»MriQrwai«iuBincateil»iiwaitMi*iJit»a»liiiiiM»cetaM<B»iiiiiMii^aMBON» 


134 


KTATEMFMr  OF  REASONS 

OAfMuUnt  aMWDX  VALEWCIA  >  UOCkac  NO.    91.81Q7-gr-aQKIAH;Z 

_J,^^Th«  CQurc  adopts  th*  factual  flndlnga  aad  guidaHr.c: 
•ppiicatlen   In  Uhe  ptosoni.anoo  ioix>M.. 

0» 

_^_  7!io  sourc  kdoyCt  CAB  factual  Cindingi  4ind  guidoiinc 
4ppilf:«cion  in  tb*  pcoaantanctt  rtpoc;;  oxcepv  (toe  Atu«chnant, 
It  nacBHiary)! 


suidalloo  HAoqm  oafrnnart  by  U«  court: 

total  Off  ana*  Xi«v*li   Crlalnai  Ktaiozy  Cauigoryt   ,__ 

Xfepziaonnanv  nanaat  ^itha 

3upocv4aod  K«loaa«  n^n^i  to  .^^_^_  y«Ara 

Pins  Rangoi    ■  to  9       ,  ..,  ■ 

____^  rina  1«  walvod  or  la  bolow  ttio  fuioollno  cango#  booauaa  of  cMu 

dAfaitdant'a   Inability  to  pay. 
Raatltattoiii    a 
^__  Full  arostltn^^n  ia  not  ordoxad  foe  tho  following  z««aon(a)i 

■  .«  • 

__^  Tho  sontaneo  la  within  tho  yuidolLne  x*no«*  that  rango  deaa 
nou  ojteoAd  34  nonths,  and  tho  court  finds  no  roaaon  to  dapart 
froa  tha  aontonco  callad  for  by  appllejtion  of  tha  gfuidolinaa. 

OR 

t/^Tho  aantonca  Lm  wichia  tJva  guidailna  eaago,  that  raa«o  aj«aaolo 
24    Bontha,    and    tho    sontoitfo    la    lopoaod    far    tha    fellowi.ng 


40m 


OH 
fb*  toataao*  daputa  tram  tho  gvideline  xtAfOi 


,_„  upon-  aetlon   of    tho  govornnont,    aa   a   nault   of   dofandant's 

autoatomtlal  aaaiatanco. 
_.  Cor  tha  fellewlnf  rMteA(f)i 


135 


]briM  ^Wh  ^nWit  (tfot 


July   23,    »t9 

Esnsrabla  Mtty  ■.  riatcnar 
unitad  ita««a  Cirautt  juoq* 
XBSMLtts  past  Praaiaant 
radarai.  Judgaa  Aaaoeiatien 
UAicad  staeas  courtAousa 
aaareia,  wasaington  »aio4 

Sa:   Congraaalenal  Vaarinfa  oa  Matidacovy  Kl«\iauB  B«n«*neaa 

Oaar  Jud^a  Flacchari 

In  raaponaa  to  Ju4f«  Iretaui'a  la««a«  of  July  21,  lOftS,  ra  tha 
abova,  lA  stoa  IfBC  Sacalina  profraa  approatisataly  thx««  w««ka  aqo, 
ay  Maa  9*  t>»<g*M  ■*a«>.  v.  wiaal*  aiah»>d«flti  vma  faaturad  ■■  1 
priaa  aMaapla  af  ttoa  usjuacioa  aauaad  bv  niniaua,  aandatory 
•anaanoaa  In  our  fcdaral  ovurta.  KBC  adviaad  fehar  a^tar  earafully 
vaviawinq  aaaaa  fron  all  evar  tlia  eauntry,  thia  aaaa  vaa  tAa  baat 
aMaapLa  %bay  aould  find  af  auph  injuatioa. 

Vieaia  Riahardaen  vaa  tha  girlfriand  of  ena  of  tha  aaabara  of 
ui  LSD  Yin?  eD«rmeiA9  at  tha  'Jnivaraity  of  South  Alibaaa  hara  in 
xeblla.  fha  lengaat  aantanea  caoalvad  by  tha  rinvlaadax  and  hia 
liautanaata  ««aa  flva  yaara  baeausa  aaeh  of  thaa  plaad  guilty, 
eoeparatad  vith  tha  gevamaant  and  raeaivad  downward  daparturaa 
froa  tha  taa-yaar  slnlaua,  aaadatory  aaatanea  dua  to  thai; 
atibatantial  aaaiatanea.  Nleela  liehtrdton*  vhe  vaa  only 
paripttaraLIy  isnrslvad  and  ¥a«  by  far  tha  laaat  culpabla  of  all 
theaa  ehargad  in  thia  oroup.  vant  to  vial<  vaa  cenvictad  and  I  vaa 
ceapallad  to  aantaaea  bar  to  tha  alniavai  aandatory  aantanoa  e£  tan 
yaara.  At  har  aantancing.  X  aaid  that  thia  vaa  a  aoat  glaring 
aiaearriago  of  joatica  and  chia  atataaant  vaa  carriad  ovar 
natienvida  TV  by  NK. 

X  do  not  knov  viiathor  ay  daaa  if  tha  bast  (or  for  that  aatcar 
tha  vorax)  axaspla  of  bev  tna  ainiaua,  aandatory  santanoaa  oauta 
injuatioa.  but  XIC  fait  that  it  vaa. 

Z  as  vary  aueh  oppetad  to  ainiaua,  aandatory  proviaiona. 

Yours  vary  tnly 


ATHjr/ 

ci   Bonorabla  John  N.  valXar,  Jr.,  OtOJ 


//^  2 


136 


Memorandum 


Tk  Jadce  BettjT  B^  r.cccb€r 

Immedi&te  ftit  ftwdcnc 

Meni  JudfCi  Attodiudn 

CCl  Judft  John  M.  Vhlktt 

Judge  Sanlejr  Brouran 

frMi!  Edwin  L  Ncteon,  United  Scito  Dirzia  Judge 

Nordxtn  District  d  Aiibtma 

Dtt«t  July  22»  1993  •  itdd  pm 

Sllltdl  Gon^tvonil  Hoaringi 

Mindanry  Mlnimua  Sentences 


I  H(d£ome  *iie  oppommliy^  durxjigb  dit  UKJoiMQn,  to  ipvak  co  aocioone  in  ;hc 
ConfTMi  with  rqptrd  lo  mtnditory  mmlmum  sentences  tfid  the  injuitiee 
somMiBti  oiittd  bf  them. 

Tn  Apxil  d  this  year  I  vtu  corapeDed  to  sentenoc  t  young  coUegt  student  with 
no  piior  oriminai  vteofd  ce  tan  yian  in^iofimfnt  b«csiii«  at  tka  muunum 
lenunee  mandastd  by  i»«  The  defondant,  a  91  yw  old  black  male  app^rtd 
bcibrt  me  on  Apdl  20,  1993,  for  leniendnf   He  had  earlier  pied  guilty  to  an 
Attempt  to  FdMtt  witti  Intern  to  Distribute  Goeaina  Baaa  in  vfoUUon  of  21 
use  846,  Use  cf  a  Communicaiion  Fbcility  in  ComniuBon  of  a  Drug  Offense 
in  violation  of  21  U9C  84S(Ki  and  BsMSflloii  with  Intent  to  Distribute  Cocaine 
BaK  m  violadon  of  21  U8G  8il(iXl). 


Th«  ijifandim,  in  rttysn  fsr  pwniwd  payment  «i  DCKXOO,  sfftad  to  psraui 
another  iaf^ridMl  10  send  a  paehage  to  hu  apartOMAi  via  EaprNS  Mail  whieb 
the  deORdant  knew  would  contain  cocaine  He  %»as  to  have  reodwd  payment 
when  he  dcttwid  tha  package  to  another  person.  The  padoga  v«as 
inuroepifd  bf  poml  iaipacton  and  found  to  contain  appiviinaceiy  370  grams 
of  cocaine  bsM  The  pan!  inspecton  removed  all  but  4SJ  gnuai  of  crack 
mcaiiMi  and  the  packafe  was  than  dck%«nd  to  the  defendant'i  aodrasi  during  a 
twniwflad  dflUvar^  Aftsr  the  diAnd«m  taok  poeieiden  ct  the  package  a 

and  he  wa«  arreited. 


137 


Th£  defendim  uttmptfld  :o  tttiic  ioveitigitofi  ^  conaalnf  ^  pmoa  for 
whocn  ch«  ptcka^c  w&i  latadccL  but  He  Wii  unuecniful. 

The  lenwidng  gui^ino  yitidtd  %  rm^  of  IQS  ul  Ii9  moiahi  but,  bcouie  of 
chc  AppUc&ble  minduory  minimua  KntenM^  I  vt«  rvquired  to  unpoM  i 
lenitnce  oT  ten  yean  impmonmeni.  Ic  If  my  Una  convicnon  tK^t  t&c 
dcftoduic'i  involvtment  la  thii  crRTunai  oendua  vu  llznlted  to  the 
drcumatoncet  I  hiv«  deicribtd.  If  he  had  been  more  deeply  involved,  chif 
yeunf  mmn  eould  have  provided  lubiontial  aMuuoce  lo  the  fcvenuncnt  and, 
very  UUiy,  vi^Wd  h4vi»  beneficced  from  a  modon  for  &  downwerd  dftotmjre 
uodcr  OuideUm  5K1.1. 

Innead,  beciuie  hie  invotvonent  wm  timised,  he  wta  vmdbU  to  Kelp  Uw 
enforcement  effloen  or  binueif.  In  my  oplnlan,  the  lenicnoe  impoied  in  thit 
caie  WIS  lirnply  unconidonabie.  Tht  niuit  wiU  &keiy  bt  that  a  young  man 
H*K9,  given  a  reattnable  reipanae  to  hia  cffenie  by  the  criminal  juitiee  iynam» 
mifht  have  becona  e  pMcticeve  ard  niponiibU  dtlten  will  irntead  ipend  eight 
and  one-haJf  yean  in  priMci  Uamtng  how  to  be  a  chminal. 


I  wish  yoa  weO  in  thii  cndeivur  le  return  lome  iriMaure  of  reaaon  and 
diicretlan  to  ibt  criminal  Juidce  lynem  in  iu  xeeponie  go  problem*  related  to 
antrofled  labnancei . 


138 


QHZTD  aZAXIB  02ST»ZC7  COOKT 

NSSTSMl  OZSTILICT  Of  LOUZSZAKX 


OOnU  1 1   WlOi  MO  rmua  lattt.  taw  lUt 

July  21,1993 


PAX  THANIMITTAL        '"**"' 


Jud?«  John  ir«lk*c,   Jr. 


*•  "     ■  ■  ■         "  p.  UA{ 


0*4r  Jud9«t/ 


<W*UkiUlii«S "TBCir 


Pitts*  forgive  cht  fosa  of  tbit  coaauileation  tad  tht  Itek  of 
idc.tifietrion  of  t^t  defenduica  and  tile  cast  auabtr.  X  can  probtbly 
gtt  It  for  you  if  it  it  iacortint.  I  isulerscuid  t^t  tiat  »a   of  tht 
•tttsct<  to  htrt  90ttt 

Three  yeers  ago,  I  wai  titrlng  is  ^cos.  Western  Texas  wiiexe  I 
tried  two  younc  Mexicar.-Amtricaxxe  on  oociIjib  cbarget.  loUi  were 
coAvieted.  The  cate  ir.rolved  txintportation  of  arouad  ten  kxloa  of 
cocaine  of  poor  quality  (setai  that  it  wit  around  30%)  .  Thtra  wtrt 
tvo  9una  in  the  car.  The  first  defendant  had  hten  hired  to  trantpcrt 
the  cocaine  from  California  to  Texas.  He  sild  he  did  not  know  the 
name  of  the  man  who  hired  hia.  Re  was  co  tuxniah  his  own 
transportation  and  to  be  paid  around  93000. 

The  second  defendant  it  the  one  that  really  conetmt  lu.  n«  waa 
a  young  legal  alien  with  a  wire  and  two  cniiaren.  Hit  lacoae  w«t 
earr.ed  at  a  "shade- tree*  mechanic.  Be  wet  approached  by  hit  fsitad, 
defendant  *l,   wtio  told  hia  rhac  he  wet  concerscd  a^ut  whether  or  r.oe 
the  car  would  aaxe  ic  to  Texas.  'Would  che  mechanic  coac  tleng  to 
keep  tne  car  running?"  Z  think  be  wet  co  be  paid  91200,  a  taall 
fort-une  to  a  man  in  his  cireuastancee.  There  ia  no  doubt  that  he 
kaew  of  the  oocaine  and  the  guns  (in  faot  he  wm  driylag  when 
stopped.)  As  X  recall  it«  the  miniaua  term  was  117  aentht!  There 
was  so  one  tiut  he  could  squeal  on.  the  only  pezfRThe  knew  was 
convioceii  with  bla.  Oaanlt,  that  is  not  right. 

I  could  glTe  you  other  exaaples,  but  that  is  the  one  chat 
awakeni  ae  frca  tlaa  to  ciae.  The  fact  that  that  ms  che  laatt  that 
z  could  do  fumisnas  no  oosfort. 

QOOD  Luac! 


139 

Mr.  SCHUMER.  Mr.  Sonnett. 

STATEMENT  OF  NEAL  R.  SONNETT,  CHAIRPERSON,  AMERICAN 
BAR  ASSOCIATION  CRIMINAL  JUSTICE  SECTION,  MIAMI,  FL, 
ACCOMPANIED  BY  LYNN  S.  BRANHAM,  PROFESSOR  OF  LAW, 
THOMAS  M  COOLEY  LAW  SCHOOL,  LANSING,  MI 

Mr.  Sonnett.  Thank  you,  Mr.  Chairman. 

My  colleague,  Professor  Lynn  Branham,  and  I  are  happy  to  be 
here  on  behalf  of  the  American  Bar  Association,  and  we  commend 
the  subcommittee  for  dealing  with  this  critical  issue  which,  in  our 
view,  is  having  a  profoundly  adverse  effect  on  the  American  system 
of  criminal  justice. 

Professor  Branham  is  a  professor  of  law  at  the  Thomas  Cooley 
^aw  School  in  Lansing,  MI,  and  is  a  former  chairperson  of  the 
Criminal  Justice  Section  Sentencing  and  Corrections  Committee. 
She  is  the  author  of  one  of  the  most  authoritative  monographs  that 
the  American  Bar  Association  has  produced  in  recent  years,  enti- 
tled "The  Use  of  Incarceration  in  the  United  States."  We  will  be 
happy  to  make  copies  available  to  each  member  of  your  subcommit- 
tee. I  hope  you  will  give  her  the  opportunity  to  make  some  supple- 
mental remarks  and  to  answer  your  questions,  because  she  is  truly 
one  of  the  outstanding  experts  in  this  area. 

Mr.  ScHUMER.  What  we  would  like  to  do,  Mr.  Sonnett,  is  have 
her  here  available  for  questions. 

Mr.  Sonnett.  Thank  you,  Mr.  Chairman. 

Mr.  ScHUMER.  Thank  you. 

Mr.  Sonnett.  That  is  what  I  was  hoping. 

The  ABA  and  the  opposition  of  the  ABA  to  minimum  mandatory 
sentences  stems  back  to  1968.  It  was  reiterated  this  past  year 
when  the  house  of  delegates  of  the  American  Bar  Association 
passed  the  third  edition  of  the  sentencing  standards,  a  well-re- 
spected work  that  is  oft  quoted  in  cases  throughout  the  United 
States,  and  the  ABA  has  also  identified  the  repeal  of  mandatory 
minimum  sentences  as  one  of  its  top  legislative  priorities  for  this 
year. 

We  are  just  part  of  a  growing  national  chorus  of  organizations 
and  entities  and  experts  that  have  urged  the  repeal  of  minimum 
mandatory  sentencing  laws,  and  I  just  want  to  relate  to  you  a  coali- 
tion that  at  the  urge  of  the  American  Bar  Association  has  been 
working  for  several  months  to  consider  ways  in  which  the  criminal 
justice  system  mi^ht  be  improved.  That  coalition  consists  of  29  or- 
ganizations now,  mcluding  national  associations  of  police,  of  sher- 
iffs, of  mayors,  county  commissioners.  State  legislatures,  attorneys, 
judges — Judge  Broderick  sits  on  that  coalition — correctional  offi- 
cials, and  criminal  justice  professionals. 

On  July  26,  those  28  or  representatives  of  those  28  organizations 
met  with  Attorney  Greneral  Janet  Reno,  presented  her  with  a 
unanimously  endorsed  statement  of  principles,  among  which  was 
the  following  statement:  "Eliminate  the  growing  use  of  Federal 
mandatory  minimum  sentences  which  result  in  irrationality,  dis- 
parity, and  discrimination  in  the  enforcement  of  criminal  laws  and 
decrease  certainty  in  sentencing." 

Mr.  Chairman,  I  dare  say  that  there  has  never  been  a  group  of 
organizations   this   prestigious   and   this   diverse   representing   so 


140 


many  areas  of  the  criminal  justice  system  that  has  come  together 
on  consensus  on  this  and  other  issues,  and  I  would  like,  wath  your 
permission,  Mr.  Chairman,  to  submit  for  the  record  the  letter  to 
the  Attorney  General,  the  names  of  the  organizations,  and  the 
statement  of  principles. 

Mr.  SCHUMER.  Without  objection. 

[The  letter  and  documents  follow:] 


MICHAEL  McWIlUAMS 

Dli'C*  OT  ih»  Hffddeni 

\in»ri(.an  6jr  Cenicr 

50  NJO'in  :A^ii  .^hor•  Ofrv*» 

Chicago,  iilnnii  s;)6i  i 

-ekphuii*  :Ji:i9»8  SI09 

i-ji     iU)  988-ilCX) 


/^^ 


AMERICAN  BAR  ASSOCIATION 


July   6,    i9»3 


Pleate  Reply  to: 

Tvdmgt  t,  RtKen>>etx 
26lh  floor 
100  E«t  PmH  ?ueci 
Billimofc.  mO  21 202 
Telepnone:  410/752-97CM 
UK.  4li»/;52-5228 
A8A/r,el  IMCWILUAmSI 


Th«  Honor «bl.«  Janet  Rsno 

Attorney  Ganeral  of  the  united  States 

U.S.  Department  o<  Justice 

10th  St.  i  Conatitution  Ave.,  H.V. 

Neehir.gton.  9.c.   20&30 

Dear  Kadair.  Attorney  General  i 

Crime  and  criminal  justice  are  clearly  hiqh  on  tne  public's  agenda  of 
coneerrB.   Yt>c  whatever  one  •  viewe  about  the  epeci-fics  of  crime  policy 
over  tr.e  last  dacade,  few  vould  aaeert  that  it  ha«  been  auccessful  in 
BOlvln9  tKxa  serious  national  problem.   A  qroup  of  national  orqenizatlona 
hae  been  meeting  periodically  over  recent  months  to  address  how  we  might 
collectively  seek  to  enaure  that  national  erine  policy  is  set  In  a  more 
thoughtful,  non-rhetorical  faahion,  removing  these  decisiona,  to  the 
extant  poaaj-ble,  from  the  pressures  of  day-to-day  politics.   (As  a 
District  Attorney  in  our  group  aptly  stated  It,  "We  ehouldn't  be  aattinq 
crime  policy  based  on  what  happened  on  the  Sl«  O'clock  Newe  laet  night.") 

We  hope  that  the  policiee  oet  by  this  Adirii.xstratlon  In  the  criminal 
justice  erea  will  reflect  the  input  of  a  broad  range  of  organizations  for 
i*ho«  criminal  justice  is  a  high  priority,  and  reflect  a  careful 
eKsmi-nat ion  of  t.>ie  appropriate  federal  role,   we  would  like  to  work  in 
partnersnip  with  you  in  dddressing  the  very  tougn  lacues  before  ub. 

The  guiding  principles  we  envision  for  an  effective  approach  to  crime 
policy  at*   Jutli.aed  in  tne  attached.   We  recognite  chat  in  many  inecances 
tneee  statesients  reflect  views  you  have  already,  in  your  tenure  as 
Attorney  General,  andorseo.   In  those  araaa,  we  offer  our  aaaxetance  to 
/ou  m  helping  ensure  their  implementation;  in  other  areas,  ue  welcome  ths 
opportunity  to  engage  in  cpen  discussion  with  you  and  others  in  the 
Administration  to  share  the  perspective  of  cur  groups. 

Respectfully  yovirs. 


3.    Michael  McKilllams 

President 

B.  William  Ida  III 

President-Elect 

American  Bar  Association 

Ja«MS  A.    Conales,    Jr. 

Executive  Ciractcr 

Aaierican  Correctional  Aasooiation 


Marry  Cay  McMaCkin 

Praaidenc 

American  Jail  Aasociation 

Ed  Hendrizks 

President 

American  Judicature  Society 


141 


Marvay  M.  Ocldatain 
Prasidant. 

fcnarican  Probation  k    Paroia 
Aaaociation 

Richard  B.  Groakln 
Liaiaon  co  cha  Whita  Houaa 
Anarxcan  sociacy  for  Public 

AdimnlBCrarion  Sacti.cn  on 

Crroinal  JuatLC* 

jAfflea  E.    Coppla 
National  Dlrsctor 
Cenununity  Anti-Druq  CoalLfcloni 
Anarlca 


of 


Eric   Starling 

?rBai.dane. 

Crlninal  Juaclca  policy  Poundacion 

Harry  Shargel 
Chair 

Fadaral  Bar  Aaaociacion  Adminietratlen 
of  Juscioe  Saotien 

John  Traavlna 

Preaidanc 

Hispanic  BAT  Aaaocxati.on 

Jamaa  J.  Lawcance 

President 

Zntarnationdl  Aaaociation  of 

Raaidantlal  and  Community 

Alternativea 

Ellen  waber 

Co-Director  of  National  Policy 

Laqai  Action  canter 

Larry   E.    Naatca 

Executive  Director 

National  Aaaociation  of  i;:ountiet 

Nancy  Hollander 
Preaidant 

National  Aaaociation  of  Criminal 
Defense  t,awy«r8 

Mark  A.  CunniCf 
executive  Olracter 
National  Aseoaiation  of  Criminal 
Justice  Plannera 

Caorqa  F.    Moriarcy,  Jr. 
President 

National  Aasooatien  oi    Pcaerial 
Service  Agenciea 


Andrew  Mecca 
Praetdant 

National  Association  of  State  Alcohol 
Cr  Drug  Abuse  Oicectora 

Donald  E.  Sancarelli 
Chairman 

Naeional  Committee  on  Community 
Corraetions 

vieki  Milaa-LaOrange 

Chair,  State/Federal  Assembly  Law 

and  Justice  Comaxttee 
National  conference  of  Stat* 

Legislaturaa 

Matthew  Caseidy 
President 

National  consortium  of  TASC 
Programa 

Lonnie  A.  Powers 
President 

National  Legal  Aid  and  Defender 
Association 

Joseph  H.  Wright 
Executive  Director 
National  organisation  of  Black  Law 
Enforcement  Executives 

Marlene  A.  Young 
Executive  Director 
National  OrganLsation  for  Vietina 
Assistance 

Charles  B.  Meeks 

Executive  Director 

National  Sheriffs'  Association 

Chuck  Wexlar 

Executive  Director 

Police  Executive  Research  Foruia 

D.  Alan  Henry 

Executive  Director 

Pretrial  Services  Resource  Center 

David  C.  Thomaa 

Chairman,  Board  of  Directors 

Sentencing  Project 

Patrick  V.  Murphy 

Director,  Police  Policy  aoard 

U.S.  Conference  cf  Mayors 


142 


NATIONAL  ORGANIZATIONS 
SEEKING  CRIMINAL  JUSTICE  IMPROVEMENTS 

NEW  DIRgCT!QN<^  PDR  CRIMINAL  JUSTICE 

I.  NFW  DIRECTIONS  IN  CRIMINAL  JUSTICE  POLICIES: 

■  Recognize  that  the  Qriminal  iuatice  system  alone  cannot  solve 
the  problems  of  crime,  and  that  law  enforcement  plays  an 
important,  but  limited,  role  in  dealing  with  broad  societal 
problems  like  drug  use.  Public  officials  and  system  practitioners 
must  help  to  aducate  the  public  about  the  limitatlona  of  tha 
ft^^iinal  iusticB  system. 

■  Halt  the  arqwina  trend  tpvyprris  faderalization  of  state  crimes. 
Federal  cnminal  jurisdiction  should  not  be  expanded^  into  areas  of 
traditional  state  authority  unless  state,  local  and  federal  officials 
agree  that  there  is  a  clear  and  compelling  case  for  an  increased 
federal  presence. 

m  Work  In  partnership  with  state  ap<^  local  official^  in  shapinq 

criminal  justice  polices  and  priorities,  since  state  and  local 
governments  bear  the  predominant  burden  of  insuring  public 
safety. 

■  qf..tnrft  public  confidence  In  The  Justice  avstflm  by  aiving  the 
needs  or  crime  victims  greater  attention,  and  by  eFiminating 
racial  or  other  bias  •-  or  the  perception  of  bias.  Restoring 
confidence  in  the  system  on  the  part  of  minority  communities 
must  be  a  high  priority. 

II.  Mew  DIRECTIONS  IN  CRIMINAL  JUSTICE  PRIORITIES: 

■  Pocus  arepter  attention  on  the  problems  pf  vlQigpcB  'n  <?yr 
aocletv  '•  including  more  concerted  crime  prevention  efforts 
targeted  toward  domestic  violence,  child  abuse  and  the  unlawful 
use  of  guns.  Community-based  coalitions  should  play  a  key  role 
in  this  effort,  but  the  federal  government  should  help  as  well,  by 
assistinq  in  development,  evaluation  and  sharing  of  innovative 
approaches. 

■  lyiaka  the  iuvenile  iustjrp  system  a  priority.  Early  intervention 
strategies  are  needed  to  address  juvenile  crime.  The  Office  of 
Juvenile  Justice  &  Delinquency  Prevention  must  be  given  strong, 
professional  leadership  and  a  stable,  adequate  budget. 

■  Suppcrt  a  more  pff active  federal  rote  in  controlling  gun  vioiflngS 
in  recognition  of  the  importance  of  getting  guns  off  the  streets 
and  out  of  the  hands  of  teens,  drug  addicts,  and  drug  dealers. 


143 


III.  NFW  DIRECTIONS  IN  SENTgNClNG  AND  CORRECTIONS: 

■  Support  the  uie  of  comnr^unitv  correctiona  for  non-vift^f.nt 
offenders.  Implementation  of  more  innovative,  effective 
approaches  to  sanctioning  offenders  can  lead  to  better  use  of 
limited  public  funds  and  a  wiser  way  to  prepare  those  offenders 
for  return  to  society.  Encourage  examination  of  options  such  as 
Community  Corrections  Acts. 

■  ^^rtfuraas  the  use  of  creatlye  altamattypB  to  incarcaration  which 
can  divert  non«violent,  low -level  first  offenders  from  the  cnminal 
justice  system  into  programs  of  treatment,  rehabilitation  and 
education. 

■  gllminate  the  orowino  use  of  federal  mandatory  minimum 
jqontBf^ce^.  which  result  in  irrationality,  disparity,  and 
discnrnmation  in  the  enforcement  of  criminal  laws,  and  decrease 
certainly  and  deterrence  in  sentencing. 

IV.  MgW  DIRECTIONS  IN  PLAMWINQ  AMD  FUNDING: 

a  [nsure  adeouate  and  halanrad  funding  of  tha  justice  svsf  it^ 

includmg  support  for  leas  popular'  components  like  indiqent 
defense  services.  Expenditures  for  each  segment  of  the  system 
must  be  allocated  with  an  understanding  of  how  they  affect  the 
entire  system.  "Justice  Systa^  Imoac^  Statgrnants"  should 
accompany  any  legislation  affecting  the  criminal  justice  system. 

a  Snend  limited  criminal  justice  reaoureas  more  wiaeiv.    With  ail 

levels  of  government  facing  severe  budget  constraints,  better 
efforts  are  needed  to  ensure  scarce  prison  and  jail  space  is 
available  for  dangerous  offenders,  and  to  limit  the  system's 
responsibilities  for  minor  casea  and  cases  of  a  civil  natura  that 
tax  the  resources  of  law  enforcement,  the  courts,  and 
corrections  without  directly  affecting  public  safety. 

B  Pncouraoe  wiser  i^llocation  of  national  drug  pontroi  resources  xo 

focus  more  attention  on  drug  ^buse  educatign.  prevention  and 
tfpatment.  rather  than  continuing  to  place  pnmary  emphasis  on 
law  enforcment . 


144 

Mr.  SONNETT.  Let  me,  if  I  can,  just  briefly  summarize  the  major 
points  that  the  ABA  has  made  in  its  written  testimony  here  today. 

First,  we  believe  that  mandatory  minimums  produce  an  inflexi- 
biHty  and  a  rigidity  in  the  imposition  of  punishment  that  is  simply 
unfitting  to  a  system  that  touts  itself  as  a  justice  system. 

Second,  mandatory  minimum  sentences  have  proved  to  be  inef- 
fectual. They  simply  do  not  do  what  they  purport  to  do,  guarantee 
that  a  particular  penalty  will  be  imposed  for  a  particular  crime. 
Judge  Wilkins  did  not  mention  it,  but  the  U.S.  Sentencing  Commis- 
sion s  report  in  1991  stated  that  40  percent  of  the  Federal  defend- 
ants whose  criminal  conduct  should  have  triggered  a  minimum 
mandatory  sentencing  provision  escaped  the  effects  of  those  provi- 
sions. The  GAO  testimony,  which  has  been  presented  to  you  ear- 
lier, does  not  change  that  figure  markedly. 

I  was  struck  in  reading  this  about  the  results  on  the  uniformity 
that  I  thought  the  Congress  was  after  in  passing  both  mandatory 
minimum  sentences  and  the  system  of  sentencing  guidelines  that 
in  305  of  the  900  cases  reviewed  by  the  GAO  the  defendants  were 
not  convicted  of  charges  carrjdng  mandatory  minimums.  In  198  of 
those  305  cases,  the  charges  were  filed  but  dropped.  In  the  remain- 
ing 107  cases  no  mandatory  minimum  charge  was  ever  brought. 

I  am  astounded  by  those  figures,  frankly,  and  while  you  have 
asked  for  egregious  cases,  and  I  want  to  talk  about  that  whole  con- 
cept of  egregious  cases,  it  strikes  me  that  if  I  were  a  Member  of 
Congress  and  I  were  interested  in  uniformity  and  I  found  out  that 
a  full  third  of  the  cases  that  the  Congress  had  determined  merited 
a  minimum  mandatory  term  in  prison  were  not  being  charged  by 
prosecutors,  and  the  GAO  says  mostly  because  of  lack  of  resources, 
some  because  of  simply  charging  a  threshold  decision,  I  would  be 
concerned. 

I  echo  what  Judge  Walker  has  said.  What  has  happened  here 
under  the  system  of  mandatory  minimum  sentences  is  that  the  dis- 
cretion that  used  to  reside  in  Federal  judges,  the  discretion  that 
still  resides  in  Federal  judges  under  the  system  of  sentencing 
guidelines,  but  if  there  is  a  downward  or  upward  departure  must 
be  placed  on  the  record  and  is  subject  to  appellate  review,  has  now 
moved  into  the  back  rooms  of  the  U.S.  attorneys'  offices,  and, 
frankly — and  I  say  this  as  a  former  U.S.  assistant  attorney  and  as 
a  former  chief  of  the  criminal  division  supervising  other  assistant 
U.S.  attorneys  in  one  of  the  busiest  districts  in  the  country,  the 
Southern  District  of  Florida — if  I  had  my  choice  about  where  that 
discretion  should  reside,  it  is  clear  cut  for  me,  contrary  to  what  Mr. 
Barr  had  to  say,  that  the  discretion  ought  to  reside  with  the  Fed- 
eral judges  and  that  it  ought  to  be  done  on  the  record,  in  the  open, 
and  subject  to  appellate  review. 

Third,  Mr.  Chairman,  the  way  in  which  mandatory  minimums 
are  enforced  has  led  to  sentencing  disparity,  and  of  even  greater 
concern  to  the  ABA  is  that  that  sentencing  disparity  has  taKen  on 
racial  and  ethnic  overtones,  and  I  will  be  happy  to  answer  more 
questions  about  that  if  you  wish. 

Finally,  the  American  Bar  Association  is  concerned  about  the 
high  costs  of  unnecessary  incarceration.  We  urge  Congress  to  con- 
sider not  only  the  passage  of  no  further  mandatory  minimum  sen- 
tences but  tne  repeal  of  existing  mandatory  minimum  sentences 


145 

and  to  consider  the  adoption  of  a  Comprehensive  Community  Cor- 
rections Act  that  contains  the  basic  central  components  of  the  ABA- 
developed  model  Adult  Community  Corrections  Act  so  that  we  can 
have  a  system  of  sentencing  £md  corrections  in  this  country  that  is 
fair,  that  is  efficient,  and  that  takes  all  of  the  characteristics  that 
it  should  take  into  consideration. 

I  would  be  happy  to  answer  any  questions. 

[The  prepared  statement  of  Mr.  Sonnett  and  Ms.  Branham  fol- 
lows:] 

Prepared  Statement  of  Neal  R.  Sonnett,  Chairperson  of  the  American  Bar 
Association  Criminal  Justice  Section,  Miami,  FL,  and  Lynn  S.  Branham, 
Professor  of  Law,  Thomas  M.  Cooley  Law  School,  Lansing,  NO 

Mr.  Chairman  and  Members  of  the  Subconmiittee: 

We  are  pleased  to  appear  before  you  today  on  behalf  of  the  American  Bar  Associa- 
tion to  discuss  the  ABA's  views  abiout  mandatory  minimum  sentences.  My  name  is 
Neal  Sonnett.  I  am  a  defense  attorney  from  Miami,  Florida  and  chairperson  of  the 
American  Bar  Association  Criminal  Justice  Section.  With  me  today  is  Lynn  S. 
Branham,  a  professor  of  law  from  the  Thomas  M.  Cooley  Law  School  in  Lansing, 
Michigan  ana  former  chairperson  of  the  Criminal  Justice  Section's  Corrections  and 
Sentencing  Committee. 

We  would  like  to  begin  today  by  commending  the  subcommittee  for  its  prudent 
decision  to  take  a  fresh  look  at  the  subject  of  mandatory  minimum  sentences,  sen- 
tences which  are  having  such  a  profound,  and  in  our  opinion,  adverse  effect  on  the 
functioning  of  the  federal  criminal  justice  system.  We  are  hopeful  that  this  examina- 
tion of  mandatory  minimum  sentences  wUf  lead  Congress  to  take  one  of  the  critical 
steps  needed  to  make  the  federal  criminal  punishment  system  rational,  cost-effec- 
tive, and  truly  protective  of  the  public's  safety — the  repeal  of  mandatory  minimum 
sentences. 

The  opposition  of  the  American  Bar  Association  to  mandatory  minimum  sentences 
is  longstanding,  dating  back  to  1968.  This  firm  opposition  to  mandatory  minimums 
was  reiterated  in  February  of  this  year  when  the  ABA  House  of  Delegates  approved 
the  third  edition  of  the  ABA  Standards  for  Criminal  Justice  on  Sentencing  Alter- 
natives and  Procedures.  Standard  18-3.21(b)  of  those  standards  unequivocally  states 
that  "[a]  legislature  should  not  prescribe  a  minimum  term  of  confinement  for  any 
offense." 

The  American  Bar  Association  has,  however,  gone  beyond  simply  stating  on  the 
record  that  it  is  opposed  to  mandatory  minimum  sentences.  The  ABA  has  gone  fur- 
ther bv  identifying  the  repeal  of  mandatory  minimums  as  a  top  priority  of  the  Amer- 
ican Bar  Association.  This  decision  was  made  in  February  oi  tnis  year  by  the  ABA 
Board  of  Governors  after  extensive  polling  of  ABA  entities,  affiliated  organizations, 
and  state  and  local  bar  associations.  The  fact  that  the  ABA,  which  is  comprised  of 
over  367,000  members,  has  selected  as  one  of  its  top  priorities  effecting  the  repeal 
of  mandatory  minimums  out  of  the  hundreds  of  policy  positions  adopted  oy  the  ABA 
highlights  the  profound  concern  of  the  Association  about  the  effects  of  mandatory 
minimums. 

Just  what  are  those  concerns?  Why  is  it  not  just  important — ^but  imperative — that 
the  ill-advised  practice  of  adopting  mandatory  minimums  be  halted  and  that  the 
statutes  providing  for  mandatory  minimum  sentences  that  are  on  the  books  now  be 
repealed? 

First,  mandatory  minimums  produce  an  inflexibility  and  rigidity  in  the  imposition 
of  punishment  that  is  unfitting  to  a  system  that  touts  itself  as  a  justice  system. 
Those  of  us  who  work  in  the  trenches  of  the  criminal  justice  system — prosecutors, 
judges,  defense  attorneys,  correctional  officials,  and  others — know  only  too  well  that 
criminal  offenders  cannot  be  lumped  together  into  one  all-encompassing  category  for 
criminal  punishment  purposes.  While  rules  can,  and  in  the  opinion  of  the  ABA, 
should  be  established  that  will  generally  determine  the  severity  of  the  sanction  or 
sanctions  to  be  imposed  on  a  criminal  onender,  there  will  always  be  some  offenders 
who  simply  do  not  fit  these  general  rules.  To  insist  nonetheless  that  a  statutorily 
mandated  penalty  be  imposed  on  such  offenders,  regardless  of  the  circumstances 
and  regardless  of  the  consequences,  is  to  insist  that  the  unjustness  of  a  sentence 
in  particular  circumstances  be  ignored.  In  short,  a  "justice  system"  in  which  manda- 
tory minimums  play  a  central  role  simply  cannot  live  up  to  its  name. 

This  truism  brings  us  to  the  American  Bar  Association's  second  concern  about 
statutes  providing  Tor  mandatory  minimum  sentences.  They  are  ineffectual.  They 


146 

simply  do  not  accomplish  what  they  purport  to  accomplish,  and  they  actually  aggra- 
vate the  very  problem  of  disparity  in  sentencing  that  they  are  designed  to  alleviate. 

One  of  the  superficial  attractions  of  mandatory  minimums  is  that  they  will  sup- 
posedly create  certainty  in  the  punishment  of  certain  types  of  criminal  offenders.  In- 
aividuals  contemplating  the  commission  of  a  crime  wUf  know  in  advance  that  if  they 
commit  the  crime  and  are  convicted,  they  will  spend  a  statutorily  mandated  amount 
of  time  in  prison.  Such  certainty  in  the  penalty  to  be  imposed  for  criminal  conduct 
is  supposea  to  deter  the  conduct  from  ever  occurring  in  the  first  place. 

In  practice,  however,  statutes  providing  for  mandatory  minimum  sentences  are 
not  realizing  this  objective.  In  a  study  completed  in  1991,  the  United  States  Sen- 
tencing Commission  reported  that  40%  of  the  defendants  whose  criminal  conduct  fell 
within  the  proscriptions  of  mandatory-minimum  statutes  received  sentences  less 
than  the  statutorily  mandated  penalty.  The  findings  of  this  study  comport  with  the 
results  of  other  studies  of  mandatory  minimums  conducted  across  the  nation.  See 
Michael  H.  Tonry,  Sentencing  Reform  Impacts  25-35  (National  Institute  of  Justice 
1987). 

That  applicable  mandatory  minimums  are  not  imposed  on  such  a  hirfi  percentage 
of  defendants  is  not  surprising  when  we  remember  the  central  point  that  we  made 
earlier — that  the  inevitaole  result  of  mandatory  minimum  sentences  will  be  unjust 
sentences  in  many  cases.  Prosecutors,  judges,  and  others  who  woric  in  the  criminal 

i'ustice  system  who  are  unwilling  to  participate  in  the  imposition  of  unjust  sentences 
lave  therefore  taken  steps  to  skirt  tne  effects  of  mandatory  minimums.  Prosecutors 
have,  for  example,  charged  some  defendants  whose  criminal  conduct  is  encompassed 
by  a  mandatory-minimum  statute  with  an  offense  for  which  there  is  not  a  manda- 
tory penalty. 

Not  only  are  the  federal  statutes  providing  for  mandatory  minimum  sentences  in- 
effective in  realizing  their  objective  of  ensuring  that  certain  criminal  conduct  will 
always  lead  to  prescribed  punishment,  but,  as  mentioned  earlier,  they  are  also  exac- 
erbating the  very  problem  of  sentencing  disparity  that  they  were  designed  to  avert. 
To  understand  why  this  is  so,  it  is  helpful  to  contrast  mandatory  minimum  sen- 
tences with  the  sentences  authorized  and  imposed  under  the  federal  sentencing 
guidelines. 

In  the  federal  guidelines  system,  judges  who  wish  to  impose  a  sentence  other  than 
the  presumptive  sentence  under  the  guidelines  must  explain  their  reasons  for  de- 
partmg  from  the  guidelines.  The  exercise  of  their  discretion  occurs  out  in  the  open 
and  is  subject  to  appellate  review.  Appellate  courts  can  ensure  that  sentencing 
judges  have  not  abused  their  sentencing  discretion  and  that  they  are  indeed  treating 
similar  offenders  similarly.  By  contrast,  decisions  designed  to  avoid  the  effects  oT 
mandatory-minimum  sentencing  provisions  are  made  behind-the-scenes  and  are 
generally  not  subject  to  appellate  review.  Statutes  requiring  the  imposition  of  man- 
datory minimum  sentences  encourage,  and  some  might  argue,  necessitate  the  mak- 
ing of  such  decisions.  But  these  ad  hoc,  seat-of-the-pants  judgments  that  are  insu- 
lated from  public  view  in  turn  lead  to  the  dissimilar  punishment  of  similar  offend- 
ers, directly  contrary  to  the  intent  of  mandatory-minimum  statutes  and  the  federal 
sentencing  guidelines — and  the  tenets  of  any  sound,  equitable,  and  rational  sentenc- 
ing system. 

This  sentencing  disparity  is  by  itself  a  concern  to  the  American  Bar  Association. 
But  it  is  of  even  greater  concern  to  the  ABA  because  of  the  considerable  evidence 
that  mandatory  minimum  sentences  are  being  enforced  in  a  racially  and  ethnically 
disparate  fashion.  Studies  by  both  the  United  States  Sentencing  Commission  and 
the  Federal  Judicial  Center  have  revealed  that  white  defendants  whose  criminal 
conduct  falls  within  the  scope  of  mandatory  minimum  statutes  are  much  more  likely 
than  African-American  defendants  and  Hispanic  defendants  to  avoid  application  of 
mandatory  minimum  penalties.  In  a  nation  in  which  the  achievement  oi  racial  jus- 
tice is  not  only  a  goal  out  a  necessity,  these  statistics  about  the  effects  of  mandatory 
minimums  are  not  only  disconcerting  but  alarming. 

A  final  concern  of  the  American  Bar  Association's  about  mandatory  minimums 
that  we  wish  to  highlight  today  is  their  costs.  We  have  already  alluded  to  some  of 
these  costs.  Whenever  an  unjust  sentence  is  imposed  in  a  case,  there  is  a  cost — not 
only  a  cost  to  the  individual  who  will  serve  the  sentence  but  to  the  society  that  con- 
dones a  wrongful  sentence.  There  is  also  a  cost  whenever  the  severity  of  a  sentence 
is  due  to  the  color  of  a  man's  skin  and  not  the  culpability  of  his  conduct.  But  beyond 
these  costs,  there  are  other  costs  for  which,  if  mandatory  minimums  are  to  remain 
in  effect,  we  must  be  held  accountable. 

First,  and  most  obviously,  there  are  the  financial  costs  of  mandatory  minimums, 
costs  which  have  proven  to  be  enormous  for  federal  taxpayers.  Because  of  manda- 
tory minimum  sentencing  provisions,  many  offenders,  particularly  drug  offenders, 
who  would  previously  have  been  punished  in  the  community  for  their  criminal  con- 


147 

duct  are  now  bein^  incarcerated  in  federal  prisons.  The  average  cost  in  1991  of 
keeping  just  one  oi  these  individuals  in  prison  was  at  least  $20,072  a  year.  Put  in 
other  terms,  since  the  average  American  taxpayer  pays  $3,691  a  year  in  federal  in- 
come taxes  according  to  1991  figures,  paying  the  bill  to  keep  one  of  these  individuals 
serving  a  mandatory  minimum  sentence  in  prison  for  one  year  consumes  every 
penny  of  the  taxes  paid  by  over  five  taxpayers.  What  this  means,  of  course,  is  that 
none  of  the  money  paid  by  these  taxpayers  to  the  federal  government  can  be  used 
for  health  care,  education,  environmental  protection,  or  any  of  the  other  programs 
and  services  provided  by  the  federal  government;  nor  can  the  money  be  used  to  re- 
duce the  federal  deficit.  And  these  figures  on  the  money  being  siphoned  off  to  pay 
for  incarceration  do  not  include  the  billions  of  additional  taxpayer  dollars  that  the 
federal  government  has  expended  and,  in  the  absence  of  sentencing  reform,  will  ex- 
pend in  the  future  to  build  prisons  to  house  the  ever-increasing  number  of  federal 
prisoners,  many  of  whom  are  serving  mandatory  minimum  sentences. 

The  financial  blow  to  American  taxpayers  caused  by  mandatory  minimums  mi^t 
be  shrugged  off  as  the  unavoidable  cost  of  having  a  criminal  punishment  system 
were  it  not  for  the  fact  that  effective  punishments  that  are  cheaper  than  incarcer- 
ation can,  with  proper  authorization  and  support  from  Congress,  oe  constructed  for 
many  of  the  ofKenders  subject  now  to  mandatory  minimum  sentencing  provisions. 
One  of  the  central  components  of  the  new  sentencing  standards  adopted  by  the  ABA 
is  the  recommendation  that  each  legislature,  whether  at  the  state  or  federal  level, 
enact  a  comprehensive  community  corrections  act.  Standard  18-2.2(c)  of  the  sen- 
tencing standards  specifically  cites  the  ABA-developed  Model  Adult  Conomunity  Cor- 
rections Act  as  an  example  of  the  type  of  comprehensive  community  corrections  act 
that  should  be  in  effect  in  each  iurisdiction. 

We  should  note  that  the  Model  Act  sets  forth  a  state/local  conmiunity  corrections 
model  and  would  have  to  be  contoured  somewhat  to  fit  the  structure  and  operations 
of  the  federal  government.  Most  of  the  essential  features  of  Uie  Model  Act,  however, 
are  applicable  to  a  federal  as  well  as  a  state  criminal  punishment  system.  One  of 
those  features  provides  for  the  establishment  of  a  wide  variety  of  community-based 
sanctions  to  match  the  wide  variety  of  criminal  behavior.  The  Act  also  sets  forth 
critical  requirements  that  must  be  met  for  community  corrections  acts  and  the  pro- 
grams established  under  them  to  be  effectual.  Most  significantly,  however,  wnen 
considering  the  subject  that  is  before  this  subcommittee  today,  the  Act  establishes 
the  presumption  that  a  community-based  sanction  is  the  appropriate  penalty  for 
nonviolent  felons.  This  presumption  is,  appropriately,  a  rebuttable  one.  But  a 
central  message  of  the  Model  Act  remains:  many  of  the  offenders  on  whom  manda- 
tory minimuni  sentences  must  now  be  imposed  can  be  effectively,  and  if  need  be, 
forcefully  punished  in  the  community  at  less  cost  to  American  taxpayers. 

It  is  important  to  underscore  here  that  the  American  Bar  Association  shares  the 
concern  of  the  public  and  Members  of  Congress  that  violent  and  dangerous  offenders 
are  kept  off  the  streets  and  imprisoned,  sometimes  for  long  periods  of  time.  Protect- 
ing the  public's  safety  obviously  is  and  must  continue  to  be  a  central  goal  of  the 
criminal  justice  system.  But  the  goal  of  protecting  the  public  through  incarceration 
from  violent,  predatory  offenders  can  and  is  being  met  through  the  federal  guide- 
lines themselves.  The  United  States  Sentencing  Commission  has  carefully  reviewed 
individual  offenses  and  pegged  offense  levels  to  ensure  that  violent  criminals  are 
given  serious  time  behind  bars.  A  general  repeal  of  statutes  providing  for  manda- 
tory-minimum sentences  will  not,  therefore,  in  any  way  compromise  the  public's 
safety  and  may,  in  fact,  as  we  discuss  subsequently,  reduce  risks  to  the  public  safety 
posed  by  the  application  of  mandatory  minimum  sentences  to  nonviolent  offenders. 

There  are  otner  costs  of  mandatory  minimum  sentences  that  should  not  be  ig- 
nored. There  is  the  human  toll  that  attends  unnecessary  incarceration  or  incarcer- 
ation for  an  unnecessarily  lengthy  period  of  time.  While  convicted  criminals  do  not 
engender  a  great  deal  of^  sympathy  from  others,  particularly  from  those  of  us  who 
have  been  victimized  by  crime,  the  debilitating  effects  on  offenders  of  what  we  are 
talking  about  here — unnecessary  incarceration  or  length  of  incarceration — and  the 
emotional  suffering  of  their  families  from  whom  they  will  be  separated  for  years 
cannot  and  should  not  be  cavalierly  dismissed. 

Also  to  be  taken  into  account  is  the  severe  crowding  in  the  federal  prisons  caused 
in  part  by  mandatory  minimums.  The  size  of  the  federal  prison  population  has,  as 
you  know,  exploded  in  recent  years.  The  Federal  Bureau  of  Prisons  today  houses 
over  86,0()0  people,  almost  three  times  as  many  as  it  did  ten  years  ago.  As  a  result, 
federal  prisons  are,  despite  a  massive  construction  program,  bursting  at  the  seams, 
and  there  is  no  end  in  sight  to  the  problem  of  finaing  room  for  these  prisoners.  If 
there  are  no  changes  in  current  laws  and  policy,  the  size  of  the  federal  prison  popu- 
lation is  projected  to  escalate  to  106,000  by  1997  and  to  over  130,000  by  the  year 
2000.  Because  of  the  crowding  caused  by  this  enormous  growth  in  the  federal  prison 


148 

population,  federal  prisons  are  becoming  more  diflicult  to  mana^.  In  addition,  the 
programs  that  might  facilitate  the  successful  reintegration  of  at  least  some  inmates 
into  the  community,  such  as  substance-abuse  treatment  programs,  are  increasingly 
unavailable  for  the  burgeoning  number  of  inmates  with  these  program  needs. 

Finally,  we  must  be  mindful  of  the  risk  that  one  cost  of  mandatory  minimum  sen- 
tencing provisions,  particularly  when  applied  to  nonviolent  offenders,  may  be 
endangerment  of  the  public.  Studies  have  shown  that  the  recidivism  rates  of  pris- 
oners after  their  release  from  prison  are  higher  than  the  recidivism  rates  of  offend- 
ers with  matching  crimes  ana  backgrounds  who  are  punished  in  the  community. 
See,  e.g.,  Joan  Petersilia,  Susan  Turner,  &  Joyce  Peterson,  Prison  v.  Probation  in 
California:  Implications  for  Crime  and  Offender  Recidivism  (The  RAND  Corporation 
1986).  The  reason  for  the  higher  recidivism  rates  of  released  prisoners  is  not  yet 
clear.  The  higher  recidivism  rates  may  be  due  to  the  fact  that  inmates'  experiences 
while  in  prison  inculcate  or  solidify  antisocial  attitudes.  Or  they  may  be  due  to  the 
fact  that  ex-prisoners  are  rejected  by  society  upon  their  release  from  prison  and  turn 
to  a  life  of  crime  to  meet  their  needs.  Whatever  the  reason  for  the  hi^er  recidivism 
rates  of  released  prisoners  uncovered  in  these  studies,  they  counsel  us  to  examine 
critically  claims  that  mandatory  minimums  somehow  enhance  public  safety  and  to 
take  great  care  to  ensure  that  the  criminal  justice  policies  we  adopt  do  not  exacer- 
bate the  very  problems  they  are  designed  to  redress. 

Let  us  then  capsulize  for  you  the  views  of  the  American  Bar  Association  about 
mandatory  minimum  sentences.  Statutes  providing  for  mandatory  minimum  sen- 
tences often  produce  sentences  that  are  unjust.  Mandatory  minimum  sentences  are 
ineffectual,  failing  to  provide  the  certainty  in  punishment  that  they  purport  to  pro- 
vide. Mandatory  minimum  sentences  cause  disparity  in  sentencing,  and  African- 
Amencans  and  Hispanics  disproportionately  feel  the  impact  of  this  disparity.  Man- 
datory minimum  sentences  are  extremely  costly,  and  their  imposition  may  in  some 
instances  actually  endanger  the  public.  With  mandatoiy  minimum  sentences  being 
unjust,  ineffective,  and  enormously  costly,  we  can  no  longer  as  a  nation  afford  to 
stay  the  misdirected  course  of  including  them  in  our  criminal  punishment  systems. 
On  behalf  of  the  American  Bar  Association,  we  therefore  strongly  urge  the  members 
of  this  subcommittee  and  other  members  of  Congress  to  take  the  steps  needed  to 
halt  the  adoption  of  additional  mandatory  minimum  sentencing  provisions  in  the  fu- 
ture and  to  repeal  those  presently  in  effect.  It  would  be  the  privilege  and  pleasure 
of  the  American  Bar  Association  to  assist  Congress  in  any  way  that  it  can  in  these 
endeavors. 

We  would  now  be  happy  to  answer  any  questions  you  might  have. 

Mr.  SCHUMER.  Thank  you,  Mr.  Sonnett.  I  want  to  thank  all  three 
of  you  for  your  testimony. 

I  would  just  make  one  point.  With  all  due  respect,  Mr.  Sonnett, 
what  I  am  looking  for — and  I  can't  speak  for  anyone  else — are  the 
facts  here,  not  the  broad  list  of  organizations,  that  are  erudite  and 
respected  and  I  respect  them,  who  are  for  change.  We  want  to  get 
away  from  the  view  that  this  is  a  turf  war.  We  are  trying  to  do 
what  is  best  for  the  whole  system,  and  we  have  to  look  at  the  facts, 
not  at  who  is  for  what. 

So  let  me  try  to  ask  all  three  of  you  to  focus  in  on  those  facts, 
if  we  could. 

Judge  Broderick.  Mr.  Chairman,  would  you  define  what  you 
mean  by  "facts"?  Every  one  of  us  every  time 

Mr.  ScHUMER.  Judge,  if  I  might,  I  have  tried  to  do  that  all  morn- 
ing. For  instance — I'll  give  you  an  example — Mr.  Sonnett  talked 
about  racial  and  ethnic  discrimination.  I  have  heard  that  charge 
bandied  about.  So  we  looked  at  the  facts,  who  was  actually  subject 
to  these  and  in  what  way,  and  the  facts  don't  bear  out  that  there 
is  racial  or  ethnic  discrimination. 

We  heard  that  it  is  all  crack  and  crack  gets  a  disproportionate 
amount.  I  looked  at  the  facts,  and  the  facts  don't  determine  that. 

We  heard  that  there  were  so  many  egregious  cases.  I  asked  and 
searched  near  and  wide.  I  didn't  find  those  cases  and  so 

Judge  Broderick.  Mr.  Chairman 


149 

Mr.  SCHUMER.  If  I  might,  Judge — and  I  will  give  you  a  fair 
chance  to  answer — what  I  am  trying  to  get  at  here  is,  I  see  that 
there  were  four  possible  reasons  to  change,  to  eliminate,  or  get  rid 
of  mandatory  minimums,  OK?  And  let  me  go  over  them,  and  then 
you  try  to  rebut  those  so  you  can  help  me  come  to  your  point  of 
view,  if  you  can. 

One,  that  there  are  many,  many  cases  where  people  got  what  I 
call  egregious  sentences,  ones  that  cry  out  for  justice,  not  that  a 
mule — ^you  know,  someone  carrying  a  lot  of  crack — got  2  years  or 
3  years — got  5  years  instead  of  2  or  3,  but  the  things  we  have 
heard  about  under  the  Rockefeller  drug  laws,  that  someone  who 
had  a  marijuana  cigarette  in  their  pocket  got  5  or  10  years.  To  me, 
that  would  move  me,  and  that  is  why  we  brought  those  two  cases, 
one  of  which  Judge  Walker  mentioned. 

I  haven't  heard  very  many  of  those,  although  I  look  forward  to 
Judge  Walker  sending  in  other  ones  that  are  like  that. 

Judge  Walker.  I  can  give  you  two  more  right  now. 

Mr.  ScHUMER.  OK,  I'll  hear  that. 

The  second  point  was,  many  have  said,  although  I  haven't  heard 
it  here  said,  that  it  creates  problems,  basically  of  resources,  in  the 
Federal  criminal  justice  prison  system,  that  we  are  letting  out — the 
thing  the  gentleman  from  Kentucky  talked  about — that  we  are  let- 
ting out  violent  criminals  and,  in  place,  we  are  putting  nonviolent 
drug  offenders  in. 

The  evidence  seems  clear  to  me.  On  that  one,  I  am  pretty  con- 
vinced that  that  is  not  happening  in  the  Federal  system.  As  I  said, 
I  can't  speak  for  the  State  systems. 

The  third  is  a  lack  of  flexibility,  and  here  we  are  getting  a  little 
closer.  But,  to  me,  the  lack  of  flexibility  is  measured  not  by  how 
long  the  sentence  is  but  how  broad  the  range  is,  and  a  minimum 
mandatory,  as  Judge  Wilkins  himself  said,  doesn't  interfere  with 
that  flexibility,  it  simply  bumps  it  up.  So  if  the  minimum  manda- 
tory— if  originally  the  guidelines  called  for  an  average  case  having 
36  months  and  an  egregious  case  having,  let's  say,  5  years,  and  an 
ameliorating  case,  a  mitigating  case,  to  have  18  months,  if  Con- 
gress says  they  think  the  minimum  mandatory  ought  to  be  5  years, 
you  can  still  have  the  same  range  of  flexibility  although  longer  pe- 
riods of  incarceration  in  prison. 

So  that  is  another  argument,  but  it  just  intellectually  doesn't 
wash  with  me.  Then  we  are  arguing  about  length  of  sentence  as 
opposed  to  flexibility  of  sentence  because  the  minimum  mandatory 
isn't  a  mandatory,  it  is  a  minimum  mandatory,  which  is  different 
in  terms  of  flexibility. 

Finally,  Mr.  Sonnett  made  this  argument — and,  really,  he  is  the 
first  to  make  it,  although  I  think  either  both  of  you  or  one  of  you 
touched  on  it — that  if  there  is  going  to  be  discretion — oh,  another 
one  was  that  the  prosecutor  has  enormous  discretion.  It  seems  to 
me  the  prosecutor  has  had  that  discretion  from  the  year  one; 
preindictment  flexibility,  whether  there  are  minimum  mandatories 
or  not,  is  in  the  prosecutor's  pocket.  No  one  has  ever  found  a  way 
to  deal  with  that  because  you  have  to  have  complete  discretion 
with  the  prosecutor.  So  whether  there  is  a  minimum  mandatory  or 
not,  a  prosecutor  could  choose  to  indict  for  a  high-level  crime  under 
the'  guidelines  or  a  low-level  crime  under  the  guidelines.  I  have 


150 

heard  no  one  suggest  changing  that.  I  don't  know  a  way  to  change 
that.  So  the  305  cases,  Mr.  Sonnett,  don't  wash  with  me.  Those 
could  occur  whether  there  are  mandatory  minimums  or  not. 

Mr.  Sonnett.  Except  that  they  show,  Mr.  Chairman — I'm  sorry, 
I  didn't  mean  to  interrupt. 

Mr.  ScHUMER.  No,  no,  no.  That  is  OK.  Go  ahead  and  make  that 

point.  , 

Mr.  Sonnett.  They  show  that  minimum  mandatories  don  t  work. 
May  I  suggest  another  question  that  ought  to  be  asked,  another 

categoiy?  . 

Mr.  ScHUMER.  Let  me  just  get  this  out  and  let  Judge  Brodenck 

respond. 

So  the  only  argument  that  I  have  heard  that  at  least  seems  to 
me  to  have  some  wash  here,  it  is  not  egregious  because  those  I 
haven't  found  the  cases,  it  is  not  overcrowding  or  missed  resources 
because  in  the  Federal  prison  system  that  doesn't  seem  to  be  the 
case,  it  is  not  lack  of  leverage  because  you  can  adjust  the  guide- 
lines up  or  down  with  mandatory  minimums  working,  and  it  is  not 
prosecutorial  discretion  because  that  existed  long  before  the  guide- 
lines were  put  into  effect,  or  minimum  mandatories  were  put  into 
effect,  and  will  whether  we  abolish  them  or  not. 

The  only  one  that  I  have  heard  is  that  it  is  better  to  have  the 
flexibility  done  in  the  public — Mr.  Sonnett  made  this  argument, 
and  it  is  one  that  I  have  to  consider,  I  think — it  is  better  to  have 
the  flexibility  done  in  the  post-indictment  light  of  day,  if  you  will, 
because  court  proceedings  are  public,  rather  than  the 
preindictment  deals  that  are  made  in  the  prosecutor's  office,  which 
obviously  are  not  public.  There  is  a  big  tradeoff  the  other  way,  and 
I  think  that  is  what  most  of  my  colleagues  have  been  talking  about. 

So  I  tried  to  assemble  here  a  panel  of  distinguished  people — ^no 
fall  guys,  the  three  of  you — to  rebut  those  kinds  of  arguments  that, 
as  I  mentioned  in  my  opening  statement,  when  I  first  came  to  this 
issue  I  felt  a  little  more  strongly  on  your  side  than  I  do  now,  be- 
cause the  facts  just  don't  seem  to  bear  it  out  to  me. 

Now  it's  your  nickel.  Gk)  ahead. 

Judge  Broderick.  Let  me  start  off  by  saying  you  left  out  the 
principal  argument  which  I  have  made  in  my  papers,  and  that  is 
that  mandatory  minimums  are  unfair,  and  they  are  unfair  in  a 
number  of  different  ways.  They  are  unfair  because  they  turn  on  a 

single  factor.  i      r     i. 

A  mandatory  minimum  should  be  in  place  if,  and  only  if,  the 
crime  it  pertains  to  is  going  to  call  for  that  sentence  for  every  sin- 
gle defendant  charged  with  that  crime.  That  is  the  only  possible 
basis  on  which  a  mandatory  minimum ^ 

Mr.  ScHUMER.  Only  if  you  add  the  words  "at  least  that  sentence, 
not  "that  sentence,"  onlv  "at  least  that  sentence." 

Judge  Broderick.  I'll  add  "at  least." 

Mr.  SCHUMER.  OK. 

Judge  Broderick.  I'll  add  "at  least."  I'll  add  "at  least." 
But  you  take  this  one  factor,  and  under  the  mandatory  minimum 
scheme  you  close  off  any  argument  that  there  are  mitigating  fac- 
tors which  should  or  may  be  considered.  The  only  way  the  judge 
can  go  is  from  that  minimum  up.  He  can  consider  aggravating  fac- 
tors but  not  mitigating  factors. 


151 

Now  I'm  not  arguing  this  from  the  point  of  view  of  the  judge,  and 
the  one  thing  that  I  have  felt  was  sort  of  missing  from  this  whole 
discussion  today  is  a  realization  on  the  part  of  you  gentlemen  up 
there  that  every  time  a  judge  has  somebody  before  him  for  sentenc- 
ing, that  is  a  human  being.  There  is  a  crime,  and  there  are  victims, 
and  the  judge  must  consider  that,  but  he  also  has  to  consider  that 
this  is  a  human  being  he  is  sentencing,  and  you  don't  warehouse 
human  beings  unless  that  is  the  only  thing  that  should  be  done  to 
human  beings. 

Mandatory  minimums  are  unfair  because  they  are  based  on 
quantity,  and  quantity  is  no  way  to  run  a  railroad  in  the  sentenc- 
ing area. 

I  have  seen  so  many  cases  involving  money  where  the  sentencing 
guidelines,  in  my  judgment,  were  inadequate  because  they  were 
based  on  the  quantity  of  money  involved.  A  man  goes  into  a  bank 
and  holds  up  the  bank.  If  he  takes  $100  or  if  he  takes  $100,000, 
that  is  pure  happenstance.  The  crime  is  going  in  there  and  threat- 
ening human  beings.  The  same  way,  in  the  drug  area,  I  don't  see 
how  quantity  should  be  the  driving  force  here.  You  don't  consider 
the  man's  role  in  the  offense,  you  don't  consider  how  he  got  into 
it. 

Now  people  can  get  into  a  crime  and  be  guilty — ^be  guilty,  and 
they  should  go  to  prison.  They  should  go  to  prison.  But  you  say 
when  you  set  a  mandatory  minimum  that  they  should  go  to  prison 
for  5  years  or  for  10  years  depending  on  how  much  is  involved,  and 
I  say  that  is  unfair. 

You  say  that  weight  should  be  considered  without  regard  to  pu- 
rity, and  the  law  does  say  that.  The  law  says  you  consider  the  mix- 
ture or  the  substance,  and  all  there  has  to  be  is  a  trace  of  heroin 
or  cocaine  in  there.  You  weigh  the  mixture  or  the  substance  con- 
taining that. 

Now  everybody  who  has  ever  been  involved  with  the  criminal 
justice  system  knows  that  the  purity  of  any  drug — the  purity  of  co- 
caine, the  purity  of  heroin — decreases  as  it  comes  down  to  the  re- 
tail level,  and  so  we  have  the  situation  where,  if  you  found  one  of 
the  people  running  the  drug  crime  with  a  highly  pure,  92  percent, 
kilogram,  and  then  you  find  somebody  down  at  the  bottom  of  the 
totem  pole  with  much  more  but  much  less  heroin  in  it,  the  man 
down  there  is  going  to  get  a  much  greater  sentence.  That  is  not 
fair. 

The  substantial  assistance,  again — ^you  are  right,  Mr.  Chairman, 
the  prosecutor  has  always  had  and  always  should  have  a  great  deal 
of  discretion  in  when  to  charge  and  how  to  charge,  but  what  we 
have  in  this  substantial  assistance  area  is  that  we  are  moving  the 
discretion  of  the  prosecutor  from  the  charging  area  to  the  sentenc- 
ing area,  and  never  until  now  has  the  prosecutor  had  such  a  sub- 
stantial role  in  sentencing. 

And  I  did  mention  in  my  earlier  testimony  the  effect  that  manda- 
tory minimums  have  on  other  crimes  and  other  defendants  because 
they  have  moved  up  all  sentences  for  nonmandatory  minimum 
crimes. 

Mr.  SCHUMER.  Mr.  Sonnett,  or  Judge  Walker, 

Mr.  Sonnett.  I  always  defer  to  Federal  judges,  Mr.  Chairman. 


152 

Judge  Walker.  My  point  is  that  when  you  have  a  guideline  sys- 
tem in  place,  that  is  mandatory  in  the  sense  that  the  judges  are 
requirea  to  follow  the  guidelines;  that  is  the  law,  and  it  is  subject 
to  appellate  review.  I  must  say  that  our  caseload  has  increased  by 
about  25  percent  in  guideline  appeals.  So  you  have  a  system  where 
arbitrary  sentencing  just  cannot  exist,  independently  of  the  manda- 
tory minimums.  .  . 
In  other  words,  it  is  not  a  question  of  abolishing  mandatory  mini- 
mums  and  going  back  to  what  the  perception  was  in  the  seventies, 
because  all  of  those  concerns  are  dealt  with  by  the  guidelines,  and 
the  guidelines — which  have  a  body  of  expertise  behind  them 
through  the  Sentencing  Commission  as  to  which  every  sentence  is 
imposed  and  then  a  report  is  sent  to  the  Sentencing  Commission, 
and  from  there  there  is  appellate  review — they  provide  all  of  the 
safeguards  that  are  necessary,  in  our  view. 

In  addition.  Congress  has  a  chance  to  review  directly  what  hap- 
pens in  sentencing  under  these  circumstances.  In  a  situation  where 
the  prosecutors  are  taking  40  percent  of  the  cases  out  of  the  appli- 
cable mandatory  minimum  and  dealing  with  them  some  other  way, 
that  review  is  lost.  That  review  is  lost  by  your  committee.  Your 
committee  has  access,  as  Chairman  Wilkins  pointed  out,  to  the 
Sentencing  Commission  for  facts,  and  therefore  we  have  an  open 
system  that  seems  to  function  well  at  the  present  time.  It  is  func- 
tioning better  and  better  as  we  get  more  familiarity  with  it.  Why 
have  mandatory  minimums? 

The  other  point  that  was  made  earlier  in  the  hearings  was  that 
in  some  95  percent  of  the  cases,  the  sentence  under  the  guidelines 
would  be  either  the  same  or  even  higher.  If  that  is  the  case,  rather 
than  saying,  well,  there  is  no  problem  with  the  mandatory  mini- 
mums, I  say  why  have  the  mandatory  minimums?  The  guidelines 
handle  those  cases. 

In  the  other  cases,  the  5  percent,  those  are  the  ones  that  have 
to  be  looked  at  very  closely  to  see  if  there  are  problems  being  cre- 
ated by  the  mandatory  minimums,  and  that  is  what  the  debate 
should  be  about.  That  is  where  the  difficult  sentences  are  and  the 
cases  that,  in  our  view,  are  unjust. 

Mr.  ScHUMER.  Judge,  if  I  might  interrupt  you  just  for  a  minute, 
I  tend  to  agree  with  you  about  that.  It  seems  to  me  that  if  that 
is  the  case,  although— you  know,  you  can  argue — I  mean  what 
Judge  Broderick  said  is,  it  pushes  all  the  other  sentences  up.  That 
is  probably  the  will  of  this  Congress  and  the  people,  to  push  all  the 
sentences  up  and  to  make  them  longer,  and,  of  course,  in  the  case 
that  he  brought  up  in  terms  of  purity,  you  can  certainly  give  the 
guy  at  the  top  of  the  organization  greater  than  the  mandatory  min- 
imum, and  they  get  it.  In  the  10-year  cases,  I  think  Judge  Wilkms 
said,  it  goes  an  average  of  16  years. 

But  my  point  to  you  is  this — and  I  would  be  interested  in  the 
other  gentlemen's  and  ladies'  answer,  too— if  it  is  iust  5  percent  of 
the  cases  and  we  are  not  here  under  a  plan  to  reduce  the  average 
amount  of  sentencing  but,  rather,  just  to  make  it  work  better,  what 
is  your  view  of  a  sort  of  separate  safety  valve  type  of  proposal? 
Which,  in  my  judgment,  by  the  way— and  I  think  my  judgment  is 
right  on  this— is  about  the  only  chance  you  have  of  getting  any- 
thing done  here. 


153 

Mr.  Edwards.  Mr.  Chairman. 

Mr.  ScHUMER.  I  will  be  happy  to  yield  to  Mr.  Edwards. 

Mr.  Edwards.  Mr.  Chairman,  may  I  interrupt  for  a  minute?  I'm 
sorry,  I  have  to  go,  I  have  a  previous  commitment. 

Mr.  ScHUMER.  Do  you  want  to  ask  a  few  questions? 

Mr.  Edwards.  No,  I  don't  have  time. 

As  you  might  guess,  I  have  no  questions  of  these  witnesses. 
These  witnesses,  I  think,  made  my  case,  as  a  matter  of  fact,  the 
three  male  Solomons  and  a  woman  Solomon  up  there. 

So  thank  you  very  much.  I  deeply  appreciate  your  coming  here 
today. 

Mr.  ScHUMER.  And  thank  you,  Mr.  Edwards. 

Mr.  Edwards  is  regarded  as  one  of  the  consciences  of  the  whole 
body,  and  whether  we  agree  with  him  or  not — I  agree  with  him 
more  often  than  not,  but  not  this  time — we  appreciate  your  interest 
and  your  being  here,  Don.  Thank  you. 

Mr.  Edwards.  Thank  you. 

Judge  Walker.  Mr.  Chairman,  if  I  could  just  respond  to  your 
point. 

Mr.  ScHUMER.  Please. 

Judge  Walker.  On  the  idea  of  a  safety  valve,  the  problem  would 
be  in  the  drafting  of  it,  because  a  safety  valve,  again,  is  a  broad 
brush  application  that  is  supposed  to  apply  across  the  board,  and 
there  will  be  problems  even  in  applying  the  safety  valve;  there  will 
be  problems  in  the  details,  as  you  know,  often,  from  drafting  legis- 
lation. At  some  point,  there  has  to  be  given  a  certain  amount  of  dis- 
cretion to  the  sentencing  authorities,  and  in  the  case  of  a  safety 
valve  what  Chairman  Wilkins  suggested  was  a  safety  valve  that  is 
already  built  into  the  guidelines  system:  Role  in  the  offense,  accept- 
ance of  responsibility.  Those  are  two  key  factors.  One  could  add  to 
that  first-time  offender. 

That  kind  of  safety  valve  which  permits  downward  adjustments 
from  the  applicable  sentencing  guideline  could  be  made  applicable, 
obviously,  to  the  mandatory  minimum,  and,  to  that  extent,  it  seems 
to  me  that  his  proposal  contains  safety  valves. 

Mr.  Schumer.  Can  I  just  ask — and  I  want  to  give  Mr.  Sonnett 
his  shot  here,  and  then  I'm  finished — but,  Mr.  Walker,  has  your  or- 
ganization taken  a  position  on  the  sentencing  guidelines?  Do  you 
support  them  now?  Does  your  organization? 

Judge  Walker.  We  are  not  opposing  the  sentencing  guidelines  at 
all. 

Mr,  Schumer.  But  have  you  taken  a  position  ever  in  support  or 
opposition? 

Judge  Walker.  Originally  we  took  a  position—the  judges  did  be- 
fore I  was  involved  in  their  leadership — opposing  them,  but  that 
position  is  not  the  position  of  the 

Mr.  Schumer.  Has  it  been  overruled  in  any  way  by  you?  Have 
you  taken  a  vote  retracting  your  opposition? 

Judge  Walker.  We  actually  haven't  taken  a  formal  vote,  but  I 
think  if  we  were  to  poll  the  members 

Mr.  Schumer.  Please,  I  would  be  interested. 

Judge  Walker  [continuing].  It  is  one  of  those  issues  where  there 
might  be  a  minority  of  judges  now  who  would  want  to  have  them 
abolished,  but  it  is  an  issue  that  may  be  dividing  the  agency,  and 


154 

I  really  think  the  commonsense  approach  and  the  right  approach 
is  to  recognize  that  the  guidelines  are  here  to  stay  and  welcome 
them  and  see  if  we  can  make  them  work  as  well  as  possible. 

Mr.  Mazzoli.  Mr.  Chairman,  if  I  might  interrupt  just  a  half  a 
second. 

Mr.  SCHUMER.  Mr.  MazzoH. 

Mr.  Mazzoli.  I  think  that  is  what  is  driving  this  whole  thing. 
The  gentleman  from  New  York,  our  chairman,  talked  about  turf 
battles.  These  are  long-time  enmities  between  you  and  the  prosecu- 
tors and  the  defense  lawyers,  and  I  couldn't  help  but  notice,  in  a 
Post  story  about  Attorney  General  Reno's  decision  to  order  changes 
or  examination  of  sentencing  as  well  as  charging  policies,  the 
hosannahs  were  rendered  by  a  gentleman  by  the  name  of  Keith 
Stroop,  the  executive  director  of  the  National  Criminal  Defense 
Lawyers  Group.  So  obviously  he  sees  in  a  change  in  mandatory 
minimums  some  opportunity  to  get  some  of  his  clients  off  the  hook. 

Anjrway,  I  would  say  that  I  think  in  answer  to  the  gentleman's 
question,  if  the  judges  were  to  issue  an  edict  saying  that  they  were 
wrong  or  that,  upon  reflection,  they  are  now  for  sentencing  guide- 
lines, it  would  certainly  help  those  of  us  who  are  now  being  impor- 
tuned to  make  changes  in  mandatory  minimums  to  say  that  all 
that  has  been  set  aside,  the  judges  now  realize  they  are  not  going 
to  get  back  the  discretion  that  they  seem  to  want  to  have.  I  mean 
it  would  help  us. 

Mr.  SCHIFF.  Would  the  gentleman  yield? 

Mr.  ScHUMER.  Why  don't  we  let  Mr.  SchiflF  say  something,  then 
Mr.  Sonnett  to  answer.  I  am  finished  asking  questions — oh,  no,  I 
have  one  more. 

Go  ahead,  Mr.  SchiflF. 

Mr.  SCHIFF.  Certainly  I  think  Mr.  Sonnett  should  be  allowed  to 
respond,  but  I  think  on  the  point  that  the  chairmgm  raised  and 
Congressman  Mazzoli  raised,  I  said  to  you  earlier  as  a  joke,  Mr. 
Chairman,  but  something  less  than  a  joke,  there  is  one  obvious 
benefit  from  mandatory  minimum  sentencing:  The  judges  have 
stopped  coming  here  complaining  about  sentencing  guidelines.  We 
can  take  it  from  there. 

Mr.  Chairman,  I  yield  back. 

Judge  Broderick.  On  a  point  of  privilege,  the  Judicial  Con- 
ference has  never  opposed  sentencing  guidelines,  and  we  have  dealt 
on  a  continuing  basis  for  the  last  5  years  rather  aggressively  with 
the  Sentencing  Commission,  and  I  think  that  they  realize  that  we 
are  here  to  stay  and  we  realize  that  they  are  here  to  stay. 

Mr.  SCHUMER.  Thank  you.  Judge. 

Mr.  Sonnett. 

Mr.  Sonnett.  As  a  defense  lawyer,  I  think  it  is  important  to  re- 
spond to  what  Mr.  Mazzoli  has  said  in  several  ways.  First  of  all, 
I  can't  be  responsible  for  who  the  Washington  Post  calls  for  a 
quote;  but,  second  of  all,  I  have  talked  to  literally  dozens  and  doz- 
ens of  people  in  law  enforcement  and  in  prosecution  around  the 
country,  because  I  travel  a  good  bit  around  the  country,  and  the 
same  remarks  that  you  mentioned  Mr.  Stropp  made  to  the  Wash- 
ington Post  have  been  made  to  me  and  have  been  made  publicly 
by  people  who  are  in  law  enforcement. 


155 

I  think  it  is  a  bit  unfair,  if  you  don't  mind  my  saying  so,  Mr. 
Mazzoli,  to  say  that  defense  lawyers  would  applaud  this  because  it 
might  get  their  clients  off  the  hook.  I  have  a  family,  I  have  a  son, 
I'm  a  former  prosecutor,  I  decry  crime  and  drugs  just  as  much  as 
anybody  else  in  this  room  does,  and  I  want  to  make  sure  that  peo- 
ple who  commit  crimes  are  punished,  and  severely  if  they  need  be 
punished  severely,  and  that  our  criminal  justice  system  works. 

Mr.  Mazzoli.  And  you  say  that  the  system  is  not  working? 

Mr.  So^fNETT.  Well,  you  know,  I  think  we  need  to  take  a  good 
hard  look  at  this. 

Mr.  Schumer,  I  was  about  to  say  to  you  I  have  another  test  that 
I  would  like  for  you  to  consider. 

Mr.  Schumer.  Go  ahead,  please. 

Mr.  SoNNETT.  For  the  last  10  years,  every  2  years  the  Congress 
has  passed  laws  which  have  increased  the  sentences,  mandatory 
minimum  sentences,  except  for  last  year  when  the  conference  re- 
port didn't  get  out. 

Mr.  Schumer.  Not  for  lack  of  trying. 

Mr.  Sonnett.  Not  for  lack  of  trying;  I  understand  that.  But 
every  year,  the  will  of  the  Congress,  as  you  mentioned  it  before, 
Mr.  Chairman,  was  that  there  be  longer  and  longer  sentences.  We 
now  have  a  criminal  justice  system  that  is  on  a  fast  track  to  col- 
lapse, and  it  has  not  made  an  appreciable  dent  in  the  crime  or  drug 
problem  in  this  country.  So  sure,  it  hasn't  worked.  What  we  have 
done  is,  we  have  begun  to  devote  more  and  more  of  our  resources 
to  the  back  end  of  the  system. 

We  now  spend  more  of  our  criminal  justice  dollars  on  the  correc- 
tions system  than  we  spend  on  policing,  on  prevention,  on  edu- 
cation, on  treatment,  and  on  the  ports,  and  I  have  got  the  statistics 
in  my  briefcase  if  you  want  to  see  them.  More  and  more  are  going 
to  the  corrections  end,  less  and  less  to  the  policing  and  the  preven- 
tion end.  We  are  spending  more  and  more  money  on  drugs  and  less 
and  less  money  on  violent  criminals.  Now  that  is  primarily  a  State 
problem,  I  agree  with  you. 

Mr.  Mazzoli.  If  my  chairman  would  indulge  me  just  for  30  more 
seconds — I  have  to  leave  also;  I  have  an  appointment — I  decried 
the  fact  that  the  administration,  which  I  helped  elect,  has  cut  $231 
million  out  of  the  program  that  Dr.  Lee  Brown,  the  Director  of  the 
National  Drug  Control  Policy,  runs.  And  that  is  not  the  back  end 
of  the  system,  his  program  would  involve  education  and  drug  treat- 
ment. I  don't  think  it  is  an  either/or  proposition.  We  frame  this 
thing  very  apocalyptically:  Either  we  do  this  or  we  are  not  going 
to  do  that.  We  can  do  them  both. 

I  think  we  ought  to  be  tough  as  hell  on  the  criminal,  expand  the 
prisons,  be  as  tough  as  we  can  be  with  mandatory  minimums,  ex- 
cept as  the  chairman  can  fashion  some  kind  of  an  escape  valve  for 
the  egregious  cases,  and  at  the  same  time  put  real  money  into  edu- 
cation, real  money  into  treatment,  real  money  into  the  prison  set- 
tings, and  I  think  the  gentleman  has  talked  about  that,  that  they 
have  antidrug  programs  in  the  prison  setting. 

Mr.  Schumer.  'fiiat  also  got  lost  in  the  crime  bill. 

Mr.  Sonnett,  But  if  mandatory  minimum  sentences  worked,  we 
would  have  seen  some  advantage  to  them. 


156 

Mr.  Mazzou.  Only  if  you  have  a  comprehensive  solution,  but  just 
we  shouldn't  reduce  one  in  order  to  put  money  on  the  other  side. 
Mr.  ScHUMER.  If  the  gentleman  would  yield,  that  is,  in  all  due 
respect,  an  unscientific  statement.  You  would  have  to  find  out  if 
things  were  worse  or  better  without  mandatory  minimums  sen- 
tences. We  have  had  an  increase  in  the  crack  cocaine  from  1984  on. 
Who  knows?  Perhaps  things  would  be  considerably  worse  without 
them.  You  know,  there  is  no  way  to  judge.  Just  because  things 
aren't  what  we  want  them  to  be  doesn't  mean  that  any  given  law— 
you  could  say  the  money  we  have  put  into  treatment  hasn't 
worked.  So  that  is  not  a  fair  statement. 

Mr.  SoNNETT.  I  understand,  but  one  thing  that  we  tend  to  forget 
is  that  almost  everybody  that  we  put  in  Federal  prisons  is  going 
to  come  out,  and  I  have  had  on-the-line  experience  in  representing 
and  prosecuting  people  for  the  last  26  years,  and  I  can  tell  you  a 
couple  of  things,  and  maybe  it  is  anecdotal,  but  I  think  we  can  find 
studies  that  will  back  it  up.  j    j         j- 

When  you  take  nonviolent,  first-time  offenders — and,  dependmg 
on  how  you  define  first-time  offenders,  you  may  be  talking  about, 
as  Judge  Wilkins  said,  34  percent  of  the  population,  not  just  that 
3,000  that  the  GAO  quoted— and  you  place  them  in  jail,  many  of 
them  for  mandatory  minimum  sentences,  when  they  could  be  di- 
verted into  community  corrections  and  they  could  be  diverted  into 
programs  of  treatment  or  prevention  and  education,  what  you  are 
going  to  do  in  a  large  majority  of  those  cases,  Mr.  Chairman,  is, 
they  are  going  to  come  out  5  or  6  or  7  years  later  not  only  more 
bitter  but  better  criminals,  and  they  are  not  going  to  be  able  to  get 
reintegrated  into  society.  Now  that  is  what  has  been  happening, 
and  that  is  why  we  have  such  a  startling  recidivism  rate. 
Mr.  ScHUMER.  No,  it  isn't. 

Mr.  SoNNETT.  Janet  Reno  talked 

Mr.  ScHUMER.  Mr.  Sonnett,  there  are  lots  of  people  who  never  go 
into  jail  and  commit  30  or  40  crimes  in  a  month. 
Mr.  Sonnett.  Now  we  are  comparing  oranges  and  apples. 
Mr.  ScHUMER.  Mr.  Sonnett,  I  have  to  tell  you,  you  are  glibly  stat- 
ing these  things.  They  may  or  may  not  be  true,  OK?  Maybe  that 
person  who  comes  out^let's  assume,  arguendo,  that  person  you  are 
talking  about  comes  out  a  worse  criminal.  How  many  crimes  would 
he  or  she  have  committed  in  the  5  or  6  or  7  years  that  they  weren  t 
in  prison? 

Mr.  Sonnett.  Well,  but  let  me  ask 

Mr.  Schumer.  But,  you  see,  look,  I'm  only  42  years  old,  but  I 
have  been  through  one  cycle  of  this,  and  the  cycle  when  we  didn  t 
have  either  sentencing  guidelines  or  minimum  mandatories,  and  I 
sat  in  my  neighborhood  as  an  assemblyman  and  watched  criminals 
commit  crime  after  crime  after  crime  and  they  weren't  sentenced 
to  a  day  in  jail,  not  because  of  the  malice  of  the  judges— these  were 
local— but  because  the  system  was  so  dam  overloaded.  I  would 
pledge  to  my  constituents  and  to  myself,  I'm  never  going  to  go  back 
to  that  again.  That  was  worse,  and  that  is  what  brought  about  the 
push  for  both  sentencing  guidelines,  which  are  a  reform  of  mini- 
mum mandatories,  a  more  flexible  form  but  a  form  because  you 
can't  go  below  a  certain  amount,  and  the  mandatories  themselves, 
and  let's  not— well,  you  may  wish  to,  and  I  don't  think  you  do. 


157 

Mr.  SONNETT.  No,  I  don't. 

Mr.  ScHUMER.  But  no  one  on  this  committee  and  the  vast  major- 
ity of  the  435  Members  of  the  House  and  the  vast  majority  of  the 
American  people  remember  that,  and  so  that  is  why  we  can  point 
out  problems  in  the  system — and,  God  knows,  it  needs  help — but 
let's  not  just  state  because  somebody  comes  out  of  prison  worse 
than  they  came  in  that  we  shouldn't  have  prisons;  that  is  a  non  se- 
quitur. 

Mr.  SoNNETT,  Mr.  Chairman,  I  am  not  stating  that  at  all.  What 
I  am  suggesting  to  you  is  that  we  need  to  treat  different  offenders 
differently.  We  are  never  going  to  go  back  to  any  system  in  which 
judges  have  the  discretion  to  let  criminals  out  on  the  streets. 

Mr.  ScHUMER.  Has  your  group  supported  the  sentencing  guide- 
lines? You  took  a  position  originally  against  it  as  well. 

Mr,  So^fNETT.  We  have  been  working  on  the  criminal  justice 
standards.  We  have  just  passed  standards,  a  third  edition  of  stand- 
ards, relating  to  sentencing  alternatives.  We  have  endorsed  a  guid- 
ed discretion  system.  We  nave  not  used  the  term  "guidelines'  be- 
cause that  is  kind  of  a  hot  button. 

Mr.  ScHUMER.  That  is  my  point. 

Mr.  SoNNETT.  We  have  used  a  system  that  is  very  similar  but 
offers  some  more  flexibility. 

Mr.  ScHUMER.  Why  haven't  you  supported  these  guidelines? 

Mr.  SoNNETT.  Because  there  are  aspects  of  the  guidelines  that 
we  think  need  to  be  changed,  but  neither  do  I  support  the  system 
that  you  are  talking  about.  Let's  understand  what  we  are  facing 
here.  We  are  never  going  to  have  again  the  kind  of  system  you 
talked  about. 

Mr.  ScHUMER.  Well,  we  have  been  through  the  cycle.  We  had 
mandatories  in  the  fifties,  we  went  into  the  theory  of  rehabilitation 
and  just  the  theory  you  are  talking  about  in  the  sixties  and  seven- 
ties, that  prison  didn't  do  the  individual  good,  we  went  away  from 
it,  and  we  came  back  to  it.  So  we  have  been  through,  in  my  life- 
time, the  cycle  twice  already. 

Mr.  SoNNETT.  I  was  a  prosecutor  from  1967  through  1972.  I  lived 
through  the  last  incarnation  of  mandatory  minimums  and  applied 
them,  and  in  those  days  we  had  an  escape  valve;  there  were  stat- 
utes that  you  could  charge  that  didn't  carry  it.  They  didn't  work 
then;  they  don't  work  now. 

The  sentencing  guideline  system,  while  it  is  not  perfect,  provides 
all  of  the  things  that  vou  are  talking  about  and  still  gives  you  the 
discretion,  limited  and  guided  discretion,  in  the  hands  of  judges  to 
be  able  to  deal  with  some  of  the  problems  that  you  are  talking 
about. 

Mr.  ScHUMER.  I  understand. 

Judge. 

Judge  Walker.  I  would  argue  that  the  guidelines  provide  a  bet- 
ter vehicle  for  Congress  to  exercise  oversight  and  influence  the 
process  than  the  mandatory  minimums  themselves. 

Mr.  ScHUMER.  Thank  you. 

I  would  like  the  opinion  of  Mr.  Sonnett  and  Mr.  Broderick  on  the 
question  I  asked  of  Judge  Wilkins.  If  it  is  an  escape  valve  or  noth- 
ing, which  is  better,  from  your  point  of  view? 

Mr.  Sonnett.  Mr.  Chairman,  I  must  be  honest. 


158 

Mr.  ScHUMER.  You  would  have  to  go  back  to  your  group. 

Mr.  SONNETT.  No.  I  could  give  you  an  individual  answer. 

Mr.  ScHUMER.  OK 

Mr.  SoNNETT.  But  even  my  individual  answer  would  be,  unless 
I  knew  what  the  escape  valve  was,  it  would  be  very  difficult  for  me 
to  give  you  that  opinion. 

Mr.  ScHUMER.  I  understand. 

Mr.  SoNNETT.  I  can  say  to  you  this  though 

Mr.  ScHUMER.  But  I'm  just  trying  to  get  a  general  feel.  Obvi- 
ously, I  don't  even  know  at  this  point  if  we  could  craft  an  escape 
valve  and  what  kind  it  would  be. 

Mr.  SoNNETT.  If  there  were  some  way  crafted — and  111  assume 
that  everybody  would  be  working  for  the  best  possible  way  to  do 
it — so  that  categories  of  what  you  have  called  egregious  cases — I 
think  a  broader,  perhaps  unfair  cases,  because  I  have  seen  Federal 
judges  faced  with  terrible  decisions  that  may  not  be  egregious  but 
are  certainly  unfair — and  if  we  could  deal  with  some  way  to  divert 
those  low-level,  peripheral,  first-time  offenders  from  mandatory 
minimum  sentences  into  community  corrections  and  other  areas 
where  they  can  be  rehabilitated,  if  that  is  appropriate  for  them, 
then  I  would  say  yes,  some  escape  hatch  rather  than  nothing. 

The  system  we  have  now,  I  think,  is  doing  more  harm  than  good. 
It  is  counterproductive,  and  I  think  it  needs  to  be  changed.  That 
does  not  mean — ^and  I  want  to  make  it  clear — that  I  favor  more  le- 
nient sentencing.  I  simply  favor  a  sentencing  system  that  can  deal 
with  the  kind  of  problems  and  individual  offender  characteristics 
that  come  up  or  the  unusual  cases  that  mandatory  minimum  sen- 
tences cannot  and  do  not  take  into  account. 

Mr.  ScHUMER.  Thank  you. 

Mr.  SoNNETT.  If  you  would  ask  that  question  of  Professor 
Branham — she  has  been  sitting  here  patiently  while  I've  been 
stealing  her  thunder. 

Mr.  ScHUMER.  Please.  The  only  reason  I  didn't  let  you  testify:  we 
have  a  policy  that  we  like  to  know  the  witnesses  ahead  of  time,  and 
the  first  time  I  knew  about  it  was  when  you  came  up  here. 

Ms.  Branham.  That's  fine. 

On  the  safety  valve  question,  we  believe  the  guidelines  provide 
the  safety  valve  for  instances  where  imposition  of  a  mandatory 
would  lead  to  unjust  results. 

Mr.  ScHUMER.  When  I  am  talking  about  a  safety  valve,  I  am 
talking  about  sort  of  a  separate  process  aff^r 

Ms.  Branham.  Right,  and  we  are  saying  why  set  up  a  separate, 
costly,  inefficient  process  when  you  have  got  a  good  one  in  place? 

But  I  would  commend  to  your  consideration,  because  it  looks  like 
you  are  open  on  the  issue  of  the  safety  valve,  just  to  have  you  look 
at  the  safety  valve  from  a  different  perspective,  that  you  give  some 
thought  to  enacting  a  law  like  that  which  is  in  Tennessee.  Ten- 
nessee has  got  a  law  under  which,  if  the  State  legislature  passes 
a  law  increasing  the  length  of  imprisonment,  if  it  does  not  include 
later  in  a  general  appropriations  act  the  requisite  money  to  fund 
that  increase,  to  accommodate  that  increase,  it  becomes  null  and 
void. 

Mr.  ScHUMER.  That  is  not  a  safety  valve,  that  is  a  different 
issue. 


159 

Ms.  Branham.  Well,  it  is  a  safety  valve  in  this  sense.  It  is  ensur- 
ing that  the  system  is  working  effectively.  What  you  are  talking 
about  with  the  safety  valve  is  some  instances  where  enforcement 
of  mandatory  minimums  will  lead  to  unjust  sentences  or  ineffective 
sentences,  and  what  I  am  saying  is  that  if  the  resources  are  not 
allocated  you  are  going  to  have  an  ineffective  system. 

Right  now,  you  have  got  a  system  that  is  overwhelmed,  and,  to 
me,  it  just  would  be  fiscally  responsible  that  if,  indeed,  these  laws 
are  gomg  to  be  passed,  that  the  funds  have  to  be  allocated  that 
would  support  these  changes,  and  if  they  are  not,  then  the  laws 
simply  must  be  null  and  void. 

So,  again,  it  is  a  different  perspective 

Mr.  ScHUMER.  To  say  the  least. 

Ms.  Branham.  I  understand  that  it  is  not  one  you  are  talking 
about,  but,  again,  we  are  talking  about  preserving  the  efficacy  of 
the  system. 

Mr.  ScHUMER.  Let  me  just  tell  you  my  own  history  with  that. 

I  have  been  fighting,  for  the  20  years  I  have  been  in  government, 
for  more  money,  and  still  do  to  this  moment,  in  the  criminal  justice 
system,  both  on  the  treatment  side  and  the  enforcement  side,  be- 
cause I  think  a  lot  of  politicians  give  it  lipservice  and  then  don't 
vote  the  money  that  is  needed  to  make  it  happen. 

What  happened  with  minimum  mandatories  was,  it  was  easy  to 
pass  the  minimum  mandatories  and  the  money  followed,  not  in  a 
perfect  way  and  not  in  a  straight  line  way,  but  afler  there  were 
minimum  mandatories  and  the  people  came  back  and  said,  "Well, 
we're  going  to  need  more  courts  and  more  prisons  and  more  pros- 
ecutors and  more  defenders  to  enforce  this  law,"  the  money  fol- 
lowed, whereas  when  you  made  the  argument  in  the  abstract,  "We 
need  more  money  for  the  system,"  it  didn't  follow. 

So  I  would  just  posit  to  you  that,  in  a  sense,  at  least  from  my 
observations — and  this  is  not  scientific  and  not  factual,  quote,  as  I 
would  say,  but  just  observational — that  the  minimum  mandatories 
has  been  a  way — admittedly  not  the  best  way,  but  we  don't  live  in 
a  perfect  world — of  getting  the  kind  of  money  into  the  system  that 
we  really  did  need  and  do  need. 

Judge. 

Judge  Broderick.  Let  me  respond  to  your  safety  valve  question. 
I  think  it  depends  on  what  the  safety  valve  is.  I  have  stated  as 
strongly  as  I  can  here  and  in  my  written  statement  our  unalterable 
opposition  to  mandatory  minimums.  If  there  is  to  be  a  safety  valve, 
it  should  be  a  safety  valve  of  the  type  that  Judge  Wilkins  was  dis- 
cussing, and  my  Criminal  Law  Committee,  in  fact,  has  approved 
that  in  principle.  But  it  should  not  be  a  safety  valve  that  requires 
a  separate  proceeding. 

One  of  the  real  virtues  I  see  of  Judge  Wilkins'  proposal  is  that 
it  would  not  require  a  separate  proceeding. 

Mr.  ScHUMER.  Could  I  ask  you.  Judge,  if  you  didn't  require  the 
separate  proceeding,  would  you  be  unalterably  opposed  to  letting 
the  prosecutor  participate  in  the  decision,  mindful  of  Attorney  Gen- 
eral Barr's  view? 

Judge  Broderick.  The  prosecutor  always  participates.  If  you 
mean  participate  in  making  the  decision,  no,  the  prosecutor  should 
not  make  that  decision.  Our  prosecutors  are  28-year-old  and  30- 


160 

year-old  young  men  and  women.  They  are  supremely  good  and  very 
confident  lawyers  with  no  life  experience.  They  don't  bring  to  the 
sentencing  process  what,  with  all  modesty,  we  bring.  No.  That  is 
a  decision  that  should  be  made  by  a  judge  who  has  experience,  and, 
I'll  tell  you,  our  judges  have  had  a  lot  of  experience  and  our  judges 
are  not  soft  on  crime,  and  any  discussion  here  about  soft  on  crime 
being  any  reason  for  the  position  that  is  being  taken  by  me,  being 
taken  by  my  brother  here,  is  just  wrong. 

Mr.  ScHUMER.  I  think  that  is  a  point  well  taken. 

I  have  finished  with  my  questions. 

Mr.  Schiff. 

Judge  Broderick.  Mr.  Chairman,  we  may  not  have  convinced 
the  committee,  but  we  have  certainly  outlasted  it. 

[Laughter.] 

Mr.  ScHUMER.  Judge,  you  have  outlasted  most  things  in  New 
York  City,  to  your  credit  and  to  the  city's  benefit. 

Steve  Schiff. 

Mr.  Schiff.  A  lifetime  appointment  helps  outlast. 

Mr.  SCHUMER.  Right. 

We  are  not  advocating  term  limits  for  judges,  believe  us. 

Mr.  Schiff.  We  are  deferential  also.  We  could  be  practicing  in 
front  of  you  again  one  of  these  days. 

Turning  first  to  our  guest  from  the  Federal  judiciary,  although 
there  was  this  ringing  endorsement  of  the  sentencing  guidelines,  or 
at  least  ringing  acceptance  of  the  sentencing  guideline  system,  I 
want  to  emphasize  the  chairman's  question:  There  has  been  no  res- 
olution adopting  it.  OfRcially,  your  organization  is  still  on  record 
opposing  sentencing  guidelines,  I  think  for  a  lot  of  the  same  rea- 
sons you  have  given  opposition  to  mandatory  minimums.  Is  that 

correct? 

Judge  Walker.  Historically — that  is  the  current  state  of  the 
record.  I  have  only  been  in  the  leadership  for  a  short  period  of 
time.  Obviously,  I  am  going  to  take  what  has  been  said  here  right 
back  to  the  organization,  and  we  are  going  to  work  on  that,  because 
I  think  the  practicalities  of  the  situation  are  such  that  the  sentenc- 
ing guideline  regime  is  with  us,  and  it  has  got  marw  virtues,  and 
many  of  the  members  have  spoken  to  me  in  favor  of  it,  and  I  per- 
sonally think  it  is  working.  I  am  speaking  for  myself  personally. 

Mr.  Schiff.  Judge  Broderick. 

Judge  Broderick.  I  have  already  responded  to  that.  The  Judicial 
Conference  never  has  taken  a  position  in  opposition  to  the  Sentenc- 
ing Commission.  When  the  Judicial  Conference  meets,  Judge  Wil- 
kins  is  generally  there,  and  we  have  taken  very  strong  positions 
with  the  Sentencing  Commission  with  respect  to  one  or  another  of 
its  guidelines  or  proposed  guidelines,  but  that  is  something  we  are 
supposed  to  do,  and  if  you  read  in  my  statement  a  ringing  endorse- 
ment of  the  Sentencing  Commission,  I  think  that  was  a  fairly  accu- 
rate reading.  j  t    i.-  i 

Mr.  Schiff.  I  am  just  pointing  out  that  historically,  and  I  thmk 
for  understandable  reasons,  the  judiciary  has  tended,  as  a  body,  to 
object  to  what  they  might  perceive  as  interference  with  their  dis- 
cretion. The  point  that  makes  is,  it  becomes  a  little  difficult  then 
to  distinguish  opposition  to  mandatory  minimums  as,  at  least  gen- 


161 

erally,  anything  other  than  opposition  to  anything  that  might  inter- 
fere with  the  discretion. 

So  if  the  judiciary  is  wilHng  as  a  body — and  I  am  not  saying  they 
have  to;  they  don't  answer  to  us  on  their  opinions — then  it  would 
be  helpful,  I  think,  to  the  Congress  if  they  were  more  firmly  on 
record:  This  is  what  we  at  least  accept,  even  if  we  don't  agree  with 
it. 

Judge  Broderick. 

Judge  Broderick.  Mr.  Schiff,  can  we  make  a  deal? 

Mr.  SCHUMER.  I  was  afraid  of  this. 

Mr,  Schiff.  Make  a  deal,  and  then  I  will  listen  to  anything, 
Judge. 

Judge  Walker.  I  think  that  what  we  have  indicated  in  our  state- 
ments is  that  the  evils  that  mandatory  minimums  were  designed 
to  cure  the  guidelines  also  cure  and  that,  as  between  the  two,  the 
guidelines  offer  the  kind  of  flexibility  that  will  resolve  the  cases 
that  have  troubled  this  committee  and  troubled  the  chairman. 

The  answer  really  to  the  dilemma  that  the  committee  finds  itself 
in,  in  dealing  with  these  cases,  these  particular  cases — and,  grant- 
ed, there  aren't  overwhelming  numbers,  but  there  are  significant 
numbers,  and  I  submit  that  to  every  prisoner  who  is  sitting  in  jail 
who  shouldn't  be  there  it  is  a  rather  important  issue — ^is  that  the 
guidelines  can  provide  the  way  out,  and  one  should  think  in  terms 
of  working  with  the  guidelines  and  figuring  out  how  to  make  them 
responsive.  The  guidelines  provide  an  open  system,  it  is  above 
board;  the  Commission  gets  the  statistics,  they  get  the  reports, 
guidelines  sentences  are  subject  to  appellate  review. 

Mr.  ScfflFF.  Judge  Broderick. 

Judge  Broderick.  I  just  want  to  add  that  it  is  my  recollection 
that  back  in  1983  the  Judicial  Conference  was  working  with  the 
House  of  Representatives  on  a  sentencing  guideline  bill  of  its  own 
but  that  ultimately  it  was  the  Senate  bill  that  was  adopted  by  Con- 
gress. 

There  was  not,  I  don't  think  at  that  time,  although  I  was  not  on 
the  Judicial  Conference — there  was  not  opposition  to  the  concept  of 
sentencing  guidelines;  I  think  there  may  have  been  a  little  foot 
dragging  in  enthusiastically  supporting  them. 

Mr.  Schiff.  Mr.  Sonnett,  if  I  can  turn  to  the  ABA  now,  specifi- 
cally the  Criminal  Justice  Section,  as  indicated,  I  think  that  sec- 
tion, I  guess  as  adopted  by  the  ABA,  opposed  sentencing  guidelines 
at  first.  Is  that  correct? 

Mr.  Sonnett.  I  don't  know  of  any  resolution  opposing  sentencing 
guidelines.  I  think  the  context  in  which  this  has  arisen  is  as  fol- 
lows. The  Criminal  Justice  Standards,  which  is  an  ongoing  work — 
and  we  are  proud  that  it  is  very  highly  respected  nationally — con- 
tains a  set  of  standards  on  sentencing  alternatives  and  conditions. 
In  the  revision  of  that  work,  the  standards  adopt  a  guided  discre- 
tion system,  and  the  foreword  and  commentary  point  out  that  it  is 
a  very  different  model  than  the  Federal  sentencing  guidelines. 

I  suppose  you  could  read  that  as  opposition,  although  the  only 
vote  of  the  ABA  House  of  Delegates,  and  therefore  the  only  policy 
of  the  ABA,  is  one  in  favor  of  this  particular  model,  and  I  would 
commend  that  model  to  vou.  Federal  judges  who  have  looked  at  it 
have  commented  to  me  that  they  thought  it  was  a  brilliant  work — 


162 

I  had  nothing  to  do  with  it — but  a  brilliant  work  by  many  experts 
in  trying  to  put  together  a  system  of  sentencing  that  was  fair. 

The  other  model  I  would  commend  to  you  is  one  that  Professor 
Branham  had  an  awfiil  lot  to  do  with,  and  that  is  the  model  Adult 
Community  Corrections  Act  which,  in  our  written  testimony,  we 
urge  Congress  to  consider  passing,  and  Professor  Branham  will  tes- 
tify before  another  subcommittee  tomorrow  in  greater  length  on 
that. 

You  may  want  to  add  something  to  that. 

Mr.  SCHIFF.  Professor. 

Ms.  Branham.  Again,  we  are  urging  that  Cong^ress  adopt  a  Fed- 
eral Comprehensive  Community  Corrections  Act.  There  are  about 
20  States  that  have  such  acts,  and  such  an  act  is  needed  if  a  com- 
munity sanctioning  program  is  to  operate  effectively.  We  believe 
very  strongly  that  community  punishments  can  be  cost  effective, 
they  can  adequately  protect  the  public  safety,  but  you  need  the  req- 
uisite structure  to  ensure  that  they  operate  effectively,  and  that 
would  be  through  a  Comprehensive  Community  Corrections  Act. 
That  is  why  we  are  commending  such  an  act  to  you  for  your  consid- 
eration. 

Mr,  SONNETT.  One  thing  that  may  be  worth  noting  is  that  the 
State  of  Florida  just  recently  abolished  most  of  its  mandatory  mini- 
mum sentences  and  revamped  the  sentencing  guideline  system. 
One  of  the  major  reasons  is  because  in  Florida  there  was  a  problem 
with  violent  criminals  being  let  out  of  jail  early.  It  was  a  terrible 
problem.  I  think  you  are  quite  right,  Mr.  Chairman,  that  that  is 
not  a  problem  that  we  see  seriously  in  the  Federal  system,  but  in 
Florida  it  was. 

Mr.  ScHiFF.  Let  me  pursue  this  a  bit  further  here  because  I 
think  the  time  is  about  at  an  end.  Mr.  Sonnett,  you  would  go  fur- 
ther with  an  agenda.  I  mean  there  are  those  individuals  who  would 
be  voluntarily  participating  in  drug  trafficking,  at  least  at  some 
level,  that  you  do  not  believe  should  go  to  prison  upon  conviction. 
Is  that  right? 

Mr.  Sonnett.  In  drug  trafficking,  I'm  not  sure  I  would  go  that 
far. 

Mr.  SCHIFF.  So  if  the  courier  goes  to  prison,  you  would  support 
that? 

Mr.  Sonnett.  I  think  that  there  are  circumstances  under  which 
probation  or  community  control,  shock  probation,  boot  camp,  house 
arrest,  a  whole  panoply  of  other  alternatives  to  straight  Federal 
prison  incarceration  are  appropriate. 

Mr.  SCHIFF.  For  those  convicted  of  voluntarily  trafficking  in  nar- 
cotics? 

Mr.  Sonnett.  If  they  are  low-level,  peripheral  offenders — ^you 
know,  the  problem  with  the  drug  laws  today,  particularly  as  broad 
as  the  conspiracy  laws  are,  is  that  the  person  who  sweeps  the 
warehouse  can  be  held  just  as  accountaole  as  the  person  who 
makes  the  money. 

Mr.  SCHIFF.  But  you  are  saying  that  there  are  those  who  may  be 
at  the  lower  end,  that  they  are  such  at  the  lower  end  that,  even 
though  they  are  drug  traffickers  and  participating  voluntarily  in  a 
system  that  needs  them  as  drug  traffickers,  they  should  be  consid- 
ered for  probation? 


163 

Mr.  SoNNETT.  They  may  be  charged  with  drug  trafficking.  We 
could  have  an  intellectual  debate  as  to  whether  they  are  traffick- 
ers. 

Mr.  ScHlFF.  I  believe  I  said  convicted. 

Mr.  SoNNETT.  But  that  is  my  point,  Mr.  Schiff.  The  statutes  that 
are  employed  against  people  who  are  involved  in  any  way,  no  mat- 
ter how  peripherally,  in  drug  offenses,  unless  it  is  a  simple  posses- 
sion or  possession  with  intent  to  distribute,  and,  of  course,  depend- 
ing on  the  amount  of  cocaine  that  the  Grovernment  can  prove  is  in- 
volved, the  mandatory  minimum  sentence  escalates. 

There  are  people  who  are  charged  with  conspiracy  to  possess 
with  intent  to  distribute  cocaine,  or  some  other  substance,  who  may 
be  doing  nothing  more  than  being  a  watchman,  a  housesitter, 
sweeping  a  warehouse,  fueling  a  boat,  things  like  that.  Now,  do 
those  people  know  what  they  are  doing?  Yes,  they  doing.  Are  they 
then  knowingly  involved  in  some  way  in  the  drug  trade?  Yes,  they 
are.  Are  they  then  technically  involved  in  trafficking?  Yes,  they 
are.  Do  those  people  deserve  to  go  to  prison  for  a  mandatory  5  or 
10  or  15  or  20  years?  No. 

Mr.  Schiff.  Do  they  deserve  to  go  to  prison,  according  to  you? 

Mr.  So^fNETT.  I  think  that  depends  on  their  background. 

Mr.  Schiff.  But  maybe  no. 

Mr.  SoNNETT.  Maybe  no. 

Mr.  Schiff.  That  is  what  I  wanted  to  hear. 

Mr.  SoNNETT.  But  the  difference  is,  Mr.  Schiff— and  I  can  see 
you  were  an  awfully  good  prosecutor  and  defense  lawyer  because 
your  cross  examination  has  been  trying  to  move  me  down  the  road 
to  where  I  can  be  accused  of  being  soft  on  crime  or  soft  on  sentenc- 
ing, and  that  is  not  what 

Mr.  Schiff.  Which  I  think  I  did,  as  a  matter  of  fact. 

Mr.  SoNNETT.  No.  But  that  is  not  what  I  am  saying.  What  I  am 
saying  is,  there  are  times  in  which  people  who  are  technically  con- 
victed, or  charged  and  convicted  of  trafficking  type  offenses — soci- 
ety can  be  better  served,  without  depreciating  the  seriousness  of 
the  offense,  without  a  lengthy  prison  term. 

Now,  should  they  go  to  jail  for  a  year  perhaps?  Maybe.  But  for 
5  years'  minimum  mandatory,  or  10  years'  minimum  mandatory, 
because  they  swept  a  warehouse  where  somebody  stored  enough 
quantity 

Mr.  ScHUMER.  Would  the  gentleman  yield? 

Mr.  Schiff.  I  will,  and  then  I'll  conclude. 

Mr.  ScHUMER.  Is  that  a  specific  case? 

Mr.  SoNNETT.  I  have  had  cases  like  that,  yes,  sir. 

Mr.  ScHUMER.  You  have  had  a  case  where  somebody,  all  they  did 
was  sweep  a  warehouse,  first  offense,  and  they  got  5  years? 

Mr.  So^fNETT.  No,  I  have  never  represented  a  warehouse  sweep- 
er, Mr.  Chairman,  I  have  represented 

Mr.  ScHUMER.  Do  you  know  of  a  case? 

Mr.  SoNNETT.  Yes,  I  do. 

Mr.  ScHUMER.  Of  a  warehouse  sweeper — ^you  have  used  the  ex- 
ample three  or  four  times — of  someone  who  just  swept  a  ware- 
house, no  prior  convictions,  and  got  the  minimum  mandatory.  The 
record  will  remain  open  for  5  days  for  you  to  submit  that  case. 


164 

Mr.  SoNNETT.  No,  I  cannot,  off  the  top  of  my  head,  tell  you  about 
a  warehouse  sweeper. 

Mr.  SCHUMER.  I  yield  back. 

Mr.  SoNNETT.  And  I  will  provide  you  with  examples,  and  there 
are  some  in  the  record  already. 

Mr.  ScHUMER.  I  would  just,  in  all  due  respect,  ask  you  to  use  an 
example  where  there  is  a  real  case. 

This  is  the  problem  we  face  with  this  issue.  It  is  all  anecdotal, 
and  then,  when  you  try  to  find  real  cases,  they  vanish. 

Judge  Broderick.  Mr.  Chairman. 

Mr.  ScHUMER.  Weil,  it  is  Mr.  Schiff  s  time,  but  I  would  be  happy 
to  ask  him  to  yield  so  somebody  could 

Judge  Walker.  I  can  respond.  I  would  like  to  respond  at  this 
point  to  two  cases  that  were  brought  to  our  attention. 

Mr.  Schumer.  Please. 

Judge  Walker.  When  we  found  out  we  were  coming  to  testify  or 
we  were  going  to  make  an  appearance,  either  in  writing  or  in  per- 
son, we  asked  our  members  to  start  sending  in  cases,  and  we  got 
one  case  from  the  Northern  District  of  Alabama.  This  is  in  addition 
to  the  two  I  mentioned.  This  was  a  21-year-old  black  college  stu- 
dent who  had  no  prior  criminal  record  and  no  prior  conviction.  He 
agreed  to  permit  an  acquaintance  to  mail  a  package  containing  co- 
caine to  his  apartment. 

There  was  no  question  about  guilt  or  innocence  in  any  of  these 
cases.  He  knew  what  was  going  on,  but  he  didn't  know  how  much 
was  in  the  package.  It  turned  out  that  the  package  contained  370 
grams  of  cocaine  base  and  was  intercepted  by  postal  inspectors.  He 
pleaded  guilty,  attempted  to  assist  the  investigators,  had  no  helpful 
information  due  to  his  limited  involvement  in  this  scheme,  and  got 
his  10  years'  mandatory  minimum. 

Mr.  Schiff.  But  this  particular  case  is  someone  who,  by  know- 
ingly allowing  the  package  to  be  mailed  to  his  house,  knowing  it 
was  drugs,  even  if  he  didn't  know  how  much,  was  voluntarily  es- 
tablishing himself  as  a  link  in  the  drug  trafficking  system. 

Judge  Walker.  His  guilt  is  clear.  Guilt  in  all  these  cases  is  clear. 
Indeed,  Ms.  Richardson's  case  earlier,  her  guilt,  it  seems  to  me, 
was  clear.  At  least  the  jury  found  her  guilty  of  passing  on  a  tele- 
phone number,  furthering  the  conspiracy.  There  is  no  question 
about  that.  It  is  a  question  about  whether  the  10-year  sentence  for 
a  first  offender,  a  college  student,  who  makes  a  mistake,  is  the  ap- 
propriate sentence.  I  am  not  saying  that  jail  is  not  appropriate;  I 
think  the  judge  in  that  case — I  don't  have  it  here  in  front  of  me — 
said  he  would  definitely  have  given  that  person  prison  time;  there 
is  just  no  question  about  it. 

Let  me  mention  another  case,  a  similar  kind  of  case.  This  was 
a  case  in  which  two  Mexican  aliens  were  coming  across  the  country 
and  one  of  them  was  bringing  cocaine.  He  wanted  the  second  per- 
son along  because  the  guy  was  what  is  known  as  a  shade  tree  me- 
chanic— that  is,  he  fixes  cars  under  the  shade  of  a  tree — and  he 
wasn't  sure  his  jalopy  was  going  to  make  it  from  the  west  coast  to 
east,  so  he  brought  the  mechanic  along.  The  mechanic  knew  what 
the  trip  was  about — no  question  about  guilt  or  innocence,  no  ques- 
tion about  furthering  the  process.  Again,  10  years  in  jail. 


165 

Now  there  is  an  alien  whom  a  judge  reasonably  could  have  given 
a  lesser  sentence  and  deported  him.  Perhaps  that  might  have  oeen 
the  appropriate  thing  to  do. 

Mr.  ScHiFF.  So  he  could  return  the  next  day? 

Judge  Walker.  Maybe  not.  He  wouldn't  return  the  next  day  if 
he  got  3  years. 

What  is  necessary,  though?  I  mean  does  Congress  want  to  get  in- 
volved in  every  case?  These  are  judges  are  experienced,  they  look 
at  these  situations,  this  was  a  first  offender,  the  question  was, 
should  he  get  10  years  when  perhaps  he  had  no 

Mr.  ScHUMER.  Well,  Judge,  if  you  would  yield- 


Judge  Walker.  He  had  no  ability  to  cooperate. 

Mr.  ScHUMER.  Did  he  have  no  ability  to  cooperate?  I  think  that 
is  important  to  know. 

Judge  Walker.  The  only  person  he  knew  in  his  case  was  the  guy 
who  recruited  him  to  be  the  mechanic. 

Mr.  Schumer.  What  was  that  guy  sentenced  to? 

Judge  Walker.  I  don't  have  that  actual  sentence,  but  he  was 
also  sentenced. 

Mr.  Schumer.  All  I  am  saying  is — and  these  are  very  helpful  be- 
cause, as  you  know,  I  think  we  should  try  to  see  if  we  can  craft 
a  narrow  escape  valve,  and  this  case  you  mentioned  is  helpful  in 
that,  although  in  each  case — in  many  of  them,  when  we  went  back 
and  examined  or  talked  to  the  prosecutor,  there  were  other  cir- 
cumstances. 

To  me,  what  Attorney  General  Barr  said  rang  very  true.  Prosecu- 
tors don't  get  their  jollies  out  of  taking  someone  like  that  and  giv- 
ing them  }0  years  just  for  no  reason. 

Judge  Walker.  May  I  give  you  one  more,  Mr.  Schumer? 

Mr.  Schumer.  Why  don't  we  submit — well,  I  don't  want  to  sub- 
mit them  to  the  record,  but 

Judge  Walker.  If  I  can  just  add  one  more  thing  on  that,  rather 
than  projecting  the  will  of  Congress  out  in  each  case  as  a  manda- 
tory minimum,  it  seems  to  me  that  the  will  of  Congress  can  be 
made  very  plain  through  the  guideline  system,  and  then  the  judge 
will  make  that  decision. 

Now  in  this  particular  case  there  is  no  question  about  the  man's 
guilt,  there  is  absolutely  no  question  if  I  were  the  sentencing  judge 
that  he  would  be  going  to  jail,  and  he  would  be  going  to  jail  for  a 
substantial  period  of  time,  but  I  don't  know  that  I  would  give  him 
10  years  in  an  unfettered  system. 

Mr.  Schumer.  That  is  a  fair  comment.  All  of  your  comments. 
Judge  Walker — and  I  think  they  have  been  very  fair  and  thought 
out — lead  me  inexorably  to  an  escape  valve  type  of  thinking,  and 
maybe  we  can't  draft  a  good  one,  but  that  seems  to  me  to  get  at 
the  problems  you  are  pointing  out  without  creating  the  problems 
that  have  been  pointed  out  by  people  on  the  other  side,  and  it  be- 
fuddles me  that  that  kind  of  concept  isn't  getting  more  kind  of  posi- 
tive feed  back.  Let's  see  if  we  could  work  and  see  if  we  could  draft 
something.  Maybe  we  can,  maybe  we  can't. 

But  what  I  say  to  you  is,  the  idea  of  eliminating  mandatory  mini- 
mums,  given  all  the  problems  that  have  been  brought  up  by  some 
of  the  witnesses,  given — ^you  have  been  here  from  the  beginning 
and  you  heard  the  panoply.  On  my  committee,  I  suppose  there 


166 

would  probably  be  two  people — this  is  my  guess — who  would  vote 
to  eliminate  minimum  mandatories,  period,  and  we  probably  are  a 
greater  percentage  than  of  the  whole  Congress  who  would  do  it. 
Here  I  am  trying  to  deal  with  the  kind  of  problem  you  are  dealing 
up,  and  you  are  basically  saying,  "Oh,  no,  we  have  to  go  way  be- 
yond," and  it  is  not  going  to  happen,  and  I  don't  think  it  should 
happen,  based  on  the  hearing  today  anjrway. 

Judge  Walker.  We  are  not  involved  in  the  day-to-day  political 
world. 

Mr.  ScHUMER.  It  is  not  just  a  political  world,  it  is  a  substantive 
world  too. 

Judge  Walker.  And  a  substantive  world,  but  also  it  is  a  question 
of  how  one  relates  to  the  will  of  the  people.  That  is  what  politics 
is  all  about. 

Mr.  ScHUMER.  Right;  that's  for  sure. 

Judge  Walker.  In  its  best  sense. 

Mr.  ScHUMER.  Yes. 

Judge  Walker.  And  that  is  your  job. 

Mr.  Schumer.  I  appreciate  that.  I  am  just  trying  to  importune 
you  to  the  position  where  you  might 

Judge  Walker.  I  would  just  like  to  take  this  opportunity,  in  case 
the  hearings  end  without  our  having  said  so,  that  certainly  on  be- 
half of  my  constituents,  we  are  extremely  appreciative  of  the  fact 
that  you  are  holding  these  hearings.  We  think  this  is  an  important 
issue,  one  that  needs  to  be  explored,  debated,  and  openly  discussed 
so  that  all  these  problems  can  be  surfaced. 

Mr.  Schumer.  Well,  I  appreciate  that,  and  I  have  thoroughly  en- 
joyed this  hearing,  both  in  terms  of  learning  and  in  terms  of  meet- 
ing the  people  and  hearing  what  is  going  on.  So  there  is  no  problem 
with  that,  and  we  will  continue  to  try  and  find  something  that 
makes  sense  and  is  doable. 

Mr.  Schiff,  I  had  interrupted  you. 

Mr.  SCHIFF.  Mr.  Chairman,  I  appreciate  your  line  of  questioning. 

Mr.  Chairman,  I  will  conclude  actually  where  I  came  in  this 
morning.  I  appreciate  your  holding  this  hearing.  I,  for  one,  feel  the 
Congress  should  be  as  willing  to  look  at  mandatory  sentencing  laws 
as  any  other  law  that  we  pass  to  see  what  objections  there  might 
be  to  it. 

I  have  heard  enough  information,  though  I  am  not  bowled  over 
by  some  of  the  examples  given  that  really  anything  outrageous 
happened  to  certain  defendants  described,  I  have  heard  enough  in- 
formation to  know  that  we  should  at  least  take  a  look  at  what  pro- 
posals are  there.  But  I  would  just  respectfully  offer  a  caution  that 
I'm  looking  up  to  a  certain  level  because  mandatory  minimums  are 
such  a  flat  way  of  approaching  these  things. 

I  simply  don't  think  we  should  go  so  far  as  to  say  that  those  that 
traffic  in  drugs,  no  matter  what  else  we  might  say  about  them  in 
terms  of  their  age  and  whether  they  are  in  college  or  whatever 
other  factor  might  be  offered,  ought  to  be  considered  for  anything 
other  than  a  prison  sentence,  and  I  know  that  some  of  the  wit- 
nesses here  agree  with  that,  I  know  that  some  of  the  witnesses 
here  do  not,  and  I  just  want  to  make  it  clear  where  I'm  coming 
from  in  terms  of  what  I'm  willing  to  look  at. 


167 

Mr.  Chairman,  a  very  excellent  hearing,  and  I  thank  the  wit- 
nesses and  you. 

Mr.  ScHUMER.  I  want  to  thank  you,  Mr.  Schiff.  First,  I  certainly 
agree  with  you  on  that,  and  I  think  the  majority  of  us  do,  that 
someone  who  is  trafficking  should  get  some  kind  of  jail  time,  pe- 
riod. But  I  just  wanted  to  thank  you  for  staying  here  and  adding 
your  erudition,  as  you  do  every  time. 

I  also  want  to  thank  the  witnesses.  I  think  that  your  being  here 
and  us  sort  of  verbally  both  learning  from  each  other  and  jousting 
with  one  another  really  helps  the  process  along,  and  I  want  to 
thank  all  of  you  for  coming.  I  know  how  strongly  you  all  feel,  par- 
ticularly Judge  Broderick,  who  has  really  made  this  a  crusade.  We 
are  going  to  keep  talking  together  to  see  if  we  can  come  up  with 
something. 

Judge  Broderick.  Thank  you,  Mr.  Chairman. 

Mr.  ScHUMER.  Thank  you.  I  appreciate  it. 

Wait  just  for  one  minute.  Without  objection,  the  hearing  record 
will  remain  open  for  the  submission  of  statements  from  Dewey 
Stokes,  the  national  president  of  the  Fraternal  Order  of  Police; 
Prof  David  Grottleib  from  the  University  of  Kansas  Law  School; 
and  Congressman  Rick  Santorum  of  Pennsylvania. 

I  would  certainly  like  to  thank  not  only  my  colleagues,  but  I 
would  have  the  whole  audience  note,  this  was  one  of  those  rare 
hearings  where  every  member  of  the  subcommittee,  with  a  single 
exception — and  I  know  he  was  busy  on  the  Intelligence  Committee 
all  day — showed  up  at  least  for  part  of  this  hearing.  That  doesn't 
happen  very  often. 

I  want  to  thank  my  staff:  Andy  Fois  and  particularly  Dan 
Cunningham  who  worked  so  hard  on  this  hearing;  Aliza  Rieger, 
Rachel  Jacobson  was  here  and  left;  and,  finally,  Lyle  Nirenberg, 
the  minority  counsel;  as  well  as  our  gentleman  here  who  sits  here 
diligently  for  the  5  hours  while  we  are  all  gabbing  and  takes  it  all 
down  and  makes  it  into  something  that  looks  pretty  good,  James 
Sumiel,  who  is  the  recorder  for  today. 

With  that,  the  hearing  is  adjourned, 

[Whereupon,  at  3:40  p.m.,  the  subcommittee  adjourned.] 


APPENDIXES 


Appendix  1. — STATEME^^^  of  David  J.  Gottlieb,  Professor, 
University  of  Kansas  School  of  Law 

Mr.  Chairman  and  Members  of  the  Subcommittee: 

'liank  you  for  inviting  me  to  appear  before  you  today  to  discuss  the  impact  of 
mandatory  minimum  sentences  on  the  federal  criminal  justice  system.  Although  a 
family  emergency  will  prevent  my  appearance  in  person,  I  appreciate  the  oppor- 
tunity to  submit  this  written  statement. 

I  am  here  wearing  two  hats.  I  am  a  Professor  at  the  University  of  Kansas  School 
of  Law  who  researches  and  teaches  about  the  criminal  justice  system.  In  addition, 
I  am  the  Director  of  the  Kansas  Defender  Project,  a  law  school  clinic  in  which  stu- 
dents represent  inmates  at  the  United  States  Penitentiary  in  Leavenworth,  Kansas. 
The  Project,  begun  in  1965,  has  had  the  longest  continuing  relationship  with  the 
Bureau  of  Prisons  of  any  legal  services  program.  I  have  been  its  director  since  1979. 
I  come  here,  therefore,  as  someone  who  has  both  studied  and  practiced  in  the  crimi- 
nal justice  system. 

I  wish  to  add  my  voice  to  the  witnesses  today  who  have  criticized  the  current  re- 
gime of  federal  mandatory  minimum  sentence.  These  statutes  were  passed  for  the 
most  understandable  of  reasons:  our  desire  to  curb  the  excesses  of  violent  and  drug 
crime  in  our  society.  However,  the  experience  of  most  professionals  who  administer 
the  system— judges,  defense  attorneys  and  prosecutors — is  that  few  if  any  benefits 
are  produced  by  these  sentences,  and  that  terrible  costs  are  imposed.  These  anec- 
dotal comments,  many  of  which  you  have  no  doubt  heard,  are  borne  out  by  a  num- 
ber of  empirical  studies  that  have  been  conducted  on  the  effect  of  mandatory  mini- 
mum sentences.  These  studies  show  not  only  that  mandatory  minimum  terms 
produce  inequity  in  individual  cases,  but  that,  as  a  whole,  they  actually  undermine 
some  of  the  goals  that  the  sentences  seek  to  achieve.  Our  current  mandatory  mini- 
mum sentences  do  not  produce  certainty — they  produce  greater  disparity  than  would 
exist  in  their  absence.  They  are  applied  unevenly,  with  more  culpable  defendants 
often  escaping  their  impact  and  with  the  poor  and  minority  defendants  left  to  bear 
their  brunt. 

They  are  producing  a  defendant  population  even  more  cynical  about  the  process 
that  produced  their  incarceration  than  defendants  sentenced  under  the  discarded  in- 
determinate sentencing  system.  It  is  also  a  population  that  is  essentially  without 
hope— the  length  and  determinacy  of  current  sentences  provide  few  incentives  for 
individuals  to  attempt  to  alter  their  behavior.  When  added  to  the  severe  overcrowd- 
ing and  the  strain  on  resources  imposed  on  the  Bureau  of  Prisons,  the  result  is  one 
of  the  most  volatile  situations  in  my  memory. 

I. 

In  the  Sentencing  Reform  Act  of  1984,  a  broad  bipartisan  majority  of  Congress 
sought  to  chart  a  new  path  in  sentencing.  A  determination  was  made  to  reject  the 
old  indeterminate  sentencing  system  for  a  guideline  system.  If  there  was  any  single 
justification  cited  for  the  new  svstem  it  was  the  need  to  produce  equity.  Congress 
wished  to  reduce  the  unjustified  disparities  caused  by  unguided  judicial  discretion. 
Such  disparities  were  attacked  as  irrational,  as  well  as  fostering  the  possibility  of 
racially  disparate  treatment. 


(169) 


170 

Several  recent  studies  of  mandatory  minimums  demonstrate,  with  a  good  deal  of 
consistency,  that  these  sentencing  statutes  are  producing  some  of  the  very  problems 
Congress  sought  to  eliminate.^ 

The  drug  and  firearm  mandatory  minimum  sentences  were  obviously  passed  with 
the  desire  to  increase  uniformity  and  severity  of  sentences  for  individuals  found 
guilty  of  those  crimes.  However,  the  mandatory  minimums  exact  a  serious  price.  Be- 
cause they  are  dependent  on  only  one  factor  (the  use  of  a  gun  or  the  presence  of 
a  certain  quantity  of  drugs)  they  are  terribly  rigid  in  their  application,  and  they  are 
often  applied  to  individuals  far  less  culpable  than  those  contemplated  by  Congress 
when  the  statute  was  passed. 

The  most  frequently  quoted  example  is  the  routine  application  of  drug  mandatory 
minima  to  couriers.  These  often  destitute  and  uneducated  individuals  may  gain  lit- 
tle from  their  criminal  involvement.  Because  of  aiding  and  abetting  law,  however, 
they  may  be  held  responsible  for  participating  in  huge  narcotics  transactions  and 
be  held  to  extremely  long  sentences. 

In  addition  to  their  severity,  the  mandatory  minimums,  if  applied  in  every  case 
where  they  could  be,  would  increase  dramatically  the  number  ofcriminal  trials. 

The  data  show  that  because  of  these  difficulties,  mandatory  minimums  are  often 
not  applied.  Rather,  they  are  used  by  prosecutors  as  bargaining  chips  to  induct 
guilty  pleas,  or  avoided  entirely  by  decisions  to  charge  individuals  with  penalties  not 
included  within  the  mandatory  minimum  laws. 

The  decision  whether  to  charge  the  mandatory  crimes  may  vary  from  prosecutor 
to  prosecutor  and  from  district  to  district.  What  is  clear  from  the  pubhshed  studies, 
however,  is  that  there  is  disparity  in  the  charging  practices  of  different  jurisdictions. 

Were  the  disparity  in  use  of  mandatory  minimum  sentences  only  a  question  of  ge- 
ography, the  situation  might  not  be  so  troubling.  However,  the  studies  show  other 
alarming  trends.  Apparently,  prosecutors  have  chosen  to  ask  for  mandatory  mini- 
mums in  a  racially  disparate  fashion.  African-Americans  are  more  likely  to  be 
charged  under  a  mandatory  minimum  than  a  similarly  situated  White  defendant. 
This  should  be  particularly  troubling  since  the  mandatory  minimum  laws  them- 
selves, even  if  administered  in  a  totally  evenhanded  way,  would  have  a  disparate 
impact  on  minority  defendants.  The  decision  to  set  a  mandatory  minimum  penalty 
for  5  grams  of  crack  cocaine,  but  at  500  grams  for  Hake  cocaine,  creates  a  class  of 
poor  and  minority  defendants  (who  are  more  likely  to  use  crack)  subiect  to  manda- 
tory minimum  penalties  and  a  class  of  more  affluent  abusers  of  flake  cocaine  not 
subject  to  the  minimums. 

In  addition,  the  Government's  ability  to  reward  defendants  for  coooeration  by  the 
incentive  of  permitting  a  sentence  below  the  mandatory  minimum  also  creates  dis- 
parity and  some  injustice.  Very  often,  it  is  the  most  culpable  defendants  in  multi- 
member conspiracies  who  have  the  most  assistance  to  offer.  A  less  culpable,  and 
usually  poorer,  defendant,  may  have  less  information  to  offer  the  Government  and 
may  therefore  not  receive  an  offer  for  a  substantial  assistance  motion  in  return  for 
cooperation.  Thus,  the  existence  of  mandatory  minimum  penalties  may  help  foster 
a  system  that  in  many  cases  punishes  the  poorer  and  less  culpable  defendant  more 
severely  than  the  ringleader. 

n. 

The  problems  that  I  have  just  described  are  fairly  clearly  cataloged  in  the  studies 
I  have  cited.  I  would  now  like  to  add  my  views  about  two  problems  caused  by  the 
new  regime  of  determinate  sentencing  that  I  have  gained  from  my  personal  experi- 
ence. 

First,  to  an  even  greater  extent  than  existed  during  the  regime  of  indeternrunate 
sentencing,  our  clients  regard  mandatory  minimum  sentences  as  bewildering  and 
unjust,  as  devices  which  the  wealthy  and  well-connected  can  escape,  and  as  traps 
for  the  minority  and  poor.  This  may  be  a  small,  even  insignificant,  concern  to  some 
members  of  the  Committee.  However,  I  would  submit  that  if  we  are  to  hope  that 
individuals  who  prey  on  society  will  ever  change  their  behavior,  that  change  must 
start  with  a  recognition  by  the  individual  that  the  punishment  imposed  is  a  just 
punishment.  Under  the  indeterminate  sentencing  system,  there  was  often  a  percep- 
tion that  the  penalties  depended  on  the  view  of  the  judge  before  whom  the  individ- 
ual was  sentenced,  but  at  the  very  least,  the  defendant  was  aware  that  the  judge 


» These  studies  include,  B.  Meierhoefer,  The  General  Effect  of  Mandatory  Minimum  Prison 
Terms  (Federal  Judicial  Center)  (1992);  United  States  Sentencing  Commission,  Mandatory  Mint- 
mum  Penalties  in  the  Federal  Criminal  Justice  System  (1991);  Report  of  the  Federal  Courts 
Study  Committee  (1990).  See  also  G.  Ix)wenthal,  Mandatory  Sentencing  Imjus:  Undermining  The 
Effectiveness  of  Determinate  Sentencing  Reform,  81  Cal.  L.  Rev.  61  (1993). 


171 

who  sentenced  him  believed  that  the  punishment  meted  out  was  just.  Moreover,  the 
individual  was  given  the  opportunity  to  change  and  receive  some  reward  for  that 
change  during  sentencing. 

Under  our  current  system,  in  contrsist,  a  mandatory  minimum  may  be  imposed 
by  a  judge  who  does  not  believe  in  the  sentence  imposed.  Indeed,  very  often  judges 
will  tell  defendants  they  would  not  sentence  them  so  severely  if  they  had  the  choice. 
A  prisoner  now  knows  not  only  that  someone  who  has  committed  similar  conduct 
has  received  a  lesser  sentence  because  of  an  agreement  with  the  prosecutor,  he  is 
aware  that  even  the  judge  may  regard  his  sentence  as  unfair.  The  new  determinate 
sentencing  regime,  designed  to  promote  justice  and  fairness  has,  in  my  experience, 
produced  a  more  cynicalattitude  toward  the  system  than  even  the  previous  sentenc- 
mg  system. 

When  this  cynicism  is  coupled  with  the  length  and  fixed  nature  of  the  sentences, 
the  result  is  a  volatile  prison  population.  Our  clients  sentenced  under  guideline  and 
mandatory  minimum  sentences  nave  extremely  long  terms  that  simply  cannot  be  re- 
duced. Congress  has  eliminated  parole  and  reduced  good  time  to  a  fraction  of  its 
former  value.  The  prison  has  fewer  means  than  it  has  ever  had  to  secure  coopera- 
tion from  its  inmate  population. 

Not  only  is  the  Bureau  of  Prisons  being  asked  to  control  a  more  alienated  popu- 
lation, it  is  being  asked  to  control  a  greater  number  of  inmates.  Guideline  and  man- 
datory minimum  sentences  have  resulted  in  a  tremendous  increase  in  prison  popu- 
lation. 

These  factors  have  produced  a  high  level  of  tension,  I  believe,  within  certain  parts 
of  the  federal  prison  system.  There  have  been  as  many  serious  incidents  in  the  past 
year  at  Leavenworth  as  there  were  in  the  preceding  decade.  If  Congress  wishes  to 
continue  mandatory  minimum  sentences,  it  must  devote  even  more  resources  to 
building  and  stafling  prisons  than  it  presently  devotes. 

Thank  you  for  letting  me  submit  these  brief  comments.  I  hope  they  aid  the  Com- 
mittee in  its  very  important  work. 


172 

Appendix  2. — Statement  of  Mitchell  S.  Rosenthal,  M.D., 
President,  Phoenix  House 

Mr.  Chairman,  my  name  is  Mitchell  8.  Rosenthal.  I  am  a  psychiatrist  and  presi- 
dent of  Phoenix  House,  which  is  the  nation's  largest,  private,  nonprofit  drug  abuse 
services  agency. 

Phoenix  House  has  treated  close  to  60  thousand  men,  women  and  adolescents 
since  we  opened  in  1967.  Today,  we  operate  15  treatment  centers  in  New  York,  New 
Jersey,  and  California.  We  work  in  prisons  and  homeless  shelters  and  care  for  a 
treatment  population  of  more  than  2,000,  the  great  majority  of  whom  are  in  long- 
term,  residential,  therapeutic  community  programs. 

I  am  grateful  for  the  opportunity  to  add  this  statement  to  the  record  of  the  Sub- 
committee's hearings  on  mandatory  minimum  sentencing. 

In  re-examining  mandatory  sentences  for  drug  offenses,  I  would  ask  the  commit- 
tee to  take  a  broad  view  and  consider  their  impact — not  only  on  our  courts  and  pris- 
ons— but  also  on  our  streets  and  communities.  The  overriding  question,  I  believe, 
is  whether  mandatory  minimums  enhance  or  diminish  the  capacity  of  the  criminal 
justice  system  to  control  drug  abuse  and  to  reduce  the  crime,  violence,  and  other 
manifestations  of  social  disorder  that  derive  from  drug  abuse. 

Benefits  of  Incarceration 

Mandatory  sentencing  presumes  a  value  to  incarceration,  and  this  value  is  gen- 
erally assessed  by  two  measures.  First,  there  is  the  gain  to  society  of  taking  crimi- 
nals ofT  the  streets  and  denying  them — while  they  are  imprisoned — the  opportunity 
to  commit  additional  crimes.  Second  is  deterrence,  the  benefits  that  result  from  dis- 
couraging future  criminality. 

There  is  no  question  that  society  is  the  winner  when  certain  drug  law  offenders 
are  taken  out  of  circulation  for  prolonged  periods  of  time.  The  cost  of  their  criminal 
activity  would  amount  to  substantially  more  than  the  cost  of  their  incarceration. 

There  is  also  a  reduction  in  violence.  And  we  should  bear  in  mind  that  inmates 
imprisoned  for  drug  offenses  characterized  as  "non-violent"  are  not  necessarily  non- 
violent individuals.  They  are  far  more  likely  to  be  "disordered"  drug  abusers,  who 
are  characteristically  given  to  behavior  that  is  irresponsible  and  antisocial,  often 
violent,  frequently  criminal,  and  manifesting  an  almost  absolute  disregard  for  the 
welfare  of  others. 

We  cannot,  however,  justify  prolonged  imprisonment  of  all  drug  law  offenders  on 
this  basis.  Although  research  on  street  addicts  shows  them  responsible  for  enormous 
amounts  of  crime — both  drug-related  and  not — it  is  hard  to  say  how  many  drug  law 
offenders  generate  criminal  costs  to  society  that  equal  or  exceed  the  cost  of  their 
incarceration. 

While  the  value  of  incarceration  as  an  "alternative  activity"  may  be  difficult  to 
determine,  the  impact  on  future  criminality  is  relatively  easy  to  assess.  Recidivism 
is  the  gauge,  and  recidivism  rates  show  that  correctional  dollars  buy  relatively  little 
deterrence.  And  there  is  no  evidence  that  mandatory  minimum  sentences  increase 
this  return. 

Rediscovering  Rehabilitation 

There  is,  however,  an  exception  to  the  nondeterrence  of  incarceration.  And  it  de- 
fies the  findings  of  research  during  the  early  Seventies  that  discredited  the  notion 
of  rehabilitation. 

There  exists  today  strong  evidence  that  appropriate  drug  abuse  treatment  will  re- 
duce recidivism.  And  it  will  reduce  recidivism  among  all  drug  abusers  in  the  prison 
population,  most  of  whom  are  doing  time  for  non-drug  offenses. 

The  Stay'N  Out  Program  in  New  York  State  was  the  first  prison  program  to  dem- 
onstrate the  ability  of  drug  treatment  to  reduce  recidivism  rates.  i*rogram  partici- 
pants proved  half  again  as  successful  remaining  out  of  prison  as  did  comparable 
nonparticipants  from  the  state  system. 

The  early  findings  of  Stay'N  Out  are  supported  by  more  recent  research,  including 
the  four-program  1989  study  of  Marcia  Chaiken  and  Douglas  Anglin's  1990  review 
of  80  programs.  In  Alabama,  correction  officials  credit  treatment  programs  with  re- 
ducing work  release  failures  by  50  percent. 

Not  all  forms  of  drug  abuse  treatment  will  work.  It  is  disordered  drug  abusers 
who  are  largely  responsible  for  crime  and  violence  and  most  likely  to  end  up  in  pris- 
on. Appropriate  treatment  for  these  men  and  women  goes  well  beyond  arresting 
compulsive  drug  use.  It  must  address  the  psychological  basis  of  addiction,  alter  self- 
perception,  and  change  attitudes  and  values  that  prompt  and  sustain  not  only  drug 


173 

abuse  but  all  self-destructive  and  antisocial  behavior.  It  needs  also  to  remedy  the 
deficits — social,  educational,  and  vocational — that  preclude  a  positive  and  productive 
post-treatment  life. 

The  treatment  of  choice  for  most  disordered  drug  abusers — and  the  regimen  that 
has  proven  most  effective  in  the  correctional  setting — is  the  therapeutic  community 
model  of  long-term  residential  treatment.  The  highly-structured  therapeutic  conunu- 
nity  provides  heavy-duty  support  and  control,  employs  self  help  principles  and  group 
process  to  foster  self-discovery  and  emotional  growth,  and  oners  a  broad  array  of 
rehabilitative  and  empowering  services. 

Therapeutic  community  treatment  not  only  improves  oorrectiontd  outcome  but  it 
also  improves  the  correctional  process.  Inmates  in  therapeutic  community  units 
within  tne  New  York  State  correctional  system  have  been  found  to  be  more  orderly, 
to  be  involved  in  fewer  incidents,  and  to  require  less  medical  attention. 

Treatment  Alternatives 

Effective  therapeutic  community  treatment  while  in  prison  adds  from  $2,500  to 
$5,000  to  the  $25,000-a-year  cost  of  incarceration.  That's  a  five  to  ten  percent  cost 
increase  for  a  50  percent  reduction  in  recidivism. 

Greater  economy  can  be  achieved  by  early  release  to  residential  treatment  in  com- 
munity facilities  for  inmates  who  have  successfully  completed  an  initial  treatment 
phase  in  prison.  Continuing  treatment  outside  prison  is  less  costly  and  also  makes 
possible  a  therapeutically  guided  return  to  society. 

Therapeutic  conmiunity  treatment  as  an  alternative  to  incarceration  is  another  op- 
tion that  offers  an  appropriate  disposition  for  many  criminal  offenders  at  substan- 
tially lower  cost  than  incarceration. 

These  options  should  be  available  to  the  courts  and  to  correction  authorities.  It 
is  my  belief  that  the  subcommittee  can  best  help  resolve  the  question  of  appropriate 
sanctions  for  drug  law  offenders  by  increasing  judicial  flexibility  and  encouraging 
the  use  of  treatment  options,  including  mandated  treatment  both  in  prison  and  as 
an  alternative  to  prison. 

In  terms  of  benefits  to  society,  mandated  treatment  provides  a  far  more  satisfac- 
tory alternative  than  mandated  prison  time.  It  responds  to  the  overriding  need  soci- 
ety now  has  to  control  drug  abuse  and  reduce  the  crime,  violence,  and  other  mani- 
festations of  social  disorder  that  derive  from  drug  abuse. 

I  should  note  here  that  one  great  virtue  of  therapeutic  community  treatment  is 
that  it  can  be  mandated.  Although  resistance  to  treatment  is  a  fundamental  aspect 
of  drug  abuse,  therapeutic  communities  have  proven  uniquely  capable  of  overcoming 
denial  and  motivating  even  residents  who  are  initially  reluctant  to  take  part  in  the 
process.  The  research  shows  conclusively  that  drug  abusers  who  enter  treatment  in- 
voluntarily are  just  as  likely  to  succeed  as  those  who  enter  by  choice. 

I  think  it  is  important  for  this  subcommittee,  and  for  state  and  federal  criminal 
justice  officials,  to  recognize  the  capabilities  of  drug  abuse  treatment  and  its  pivotal 
role  today.  It  is  a  major  part  of  the  solution  not  only  to  crime  and  violence  but  to 
all  the  other  seemingly  intractable  social  problems  that  derive,  in  whole  or  part, 
from  drug  abuse. 

Crowded  courtrooms  and  prisons  are  but  the  tip  of  this  iceberg.  The  drug-dis- 
ordered fill  homeless  shelters,  and  welfare  rolls.  Their  children  have  created  a  crisis 
in  neonatal  intensive  care  and  overwhelmed  the  foster  care  system.  They  run  up 
enormous  health  care  bills  for  ailments  directly  related  to  their  substance  abuse. 
And  they  are  responsible  for  the  megaproblems  that  confound  our  health  care  sys- 
tem— the  continued  spread  of  AIDS,  the  emergence  of  new,  drug-resistant  strams 
of  TB,  and  the  rising  incidence  of  all  sexually  transmitted  diseases. 

The  need  to  reach  and  treat  the  most  troubled  and  troublesome  of  drug  abusers 
is,  to  my  mind,  the  single  greatest  priority  of  our  society.  So,  when  we  consider  all 
that  our  courts  and  prisons  cannot  accomplish,  it  seems  unreasonable  not  to  exploit 
fully  the  criminal  justice  system's  extraordinary  capacity  to  bring  disordered  drug 
abusers  into  treatment  and  to  keep  them  there. 

Thank  you. 

o 


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