[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
PENALTIES
=======================================================================
HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2014
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MAY 30, 2014
__________
Serial No. 113-113
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Over-Criminalization Task Force of 2014
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
SPENCER BACHUS, Alabama ROBERT C. ``BOBBY'' SCOTT,
RAUUL LABRADOR, Idaho Virginia
GEORGE HOLDING, North Carolina JERROLD NADLER, New York
STEVE COHEN, Tennessee
KAREN BASS, California
HAKEEM JEFFRIES, New York
Caroline Lynch, Chief Counsel
C O N T E N T S
----------
MAY 30, 2014
Page
OPENING STATEMENTS
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Vice-Chairman, Subcommittee on
Regulatory Reform, Commercial and Antitrust Law................ 1
The Honorable George Holding, a Representative in Congress from
the State of North Carolina, and Member, Subcommittee on
Regulatory Reform, Commercial and Antitrust Law................ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member, Over-
Criminalization Task Force of 2014............................. 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 10
WITNESSES
William G. Otis, Adjunct Professor of Law, Georgetown University
Law Center
Oral Testimony................................................. 10
Prepared Statement............................................. 13
Eric Evenson, National Association of Assistant United States
Attorneys
Oral Testimony................................................. 27
Prepared Statement............................................. 29
Marc Levin, Esq., Policy Director, Right on Crime Initiative at
the Texas Public Policy Foundation
Oral Testimony................................................. 35
Prepared Statement............................................. 37
Bryan Stevenson, Professor of Clinical Law, New York University
School of Law, Founder and Executive Director, Equal Justice
Initiative
Oral Testimony................................................. 45
Prepared Statement............................................. 47
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin, and
Chairman, Over-Criminalization Task Force of 2014.............. 3
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 8
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Over-Criminalization Task Force of 2014........ 93
Material submitted by the Honorable Spencer Bachus, a
Representative in Congress from the State of Alabama, and
Member, Over-Criminalization Task Force of 2014................ 160
Additional Material submitted by the Honorable Spencer Bachus, a
Representative in Congress from the State of Alabama, and
Member, Over-Criminalization Task Force of 2014................ 162
APPENDIX
Material Submitted for the Hearing Record
Supplemental Material submitted by Eric Evenson, National
Association of Assistant United States Attorneys............... 168
Material submitted by William G. Otis, Adjunct Professor of Law,
Georgetown University Law Center............................... 171
Letter to the Honorable Harry Reid, Majority Leader, and the
Honorable Mitch McConnell, Minority Leader, United States
Senate......................................................... 172
Questions for the Record submitted to the Witnesses.............. 176
PENALTIES
----------
FRIDAY, MAY 30, 2014
House of Representatives
Over-Criminalization Task Force of 2014
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 9:01 a.m., in room
2237, Rayburn House Office Building, the Honorable Louie
Gohmert (Vice-Chairman of the Subcommittee) presiding.
Present: Representatives Gohmert, Goodlatte, Bachus,
Holding, Scott, Conyers, Cohen, and Jeffries.
Staff Present: (Majority) Robert Parmiter, Counsel; Alicia
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
Mr. Gohmert. The Over-Criminalization Task Force hearing
will come to order. Without objection, the Chair is authorized
to declare recesses of the Task Force at any time.
We will welcome our witnesses today.
Mr. William G. ``Bill'' Otis an adjunct professor at
Georgetown Law. He has held a number of positions in the
Federal Government: Chief of the Appellate Division, U.S.
Attorney's Office for the Eastern District of Virginia,
Counselor to the Administrator, Drug Enforcement
Administration, and Special Counsel to President George H.W.
Bush. He has written several op-ed pieces on criminal law for
USA Today, Forbes, The Washington Post, and U.S. News & World
Report; has been interviewed and quoted by The New York Times
and The Wall Street Journal; has testified as an expert witness
before Congress; has appeared on various network programs and
as a contributor to the blogs Crime and Consequences and Power
Line. Mr. Otis obtained his undergraduate degree at the
University of North Carolina and his juris doctorate at
Stanford Law School.
The Chair will now recognize the gentleman from North
Carolina, Mr. Holding, to introduce our second witness.
Mr. Holding. Mr. Chairman, it is my pleasure today to
introduce a leader in this battle fighting against drug crimes,
former Assistant United States Eric Evenson, who is here today.
Mr. Evenson retired December of last year after more than two
decades as a Federal prosecutor and after significant
experience as a prosecutor in the State courts of North
Carolina. He served as an assistant district attorney for a
number of years in both Greensboro and Durham. His perspective
as a frontline Federal prosecutor I think will be invaluable,
Mr. Chairman, to the Task Force consideration of Federal
penalties.
I came to know Eric when I served as First Assistant United
States Attorney in the Eastern District of North Carolina. When
I joined the office in 2002, Eric was already leading our
Organized Crime Drug Enforcement Task Force, as you know,
OCDETF, Mr. Chairman, task force, coordinating Federal
investigations and prosecutions of high-level interstate and
international drug trafficking.
Throughout his tenure, Eric believed strongly and
demonstrated clearly that tough, cooperative, and sustained
pressure on drug-trafficking organizations could reduce the
flow of drugs, could remove the worst offenders, and could
drive down the crime rate and make our communities safer. Under
Eric's leadership, our OCDETF unit pursued large numbers of
serious drug traffickers and gained the cooperation of
defendants whose information was critical to our ability to
infiltrate, disrupt, and dismantle these organizations.
During his tenure, Eric received two Director's Awards from
the United States Department of Justice for outstanding
prosecutions and one from Attorney General Janet Reno and one
from Attorney General Eric Holder before retiring from the
Department of Justice in November of 2013.
Mr. Chairman, I think Eric's expertise and his deep
knowledge of what works and what doesn't work will aid this
Committee as it considers issues currently facing our country
in the area of drug control and sentencing policy. So I am
pleased to welcome my friend and colleague here today. And I
hope that all the Members of the Task Force will benefit from
his perspective. Thank you.
Mr. Gohmert. Thank you very much.
Our next witness, Mr. Marc Levin. Marc A. Levin is director
of the Center for Effective Justice at the Texas Public Policy
Foundation and policy director of its Right on Crime
Initiative, which he led the effort to develop in 2010.
Mr. Levin helped develop the Right on Crime Initiative,
which was launched by the Texas Public Policy Foundation at the
end of the 2010. Right on Crime has become the national
clearinghouse for conservative criminal justice reforms,
receiving coverage in outlets such as The Wall Street Journal,
National Review, New York Times, Fox Business News, and The
Washington Post. Mr. Levin has testified on sentencing reform
and solitary confinement at separate hearings before the Senate
Judiciary Committee, and has testified before State
legislatures. Mr. Levin served as a law clerk to Judge Will
Garwood on the U.S. Court of Appeals for the Fifth Circuit, and
staff attorney at the Texas Supreme Court.
Our next witness, Mr. Bryan Stevenson. Mr. Stevenson
represents the Equal Justice Initiative. He is also clinical
faculty at New York University School of Law. Mr. Stevenson has
represented capital defendants and death row prisoners since
1985, when he was a staff attorney with the Southern Center for
Human Rights in Atlanta, Georgia. Since 1989, he has been
executive director of the Equal Justice Initiative, a private,
nonprofit law organization he founded.
The focus is on social justice and human rights in the
context of criminal justice reform in the United States. EJI
litigates on behalf of condemned prisoners, juvenile offenders,
people wrongly convicted or charged, poor people denied
effective representation, and others whose trials are marked by
racial bias or prosecutorial misconduct.
Mr. Stevenson has served as a visiting professor of law at
the University of Michigan School of Law. He has also published
several widely disseminated manuals on capital litigation and
written extensively on criminal justice, capital punishment,
and civil rights issues. Mr. Stevenson is a graduate of
Harvard, with both a master's in public policy from the Kennedy
School of Government and a JD from the School of Law.
So the witnesses' written statements will be entered into
the record in their entirety. I will ask the witnesses to
summarize each testimony in 5 minutes or less. To help you stay
within that time, there is a timing light in front of you
there. The light will switch from green to yellow, indicating
you have 1 minute to conclude your testimony; when the light
turns red, it indicates the witness' 5 minutes have expired.
At this time, unless there is objection, I want to offer
the statement of our Chairman, James Sensenbrenner, Jr., for
the Over-Criminalization Task Force. Know that our thoughts and
prayers are for Chairman Sensenbrenner and his wife with the
health issues that she has had for a week or so. And so hearts
and prayers go out for both of them. And I have a statement
here that I would enter into the record. If there is no
objection, hearing no objection, that will be so order.
[The prepared statement of Mr. Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress from the State of Wisconsin, and Chairman,
Over-Criminalization Task Force of 2014
Good morning and welcome to the seventh hearing of the Judiciary
Committee's Over-Criminalization Task Force. Over its first six months
of existence, the Task Force conducted an in-depth evaluation of the
over-criminalization problem. This year, the Task Force has held two
hearings, focusing on Criminal Code Reform and the Over-federalization
of criminal law.
These hearings have followed a logical progression. The Task Force
began its work by analyzing whether the mens rea, or intent
requirements, in the federal criminal code are appropriate and
sufficient to ensure that, except in very specific circumstances,
nobody is convicted of a crime without the intent to do something that
the law forbids. The Task Force next engaged in an examination of
regulatory crimes, where the lack of an adequate intent requirement is
often an issue. I firmly believe that, if the regulated conduct is
important enough to carry a criminal penalty, it is something Congress
should vote upon, rather than leaving it to a regulator to implement.
For example, we heard testimony from a witness who unknowingly violated
the Clean Water Act by re-routing sewage in an emergency, and found
himself facing up to five years in federal prison. The Department of
Justice informed us that the statute they used to prosecute this
individual was the same one used to prosecute BP for dumping millions
of gallons of oil into the Gulf of Mexico. Clearly there is a
significant problem here.
The Task Force then held hearings on the need for reform of the
federal Criminal Code, which we know contains over 4,500 criminal
statutes, and the related issue of the over-federalization of the
criminal law. Our work continues today, as the Task Force will take the
next logical step by analyzing the penalties associated with the over-
criminalization of federal law.
As our previous hearings have illustrated, one of the most
important issues facing this Task Force is whether certain conduct--
even conduct which we all agree should be regulated by the federal
government--should subject violators to criminal penalties, including
incarceration. I think we can all agree, for example, that American
citizens should be strongly discouraged from polluting our lakes,
rivers and oceans. But should doing so--particularly unknowingly--rise
to the level of a federal criminal conviction? Should Americans face
prison time for mistakenly checking the wrong box on a form? What about
for violating the laws of a foreign country? Alarmingly, as we know
from our previous hearings, these are not hypothetical situations.
The issue of federal criminal penalties has received significant
attention on Capitol Hill over the past year, and not just from this
Task Force. In particular, many Members have advocated for cutting
mandatory minimum penalties, especially those that apply to drug
trafficking crimes. Proponents of this approach have asserted that it
would serve to reduce the federal budget, trim the prison population,
and ensure that federal judges have greater discretion and flexibility
when sentencing drug traffickers. However, as I have stated in previous
hearings, I am a strong proponent of determinate sentencing--
particularly that an individual who violates the law should receive the
same sentence in Springfield, Virginia, as he would in Springfield,
Illinois. Congress is the branch of government responsible for
assigning culpability to criminal conduct, including culpability for
offenses that we determine are so significant as to require mandatory
incarceration.
Additionally, even Attorney General Holder has admitted that the
nation currently faces a ``serious public health crisis'' with respect
to heroin. This is a rare instance where I agree with the Attorney
General. Given that we are facing a heroin epidemic in this country, I
have significant concerns with any legislative proposal to cut
penalties for those who are bringing significant quantities of this
poison into our communities.
I look forward to hearing from our distinguished panel about these
and other issues associated with federal over-criminalization
penalties.
I want to thank the witnesses for appearing today, and look forward
to hearing your perspectives on this important issue.
__________
Mr. Gohmert. With that, we will turn to the Ranking Member,
Mr. Scott, for his statement.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, even though the United States represents only
5 percent of the world's population, we account for over 25
percent of the world's prisoners. Since 1980, our Federal
prison population has increased 1,000 percent, the average
Federal sentence has doubled, and drug sentences have actually
tripled. Drug convictions alone make up two-thirds of the
increase in the Federal prison population. The so-called war on
drugs has been waged almost exclusively in poor communities of
color, even though data shows that minorities are no more
likely to use or sell illegal drugs or commit crime. These
excessive and discriminatory sentences are driven up by
mandatory minimums, enhancements, and consecutive counts. In
fiscal year 2012, 60 percent of convicted Federal drug
defendants were convicted of offenses carrying a mandatory
minimum penalty.
These defendants are not the ones for whom the harsh
penalties were intended. They are not the kingpins, they are
not the leaders, and they are not organizers of criminal
syndicates. Rather, data from the U.S. Sentencing Commission
tells us that the vast majority are couriers, street-level
dealers, and addicts. More than half of them have the lowest
criminal history category and as a result 93 percent of Federal
inmates are nonviolent offenders.
Mandatory minimums are the worst-of-the-worst sound bites
masquerading as crime policy. They sentence people before they
are even charged or convicted, based solely on the name or the
code section of the crime. No consideration is given to the
seriousness of the crime or how minor a role one may have
played in the crime or whether one is a first offender, a young
person, or an abused girlfriend under the control of a
boyfriend. The same code section, for example, that prohibits
sex between a 40-year-old and a 13-year-old also prohibits sex
between a 19-year-old and 15-year-old high school students.
Obviously, they should not be given the same sentence, but
mandatory minimums often require judges to impose sentences
that violate common sense.
The United States already locks up a higher portion of its
population than any country on Earth. The Pew Center on the
States estimates that any ratio of over 350 per 100,000 in jail
today, anything above that, the crime-reduction value of
increased incarceration begins to diminish. They also tell us
that any ratio above 500 becomes actually counterproductive,
that you have got so many people locked up that you are
actually adding to crime rather than diminishing crime because
you have messed up so many families, you have wasted so much
money, you have got so many felons wandering around that can't
find jobs that you are actually adding to crime.
But the data shows that in the United States our ratio is
not only above 500, but above 700, leading the world. Some
minority communities have incarceration rates over 4,000 per
100,000, creating what the Children's Defense Fund calls the
cradle-to-prison pipeline.
Since 1992, the annual prison costs have gone from $9
billion to over $65 billion a year, and the rate of increase
for prison costs was six times greater than the increased
spending for higher education. The rates of incarceration we
have in this country, looking at crime and simply suggesting
that the main problem is we are not locking up enough people,
doesn't comport with science, data, or common sense.
All research shows that when compared to traditional
proportional sentencing, mandatory minimums waste money,
disrupt rational sentencing considerations, discriminate
against minorities, and often require judges again to impose
sentences that violate common sense. Even when a prosecutor, a
judge, defense counsel, and probation officers, even the
victim, all agree, after having heard all the evidence, that
the mandatory minimum is too severe for a particular case,
there is no choice. The judge's hands are tied and the judge
must apply the mandatory minimum as a matter of law.
Despite all the problems with mandatory minimums, Congress
is still trying to pass more, even though there are at least
195 mandatory minimums already on the books. I believe in what
they call the first law of holes: When you find yourself in a
hole, the first thing you ought to do is stop digging. So if we
are going to get rid of mandatory minimums, we have to stop
passing new ones. Unfortunately, we are violating that rule; in
fact, we passed a new mandatory minimum just last week in the
House.
Granting Federal judges more discretion in sentencing is
the smart and right thing to do. They are the ones closest to
the facts and the players in each case. But we also have to
confront the fact that over the past 40 years, Congress has
been playing politics rather than working to reduce crime in a
smart way.
We have seen alternative strategies that could be used,
like the Youth PROMISE Act that I have introduced, which takes
a proactive approach. It puts evidence-based, cost-effective
approaches in crime reduction into play at the community level
with full community involvement. This strategy has not only
been shown to reduce crime, but also to save money. It will
essentially dismantle the cradle-to-prison pipeline and create
a cradle-to-college- and-career pipeline.
In terms of criminal justice reform, we need to focus our
efforts on distinctly Federal interests and ensure that the
sentences of a correct length are being legislated and imposed.
We need to ensure that Federal collateral consequences of
convictions do not serve as a continuing punishment and burden
on individuals who have already served their time and paid
their debt to society. But most of all, we have to oppose
mandatory minimums, enhancements, and consecutive counts so
that we can eliminate the overincarceration that violates
common sense and increases rather than decreases crime.
Thank you, Mr. Chairman.
Mr. Gohmert. Thank you, Mr. Scott.
The Chair would ask Mr. Conyers, do you wish to make an
opening statement?
Mr. Conyers. Yes, Mr. Chairman, I would, please, if it
meets with your approval.
Mr. Gohmert. The Gentleman is recognized for 5 minutes.
Mr. Conyers. Thank you. This is so important. And I welcome
the witnesses and look forward to their testimony.
But the Over-Criminalization Task Force finally focuses
today on what is the most critical failing of our Nation's
criminal justice system: The continuing prevalence of racism as
evidenced by a Federal charging and sentencing regime that
clearly discriminates against people of color.
Now, racism has permeated our Nation's history since the
beginning. The Constitution of course referred to slaves as
three-fifths of a man. The Civil War was fought to abolish
slavery. And then Jim Crow raised its ugly head, and the
segregation and tactics that followed are a matter of fact.
We are now approaching the 60th anniversary of Brown v. The
Board of Education, which of struck down separate but equal as
the law of the land. And just last year, we celebrated the 50th
anniversary of the March on Washington and the passage of the
Civil Rights Act.
As a Nation, we have come so far. We like now to think that
our justice is color blind, that our system is race-neutral.
But whether overt or subconscious, the vestiges of racism are
still reflected in our Federal criminal justice system, and it
is all the more insidious for it. That is because criminal
justice is meted out by human beings with human failings,
including bias. No longer does Jim Crow and overt racism rule
the day, but rather coded phrases, such as policing high crime
areas and stop-and-frisk policies, are the norm, and combined
with mandatory minimums so expertly referred to by our
colleague Mr. Scott, and stacking and enhancement penalties,
and the so-called three-strikes statutes. It is these concepts
that disproportionately affect communities of color, drawing
more and more people into an antagonistic and unforgiving
criminal justice system.
To provide some perspective regarding this problem, I just
want to breeze through this. In the last 40 years the United
States prison population has grown by 700 percent and now
accounts for 25 percent of the world's prisoners. The number of
Federal prisoners alone grew by nearly 50 percent from 2001 to
2010. While only 4 percent of the Federal crimes carry
mandatory sentences, 34 percent of those in Federal prison are
serving mandatory sentences.
Moreover, the racial impact of the Federal penalty system
is wildly disproportionate. One in nine Black men between the
ages of 20 and 34 are incarcerated. One in 3 Black men and 1 in
6 Latinos will spend some part of their lives in prison,
compared to one 1 in 23 White men. Blacks represent 12 percent
of total drug users in the country, but account for nearly 40
percent of drug-related arrests.
Now, these numbers are far worse in segregated and
impoverished communities. In addition to the devastating
societal costs of mass incarceration, it also results in a
massive economic cost. The so-called war on drugs has cost $1
trillion since its beginning, and the cost to run our Federal
prisons cost $6.9 billion in fiscal year 2014.
So before we identify solutions, we must recognize how we
institutionalize and normalize racism today. That is what makes
this discussion this morning so important. I want to focus on
how racism, unconscious or not, has a disproportionate impact
on criminal penalties on minority communities. Bias can begin
with a decision of where and what offenses are investigated.
With enough time and officers in a certain location, it is only
a matter of time before they find reasonable suspicion to stop,
detain, and arrest someone or many people.
At the prosecutorial phase, this bias can be magnified
through decisions about what charges to bring, what plea deal
to offer, and whether mandatory minimums and enhancements
apply. People from poor communities of color are more likely to
receive harsher charges and mandatory penalties.
The mandatory minimums and statutory enhancements so
ingrained in the code that were intended to target so-called
kingpins and violent criminals do no such thing. Their use is
now propagated against low-level, nonviolent offenders who are
disproportionately poor people of color. The threat of these
staggering mandatory de facto life sentences coerces defendants
into pleading guilty. They impose a trial penalty on those who
use their constitutional right to a jury trial.
I am almost there, Mr. Chairman, and I thank you for your
indulgence.
Finally, at sentencing people of color receive harsher
sentences than would Whites for the same conduct through
mandatory minimums and other sentencing enhancements.
Racism in America has for the most part ceased to be overt.
But the prevalence of institutionalizing discrimination by
writing it into law is just as present today as it was 100
years ago.
The question that stands is this: What can we as a Congress
do about these pressing issues? Finding solutions to
unconsciously institutionalized racism in the criminal justice
system and writ large on our society is not an easy task, but
there are steps we can take. We can begin by rolling back
mandatory minimums and stacking and enhancement sentencing
penalties that result in cruel and unusual punishment for what
are too often low-level offenses. We can revest the judiciary
with discretion in sentencing. We can reinvest the judiciary
with discretion in sentencing. Not all judges are immune to
bias, but in doing so we allow the possibility of proportional
sentencing and the ability to overturn unduly harsh sentences
due to abuse of discretion.
I conclude on this point, Chairman.
Mr. Gohmert. You are double your time. And if we do that,
we're not going to get through because of votes that are
coming.
Mr. Conyers. All right. Then I will just submit the rest of
my statement. Thank you, Chairman.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
The Over-Criminalization Task Force finally focuses today on what
is the most critical failing of our Nation's criminal justice system:
the continuing prevalence of racism as evidenced by a federal charging
and sentencing regime that clearly discriminates against people of
color.
Racism has permeated our nation's history since the beginning. The
Constitution referred to slaves as three-fifths of a man. The Civil War
was fought to abolish slavery, and then Jim Crow raised his ugly head.
We are fast approaching the sixtieth anniversary of Brown v. Board
of Education, which struck down ``separate but equal'' as the law of
the land.
And just last year, we celebrated the fiftieth anniversary of the
March on Washington, and the passage of the Civil Rights Act.
As a nation, we have come so far. We like to now think that justice
is colorblind; that the system is race neutral. But, whether overt or
subconscious, the vestiges of racism are still reflected in our federal
criminal justice system, and it is all the more insidious for it. That
is because criminal justice is meted out by human beings with real
human failings, including bias.
No longer does Jim Crow and overt racism rule the day, but rather
coded phrases such as ``policing high crime areas'' and ``stop and
frisk'' policies are the norm. And combined with mandatory minimums,
stacking and enhancement penalties, and so-called ``three strikes''
statutes, it is these concepts that disproportionately affect
communities of color, drawing more and more people into an antagonistic
and unforgiving criminal justice system.
To provide some perspective regarding this problem,
let's begin with a few facts:In the last 40 years, the U.S.
prison population has grown by 700%, and now accounts for 25%
of the world's prisoners. The number of federal prisoners alone
grew by nearly 50% from 2001 to 2010.
While only 4% of federal crimes carry mandatory
minimum sentences, 34% of those in federal prison are serving
mandatory sentences.
Moreover, the racial impact of the federal penalty system is wildly
disproportionate:
1-in-9 black men between ages 20 and 34 are
incarcerated.
1-in-3 black men, and 1-in-6 Latinos will spend some
part of their lives in prison, compared to 1-in-23 white men.
Blacks represent 12% of total drug users in the
country, but account for nearly 40% of drug related arrests.
These numbers are far worse in segregated and impoverished
communities.
In addition to the devastating societal cost of mass incarceration,
it also results in a massive economic cost. The so-called ``war on
drugs'' has cost $1 trillion since its beginning, and the cost to run
our federal prisons cost $6.9 billion in FY 2014.
Before we identify solutions, we must recognize how we
institutionalize and normalize racism today.
First, I want to focus on how racism, unconscious or not, has a
disproportionate impact on criminal penalties on minority communities.
Bias can begin with the decision of where and what offenses are
investigated. With enough time and officers in a certain location, it
is only a matter of time before they find ``reasonable suspicion'' to
stop, detain, and arrest someone.
At the prosecutorial phase, this bias can be magnified through
decisions about what charges to bring, what plea deal to offer, and
whether mandatory minimums and enhancements apply. People from poor
communities of color are more likely to receive harsher charges and
mandatory penalties.
The mandatory minimums and statutory enhancements so ingrained in
the Code that were intended to target so-called ``kingpins'' and
violent criminals do no such thing. Their use is now propagated against
low-level, non-violent offenders who are disproportionately poor people
of color.
The threat of these staggering mandatory de facto life sentences
coerces defendants into pleading guilty. They impose a trial penalty on
those who their constitutional right to a jury trial.
Finally, at sentencing, people of color receive harsher sentences
than would whites for the same conduct through mandatory minimums and
other sentencing enhancements.
Racism in American has, for the most part, ceased to be overt, but
the prevalence of institutionalizing discrimination by writing it into
law is just as present today as it was 100 years ago.
The question that stands is: What can we, as a Congress, do about
these pressing issues?
Finding solutions to unconsciously institutionalized racism in the
criminal justice system, and writ large on society, is not an easy
task. But there are steps we can take.
We can begin by rolling back mandatory minimums and stacking and
enhancement sentencing penalties that result in cruel and unusual
punishment for what are too often low-level offenses.
We can revest the federal judiciary with discretion in sentencing.
Not all judges are immune to bias, but in doing so we allow for the
possibility of proportional sentencing, and the ability to overturn
unduly harsh sentences due to abuse of discretion.
We can recognize that Congress can and should defer to States in
matters that the States can--and already do--investigate, prosecute and
sentence, rather than engage in wasteful duplicative federal
prosecutions allowing United States Attorneys to focus on uniquely
federal concerns.
Criminal justice is just one symptom of the underlying problem, and
I hope to work with my colleagues in the future to hold a more in-depth
forum to explore the issues of systemic racism and its impacts on
society at large that will include a look at education, public
services, voting rights, drug and mental health treatment, and
employment.
For today, I am hopeful that our witnesses today can shed light on
the issues of the disparate racial impact of the criminal justice
system, the economic and societal impact of these policies, and propose
potential solutions and I look forward to their testimony.
__________
Mr. Gohmert. I had waived giving my statement and offered
Mr. Sensenbrenner's for the record. But with all the discussion
about racism, let me just make this one point. I was a judge
for 10 years. I tried three capital murder cases in Tyler,
Texas. Two were of Anglos, one was an African American. The two
Anglos got the death penalty, the African American got life. So
I don't always have the appreciation for racism entering into
every aspect.
Someone had raised an issue of, well, gee, since the judge
appoints the grand jury foremen, who had the leadership role in
the grand juries. So I was attacked before they checked my
record. I never, ever considered race in appointing foremen for
my grand juries. Once they got the facts and found out that I
had a much higher percentage of African Americans, as it turned
out, who were grand jury foremen, not because of race, they
were just the best leaders on the grand jury. And so, anyway, I
didn't find race an issue in my courtroom at all.
I would ask the Chairman of the full Committee, do you wish
to make a full statement.
Mr. Goodlatte. Yes. Thank you, Mr. Chairman. I am very
pleased to be here at the third hearing of the Over-
Criminalization Task Force following its reauthorization
earlier this year.
This hearing will focus on the penalties imposed for
violations of Federal law. As others have already noted, the
subject of penalties is a very broad topic, covering a wide
array of complex legal and policy issues. Many of these issues
have already been covered in detail by this Task Force,
including the need for an adequate intent requirement in the
Federal criminal law, the problems with regulatory crime, the
overfederalization of criminal law, and the need for criminal
code reform.
The issue of adequate mens rea is of particular interest to
me, and it is especially significant when considering the
penalties associated with violations of Federal law. As I and
other Members of this Task Force have stated repeatedly, no
American citizens should be subjected to a Federal criminal
penalty without the intent to do something the law forbids.
Today I expect to hear from our panel about these and many
other issues associated with Federal penalties. Obviously,
mandatory minimum sentences are a significant part of this.
Advocates for reform to mandatory minimums have argued that
these reforms are necessary to ensure low-level, nonviolent
offenders, particularly in drug cases, are not serving long
prison sentences.
While I have some concerns about many of the proposals to
reform the Federal sentencing scheme in this way, I am open to
hearing arguments on both sides of this issue. However, one
ever-present hurdle to reform in this and other areas is the
repeated actions by this Administration to circumvent Congress'
constitutional role in drafting, considering, and passing
legislation important to the American people.
At the Judiciary Committee's DOJ oversight hearing last
month, I and other Members of the Committee questioned the
Attorney General at length about the Holder Justice
Department's persistent attempts to change the law by executive
fiat. I do not believe that any of us received satisfactory
answers. It will be difficult to find support for reform if
Congress cannot trust that the Administration will abide by
these reforms.
I can assure everyone that under my leadership the House
Judiciary Committee will continue to closely monitor and
analyze this and other issues associated with the imposition of
Federal criminal penalties, and I am confident that the Task
Force will continue its outstanding work. And I want to thank
our distinguished panel of witnesses today, and I look forward
to their testimony.
Thank you, Mr. Chairman.
Mr. Gohmert. Thank you, Mr. Chairman.
With that, we are ready to proceed under the 5-minute rule
with questions.
At this time, Mr. Otis, you may proceed in your 5 minutes.
TESTIMONY OF WILLIAM G. OTIS, ADJUNCT PROFESSOR OF LAW,
GEORGETOWN UNIVERSITY LAW CENTER
Mr. Otis. Mr. Chairman, Ranking Member Scott, and Members
of the Committee, I am honored that you have invited me here
today to talk with you----
Mr. Gohmert. Is the green light on your microphone?
Mr. Otis. Can you hear me better now?
Mr. Gohmert. Yeah. If you would move that a little closer
so we can make sure everybody here can hear. You spent too much
time getting here for people not to hear what you have to say.
Thank you.
Mr. Otis. Again, Mr. Chairman, Mr. Ranking Member,
reMembers of the Committee, I am honored that you invited me to
talk with you today about this extremely important subject of
Federal criminal penalties.
The Task Force is rightly concerned about
overcriminalization, and in particular about the proliferation
of statutes that impose criminal liability without the
traditional requirement that the defendant harbor bad intent.
Such statutes undermine the very legitimacy of criminal law,
which is understood by ordinary people to forbid only behavior
the average person would recognize as wrong.
I am happy to take questions on this subject and have
written a few articles about it. However, I want to focus for
the moment on a different topic: mandatory minimum penalties.
Serious mandatory minimums continue to be needed. Under current
law, sentencing judges have wide discretion, as they should.
But judges and the judicial branch can make breathtaking
mistakes. Some of you view Citizens United as one of them.
Others view Kelo as another. All of us view Plessy v. Ferguson
as a drastic mistake in American history.
Judges are not infallible. The Framers recognized in
adopting the separation of power that no one person and no one
branch should have 100 percent discretion 100 percent of the
time. Congress is fully warranted in directing that for some
appalling crimes a strong, rock-bottom sentence must be
imposed.
Criticism of mandatory minimum sentencing is often at the
heart of the charge that the Federal criminal justice system is
broken or failing. It certainly looks broken to a heroin
trafficker facing long incarceration. But the health of the
system is properly measured not by the incarceration rate, but
by the crime rate. By that standard, it is anything but broken.
Crime is down 50 percent over the last 20 years in the era of
mandatory and longer sentencing. Would that some of our other,
vastly more expensive domestic initiatives have had anything
like that success.
Much of the debate now seems to be driven by two
misconceptions. The first is that mandatory minimums require
Federal judges to imprison for years some high school kid who
has been caught smoking a joint. That is simply false.
Mandatory minimums apply overwhelmingly to trafficking,
trafficking in deadly drugs like heroin, methamphetamine, and
PCP.
The second misconception is that having a larger prison
population is per se a bad thing. One might as well say that
having more criminals in jail rather than in your neighborhood
is a bad thing. When criminals are not imprisoned, they don't
just disappear. Five-year recidivism figures show that more
than three-quarters of drug offenders return to crime after
they are released. If we go back to the naive, failed policies
of the 1960's and 1970's, we will get the failed, crime-ridden
results of the 1960's and 1970's.
Finally, a number of recent developments tell us that
lighter sentencing at the Federal level is, for good or ill,
already largely the new norm. The prudent thing for Congress to
do is to assess over the next few years whether those
developments and their promise of big cost savings and no
increase in crime turn out to be true.
Last summer, for example, the Attorney General himself
directed that, for roughly the set of drug defendants for whom
some pending legislation would apply, Federal prosecutors are
no longer to seek mandatory minimum sentences. This new policy
has effectively mooted a large body of mandatory minimums and
has shifted discretion back to judges. The Sentencing
Commission has adopted the two-level reductions in Guidelines
offense levels for almost all nonviolent drug offenders,
producing notably shorter sentences, and has announced just
recently that for the first time ever more sentences are being
given below the guidelines range than within it.
Perhaps most stunning is the Administration's announcement
of impending clemency for hundreds and more likely thousands of
offenders serving what it views as excessive sentences. In an
unprecedented move, the defense bar has been given a broad and
proactive role in proposing clemency candidates. With these
proposals already in train, Congress has the opportunity to see
for itself whether more discretion and lighter sentences keep
their promise of frugality and low crime. Maybe they will.
Maybe they won't. It is only common sense for Congress to find
out before weakening a system we know has helped keep us safe.
Mr. Gohmert. Thank you very much.
[The prepared statement of Mr. Otis follows:]
__________
Mr. Gohmert. We will hear from our next witness, Mr.
Evenson.
You are recognized for 5 minutes.
TESTIMONY OF ERIC EVENSON, NATIONAL ASSOCIATION OF ASSISTANT
UNITED STATES ATTORNEYS
Mr. Evenson. Thank you, sir. Chairman Gohmert, Ranking
Member Scott, and Members of the Task Force, I am honored to
appear before you on behalf of the National Association of
Assistant United States Attorneys. I would like to thank
Congressman Holding for his kind introduction. NAAUSA shares
strong concern over legislative proposals to reduce minimum
mandatory sentences.
In the 1980's, I was a State prosecutor, and when we would
do drug cases in front of a court, we would often hear the
complaint that you are only getting the little guy, you are not
getting the big fish. And, unfortunately, because of weak State
laws and diminished resources, there was a lot of truth to that
complaint.
State prosecutions are based on two things. You either have
to catch the drug dealer in possession of drugs or you have to
catch him selling it. And as a result, what ends up happening
is you oftentimes don't get the source of supply. The State
laws are just too weak. The resources are too minimal. What
happens is that the leader of the drug organization is largely
untouchable for years. We all live in communities where people
say, why don't they get that big drug dealer, and all the
neighbors know that. This is why. Because the State laws don't
have the leverage that is needed.
In 1990, I became an Assistant United States Attorney. I
quickly realized that we focused on a different set of
defendants, ones that were selling significant quantities of
drugs, enough to trigger what are called minimum mandatory
sentences. Congress mandated that we pursue these organizations
and provided us with the tools, including minimum mandatory
sentences, that we needed.
Now, here is the key difference between State prosecution
and Federal prosecution. Sometimes the average man on the
street just doesn't understand what we are doing. It is this:
It is called conspiracy. Conspiracy law. If you don't remember
anything else, I hope you remember that. I am going to explain
how it works on a day-to-day basis, and I am going to show you
where the rubber meets the road.
In order for us to charge the leader of an organization, we
generally do it with conspiracy law, because they don't sell to
undercover officers; they are too clever. They sell it to their
conspirators who sell it on the street at the retail level.
Now, what do we need to charge conspiracy in Federal court?
Simple. We need co-conspirator testimony. That is how we do it.
To go after the big fish, we have to have the cooperation of
the smaller fish. And every Assistant United States Attorney
worth his salt knows this.
I will tell you that securing their cooperation is no easy
task. They don't want to cooperate. This is hard, mean
business. If the sentence they face is too low, they will tell
you they can do their time standing on their head. I have
debriefed personally hundreds of arrested drug dealers and
explained to them, in the presence of their attorney, the need
for them to assist and testify truthfully.
Congress provided their sentence could be reduced by the
judge if they substantially assisted. You see, their attorney
has already explained to them that they are facing a strong
minimum mandatory sentence, and the only way that they are
going to get a sentence reduction is to substantially assist.
They have to be willing to testify.
Now, this straightforward choice of options, designed by
Congress and enforced by the Department of Justice, has led to
the dismantling of numerous drug organizations in every
district, city, and town in America. But without the
cooperation of these co-conspirators, Federal law enforcement
will be unable to charge and arrest these leaders and sources
of supply. Without minimum mandatory sentences, many, if not
most, would simply refuse to testify.
Minimum mandatory sentences and the presumption of pretrial
detention have given Assistant U.S. Attorneys the leverage they
need to garner these witnesses and to stop drug organizations.
If this leverage is removed or weakened, then vital witnesses
will become unavailable. It is really very simple.
In essence, reducing the minimum mandatories will
substantially cut down on our witnesses. Fewer of the big drug
dealers will be arrested, and we will revert back to convicting
only the lower level dealers we can buy directly from or we
find in possession of drugs. We won't be able to convict the
sources of supply.
Mr. Gohmert. Thank you very much, Mr. Evenson.
Mr. Evenson. Your Honor, may I have just a few more
minutes? I still have some time.
Mr. Gohmert. Well, actually, your time is----
Mr. Evenson. Okay.
Mr. Gohmert [continuing]. Five minutes is up.
Mr. Evenson. I am sorry. I didn't see the yellow light.
Mr. Gohmert. It did come on with a minute to go.
Mr. Evenson. I am very sorry, Your Honor. Thank you.
[The prepared statement of Mr. Evenson follows:]
__________
Mr. Gohmert. Thank you.
At this time, we will proceed with Mr. Levin.
You are recognized for 5 minutes.
TESTIMONY OF MARC LEVIN, ESQ., POLICY DIRECTOR, RIGHT ON CRIME
INITIATIVE AT THE TEXAS PUBLIC POLICY FOUNDATION
Mr. Levin. Well, thank you for having me. We at Right on
Crime are very pleased that Congress is examining various
options for reining in unnecessary Federal criminal laws that
are properly the province of State governments, ensuring, as
Chairman Goodlatte said, that there is a culpable mental state
required for conviction, reexamining mandatory minimums for
nonviolent offenses, implementing evidence-based practices and
community supervision, improving programming in Federal
prisons, and strengthening reentry so we can reduce that high
recidivism rate that Mr. Otis talked about.
We are committed to the 10th Amendment and to making sure
that criminal justice matters. The garden variety street crimes
are the province of State and local governments. We recognize
that although there has been a sixfold increase in
incarceration rates from the early 1970's to today, that some
of that was necessary, particularly to incarcerate violent and
dangerous offenders for long periods of time. But we believe
that the pendulum has swung too far, and now we have too many
nonviolent and low-risk offenders behind bars; and that through
developments and new technologies and techniques, whether their
drug courts, electronic monitoring, risk and needs assessments,
we have a better ability to supervise more nonviolent offenders
in the community.
Over the past several years, we have worked with
conservative governors, conservative lawmakers across the
country to enact successful reforms, including many dealing
with mandatory minimums that we are discussing today. As an
example, 29 States in the last decade have reduced mandatory
minimums relating to nonviolent offenses, and crime has
continued to decline. One example is South Carolina reduced
mandatory minimums as part of a comprehensive reform in 2010,
and crime has declined dramatically in South Carolina, 14
percent, since reducing those drug mandatory minimums.
So we would argue that we need to reexamine mandatory
minimums for several reasons, and simply those of course
relating to nonviolent offenses.
Number one, of course, they can result in excessive prison
terms. And the reality is the vast majority of those affected
by it are not supervisors, leaders, kingpins. That is only 7
percent of those cases. And so instead what we need to do is
look at the fact that most individuals affected by Federal drug
mandatory minimums are, in fact, nonviolent. More than half had
no prior criminal record; 84 percent no weapon involved.
Now, certainly we can also see even outside of the drug
issue. Another example is when somebody has ever had an
offense, even decades ago, they can't have a gun, or they are
subject to Federal mandatory minimums. There was a gentleman in
Tennessee hunting a turkey with a rifle and had a minor offense
decades ago, ended up with a 15-year mandatory minimum. And the
Federal judge in that case, like many other Federal judges,
including many conservative ones, like Judge Cassell, have
said, the sentence I am being forced to hand down by this
mandatory minimum is excessive.
Now, of course mandatory minimums are supposed to produce
uniformity, but they have not done that. And part of that is
because of the enhancements, the 851, the 924 enhancements that
prosecutors can file. And what we have seen is across various
districts the rate at which those enhancements are filed varies
dramatically. One district was 3,994 percent more likely to
file enhancement than another.
And another question is really we have to look at
essentially the main reason mandatory minimums for nonviolent
offenses came into being was the concern that judges were
exercising excessive discretion. But, interestingly, in fiscal
year 2013 only 17.8 percent of the below-guideline sentences
were as a result of judicial departures; more than 38 percent,
and this is drug offenders, came from urging of prosecutors for
substantial compliance and other reasons. So judges are
actually adhering very closely to the sentencing guidelines in
more than 80 percent of the cases.
Now, it has also been argued mandatory minimums are
necessary to encourage defendants to plead guilty. Ninety-seven
percent of Federal cases are resolved by guilty plea. And in
fact, the Sentencing Commission found a greater percentage of
those Federal criminal charges that don't apply to mandatory
minimums resulted in a guilty plea, compared to those where
mandatory minimums do apply.
Now, we certainly don't want to have unlimited discretion.
In Texas, for example, we have sentencing ranges for various
crimes; 18 States have sentencing guidelines. There does need
to be some constraint on judges. So I think it is a false
dichotomy to say we have to just go back to where judges can
decide on any sentence willy-nilly.
Now, let me just address a couple of other issues. One is
that we are still talking about people going to prison for a
long time. When the crack powder disparity was narrowed in
2010, those who have subsequently been convicted of crack cases
have received an average Federal prison term of 97 months. That
is real time.
And let me just also conclude by saying we would urge
Congress to rein in overcriminalization by consolidating all
the Federal criminal laws in one code; adopting a rule of
construction that applies a strong mens rea protection when the
underlying statute is unclear; codifying the rule of lenity,
which says that when there are two objectively reasonable
interpretations of a statute, the one favoring the defendant
should prevail; and finally, making sure that agencies cannot
unilaterally enact criminal penalties on regulations without
the express approval of Congress.
Mr. Gohmert. Gentleman's time has expired. Thank you very
much.
[The prepared statement of Mr. Levin follows:]
__________
Mr. Gohmert. Mr. Stevenson, you are recognized for 5
minutes.
TESTIMONY OF BRYAN STEVENSON, PROFESSOR OF CLINICAL LAW, NEW
YORK UNIVERSITY SCHOOL OF LAW, FOUNDER AND EXECUTIVE DIRECTOR,
EQUAL JUSTICE INITIATIVE
Mr. Stevenson. Thank you. I am going to express my
gratitude to this Task Force for the opportunity to appear
before you today.
I want to contextualize a little bit just how serious the
problem of overcriminalization and overincarceration is. There
are new reports, one published by the National Law Employment
Project and one by the Brennan Center, that now estimate that
68 million Americans--68 million--have criminal records. That
is, they have been arrested, fingerprinted, and are subject to
all of the restrictions that come with having a criminal
record.
Most of this dramatic increase is a consequence of a policy
choice we made 30 years ago to treat drug addiction and drug
possession as a crime problem rather than a healthcare problem.
Many of our allies across the globe have actually made a
different choice and have seen dramatic reduction in drug
addiction and drug abuse. We have seen the opposite.
The consequence of that choice is what has put States in
great crisis. And I would like to urge this Task Force to look
to the States for some leadership on these issues. As my
colleague has mentioned, States have had to deal with the
consequences of overincarceration, the costs, $6 billion in
jails and prisons in 1980, $80 billion today. Many States
governments found themselves seeing their State budgets
bankrupt by the spending that is being directed to jails and
prisons. They couldn't spend on public safety, they couldn't
spend on health and human services.
And so they have made the difficult decision to retreat
from mandatory minimum sentencing, from overincarceration. And
what I think is important about what they can teach us is that,
as was indicated, 29 States have now eliminated these laws or
restricted these laws and seen their crime rates fall, seen
their budgets improve. And I think that lesson is an important
lesson for this Task Force.
There are a bunch of concerns that need to be addressed.
Number one, when we have mandatory minimum sentences, we do not
eliminate discretion. There is this theory that we were going
to solve inequality in sentencing by taking discretion away
from judges. What we do with mandatory minimum sentencing is
actually take the discretion, shift it from the judge, and give
it to the prosecutor.
I have a great deal of respect for my friends, men and
women, who work as U.S. Attorneys across this country. But all
of us bring biases into this process. And to empower any
agent--any agent--to exercise the kind of power that now
exists, with no transparency, no accountability, I think
creates the kind of disruption that we have seen.
I want to emphasize that the overwhelming majority of
people in the Federal system serving long sentences for
mandatory minimum sentences are not the kingpins. I agree with
the colleagues here. If we want to go after these kingpins, I
don't have any concerns with that. But the U.S. Sentencing
Commission estimates that two-thirds of the people serving
these sentences are low-level or mid-level offenders. It is
that consequence that I think we can address by reform.
There are particular problems that I think are reflected by
what we are doing beyond the costs, beyond the challenges that
are being created, and one is the effect that we are having on
communities. I am deeply disturbed by the fact that I go into
communities where I talk to 13- and 14-year-old kids who expect
to go to jail or prison. You can't have the kind of data that
we have--for example, one in three Black kids is expected to go
to jail--you can't have that data without it having very
serious collateral consequences.
And many of the data suggest that we are actually pushing
people into crime lifestyles, into drug lifestyles, into
criminogenic lifestyles because there is this hopelessness that
I think comes from these excessive, extreme, misguided
sentences.
There are vulnerable groups that I also want to emphasize.
The rate of women going to prison in the Federal system has
increased 700 percent. Children. We actually have Federal
statutes that allow the prosecution of children as young as 13
years of age to be subject to life sentences, some for
behaviors that do not reflect serious crime categories. And
veterans. We have a growing population of men and women who
served abroad who come back with trauma, who come back with
drug addiction, who come back with a lot of disabilities, and
because of our mandatory minimum schemes, we are not authorized
to account for their service. We don't have the discretion to
account for that. That creates very, very disparate outcomes,
unfair outcomes, unjust outcomes.
I want to emphasize two things. One, there are 17 States
that have reduced these mandatory minimum statutes that have
seen their crime rates fall. I think we should look to those
States for the kinds of reductions and the kinds of adjustments
that need to be made.
And the last thing I want to emphasize is that we are at a
moment in American history where we have unparalleled,
widespread consensus that this is the thing that we need to do,
eliminate these mandatory minimums. When the American
Legislative Exchange Council was making this recommendation, as
is the American Civil Liberties Union, when people on the right
and on the left recognize that we are spending too much money,
wasting too much money on incarcerating people who are not a
threat to public safety, I think it creates an opportunity for
this Task Force to lead this Congress.
In 2012--and the last point I will make--the voters of
California in a referendum, in every county voted to eliminate
three-strikes laws and mandatory minimum sentencing. I think
that signal is the signal this Task Force needs to move forward
on this important issue.
Mr. Gohmert. Thank you. We will hear more.
[The prepared statement of Mr. Stevenson follows:]
__________
Mr. Gohmert. At this time, we will begin the 5-minute
questioning. I will reserve, since I have got to be here till
the end, and go ahead and recognize the Chairman of the full
Committee for 5 minutes.
Mr. Goodlatte. Well, thank you, Mr. Chairman.
And first let me commend all four of these witnesses. I
think you have made great presentations and you have focused
this discussion and the debate.
First, Mr. Otis, let me start with you. In many
communities, including many in my congressional district in the
Shenandoah Valley, western Virginia, there has been a spike in
deaths associated with heroin, including among young people. Do
you believe it could send a bad message to young people to have
the Federal Government reduce penalties across all drug
categories, including for heroin?
Mr. Otis. I could hardly imagine a worse message. I was
appalled the other day when, I think it was on a Monday, I saw
the Attorney General give a talk recommending some legislation
currently pending in the Senate that would substantially cut
back on mandatory minimums without ever mentioning the specific
drugs, including heroin, to which mandatory minimums apply. And
the very next day, I saw him announce that there was a heroin
crisis going on in many communities in this country. The idea--
--
Mr. Goodlatte. Let me cut you short just because I want to
give some other people the opportunity, and I have got a few
questions I want to ask.
Let me let Mr. Stevenson respond to the same question.
Mr. Stevenson. Yes. I actually think that we are not going
to affect use of heroin, use of some of these very serious
drugs by creating harsher penalties. When you have an
addiction, when you have a disability, when you have a
disorder, the last thing you are thinking about is, what kind
of sentence am I going to serve? I think we are going to
disrupt the heroin epidemics that we have identified in these
communities with interventions that recognize what works to get
people off heroin. And that is healthcare models. We have got a
lot of very successful models that will help us achieve that.
But we are not going to do it through sentencing.
Mr. Goodlatte. Mr. Otis, back to you. If you are not
enamored with the present reform proposals, do you have any
suggestions or are you simply standing pat on the current law?
Mr. Otis. I do, Mr. Chairman. I would actually support
stronger reform than is currently being proposed, but it would
be reform in a different direction.
For example, I would retain the requirement currently
pending in some Senate legislation that the Attorney General
list all non-mens rea statutes. I would require, in addition,
the Attorney General to explain as to each how criminal
penalties can be squared with the traditional notion of blame
and culpability. Such explanations would have to include a
discussion of why regulatory violations could not more
effectively and fairly be processed as civil matters.
I would eliminate incarceration as a potential punishment
for non-mens rea crimes. I would require that enforcement be
undertaken only by the three agencies that have professional
experience with this. That is----
Mr. Goodlatte. Let me cut you short because I am mainly
interested in reforms. I am interested in those reforms very
much, and I would like you to submit those to us.
But I am mainly interested at this hearing today about
mandatory minimums and alternatives to those.
But because my time will run short, let me turn next to Mr.
Levin. You state that a primary focus of the Right on Crime
Initiative is maximizing the public safety return on the
dollars spent on criminal justice. Do you assert that there are
no costs, social or otherwise, involved with the early release
of drug offenders into communities where the mechanism is
reduce penalties, broaden safety valve provisions, or executive
clemency?
Mr. Levin. Thanks your for question. Right on Crime doesn't
support or oppose any actual legislation. But I will tell you
what we have worked with many States on is how do you take some
of the savings, if you are going to have people serve lightly
less time for nonviolent offenses, how do take some of those
savings and reinvest them in stronger parole supervision;
reentry programs, where people, when they come out of prison,
have to be drug tested, have to report to a parole officer,
can't see certain people, including gang members; electronic
monitoring; a whole host of models. The Hawaii HOPE Court,
which is now being used in reentry in Washington State.
So I think what we need to do is make sure when we have
people perhaps coming out of prison a little earlier for
certain nonviolent offenses, who are determined to be low risk,
that we then in the community make sure they have the
supervision so that they don't go back to their old ways.
Mr. Goodlatte. Thank you.
And, Mr. Evenson, in your 23 years as a Federal prosecutor,
how often were drug-trafficking cases brought within your
district where the drug quantity was below the statutory
mandatory minimum level?
Mr. Evenson. I can't think of one.
Mr. Goodlatte. Anybody else want to respond to that very
briefly?
Mr. Evenson. And let me just say this: The majority of
defendants that were brought in had prior drug convictions in
State court.
Mr. Goodlatte. And is it your opinion that these are
serious drug offenders and not occasional users?
Mr. Evenson. Absolutely. The individuals that our agents
were looking at were heavily involved with distributing
narcotics over extended periods of time. And they usually had
prior State convictions that resulted in no time or probation,
suspended sentences. And when we were able to obtain necessary
evidence against them, we were able to bring them in, convince
them that they were looking at strong minimum mandatory
sentences, and it was at that point they realized that they
wanted to cooperate, they assisted us, and were willing to
testify. That is how we built our case and went up the chain
and got the source of supply.
If I can just say this. Drug organizations set up
strongholds in neighborhoods and they affect everybody in that
community. We represent the law-abiding citizens in that
community. And as the Congressman said here a moment ago,
referring to poor communities of color. We represent many of
those poor communities of color who are sick and tired of that
drug trafficker abiding by that kind of behavior in the
district.
I will tell you one example. We arrested a significant drug
trafficker who was involved with violence.
Mr. Gohmert. The time has expired.
Mr. Evenson. I am sorry, Your Honor.
Mr. Goodlatte. I thank the gentleman. If you want to submit
something for the record to expand on that, we would welcome
that.
Thank you, Mr. Chairman. I appreciate your forbearance.
Mr. Gohmert. Thank you, Mr. Chairman.
At this time Mr. Scott, the Ranking Member, would be asking
questions, but he had indicated to me he would like to first
yield to the Ranking Member of the overall Committee, Mr.
Conyers, for 5 minutes.
You are recognized.
Mr. Conyers. Thank you, Judge Poe.
Let me begin with Marc Levin, Policy Director.
And I want to express my appreciation for this discussion
going on here. It is quite balanced and, to me, quite
revealing.
Mr. Levin, can you speak about States that have eliminated
or reduced mandatory penalties and their effect on the crime
rate, the guilty plea rate, the cooperation rate.
Mr. Levin. Yes. Thank you very much, Congressman Conyers.
In fact, one of the examples is Michigan, which you are
probably familiar with, in 2000 eliminated their drug mandatory
minimums, including retroactively, and then, in the subsequent
decade, property crimes fell 24 percent; violent crime, 13
percent.
I mentioned earlier South Carolina, as another example, in
2010, rolled back their drug mandatory minimums and has seen
crime drop 14 percent since then.
Georgia recently under Governor Deal, who is a former
prosecutor--his brother is a drug court judge, and drug courts
are one of the best solutions we have. They rolled back drug
sentencing laws about a year ago, the penalties on low-level
drug possession. And they have seen crime continue to decline
in Georgia.
So Texas, where I am from, we are definitely still tough on
crime, and we say we are tough and smart. And so that does
involve making the sentence fit the crime. For our drug
possession cases, just as an example, if you have 1 to 4 grams
of drugs, your sentence could be 2 to 10 years. That could be
probation or prison.
I think that what we need to do is--the heroin epidemic was
mentioned earlier. That is a scourge. But, for example, there
is new pharmacological interventions to literally block the
receptors so the heroin addict doesn't feel anything anymore.
Certainly those kingpins dealing large amounts of drugs,
they are going to continue to get heavy Federal sentences. And
we are just talking here about mandatory minimums, but there
could still be sentences above that. That is just the floor.
And no one is talking about getting rid of any mandatory
minimums, just recalibrating them to some degree, expanding the
safety valve, for example.
And so I really think we have to keep in focus that, when
you go back on the crack/powder disparity, after that was
narrowed, the average sentence is 97 months. That is 7 or 8
years. That is a lot of incentive to cooperate with the
prosecutor and have that prosecutor be able to tell the judge,
``This guy is fully cooperating.''
So given 97 percent of cases plea out, I don't buy that we
need penalties that are unjust simply to convict a third party.
We ought to be focusing on what sentence fits the crime in that
individual case before the court.
Mr. Conyers. Thank you very much.
So there has been, in effect, no increase in crime rates
when we have reduced these penalties, and the plea rates and
cooperation have gone on.
Mr. Levin. I think that is correct. And I would also say
the Federal system is a very small percentage. There is over 2
million people locked up in the U.S. Only 10 percent of them
are in the Federal system.
So I would argue that, frankly, some of the best things we
could do to reduce crime and have been doing are like
policing--data-driven policing like CompStat in New York City.
We can actually deter crime by having police in the right
places.
And so, again, you know, with the Department of Justice, we
are getting to a point where close to a third of the budget is
the Federal prison system, and we could be using those funds
for prosecutors, for other strategies.
Mr. Conyers. Is this from the State that you are giving us
this experience, State instead of Federal?
Mr. Levin. Yes. I am pointing out to you that I think the
crime rates are more tied to State policy because, of course,
the vast majority of defendants are sentenced and those
incarcerated in State systems rather than the Federal
Government. So I think the Federal Government has a very
limited effect on the crime rate.
Mr. Conyers. And after crack reductions, there was no
increase in recidivism for those offenders either?
Mr. Levin. Yeah. In fact, in Texas, we have seen our crime
rate lowest since 1968. We have closed three adult prisons. Our
probation and parole recidivism rates have fallen dramatically.
And it is because, instead of building more prisons, we
took some of that money and put it into strengthening
probation, lower caseloads, more drug courts, more treatment
programs. So I think that the Federal Government can learn from
that.
Mr. Conyers. Let me ask my final question to Mr. Otis.
The media chooses how to portray the face of crime. It can
choose to paint the face of a criminal as one--or someone of
color.
Law enforcement decides which neighborhoods and crimes to
focus on, and that means not all neighborhoods are targeted.
``You show me the man, and I will find you the crime.''
Officers decide which cases are presented for prosecutors,
and prosecutors frequently decide who is charged with mandatory
penalties and who is not.
Are you saying, sir, that it is impossible for bias,
unconscious or not, to seep into our system?
Mr. Otis. May I answer that question?
Mr. Gohmert. Yes. Go ahead and answer. This is the last
question.
Mr. Otis. Of course it is not impossible for bias to get
into the system. Anyone who would say that would be out of his
mind.
Nor is it impossible for ideology or naivete to creep into
judges' decisions on what sentencing is when they are not
constrained by a mandatory minimum.
And I would cite for you a specific example, that being the
Corey Reingold case, the child pornography case in New York
where a Federal district judge imposed a sentence of 30 months
on a defendant who did not merely possess, but had distributed,
child pornography.
And I am not talking here just about nude pictures of
teenagers. I am talking about elementary school-age children in
contorted poses that I am not going to describe in a setting
like this.
The district judge was so influenced by his own personal
opinions and so convinced that Congress's mandatory minimum of
5 years was unfair that he sentenced the defendant to 30
months. A unanimous panel of the Second Circuit with a majority
of Democratic-appointed judges reversed him.
And the only reason that panel was enabled to require the
district judge on remand to impose at least 5 years was that
Congress had had the wisdom to say, ``For a crime like this,
you cannot go below that.''
Mr. Conyers. Professor Otis, you sound more reasonable this
morning than I could have had any right to expect, and I thank
you for your response.
Mr. Otis. I apologize.
Mr. Conyers. Please don't.
Mr. Gohmert. At this time we will recognize the gentleman
from Alabama. Mr. Bachus is recognized for 5 minutes.
Mr. Bachus. Thank you.
I noticed that there was general agreement that we ought to
focus first on the kingpin, the organizer. And I think we all
agree maybe with Mr. Evenson that, to do that, you have to get
cooperation from someone down the line.
With that in mind, I want to ask you about--the Attorney
General back--August of last year directed U.S. attorneys in a
criminal division to--and he was talking about Title 21, the
safety valve, how you could not charge if certain elements were
there. And he said, ``If these elements aren't there, this is
what you can--you don't have to charge.''
One element that had existed before that was cooperation,
but he dropped that one. So you can deviate even though there
is unwillingness to cooperate. So that is not even taken into
consideration.
Were you aware, Mr. Evenson or Mr. Otis, that there was a
change made? He also--he elevated the number of points.
Mr. Evenson. Congressman, I am aware of the August 2013
memo. Essentially, prior to that time, prosecutors were
authorized to file what is called an 851 enhancement in every
drug case.
That is, essentially, if a drug dealer is arrested and he
has a prior drug felony conviction, a notice is filed with the
court that basically doubles the minimum mandatory. That
particular tool has been very effective in gaining cooperation.
That is one of the tools that we have used.
Now that tool has been greatly modified for assistant
United States attorneys, and only in certain cases are we
authorized to file that.
Also, there was in the memo that we are not to put the drug
quantities in the indictment which trigger the minimum
mandatory.
Mr. Bachus. Right.
And, you know, it gives criteria when you don't put them in
there. It is just general--you don't put them in unless these
things are present, like violence.
Mr. Evenson. In effect, the minimum mandatories have been
done away to a large extent by that memo.
Mr. Bachus. And used to cooperation was one of those things
that you could consider, but then--I guess you still can.
But what I am saying, the safety valve, the current--you
know, according to this memo, even if they are not cooperating
and they could--they could finger somebody, you still--you
know, that is not----
Mr. Evenson. You are exactly----
Mr. Bachus [continuing]. That was the one thing that was
dropped.
Mr. Evenson. You are exactly correct.
5C1.2 says, if you have a dealer with not any real record
and he tries to cooperate, but doesn't come up to the level of
a substantial assistance, there is no violence, then the court
can come underneath minimum mandatory. Now that is not even
necessary that he cooperate.
Mr. Bachus. It just seems like that--you know, it goes
against that philosophy.
Mr. Stevenson. Just on that point, Mr. Bachus, typically,
the charging decision is made before there is any opportunity
to assess cooperation. And even in those cases, cooperation can
still be considered in terms of recommendation.
Mr. Bachus. Well, I think, you know, if you make the
decision before you charge, it is more effective, the
cooperation, because the kingpin doesn't know sometimes what is
going on.
Mr. Stevenson. Well, the only point I would make is that
the range of sentencing is still extremely broad, extremely
broad, and I think the data would support that most cases are
going to plead.
Mr. Bachus. Yeah. I just found that strange, that the
cooperation was the one that was totally dropped out. You know,
to me, it is--let me ask one that is not in here that I think
ought to be considered, and that is age of the offender.
You know, nowhere in these guidelines does it talk about
age of the offender, and I think that is one of our biggest
problems. You know, an 18- or 19-year-old is quite different
from a 23- or 24-year-old. A 30-year-old is tremendously
different, his judgment.
Particularly, I have five children, two girls and three
boys, and the boys mature a little later, I mean, you know, in
most cases. I hope I don't hear about that. But, you know,
there--I can say my 18-year-old at 30, after 4 years in the
Marines, has much better judgment.
But anybody want to comment on whether we ought to take
that into consideration?
Mr. Stevenson. Yes, Mr. Bachus. I will comment on that.
I absolutely agree. And I think most states are actually
moving in that direction where they are actually reintroducing
age as an important factor, particularly when you start talking
about drug conspiracies.
Because what a lot of these kingpins do is they actually
look for young, little kids, some as young as 13 and 14 years
of age, where they have enormous influence over them, and they
acculturate them into these behaviors.
And right now judges and prosecutors don't have the
discretion to consider the fact that this kid was brought in at
13 and 14 and stayed in for 4 or 5 years. I absolutely agree.
And the Supreme Court has actually issued a couple of
decisions that I think would support this Congress and Task
Force in taking steps to now recognize the importance of age
when it comes to culpability and sentencing.
Mr. Evenson. Congressman, I will say that most of the
offenders that we charged were in their 20's. A juvenile in
Federal court is under 18. We have to get Department approval.
I will tell you one example, that we had one drug dealer
who was involved with an organization in our district and we
had to charge him with two murders and, after we did the
debriefing, he told us he had committed four others. So he was
19 years old.
Mr. Bachus. Yeah. And I am not talking about murder. But I
am talking about a drug--a 21-year-old is just a different
person when he is 30, in most cases.
I mean, they are just almost two different people in many
cases, particularly if he hasn't had some of the supervision
that other children do.
Mr. Gohmert. Thank you very much.
At this time Mr. Scott indicates he will still yield.
And Mr. Jeffries from New York, you are recognized for 5
minutes.
Mr. Jeffries. Thank you, Mr. Chair.
And I thank the distinguished panel that has appeared
before us.
And, Professor Stevenson, it is great to see you.
I want to start with Professor Otis.
Criminal justice is largely the province of 50 States. Is
that correct?
Mr. Otis. Yes, it is.
Mr. Jeffries. And that is consistent, of course, with the
constitutional landscape and the fact that prevention of crime
wasn't necessarily an enumerated power given to Congress. It
was left to the State. And the 10th Amendment obviously factors
into that.
And the majority of individuals who are incarcerated in
this country right now are in the state penal system. Is that
correct?
Mr. Otis. That is also correct. Only about 217,000 are in
the Federal law prisons.
Mr. Jeffries. So the State experience is a relevant
indicator of what could potentially happen if criminal justice
reform occurs. Correct?
Mr. Otis. That is correct, with a qualification. And the
qualification is one that I would say I built on Mr. Evenson's
experience as well as my own as an assistant U.S. attorney.
The Federal prison population is not like the State prison
population. The States turn over to the Feds the really tough,
broad-ranging conspiracies.
And the kind of people you find in Federal prisons are the
ones the State didn't have the toughness or the resources or
the sentencing system to deal with.
Mr. Jeffries. Okay. That is interesting, because about 50
percent of the Federal prison population actually constitutes
non-violent drug offenders, many of whom did not have a prior
criminal record or engaged in violent criminal activity prior
to them being incarcerated in Federal criminal prison.
Is that correct, Mr. Stevenson?
Mr. Stevenson. That is correct.
Mr. Jeffries. In fact, about 10 percent of the prison
population in the Federal system actually are violent
offenders. In fact, I think that is less than 10 percent.
Mr. Stevenson, is that correct?
Mr. Stevenson. That is correct.
Mr. Jeffries. So the premise that the Federal system is
somehow different in nature and is filled with kingpins and
mafia lords and terrorists is just inconsistent with the facts.
Is that fair, Mr. Stevenson?
Mr. Stevenson. Yes. And the U.S. Sentencing Commission has
made that point repeatedly in its assessment of who is doing
time in the Federal system.
Mr. Jeffries. So I think it is clear there is no real
difference between the individuals in the State penal system
and the individuals in the Federal penal system.
And so I would argue, since the majority of individuals are
actually in the State penal system, that the State penal system
experience, in terms of criminal justice reform, is
instructive. To me, that seems like a reasonable premise.
But, Mr. Levin, does that seem fair?
Mr. Levin. I think it is.
There are obviously some differences in the composition,
but, frankly, those have lessened over the years as more and
more, frankly, low-level street-corner drug offenders have
ended up in the Federal system.
And I would also say one of the provisions of the Smarter
Sentencing Act would say you could have two criminal history
points instead of one and still be able to get this benefit of
the safety valve.
Now--but in order to get the safety valve, you have to
cooperate. And so that would actually increase the incentive to
cooperate for more people. Right? Because now, if you have at
least two criminal history points, you can't get the safety
valve anyway.
Mr. Jeffries. Let me stop you there because my time is
limited, but I appreciate that observation.
Now, 29 States, as Mr. Stevenson pointed out, have limited
or restricted mandatory minimums. And I would think, based on
some of the testimony that we have heard today, that that
perhaps would have resulted in a crimewave being unleashed on
the good people of America in those 29 States.
Has that been the experience, Mr. Stevenson?
Mr. Stevenson. No, it is not. And as was indicated, some
States have actually seen dramatic increases in their crime
reduction after the passage of these reforms.
Mr. Jeffries. Okay. Mr. Otis, are you familiar with the
Rockefeller Drug Laws that were first put into place in New
York State in the 1970's?
Mr. Otis. Generally, but not in specifics.
Mr. Jeffries. Okay. And it is widely understood that these
were some of the most restrictive, punitive drug laws anywhere
in this country. Correct?
Mr. Otis. I would have to defer to you.
Mr. Jeffries. Okay. Mr. Stevenson, is that correct?
Mr. Stevenson. That is correct.
Mr. Jeffries. Okay. Now, these are some of the toughest,
most draconian mandatory minimums related to non-violent drug
offenders.
In 2009, I was in the State legislature. I was pleased to
be part of the effort to dramatically reform those Rockefeller
Drug Laws. This happened in 2009.
Are you familiar with that, Mr. Otis?
Mr. Otis. I am not.
Mr. Jeffries. Okay. Well, it occurred.
Are you familiar with that, Mr. Levin?
Mr. Levin. Yes, I am.
Mr. Jeffries. Okay. Now, again, based on this premise, I
would assume in New York State that a dramatic crimewave, as
some argued would have occurred as a result of the reforms that
took place, would follow.
Is that what took place in New York State, Mr. Otis, or did
the crime actually continue to decline subsequent to the repeal
of the Rockefeller Drug Laws in New York, as has been the
experience in every other State that has changed or reformed
its mandatory minimums?
Mr. Otis. My answer to that is going to be a little bit
long, but you have to forgive me. I am a law professor, after
all.
The answer is that, yes, in the States that have
experimented in this way, crime has continued to decline, but
that is because imprisonment and the use of imprisonment, while
very significant, probably the most significant factor in the
overall decrease in crime in this country in the last 20 years,
is only one factor.
Other factors are at work as well, and those factors have
continued to be in play, other factors like hiring more police,
better police training, better private security measures,
better EMT care to reduce the murder rate, for example.
So while it is true that crime has continued to decrease,
the decrease has been at a lower rate in the States in which
they have tried this. And the best example is California.
Mr. Jeffries. My time is expired.
But let me just make the observation one of the reasons
that States have been able to invest resources in those other
areas that you enumerated is because, when you reduce the
prison population, you reduce the State budgetary burden and
you can actually invest in things that have been empirically
proven to lower crime.
I yield back.
Mr. Gohmert. Thank you, Mr. Jeffries.
At this time we would move to the gentleman from North
Carolina. Mr. Holding, is recognized for 5 minutes.
Mr. Holding. Thank you, Mr. Chairman.
Mr. Evenson, I would like for you to give us some, you
know, real line--real life, frontline context.
First, you know, just to establish--you know, in your 20-
plus years as a prosecutor, most of that as a drug prosecutor,
how many drug defendants do you think you have prosecuted and
who have been prosecuted under your supervision? Just a general
number.
Mr. Evenson. I had my own caseload while I was supervising
a drug unit. I would say I have done hundreds myself over that
period of time, but we have done over those years thousands.
And we specifically went after the biggest organizations by
using the techniques I described earlier.
Mr. Holding. So in the thousands of drug defendants that
you have personally dealt with, how many of those were low-
level, non-violent drug offenders?
Mr. Evenson. Well, let me just say this. I hear the term
``non-violent'' thrown around.
Mr. Holding. Is the trafficking of drugs a violent crime?
Mr. Evenson. It is by its very nature.
You show me a city with a violence problem, and I will show
you an underlying drug-trafficking problem. With drugs comes
guns and violence. It is the nature of the game. They don't
take their problems to court. They enforce it at the end of a
gun.
And any sheriff in my district, they would tell me--because
I knew them all--I had 44 counties--their biggest problem was
drugs and drug-related crime. That is what they were focused
on, if they could get that problem solved.
So I don't accept the term ``non-violent'' when it comes to
drugs. These organizations are, by their nature, drug--and the
higher they get, the more----
Mr. Holding. But drug trafficking is a crime of violence?
Mr. Evenson. Yes, sir. It is.
Mr. Holding. I mean, by statute, it is a crime of violence.
Mr. Evenson. And I am just going to say this right now. I
have an opportunity.
Law enforcement does not have a war on drugs. We have a war
on drug traffickers. We seize drugs and we arrest traffickers.
That is our mission. And we represent many of these people in
these poor communities of color who are victimized by that.
Mr. Holding. I want you to focus in on--another Member of
the Task Force pointed out that, you know, law enforcement
prosecutors can choose the communities in which they go into
and--you know, to look for crime and prosecute crime.
Talk about some of those communities that you have been a
part of going into and trying to eradicate drug trafficking.
Mr. Evenson. Congressman Bachus a moment ago asked me a
question, and I didn't get to finish.
One example: We had a community where a drug dealer had
been selling for years. He had a fence around his yard. He had
high-dollar vehicles. He had four of them. He had built an
addition on his house.
And there was a photo of one of my agents driving one of
these high-dollar vehicles out of the driveway.
He said, ``Eric, you see that picture?''
I said, ``Yeah.''
He said, ``You know what happened when I drove it down the
street?''
I said, ``No.''
He said, ``The neighborhood had come out on the street and
they were clapping.''
And this was a bad, violent drug dealer. And that's the
kind of people that we represent.
Mr. Holding. That is, when the agent drove down the street,
the neighborhood came out and clapped?
Mr. Evenson. It was a Corvette. He took the Corvette out of
the driveway. And he said, ``Right as I turned and went down
the street, they were lined up, clapping.''
You know, we represent some of the most vulnerable people,
the poor, the elderly, the young, the addicted, and they have
no voice. They have no way to sell their home and move away
when a drug dealer sets up shop in a neighborhood and the
property values drop.
So, quite frankly, I am personally offended when I hear
charges of racism. The laws are race neutral. We go where the
battle is hottest. We represent people who are victimized by
this activity. It doesn't make any difference what neighborhood
it is.
I have never prosecuted anybody on the basis of race and
neither has any AUSA. The Department of Justice does not
prosecute anybody on the basis of race. We have to go where the
evidence leads us, and that is where we go.
Mr. Holding. Thank you.
Mr. Chairman, I yield back.
Mr. Gohmert. Thank you.
At this time the Chair recognizes the gentleman from
Tennessee, Mr. Cohen, for 5 minutes.
Mr. Cohen. Thank you. I appreciate the opportunity. I
apologize for being late. A couple of post-midnight sessions,
whatever.
I walked in, Mr. Evenson, to hear you say something that
just was incredulous, that there is not a war on drugs. You
said there is a war on drug dealers.
Is that what you said, something to that effect?
Mr. Evenson. Yes, sir. I did say that.
Mr. Cohen. And you said that the laws are race neutral. You
said the laws are race neutral.
Mr. Evenson. Yes, sir. They are.
Mr. Cohen. Nobody denies the fact that the laws are race
neutral. But the fact is the implementation of the laws is not
race neutral and it is racial profiling. All laws are race
neutral since 1865, except in the South, which went to 1963.
Then they were not race neutral.
But the implementation by people under color of law who
arrest eight times more African Americans for possession of
marijuana than White is not race neutral. Is that not a
reality?
Mr. Evenson. Congressman, I understand there is a lot of
statistics being thrown around. But----
Mr. Cohen. Yeah. Like the 99 percent of the people believe
in climate change, and some of the people go with the 1
percent. We will go back to the statistics.
Mr. Evenson. Sir, I cannot argue the statistics.
All I can tell you is, on a daily basis, I deal with drug
agents that are Black, White, Indian. I have drug dealers that
are Black, White, Indian in our district. We have prosecuted
wherever the evidence led us.
Mr. Cohen. I don't deny you don't prosecute them. I
understand that. I am saying arrest. And a lot of it is street-
level arrests.
You are a Federal prosecutor; are you not?
Mr. Evenson. Yes, sir. And uniformed patrol is unable to
stop this problem. It has to be investigators. They can't do
anything in uniformed patrol. They just pick up a person with
possession, and it ends there.
Mr. Cohen. Do you believe that marijuana is less dangerous
to our society than meth, heroin, crack, and cocaine?
Mr. Evenson. Well, the laws indicate that. Yes, sir. Meth
is highly addictive.
Mr. Cohen. The laws don't indicate that. Marijuana is a
Schedule I drug, the same as heroin and LSD. That law does not
indicate it.
Mr. Evenson. In our courtroom, it is treated differently, I
can tell you that. Methamphetamine is instantly addictive.
Mr. Cohen. I agree with you. That's right.
And you might be the best in your courtroom. I don't know.
But I--and I hope you are. But you're right. You need to go
after meth and heroin and crack and cocaine.
Mr. Evenson. We do that, sir.
Mr. Cohen. How about marijuana, though?
Mr. Evenson. Well, marijuana--some of the most violent
dealers that I have experienced were marijuana growers.
Mr. Cohen. Because it is illegal and they are violent when
the police come--in or the DEA to try to bust them. So it is
not just that they are like malum in se. They are not violent
in se. They are violent because of the laws.
Mr. Evenson. Well, I have been threatened by marijuana
growers.
Mr. Cohen. Right.
Mr. Evenson. They want to do their thing.
Mr. Cohen. If it was legal, do you think they would
threaten you? They threaten you because it is illegal.
Mr. Evenson. Well, that is a different question,
Congressman. I am just telling you my experience.
Mr. Cohen. I got you.
And when alcohol was illegal--I mean, Al Capone and Frank
Nitti and all those guys we watched on ``The Untouchables,''
Robert Stack--I mean, they were bad guys, but now they are
wholesalers. They are nice guys. You know, it is just a matter
of how you flip it.
Do you think that the--you support mandatory minimums, I
understand.
Mr. Evenson. Yes, sir. We need those. We really need those.
Mr. Cohen. Do you think that there are mistakes with
mandatory minimums sometimes when the judge tells us so many
times that there are situations where they didn't want to
sentence this person to life when maybe the third offense that
triggered or something was some minor thing or there was some
nice woman who was involved with a man who led her astray, like
Ms. Smith, who wrote a book? She served 6\1/2\ years, got
pardoned--or commuted by President Clinton. She is a wonderful
woman. Her son is at Washington and Lee.
Mr. Evenson. Congressman, as long as we have human beings,
there are going to be mistakes. But I can tell you that our
system now is so regulated from the time they appear before a
magistrate to a Federal judge, to the appeal process, that
every case is scrutinized.
I would say those kind of cases are rare. Every defendant
is given a chance, in my experience, to provide assistance so
that I can go to bat and tell the judge----
Mr. Cohen. She was provided assistance. And the guy that
led her into it was out in northwest Washington state, and he
was murdered. So she couldn't provide assistance anymore.
So they put her in jail and they put her in prison for a
long time. And if it weren't for President Clinton, she might
still be there. Because you can't provide assistance doesn't
make your incarceration more just.
Mr. Evenson. Well, there may be a case like that. But there
is an old saying in law school that hard cases make bad law.
And right now the law works. It has worked to remove a lot of
drug organizations in America.
Mr. Cohen. Well, how do you think that the experiment in
Colorado and Washington is going?
Mr. Evenson. I don't know, sir.
Mr. Cohen. Mr. Stevenson, do you have anything you want to
add?
Mr. Stevenson. Well, I just want to emphasize that these
exceptions, these extreme bad cases, I think should not inform
what this Committee's Task Force does. We have a lot of data to
tell us how to look at the system.
And the truth of it is communities of color are not
celebrating mandatory minimums. I think we really need to be
sober about the impact of these laws on vulnerable populations.
I am not suggesting that individual officers go out with
racist intent, but there is a real difference in how easy it is
to prosecute people in communities where you have to do your
drug dealing on the streets as opposed to communities where you
actually have the resources to do it covertly. And I think, if
we don't acknowledge that, we are going to contribute to this
problem of extreme racial disparity.
Then the other point. I think you are right to emphasize
that the way in which our system identifies who is bad, who is
violent, is going to be shaped by the way we characterize and
direct these laws.
If we eliminate mandatory minimums, it will not, in my
judgment, eliminate or even restrict our ability to go after
bad kingpins. We can still do that.
Nobody is talking about shielding drug dealers or drug
traffickers from arrest and prosecution. What we are talking
about doing is protecting people who are sometimes caught in
the web and sometimes end up with these very unjust sentences.
Mr. Cohen. Thank you. And I yield back.
Mr. Bachus. Most bank robbers aren't violent unless you try
to stop them.
Mr. Gohmert. Gentleman is not recognized at this point.
Mr. Cohen. Willie Sutton was a sweetheart.
Mr. Gohmert. The Chair will recognize himself for 5
minutes. Thank you.
I really appreciate the level of commitment here.
Obviously, we have got people that are quite familiar with the
system.
I am also pleased that we have such an experienced group on
this Task Force, people that have dealt with the law in so many
respects.
Having been a state judge and a chief justice at a State
Court of Appeals, we used different terminology. And so, when I
hear an immediate adverse reaction to mandatory minimums--in
the State, we called it a range of punishment, and it seemed
perfectly appropriate for the legislature to say, you know, for
these crimes, state jail felony--and I was a felony court--this
is the minimum, 0 to 2 years for state jail felonies; 2 years
to 10 years for a third-degree; 2 to 20. But you add that
bottom level.
Now, if you--and first degree, 5 to 99 or life. And then,
of course, if you enhanced it up with prior convictions, then
you could--I think there was a guy arrested for stealing a
Snickers at one point, and that runs into strange facts when
you have got a guy looking at maybe a mandatory 25 years
because of enhancements.
But it seems like we could deal with the areas in which
there are great injustices without totally eliminating floors.
Although most judges I know would be fair and try to act
fairly within a proper range, I am old enough to remember
before the Sentencing Guidelines back when Federal judges
actually got mad that they were having discretion taken away.
I was shocked when I started having more Federal judges
say, ``Well, we kind of like it. We don't have to make such
tough decisions. The Sentencing Guidelines tell us what we want
to do.''
Mr. Evenson, I cut you off twice when you seemed to be
ready to proceed further, and I have got time.
Anything that you were wishing to illustrate that you
didn't have time to do earlier?
Mr. Evenson. Well, thank you, Your Honor.
I just want to emphasize on behalf of the over 5,000
assistant United States attorneys that I read the comments that
they provided on this legislation. We had a survey, and I read
it again this morning.
And if you could hear and see those statements, I think you
would be amazed at how profound reducing the minimum
mandatories would be on our ability to do our job. We will not
be able to go after the biggest drug dealers unless we have
witnesses.
And, as I said, this is a hard, mean business we are in. We
need the inducement to allow conspirators to testify, and they
do that. They have to make a decision. It is a go or no-go
situation.
And there with their lawyer they decide, ``All right. My
drug days are over.'' We build a rapport with them, and they
tell us everybody that they have been getting their drugs from.
And they are willing to testify. Oftentimes they don't have
to testify, but they are told, ``We don't care what you tell
us, as long as you tell us the truth.'' And most of them do,
and those that don't go off to prison.
And I had a lawyer tell me one time--he said, ``You know
who is in Federal prison? Those who cooperated and those who
wished they had cooperated. Those are the two people in Federal
prison.''
We need the ability to negotiate. And the sentences are
fair. We are not prosecuting users. We are not prosecuting
marijuana users. That is a myth.
We are prosecuting people, for the most part, who have
prior convictions and are dealing in significant quantities
over a long period of time. That is why we have conspiracies
that run 1, 2, 3, and 5 years.
That was the thing that amazed me when I went to Federal
court. You could actually charge somebody with an agreement
that lasted that long period of time, but the jury gets to see
the whole story then. It's not just a search on a drug house.
So that would be our statement, Congressman. I appreciate
the time.
Mr. Gohmert. Anybody else wish to comment on Mr. Evenson's
reflection?
Go ahead, Mr. Otis.
Mr. Otis. I have two comments on it.
One is--I apologize for interrupting Mr. Levin.
And you will have your chance.
One of the things we need to do is go by our experience.
Mr. Levin has pointed out that there has been the experience
of, I think, 16 or 17 States that over the last few years have
reduced or eliminated mandatory minimum sentencing and have not
seen an upsurge in crime.
I would point out two things.
He omitted talking about California, which has had as many
premature prison releases as the rest of the States combined.
The reason for that is California is acting under the
Supreme Court's Plata decision that required early releases in
order to reduce the prison population to make prison conditions
constitutional.
What has happened in California, again, which has had as
many premature releases as the rest of the States combined, is
that crime has gone up, that that is not accounted for.
The other thing I would say is that we can look beyond the
experience of 17 States over a few years and look to the
experience of 50 States over 50 years. We know what works, and
we know what fails.
What fails is what we had in the 1960's and 1970's, when we
had a feckless and unrealistic belief in rehabilitation and not
really a belief in incarceration. That failed. What works is
what we have done for the last 20 years.
Mr. Gohmert. My time is well expired.
Let me recognize the gentleman from Virginia.
Mr. Levin. Well, can I just briefly respond?
First of all, with regard to California, I believe the
reason they got in that situation is policymakers there failed
to act proactively.
That is why we have been working with legislators around
the country to address prison crowding in a prospective way, in
a way, for the Democratic process, so you don't invite Federal
court supervision.
So I think California illustrates why we need to tackle
this Federal prison overcrowding issue up-front rather than
leaving it to unelected--Supreme Court or other judges.
I would also say one of the reasons I think we have seen
the experience with the Rockefeller Drug Laws, as you
mentioned, with the drug reform in South Carolina and other
States not leading to an increase in crime is we know that the
research has shown staying longer in prison does not reduce
recidivism.
Prisons do one thing well, which is incapacitate, which,
obviously, with murderers, serial rapists and others, is
exactly what's needed.
But with people that have a drug problem--and many of these
people who are dealing small amounts of drugs on street corners
also have a habit themselves--if we can correct that habit and
get them into a productive, law-abiding role as a citizen,
including through appropriate supervision after release, which
we are not investing in on the Federal level, I think then we
can continue to drive down the crime rates in this country.
Mr. Gohmert. Thank you.
At this time we recognize Mr. Scott for 5 minutes.
Mr. Scott. Thank you.
And I thank all of our witnesses.
Mr. Stevenson, you indicated that penalties do not affect
drug use.
Is there any evidence that the 5-year mandatory minimum for
small amounts of crack when we had the 100-to-1 disparity
encouraged people to instead use powder where they can have 100
times more powder? Is there any indication that people would
say, ``Oh, I am not going to use the crack. I am going to use
the powder''?
Mr. Stevenson. No. I think anybody who has worked with this
population knows that, very sadly, they are driven by an
addiction, by a disorder, that is actually shaping their
choices. They are not worried about tomorrow. They are not
worried about the next week.
Most of them couldn't even tell you what the penalties are.
And I think, until we recognize that, we are going to be
misdirecting a lot of our resources.
Mr. Scott. And if your goal is to reduce drug use, you
mentioned a public health approach?
Mr. Stevenson. No question. A lot of countries have
actually invested in interventions and many States have also
used drug courts where they authorize treatment and
supervision.
I just want to emphasize this point about supervision,
which has proved to be very effective. If you spend $50,000 a
year to keep somebody in prison, that money doesn't accomplish
very much.
If you spend $10,000 a year to take somebody who has just
been released from prison and make sure that they are actually
complying with very strict guidelines around treatment and
services, allowing them to move forward to get a job, et
cetera, not only are you spending less money on that person,
you are dramatically increasing the chances that they are
actually not going to recidivate or continue to be a drug user.
We have got lots of data from lots of countries that talk
about these public health approaches that have radically
reduced drug addiction and improved the health of these
communities.
Now, I am very sensitive to communities that have been
highjacked by drug addiction and drug abuse. The interventions
that are around health care models are the interventions that
have had the biggest impact on the health of those places.
Mr. Scott. Mr. Levin, I understand that your organization,
Right on Crime, takes the position that there are more cost-
effective ways of reducing crime than waiting for people to get
arrested and get into a bidding war as to how much time they
are going to serve.
Have you seen the research that incarceration rates over
500 per 100,000 are counterproductive?
Mr. Levin. Yes. I think what the case is is that you reach
a point of diminishing returns when it comes to incarceration
rates.
And that is, number one, because you are sweeping in too
many non-violent and low-risk offenders into prison, and,
number two, people are serving longer than necessary.
Mr. Scott. Let me ask you a question on that point, then.
If anything over 500 per 100,000 is counterproductive and
ten States are locking up African Americans at the rate of
4,000 per 100,000, if in a community of 100,000 with that kind
of lockup rate you reduced it to the 500, at which you stop
getting any kind of return, you have 3,500 fewer people in
prison at, say, 20,000 each, that is $70 million.
Are you suggesting that that community could actually
reduce crime more by spending that $70 million productively in
a public health model, education, after-school programs,
getting young people on the right track, keeping them on the
right track, than they could just locking up 3,500 extra
people?
Mr. Levin. Well, I think it is difficult to look at kind of
setting arbitrary rates or cutoffs. Obviously, States have
different crime rates and so forth.
But I would say that certainly, once you do--Professor
Steve Levitt, who has written ``Freakonomics,'' he looked at
it. And John Dilulio, who signed our Right on Crime Statement
of Principles, he was one of the biggest backers of increasing
incarceration a few decades ago.
And what they have said is we have reached a point of
diminishing returns and, in fact, potentially in some places,
negative returns by the sense that you could be using that
money to put another police officer on the street doing some of
the things they have done in New York City and other places
where they are actually able to deter crime through a greater
presence of officers in the right places, targeting those hot
spots.
So I think that--and, as you said, we have talked about
problem-solving courts, a whole range of other approaches,
electronic monitoring and so forth.
And so I think that we really--without necessarily getting
into arbitrary caps, we have got to--what we have seen in
States is, because so much of the money--90 percent of State
corrections budgets are going to prisons--the resources are not
there often for these alternatives.
So it is a matter of realigning our budgetary priorities
and making sure people don't go to prison simply because we
haven't provided the alternatives.
Mr. Scott. Well, we have heard you need these bizarre
sentences to fight the war on drugs.
How is imposing sentences that violate common sense helpful
to the war on drugs?
Mr. Levin. Well, I think we--as you said, half of all high
school students have tried illegal drugs. We have got to have a
broader approach that looks at prevention, that looks at
substance abuse treatment where there is many advances being
made.
And I really think that certainly we know that undoubtedly
drug dealers replace one another. So simply the problem is too
broad to solve just by taking what are unfortunately a small
number of the total people dealing drugs and putting them in
prison for incredibly long sentences.
And, as we have said, these people are still going to be
going to prison 97 months on the crack cases even after the
disparity was narrowed. We are just talking about----
Mr. Scott. When Mr. Evenson says that he can't deal with
these people, these people are not--he makes it sound like he
doesn't have any leverage over the people. These people are
going to jail, just not on bizarre sentences. They would be
going to jail on fair sentences.
Mr. Levin. Right.
And the question is: Is the last year or 2 of the 8 years
or 10 years or 15 years--is that last year getting us that much
mileage relative to what else we could be doing with those
resources?
Mr. Gohmert. Thank you.
Let me just comment. We had submitted Chairman
Sensenbrenner's statement for the record. He does point out
things on which I would hope we would all agree that this Task
Force has taken up. Rather unusual to see ACLU, Heritage
Foundation, liberal and conservative groups joining together.
But we have a lot of agreement with regard to issue of mens
reas requirement for offenses. We have got--and it was
mentioned earlier. We really should have these codified into
one code instead of having 4,500 or 5,000 Federal crimes where
a prison sentence was added simply to show Congress was tough
on some issue when maybe it was a clerical error and it
shouldn't have gone that route.
So there are many things that we agree on that we really
need to deal with. And we really appreciate all of your input
on this issue of mandatory minimums, or what I might call a
range of punishment.
And you may have other thoughts as you leave. I know I
always do: Gee, I wish I had said this, that or the other. So
if you wish to have--we provide Members 5 legislative days to
submit additional written questions for the witnesses or
additional materials for the record.
Let me just say, if you have additional information that
you think of after you walk out, that ``I wish I had said
that,'' we would welcome that being submitted in writing for
our review, and it will certainly be reviewed.
The Ranking Member has a comment.
Mr. Scott. Thank you, Mr. Chairman.
I would ask unanimous consent that letters and testimony
from the U.S. Sentencing Commission;* Justice Strategies;
Families Against Mandatory Minimums; the Leadership Conference
on Civil and Human Rights; the Brennan Center for Justice; the
Judicial Conference that often reminds us that judges are often
required to impose sentences that violate common sense; the
Human Rights Watch;** the ACLU;*** and the Sentencing Project
article in The Hill all be entered into the record.
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*This submission included a compilation titled ``Amendments to the
Sentencing Guidelines.'' The compilation is not reprinted in this
hearing record but is on file with the Task Force and can be accessed
at http://www.ussc.gov/sites/default/files/pdf/amendment-process/
reader-friendly-amendments/20140430_RF_Amendments.pdf.
**This submission included a report titled ``An Offer You Can't
Refuse, How US Federal Prosecutors Force Drug Defendants to Plead
Guilty.'' The report is not reprinted in this hearing record but is on
file with the Task Force and can be accessed at http://www.hrw.org/
reports/2013/12/05/offer-you-can-t-refuse.
***The item referred to is not reprinted in this hearing record but
is on file with the Task Force and can be accessed at https://
www.aclu.org/files/assets/111813-lwop-complete-report.pdf.
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Mr. Gohmert. Without objection, that will be done.
[The information referred to follows:]
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Mr. Gohmert. And, again, if you have additional materials--
any of you--that you feel would be helpful to this Task Force,
we will welcome those. And the record will be open for 5 days.
Mr. Cohen.
Mr. Cohen. If I could just ask one other question. Would
you mind?
Mr. Gohmert. Without objection.
Mr. Cohen. Thank you.
I am just guessing. I haven't seen--Mr. Otis, I think you
have got the most experience here. I think you are maybe the
only person here older than me. I think 1968 is when you
graduated.
Mr. Otis. You look like a youngster to me. More and more
people do these days.
Mr. Cohen. I know. It is all relative.
You have been doing this for a long time, and you were at
DEA. If I am wrong in my opinion, tell me. But from what I see,
the drug war over all those years hasn't changed at all as far
as the American appetite for drugs, the American appetite for
marijuana, for crack, cocaine, meth, whatever, Ecstasy,
Oxycontin, whatever.
And our process has been the same, arrest people, mandatory
minimums, flip them, put them in jail, put them in jail for a
long time. It hasn't worked.
Is the system basically in the same place it has been? Do
you feel like a rat going along in a cylinder there? Don't you
think we ought to just kind of come out of it and go, ``In 40
years, don't we need a new theory or a new way to do this?''
Mr. Otis. What the statistics show is that drug crimes are
intimately related with other kinds of crimes, with property
crimes and with crimes of violence.
And we know from the statistics that those crimes have gone
down substantially; so, I don't think it is correct to say that
it hasn't worked.
In addition to that, in order to know whether specifically
drug laws have worked, we would need to know what the state of
play would be if they had not been enforced.
And the great likelihood--because the drug business, I
think, has been misapprehended in some of what is going on
today. The drug business--unlike other kinds of crime, the drug
business is consensual. So there is not a crime scene and a
victim in the same sense that there is in other kinds of crime.
We have talked a lot today and you have talked--and
correctly so--about violence and whether we have seen an
increase or decrease in violence when some States have released
drug defendants early. But violence is not the only thing we
need to care about when we are talking about drugs.
We need to care also about harmfulness. Because the drug
business is consensual--for example, the actor Philip Seymour
Hoffman who recently died of an overdose, he died as a result
of a consensual drug transaction, as almost all drug
transactions are.
But he and the other 13,000 heroin addicts who die each
year are equally dead, whether it is consensual or whether
there has been violence.
We need to stomp out the harm that comes from the drug
trade, a harm that is one of most destructive, particularly in
minority communities, that is going on in the United States
today.
Mr. Levin. Would you mind if I added one thing?
Mr. Gohmert. Go ahead.
Mr. Levin. With regard to heroin, since 1990, the purity
has gone up 60 percent. The price has dropped 81 percent. So it
does indicate what we are doing with regard heroin is
tragically not working.
And I think we--obviously, those who--particularly kingpins
dealing heroin and other hard drugs should go to prison.
But what we need to do is, as I said, take a broader
approach--there is pharmaceutical advances that are treating
heroin addiction--and, also, recognize prescription drugs.
Even with the increase in heroin recently, prescription
drug abuse is far more common than heroin abuse. And so I hope
we can also focus on that as well.
Mr. Cohen. Mr. Chairman, thank you.
I think what I got out of that is that what we need to do
is--Huey Lewis probably had the answer about a new drug. We
need to find a drug that is not addictive and not harmful, but
still pleasurable, and we need to put the NIH to work on it
tomorrow.
Mr. Gohmert. Well, I always thought that was what we called
glazed doughnuts.
Mr. Bachus, you asked unanimous consent.
Mr. Bachus. Thank you.
Unanimous consent. And Professor Otis sort of reminded me
of this. I had it. But this is a crime scene, and this is in
Alabama.
These are two young people that overdosed on a synthetic
drug earlier this year. So it is a different crime scene. But
it looks pretty violent, I am sure, to their parents and their
friends.
I would also like to introduce----
Mr. Gohmert. Are you offering that for the----
Mr. Bachus. Yes.
Mr. Gohmert. All right. Without objection.
[The information referred to follows:]
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Mr. Bachus. I would also like to introduce a copy of the
Attorney General's memorandum to U.S. attorneys and I
particularly highlighted where the cooperation is no longer
included.
But, third, I--you know, Mr. Stevenson said something that
I think we need to at least have one panel of people, and that
is health care approach and things that we can do in drug
diversion treatment, addiction, addressing it both as a
criminal problem and a health care problem.
And I would think the U.S. attorneys would probably welcome
that more than any one group because I have had U.S. attorneys
and DAs that have expressed to me that they wish more was done
on addictions and rehabilitation, because they are really the
ones that see it every day.
Mr. Scott. Mr. Chairman.
Mr. Gohmert. Without objection.
[The information referred to follows:]
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Mr. Scott. I just want to make it clear that I think we
share the common goal of reducing drug use in America. The
question is what the strategy will be.
Mr. Levin and Mr. Stevenson pointed out that there is a
better, more cost-effective way of actually reducing drug use
in America. Others suggested the war on drugs is working.
I think the war on drugs has been shown to be a complete
failure. It has wasted money, it hasn't reduced drugs, and
there are more cost-effective ways of doing it. And that is
what the debate is all about.
Mr. Gohmert. Thank you. You are right.
We all agree on that, that we want to reduce the usage of
drugs. And there have been data provided that indicate that in
some ways it is working.
To explain to each of you, we had anticipated having to go
vote around 10 a.m. And so we started out under that--that is
what we were told by the mortal gods, with a little ``g,'' from
the House floor.
While we were proceeding, we got word that the vote that we
were told to anticipate around 10 was voice-voted--thankfully,
some cooperation on the Floor--and that allowed us to finish
without interrupting you or taking more of your time than
necessary. So we do thank you.
And, with that, we are adjourned.
[Whereupon, at 10:54 a.m., the Task Force was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Supplemental Material submitted by Eric Evenson,
National Association of Assistant United States Attorneys