[House Hearing, 106 Congress] [From the U.S. Government Publishing Office] DRUG MANDATORY MINIMUMS: ARE THEY WORKING? ======================================================================= HEARING before the SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY, AND HUMAN RESOURCES of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS SECOND SESSION __________ MAY 11, 2000 __________ Serial No. 106-205 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpo.gov/congress/house http://www.house.gov/reform U.S. GOVERNMENT PRINTING OFFICE 70-887 WASHINGTON : 2001 _______________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON GOVERNMENT REFORM DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California CONSTANCE A. MORELLA, Maryland TOM LANTOS, California CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania JOHN L. MICA, Florida PATSY T. MINK, Hawaii THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington, MARK E. SOUDER, Indiana DC JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio Carolina ROD R. BLAGOJEVICH, Illinois BOB BARR, Georgia DANNY K. DAVIS, Illinois DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas LEE TERRY, Nebraska THOMAS H. ALLEN, Maine JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois DOUG OSE, California ------ PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont HELEN CHENOWETH-HAGE, Idaho (Independent) DAVID VITTER, Louisiana Kevin Binger, Staff Director Daniel R. Moll, Deputy Staff Director David A. Kass, Deputy Counsel and Parliamentarian Lisa Smith Arafune, Chief Clerk Phil Schiliro, Minority Staff Director ------ Subcommittee on Criminal Justice, Drug Policy, and Human Resources JOHN L. MICA, Florida, Chairman BOB BARR, Georgia PATSY T. MINK, Hawaii BENJAMIN A. GILMAN, New York EDOLPHUS TOWNS, New York CHRISTOPHER SHAYS, Connecticut ELIJAH E. CUMMINGS, Maryland ILEANA ROS-LEHTINEN, Florida DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana ROD R. BLAGOJEVICH, Illinois STEVEN C. LaTOURETTE, Ohio JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas DOUG OSE, California JANICE D. SCHAKOWSKY, Illinois DAVID VITTER, Louisiana Ex Officio DAN BURTON, Indiana HENRY A. WAXMAN, California Sharon Pinkerton, Staff Director and Chief Counsel Steve Dillingham, Special Counsel Ryan McKee, Clerk Cherri Branson, Minority Counsel C O N T E N T S ---------- Page Hearing held on May 11, 2000..................................... 1 Statement of: Allen, George, former Governor of Virginia................... 13 Rosmeyer, Frances, parent, Families Against Mandatory Minimums; William Moffitt, president, National Association of Criminal Defense Lawyers; and Wade Henderson, executive director, Leadership Conference on Civil Rights............ 91 Steer, John, U.S. Sentencing Commissioner; John Roth, Chief, Narcotics and Dangerous Drug Section, Criminal Division, Department of Justice; and Thomas Kane, Assistant Director, Information Policy and Public Affairs, Bureau of Prisons, Department of Justice...................................... 25 Letters, statements, etc., submitted for the record by: Cummings, Elijah E., a Representative in Congress from the State of Maryland, prepared statement of................... 9 Henderson, Wade, executive director, Leadership Conference on Civil Rights, prepared statement of........................ 144 Kane, Thomas, Assistant Director, Information Policy and Public Affairs, Bureau of Prisons, Department of Justice, prepared statement of...................................... 75 Mica, Hon. John L., a Representative in Congress from the State of Florida, prepared statement of.................... 4 Moffitt, William, president, National Association of Criminal Defense Lawyers, prepared statement of..................... 97 Roth, John, Chief, Narcotics and Dangerous Drug Section, Criminal Division, Department of Justice, prepared statement of............................................... 65 Steer, John, U.S. Sentencing Commissioner, prepared statement of......................................................... 32 Waters, Hon. Maxine, a Representative in Congress from the State of California, prepared statement of................. 224 DRUG MANDATORY MINIMUMS: ARE THEY WORKING? ---------- THURSDAY, MAY 11, 2000 House of Representatives, Subcommittee on Criminal Justice, Drug Policy, and Human Resources, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 11:15 a.m., in room 2154, Rayburn House Office Building, Hon. John L. Mica (chairman of the subcommittee) presiding. Present: Representatives Mica, Mink, Cummings, Kucinich, Turner, and Schakowsky. Staff present: Sharon Pinkerton, staff director and chief counsel; Steve Dillingham, special counsel; Don Deering, congressional fellow; Ryan McKee, clerk; Cherri Branson, minority counsel, and Jean Gosa, minority assistant clerk. Mr. Mica. Good morning. I would like to call this hearing of the Subcommittee on Criminal Justice, Drug Policy, and Human Resources to order. I apologize for the delay in the beginning of this hearing this morning, but we did have six consecutive votes and all of the Members were delayed. I just spoke to Mrs. Mink, the ranking member. Unfortunately, she is on her way to the White House, but Mr. Cummings and several others from the other side are on their way. In an effort to expedite the proceedings, I am going to go ahead. The order of business will be opening statements. I will start with mine. Then, we have three panels today and by proceeding at this time I think we will be able to move quickly and hopefully make up for some of the lost time. Again, good morning and welcome to our subcommittee. The hearing before the Subcommittee on Criminal Justice, Drug Policy, and Human Resources today will examine Federal drug sentencing policies and practices and issues. This will include examining whether mandatory sentences for serious drug offenders can be useful tools in holding serious drug offenders accountable. To date, our subcommittee has examined topics relating to almost every major dimension of our Nation's drug policy, both on the demand side and also on the supply side. Today's hearing is another critical element of our overall efforts to ensure that our Federal Government is performing effectively its role in combating the Nation's threats posed by drug abuse and by serious drug offenders, particularly those who manufacture and distribute these deadly drugs to our communities. Our oversight of these and other anti-drug policies, practices and priorities will continue in the months ahead. Today, among our witnesses will be Federal officials who are engaged in developing and implementing drug sentencing policies and priorities. The U.S. Sentencing Commission was created to help ensure that our sentencing policies and practices are both rational and fairly administered. Now that the commission's vacancies have been filled, hopefully we can learn more about both existing practices and the commission's future plans and priorities. The Department of Justice will testify regarding its prosecution policies and practices. They will discuss the tools and leverage prosecutors need in prosecuting and enforcing our laws against very serious drug offenders. We will also examine the impact on our prisons of locking up serious drug offenders and other multiple felony offenders, as well as the need and provision of drug treatment for appropriate offenders. Looking at some of the Department of Justice data on Federal prisons, it is evident that drug abuse is a tremendous problem for the vast majority of our prisoners and that a sizable percentage admitted to being under the influence of drugs at the time of the commission of their crimes. According to past data compiled by the Bureau of Justice Statistics, 73 percent of Federal prisoners admitted to prior drug use. More than one-half, 57 percent, admitted to regular drug use. More than one-third of the prisoners report being under the influence of alcohol or drugs at the time that they committed their crimes and one-fourth of all prisoners report being under the influence of illegal narcotics at the time of their offense. According to these same statistics from the Source Book of Criminal Justice Statistics in 1998, nearly one-half, some 46.4 percent of all Federal prisoners reported receiving some prior treatment services, almost 40 percent receiving the treatment while under correctional custody. To me, this illustrates the need to carefully target those offenders who are most in need and likely to succeed in drug treatment and also raises questions about the effectiveness of some of our programs. After all, our Federal prisoners' current average annual cost to taxpayers exceeds $21,000 a year, according to the Bureau of Prisons. Regarding treatment services for eligible nonviolent offenders, let me remind members and others that I am introducing legislation that will assist State and local prosecutors in establishing viable drug treatment options for deserving nonviolent offenders who are, in fact, serious about reforming their lives. This program will use the full leverage of the criminal justice system to ensure offender compliance. Such a program has been successfully implemented for almost a decade in Kings County, NY. It has saved that community millions of dollars and broken the chain of drug addiction for hundreds of addicts and restored them to productive lives without endangering the public. I hope that Congress will be able to authorize and fund this important program, and we have had those involved in that program testify. We have also visited onsite that program. It holds great promise. While I am convinced that there is a very strong need for increased successful drug treatment programs in our prisons and that a select group of nonviolent offenders who suffer from addictions are deserving of this opportunity, let me be clear that serious and tough penalties are, in fact, needed for those who manufacture and distribute illegal narcotics and dangerous drugs. The mere fact that such offenders may have a drug addiction problem while committing serious and dangerous crimes is no excuse for lenient penalties or slaps on the wrist. We all know the direct link between illegal narcotics and serious and dangerous crimes, even deaths. The drug czar now claims that we lose approximately 50,000 lives per year in the United States to illegal narcotics. This cannot be allowed to continue. We must make some progress and, as I have said before, we must take action now. The front page stories of both the Washington Post and the Washington Times newspapers this week provided a good example of what I am talking about. According to the news accounts, the ringleader of one of the most violent drug gangs in the District of Columbia is being prosecuted for 15 murders. Can you imagine that, how vile and violent can drug trafficking, in fact, be? Sadly enough, beyond our wildest imagination, the U.S. Attorneys Office unsealed a 76-count indictment, an indictment with almost 100 pages of horrific details, charging 13 gang members with crimes that included murder, drug trafficking, racketeering and conspiracy. Let me be clear on this point. I have no reservation whatsoever in seeing that these types of killers and habitual criminals receive the maximum and most severe penalties possible. The safety of our communities and our loved ones demands that we be tough and that there be consequences for these types of actions. In that regard, I'm glad that we have testifying before us today a former Governor who has supported tough measures for serious and dangerous criminals. I thank him and all of our witnesses who have come forward to testify. We appreciate your willingness to appear before this subcommittee and to share your knowledge and experience as we strive to address this urgent national public health priority. We will also learn more about the concerns of some that we have, in fact, inflexible penalties that may overly be harsh consequences in some cases and that some groups may experience these consequences and they may have direct impact on some groups in our society more harshly than others. I think we can all agree that our system must be fair, effective and just in responding to serious crimes. With those opening comments, I am pleased at this time to yield to the gentleman from Maryland, my distinguished colleague Mr. Cummings. [The prepared statement of Hon. John L. Mica follows:] [GRAPHIC] [TIFF OMITTED] T0887.001 [GRAPHIC] [TIFF OMITTED] T0887.002 [GRAPHIC] [TIFF OMITTED] T0887.003 Mr. Cummings. Thank you very much, Mr. Chairman. I do thank you for holding this hearing on Federal drug sentencing policies and practices today. In 1984, Congress passed the Anti-Drug Abuse Act, which reinstated mandatory minimum sentences and increased penalties for drug-related crimes in the Federal criminal justice system. The act also established a 100-to-1 sentencing differential between powder cocaine and crack cocaine. Further, in 1988, Congress created a mandatory minimum penalty for simple possession of crack cocaine. The U.S. Sentencing Commission incorporated these penalties into the Federal sentencing guidelines. Noting serious problems resulting from the crack/powder cocaine sentencing differential, in 1995 and again in 1997, the U.S. Sentencing Commission asked Congress to reevaluate the crack/powder cocaine sentencing disparity. Congress rejected the 1995 request and has not acted on the 1997 request. The Sentencing Commission's request was based on extensive research that showed many problems with the implementation of mandatory minimum sentences. The Sentencing Commission found that nearly 90 percent, nearly 90 percent of the offenders convicted in Federal court for crack cocaine offenses are African Americans, despite Federal surveys that routinely show that the majority of crack users are White. In addition to these racial disparities, commentators have found that mandatory minimums lead to lengthy sentences for low-level drug dealers, fail to target violent criminals, and do not have a deterrent effect on major drug traffickers. In a 1997 report, RAND found that mandatory minimum sentences are not cost-effective, do not reduce drug consumption, and do not decrease drug-related crime. Moreover, RAND found that mandatory minimums are less cost-effective than previous sentencing guidelines. In fact, it appears that the only thing mandatory minimum sentences have accomplished is growth in the prison industry. The Bureau of Justice Statistics estimates that drug sentencing and mandatory minimums may be largely responsible for the doubling of the prison population since the mid-1980's. Given this kind of evidence, it is no wonder Chief Justice Rehnquist has described mandatory minimum sentences as ``perhaps a good example of the law of unintended consequences.'' Mr. Chairman, Federal drug policy must be well crafted and wisely applied so that it results in solutions, not unintended consequences. Our policy must be designed in coordination with a larger national effort that recognizes the appropriate allocation of drug enforcement and drug control efforts at all levels of government. To this end, Federal sentencing policy should reflect Federal priorities by targeting the most serious offenders to curb interstate and international drug trafficking and violent crime. Mandatory minimums do not achieve these goals. Mr. Chairman, in 1970, Congress repealed most of the mandatory minimums which had been part of the Federal criminal justice system's sentencing structure. We took this action because the evidence clearly showed that increased sentence lengths were ineffective. Now we are confronted with similar evidence and have failed to act for 3 years. Maybe this hearing will serve as the impetus to Congress's overdue reexamination of this issue. And might I add that many of the people who sit in jail rotting are my constituents. They are African Americans, mostly men, and it is not funny. Then when I look and I see the people that you were talking about a little bit earlier, such as the man, Mr. Chairman, the indictment that you just talked about here in Washington, those are the people who really do deserve to be in jail. We need more treatment. I have said it over again and I will say it and I will say it again. We spend a phenomenal amount of money building prison cells but when it comes to treatment, it is just not enough. With that, Mr. Chairman, I look forward to hearing our witnesses today and again I thank you for calling this hearing. [The prepared statement of Hon. Elijah E. Cummings follows:] [GRAPHIC] [TIFF OMITTED] T0887.004 [GRAPHIC] [TIFF OMITTED] T0887.005 [GRAPHIC] [TIFF OMITTED] T0887.006 Mr. Mica. I thank the gentleman and I will recognize the gentleman from Texas, Mr. Turner, for an opening statement. Mr. Turner. Thank you, Mr. Chairman. I want to join Mr. Cummings in thanking you for the opportunity to have this hearing. As a member of the Texas Legislature, I worked very hard in Texas to try to revise our penal code to be sure we kept violent offenders behind bars longer. We ended up with one of the largest prison systems in the world. That is not to say that we always put the right people behind those bars and I think we probably do need to take a very close look at the Federal law to be sure that we are using every prison cell to the best advantage and that we are holding violent offenders in those cells. I am one who believes very firmly that we need to emphasize drug treatment much more than we do, that we need to be sure that we are being innovative in the way we administer punishment to those nonviolent offenders, so we do get their attention and recognize that even a nonviolent drug offender deserves to be dealt with very firmly. But I think this is a good hearing, a worthy purpose, to take a look at mandatory sentencing at the Federal level. Thank you, Mr. Chairman. Mr. Mica. I thank the gentleman and recognize the gentlelady now from Illinois, Ms. Schakowsky, for an opening statement. Ms. Schakowsky. Thank you, Mr. Chairman. Just a few words. The United States now has more than most any other nation in the world in the number of people behind bars. Many of them are nonviolent drug offenders. I am concerned about the mandatory minimum sentences as perhaps being the very best way--I think they are not the best way to deal with this problem. I look forward to alternatives being discussed. I am also concerned, as Mr. Cummings is, about the 100-to-1 sentencing ratio between powder cocaine and crack cocaine and the numbers of people, particularly minority people, who therefore are incarcerated disproportionately. So I appreciate this hearing and look forward to the witnesses. Mr. Mica. I thank the gentlelady. The gentleman from Maryland moves that we keep the record open for 2 weeks for additional statements. We will probably be joined by additional members and we will give them an opportunity to submit or present their opening statements. Without objection, so ordered. I am pleased now to turn to our witness list today and our first panel consists of one very well known individual, certainly well known because he served here in the House of Representatives from 1991 to 1993. He is a friend of many of the current Members of the Congress. He also has the distinction of representing one of the most historic States now in the position of Governor, but there he served as delegate from 1983 to 1991 in the Virginia House of Delegates and held some of the area that was Thomas Jefferson's seat. So, we are indeed delighted to have a chief executive of the State of Virginia, their 67th Governor, the Honorable George Allen. Welcome, Governor Allen. We are an investigations and oversight subcommittee and in that capacity, since you are not a Member of Congress, I am going to ask you to stand and be sworn real quickly. [Witness sworn.] Mr. Mica. Sorry to inflict that formality. We usually do not do that for Members but since you have left the gang, so to speak, we have to do that. But again you are so welcome. We are pleased to have you testify. We would like to hear your position on the question before us. Welcome, and you are recognized, sir. STATEMENT OF GEORGE ALLEN, FORMER GOVERNOR OF VIRGINIA Mr. Allen. Thank you, Mr. Chairman, and members of the committee. I very much appreciate the opportunity and thank you for the invitation to testify today. I commend the subcommittee's interest in looking at how the Federal Government can partner with the States and localities in combating the scourge of illegal drugs, in trying to stop them and also stop them from ruining more lives. Mr. Chairman, I fully endorse the sentiments that were expressed in your opening statement. I do believe the mandatory minimum sentences for drug dealers are logical and desirable and that mandatory sentences, in my view, ought to be increased, especially for those who sell drugs to children, so that they serve even longer sentences in those situations. Now mandatory minimum sentences, as a general rule, reflect the desires of people in a State or in America in the sense that it comes from Washington, and it is their sense of outrage over certain crimes. There are mandatory minimum sentences not just in dealing with drug dealing but also there are mandatory minimum sentences for assaulting a police officer, as opposed to assaulting a citizen who is not a law officer. There are mandatory minimum sentences for second drunk driving offenses. There are mandatory minimum sentences for habitual offenders and also mandatory minimums, I think very appropriate, for the use of a firearm in commission of a crime. Now, drugs breed so much of the crime. In fact, the majority of all crime is drug-related. The chairman mentioned, as did Congressman Cummings, the situation here in the District where this individual is indicted who had been involved in 15 murders, besides having a reign of terror as far as drug dealing. Now, you also need to think of how many other people were victimized by his minions or part of his network and people who have been robbed, individually robbed, or their homes broken into, their businesses broken into or their cars broken into from people who are addicted to drugs and have to find ways to pay for that addiction. Now, drug use is on the rise. It was declining maybe in the 1980's but we are seeing it rising. It is rising among college students. It is rising among high school students, even in middle schools. Reports from the Federal Government and national reports show that between the ages of 12 and 17, 1 out of every 10 youngster between that age group are currently using drugs. The age of heroin use, first-time heroin use--early in 1990, the average age for first-time use was around 26, 27 years old. It is now at 17 years old for heroin use. Now Mr. Chairman and members of the committee, I am the father of an 11-year-old daughter and younger kids than that, but this is very worrisome to me as a parent and I think to parents all across America. It is not just an issue, though, in urban areas; it is an issue in rural areas; it is an issue in suburban areas, as well, and we must do everything we can to keep the scourge of drugs from dimming and diminishing the great promise and bright future that all our children should have. Now, I would like to share with you some of our experiences in Virginia and some of the things that clearly do work. What we did is we abolished the lenient, dishonest parole system. Criminals, felons, especially violent criminals, are serving much longer sentences, and it is common sense. The results are that the crime rates are way down in Virginia. Virginia's crime rates are lower than the national average. And the effort in Virginia I think can be translated into what you all are facing here as you make these decisions, especially when you realize how much drugs are involved in crime activity. Drugs obviously breed crime. Drugs destroy young lives, especially young lives, and it also tears families apart. I think that we need to send a message that we are serious, that as far as fighting these drug dealers, that we want you out of our neighborhoods, out of our communities, out of circulation, and especially we want you out of reach of our children. So I proposed an idea called project drug exile. It builds upon what we have done in Virginia, and you had our attorney general, Mark Early, speak to this committee just a few months ago on project exile, which was cracking down on those possessing illegal drugs--excuse me--illegal guns, and that has worked very well in the city of Richmond. Now, project drug exile builds upon that approach in that you have more law enforcement, you have more prosecution and when people are caught, then they get mandatory sentencing. Congressman Cummings and Congresswoman Schakowsky brought up the disparities as far as the powder cocaine versus crack cocaine. Yes, there is that discriminatory result in sentencing. My view is that what ought to be done is do not diminish the punishment for using crack cocaine; you ought to increase the punishment for those who are selling powder cocaine and, in fact, Ecstasy or methamphetamines like Crystal Meth or Ice. I also recommend that the committee increase the mandatory minimum sentences at the Federal level--in fact, double them, double the mandatory minimums for those who are selling drugs to minors. Also, I think you ought to raise the penalty for the lethal combination of the illegal possession of a firearm and illegal drugs, increase that penalty to 7 years. So Mr. Chairman and members of the committee, I have no compassion or any sympathy whatsoever for these drug dealers who peddle this poison to our children. We ought to treat them as if they are forcing them to use rat poison because the results can be very much the same. So I think what needs to be done is we need to have multi- faceted, consistent enforcement. We need strong incapacitation because if somebody is behind bars, they cannot be running their operations; they cannot be harming the lives of our loved ones, our families, and ruining our communities. So I thank you again for your interest and hope that this committee can go forth to help make our communities, working with the States, working with localities, safer places for our children to live and play and learn and us to raise our families. Thank you, Mr. Chairman. Mr. Mica. Thank you so much for your testimony and again your participation. You have answered, right off the bat, several of my questions, the first one about the results of your abolishing the lenient parole system. You said you had dramatic decreases in violent crimes as a result of that policy. Can you elaborate? Mr. Allen. Yes. Here is what we found. I came into office in 1994 but in the early 1990's, crime was increasing in Virginia. And when you look at who was committing crimes, you found that three out of every four violent crimes were being committed by repeat offenders. Rapists, for example, were serving about a quarter of their sentence and if you look at the recidivist rate, rapists are actually the very worst and they were serving about 3.9 years on a 12-year sentence. They are now serving--well, they are still in but they are serving 12 to 13 years on average. So what we found as that if you have these violent offenders who have shown a disposition to commit violent crimes, if you double the amount of time the first offenders are serving and indeed, for repeat offenders they are serving three to five times, in some cases seven times longer, they are behind bars and they are simply not in your neighborhood; they are not lurking in a parking garage. And the violent crime rates are down by 17 percent. The overall crime rate is down 24 percent. Our juvenile justice reforms--our juvenile crimes also dropped by--I believe the figure is 13 percent, which is more than the drop in the national average. And we have found that it has worked very, very well. In fact, it has worked better than we anticipated. Now, in having these folks behind bars, that also prevents crime. Having somebody incapacitated or incarcerated prevents crime. The estimates are that over a 10-year period we expect to avert 26,000 violent crimes and 94,000 nonviolent felonies between 1995, which is the year this went into effect, through the year 2005, and also save more than $2.7 billion in crime- related costs that would be prevented by the time this law is 10 years old. We also looked retrospectively at the thousands of people who would not have been a victim of rape or murder or malicious woundings or robberies had this law been in effect, rather than releasing felons early who had murdered a young student who was working at a Wonder Bread facility in Richmond or a law officer killed on Father's Day from somebody released early or a woman being raped by a rapist who was released early. So we have found it to be very salutary. The crime rates are down; we are safer. Nevertheless, we still, I think, as citizens, as parents, as concerned leaders, especially you all in Congress, need to understand that drug use is on the rise across this country. It is going to take a multi-faceted approach of fighting drug manufacturing overseas, stopping it at our borders. We also have to fight it in our streets and neighborhoods and communities and we also, as was alluded to by some of the members, we also, I think, need to get into the minds and the sentiments of youngsters never to use drugs and try to rehabilitate or get those who have started using drugs off of drugs so that they can hopefully lead a productive, fulfilling life. Mr. Mica. One other question and I will yield to my colleagues. There is some concern that by increasing these penalties, that we are packing the prisons. I wondered about the impact, since you have abolished some of the lenient parole system, the impact on your prison population. The second part of my question would be does this unfairly impact some of the minority population? One of the concerns that has been raised here and in the media in general debate about this is that the mandatory sentencing, the tough sentencing is unfair toward some minority populations. So could you tell us about the effect on the prison population and minority impact? Mr. Allen. OK. I have about three different areas that I would like to cover. As far as prisons, when I came into office, what the State had been doing is putting all these felons--many felons--in local jails, so you had hardened criminals, tough criminals who were felons, in with misdemeanants who were serving less than 12 months and there were several sheriffs suing in that regard and we did not have sufficient prison capacity. We had to increase the prison capacity in Virginia. Most of the people said when you are going to abolish parole, it is going to increase prison needs, and that is true, although there were prison needs that were needed anyway and had just simply not been built in the previous years. Now, when you look at the abolition of parole and what happened in other States, such as Florida in particular and to some extent North Carolina, when they abolished parole, if they did not increase the prison capacity, what happened was Federal judges came in there and said you have overcrowded prisons and they started randomly releasing violent criminals. Naturally, the population was pretty upset with the crime and also the fact that they did not abolish parole and these folks were being released. Now, what you can do in a prison system is run them intelligently, as well. The proper classification of prisoners is essential to making sure you do it in the most cost- effective manner. Violent criminals ought to be in maximum security. Others ought to be in medium. Nonviolent offenders ought to be in minimum security, so some of the prisons we built were work camps and they were just in big barracks and we had those folks working. We had them cleaning up State parks after floods. We had them planting riparian buffers. We had them painting courthouses, building baseball fields. Some were doing the grounds work on community colleges. So they are working. They are doing things and it is obviously a much less costly way of doing things. So yes, you do have to have more prison space if you are going to have more prisoners in there serving longer sentences, but that is a primary responsibility of government. That is why people create governments, to provide safety, to prevent men from injuring one another. And I also think it is important to have obviously a good education system as another top responsibility. Now, as far as disparity in sentencing based on race, we had found, or at least there had been studies that showed that for apparently very similar circumstances, that the sentences in Virginia prior to the abolition of parole, that the sentences for African Americans were harsher than for those who were Caucasian or White. You also found disparities in region. There would be one region of the State that would be much tougher on burglaries than they would in another and it had nothing much to do with race. It was just differences in that we have jury sentencing in Virginia and juries may come up with different sentences. Now, what we have found as a byproduct of the abolition of parole and the sentencing guidelines that we have put into Virginia, that the disparities have been reduced in that judges--and judges do sentence, also, not just juries--but judges sentence within these guidelines, that the sentencing disparities are much, much less. In fact, there is no disparity between those who are African Americans or Hispanic or Caucasian or Asian, whatever the race or ethnic origin may be. It is much closer than before, where you have these sentences that could be, say, 20 years to life or 5 years to 20 years. Now with the sentencing guidelines, where we wanted to increase the amount of time served, that disparity aspect has been eliminated as a byproduct of the abolition of parole. I will say one other thing as far as the minority population, and this is a concern to all of us, that we do not want any discrimination based on race. It is the actions of that individual that matter. And while there is a disproportionate, compared to the population of percentages in the State of Virginia of African Americans in prison, which I think is the same in the Federal system, as well, what we have found in Virginia was that African Americans were disproportionately victims of crime. I will always recall folks who said they could not sit on their front porch until we had abolished parole and people were getting put into prison for committing those crimes and no longer running roughshod in the neighborhood, and also sending a message to folks that you are not just going to get--it is not going to be a catch and release system. So African Americans, as all citizens, are benefiting from the lower crime rates in that African Americans just statistically are disproportionately victims of crimes. I will finally close with this aspect on the prison situation, as you talk about, well, we will have to build more prisons, and so forth. I will always invite somebody to suggest to me or suggest to you or whoever runs the Federal Bureau of Prisons who would be released? Who do they think is in prison and ought to be released soon or early or released before their time is up? And then I would ask them to find out who that is and then ask them, do they want to rent out a room in their house to them? Would they like this wonderful nonviolent theoretical person to be moving in next to them? Would they like them hanging around with their children? I have yet to have a good answer to that question. So I think it is the responsibility of a government to protect law-abiding citizens, victims, and law enforcement professionals. Mr. Mica. Thank you for your response and I would like to recognize the gentleman from Maryland, Mr. Cummings. Mr. Cummings. Thank you very much, Governor, for being with us. I just want to make sure I am clear on one thing. You said African Americans, the statistics show that African Americans are more likely to be the victims of crime. Is that right? Mr. Allen. Yes, sir. Mr. Cummings. Is that all over the United States or---- Mr. Allen. That was our experience in Virginia. That was the statistics and studies from Virginia. Mr. Cummings. Now, what you did not say, and I am trying to make sure I understand you, are you saying that African Americans are more likely to commit crimes, also? Mr. Allen. I do not think anybody by race or religious view or by ethnic origin is more likely to commit crimes. The question from the chairman was that there are concerns that the proportion, the number, the percentage of African Americans in prison is a higher percentage than the African American general population, and that is true. But it is also important to understand that African Americans are also more likely, as a percentage--and these are statistics from our experiences in Virginia--to be a victim of crime. What we found in Virginia is the highest crime areas were the Norfolk area and the Richmond area, and that is why project exile in Richmond, with the abolition of parole, with enhanced enforcement, with more prosecution, getting these folks off the streets and putting them in prison who have illegal guns, and I think the same will apply with project drug exile in getting after these drug dealers since drug dealing and drug addiction spawn so much crime, will actually be of great assistance in reducing the crime rates in the city of Richmond but it will also have an impact along the whole Interstate 81 corridor, where there is a lot of truck traffic and a lot of concern about some of these Ecstacies and Meth-Ice and so forth. Mr. Cummings. The reason why I asked you that question is because, as you are, I am sure, well aware, African American men have become--not become; it has been going on for a long time, this whole issue of profiling. I was just trying to make sure--you know, you talk about victims, but I am trying to figure out whether you had this belief that African Americans are more likely to commit crimes when in Jones v. United States in the Fourth Circuit, the Court of Appeals found that project exile was disproportionately enforced in African American communities. Ninety percent of exile defendants are Black while Blacks constitute only 10 percent of the State. Mr. Allen. Those statistics are slightly wrong but---- Mr. Cummings. Well, why don't you correct me? I want to know. I want to be real clear. See, the victim thing is one thing but I live in a neighborhood where I see the enforcement. And I practiced law for years and I watched how laws were enforced in White areas. As a matter of fact, I remember when I first started practicing law I would go to White counties and they would have these programs where the person never got a record and I was shocked. When I was in the city, they would get a record just like that. They had all kinds of programs for White people but for Black people, it was a whole other thing. So I am just trying to figure out how are we doing this measuring where you are talking about African Americans and Whites. Victims is one thing, but I want to know where you, the former Governor, are coming from because people listen to you. You are a very influential man and the papers are writing what you are saying and I want to make sure that we are all clear as to what you are saying. And I want to be clear. If you have a feeling about African Americans, and I am one who grew up in a poor neighborhood and who was profiled many times and still am, I am just wondering what your feelings are on that. Mr. Allen. I believe that the individual who commits a crime ought to be held accountable for the commission of that crime and for the devastation that they bring to whomever the victim is or to society as a whole. It is certainly not my belief that any group or individual based upon their race has a greater propensity to commit a crime than another. I certainly oppose racial profiling. I think what you need to do is look at people's actions, look at what they are doing. Do not look at somebody by the color of their skin as a way of judging whether somebody has a propensity to do one thing or another. I think we all ought to be judged equally and based upon our actions. And in the event that--you brought so many things up, Mr. Congressman. You mentioned, for example, that from your experiences, in some, as you called them, White communities or counties versus---- Mr. Cummings. A metropolitan area like Baltimore City. Mr. Allen. Right, and so forth, and you saw differences. That is one thing and this is what we found in Virginia. When we abolished parole and came up with these sentencing guidelines so that felons would be serving longer sentences, serving longer time, I should say, serving more time in prison, is that if you do have a mandatory minimum, you know darned well if somebody has actually been convicted of selling drugs to a minor--let's say it is a large amount--right now the Federal law says 5 years and I think it ought to be 10 years, and I do not care if that person is African American and I do not care if they are Caucasian and I do not care if they are Hispanic, Asian, whatever they may be. If that person is doing it, that vile person, that parasite ought to be treated just as harshly because what is happening to the children, the drugs know no color and the life that is being snuffed out knows no color. And what we need to do, I think, as a government is to make sure that every single child in this country has an equal opportunity to succeed. And yes, that does mean we have to have good tax policies and reasonable regulatory policies. The key to success, in my view, is knowledge and education and make sure these youngsters who start off with so much potential, so much imagination, that when they get into middle school, when you see 12-year-olds being sold Ecstasy, that is dimming their future. All of that great potential of life is--sure, they can turn it around but that is going to be tough. That is going to be tough. And that is why I think it is so important that for all children, regardless--I do not look at people based upon their race; I look at them as a human being, as somebody with great potential, who is here on Earth for a short period of time. Let's make sure that they have an opportunity to succeed and compete and lead a fulfilling life. I think that we, as a government, have to provide that good education and also make sure that they are living in a safe community and learning in a safe school, as well. Mr. Cummings. I just have a few more questions. Let me ask you this. I listened to everything you said. Talk about treatment for me, what you did with regard to treatment in your State. One of the things that is interesting is that you talked about your daughter and I have two daughters and I certainly understand what you are saying. One of the things that I have found in talking to young people is that one experience with crack cocaine and you can become addicted, particularly women, girls. Mr. Allen. And they are using it more apparently, from the studies. Mr. Cummings. Right. Now you talked about all of that potential of young people and wanting to see them accomplish the things that they want to accomplish in life. Let's say, and people do make mistakes; all of us do at some point in our lives, and let's say that person has that experience and becomes hooked on crack cocaine. Now, treatment hopefully will bring that person back, to get them back to where you are talking about, but without the treatment, it is like falling off the cliff. So I was just wondering what your feelings were. Mr. Allen. Well, as far as the users are concerned, the users do have to be held responsible and they are accountable, as well. What we did, especially in the juvenile justice reforms, is where there were students or youngsters, juveniles under 18 who were getting into trouble but still were nonviolent, what was missing in their lives, we found so often, was discipline. They were not getting discipline at home. They were not on a sports team. They were not in any organized activity. So what we found is that treatment was worthwhile but they needed structure in their life. So for those who were being disruptive, let's say, in school, we created alternative schools because they still needed an education but there would be more structure in those alternative schools. There would be kind of a military component to it. For those who were actually committing crimes and were a danger to society, yes, they were treated as adults. Just because somebody is 16 years old when they rape someone, the rape victim does not feel any differently about the trauma of it if the person is 16, as opposed to 26. Or if somebody is shot or murdered, that does not matter, the age of the culprit, and therefore that person ought to be treated in that regard and get them out of society and treated like an adult. Now, in there we do have military-style boot camps and you can see--I saw one myself, how some of them would become leaders. They would have to get up early. They had a lot of regimen to their lives, and that was a treatment of sorts. Now as far as drug treatment, my general view is that if somebody is in prison, they should not be getting drugs. Maybe cold turkey is the term that is used. They should be getting no drugs whatsoever. Mr. Cummings. I agree with you on that. Mr. Allen. So that is a treatment in itself. I do think, and part of my proposal on combating drugs is to understand that there are those youngsters who still can be turned around and have not actually harmed anyone else. Chairman Mica was talking about that in his opening statement. I think we need to make sure that in this treatment, that we allow people who care in communities about folks to get involved, including those who are involved in religious organizations. They are communities of faith. I have seen and have talked to folks who have done that, whether it is in the Newport News area, the Virginia Beach area, the Richmond area or Fredericksburg, and allowed communities of faith or religiously affiliated organizations to compete like everyone else or any other agency, secular or nonsecular, for these grants to try to turn these youngsters around and get them off of drugs. Mr. Cummings. And the older people? Mr. Allen. Excuse me? Mr. Cummings. And the older people, like people 25 and---- Mr. Allen. They should be able to help them, as well, sure, of course. I was focussing--you were talking about our children. Mr. Cummings. I understand. I understand. Mr. Allen. But older, as well. Same applies, although you do not have to worry about alternative schools and so forth for somebody who is 25 years old. You are not going to have them in the juvenile justice system. But an older person, obviously the drug treatment can be important, although if they are incarcerated for committing another crime while on drugs, being on drugs is no excuse for committing a crime. You are still held accountable for that, any more than just because they are drunk on alcohol, that is not an excuse for committing the crime. Mr. Cummings. Thank you. Mr. Allen. I want to make one more point to you, Congressman Cummings, because you bring up concerns that are on all our hearts, and no one wants to have disproportionate racially discriminatory sentencing. I did not as Governor and I am glad we resolved that. I was very sensitive to the concern that you have expressed and others, so on the parole board, we could not abolish parole retroactively; it can only be abolished prospectively, after January 1. I made an effort to make sure we had viewpoints of many people on that five-member parole board and I had a majority of the members on the parole board who were African Americans. The majority indeed were also women. One of the members was a former drug enforcement agent but two people on that parole board were victims of crime. One was a mother whose son was murdered and the other was a rape victim of a rapist who had committed repeated rapes. So I thought that perspective from a variety of backgrounds was very much important in determining whether somebody should be released early on parole. They did an outstanding job on that parole board, that group with their background, and the parole grant rate dropped, with those sentiments and with those experiences, the parole grant rate dropped from nearly 50 percent to around 10 percent, and that also helped make Virginia safer. Mr. Mica. I would like to thank you. I would like to yield now to Mr. Turner. Mr. Turner. Governor, I know we all agree that the efforts that we made in the various States, including my own in Texas, trying to toughen our laws against violent offenders, has been effective and I think the crime rate reductions that we have seen across the country, the results, the availability of prison cells for violent offenders, as well as the results the efforts that Congress and the administration have made to put more police officers on the street to arrest those offenders. The purpose of our hearing today is primarily centered on taking a look at mandatory minimum sentences and I notice you expressed your support for them and I really think that some of our other witnesses will probably address those mandatory minimum sentences at the Federal level, which is, I think, the issue we really need to center in on today because I agree; there are some instances where I think they are definitely appropriate--repeat offenders, certain offenses that we determine to be particularly egregious. Certainly I think the Congress and I think the State legislatures should have certain mandatory minimum sentences. What we are concerned about primarily today is the Federal system and the fact that the Department of Justice reports that there are one in five of our Federal prisoners today who find themselves incarcerated and according to the Department of Justice, many of those offenders are there without any prior record of violence; they are there without any prior criminal record but have simply been caught up by the mandatory minimum sentence laws, which placed them behind bars. I am one who believes very firmly that we need every prison cell we have in this country at the Federal level and the State level because any time we end up seeing one person released on parole or after completing their sentence, there is another violent offender standing at the door that we need to use that cell for. So I am as zealous as you are in trying to be sure we put violent offenders behind bars, but I think we have to be not only zealous but we have to be smart in the management of our prison systems. And if we are not smart, it means that there is going to be a dangerous, violent offender out on the streets that should be behind those bars. I do not know how far we can go in this country continuing to build prisons. I have supported every prison appropriation that we have had here and in my State legislature, but we all know that smart management is going to help us save tax dollars. I think today we have almost 2 million people all across this country in jails or prisons somewhere. And to be sure that the taxpayers can afford our criminal justice system, those of us in public policy positions have to be ready to make the tough choices and the smart choices about criminal justice policy. Do you have any sense, Governor, about the differences between our Federal mandatory minimum sentences and the mandatory minimum sentences that you have in the State of Virginia? Or is that an issue that I really should not ask you about? Mr. Allen. No, that is fair enough. In fact, when you are talking about prisons and building more prisons, this is almost an answer to the chairman's question. Thank goodness Texas had some excess prison beds when we were doing this because we were getting sued, as I said, by these local sheriffs because Virginia, as a State, was not being sufficiently responsible in having the capacity capable for handling felons. We double- celled them but we also had to send--I have forgotten--it seems like around 500 prisoners to Texas to I think they were privately or maybe locally county-run prisons in Texas because we simply did not have the space until we could get the prisons built. We found that the mandatory minimums that you generally have in States, you have it for the drunk drivers, repeat drunk drivers, the habitual offenders, three strikes you're out for three violent crimes, violent felonies, three strikes you're out for life. You have them for assaulting police officers; there is a mandatory minimum sentence for that, and use of a firearm in the commission of a crime, and I would like to see the mandatory minimums increased, but you could not get but so far through the legislature on some of these. So I think the mandatory minimums that I was speaking of today actually ought to be increased and maybe we would agree on the fact that those who are selling drugs to children, to minor children, these buzzards, these predators ought to be behind bars and they ought to be behind bars for a longer period of time. I think that when you mix drugs and guns, illegal guns and illegal drugs, that is a type of situation that you are just asking--that is such a likelihood. It is such a volatile situation, literally and figuratively, that some individual like that should get a mandatory minimum sentence. And those are the types of people that you would want in prison. I do not know of anyone actually in the Federal prison that I think ought to be released, but I think that the Federal prison system could obviously use the same sort of approach as we did and make sure that you are classifying prisoners properly. They do not all need to be in the same cell. Nonviolent offenders we found you can almost put them in a barrack situation in bunks and have 150 of them in this big room in bunk beds and you do not need as many correctional officers to watch them all, either, if you configure it. It is more of an engineering simplicity as far as keeping your eyesight or keeping your viewing their activities. So I do not have any suggestions on how they might run the Federal system more efficiently but I think we are running our Virginia system much more efficiently, with proper classification and also construction that reduces--first of all, uses greater use of technology, as well as configurations that do not require as many correctional officers per inmate as was previously the case in Virginia. Mr. Turner. I think in your State and in mine and in most States, we can take some comfort in the fact that violent offenses are on the decline. Mr. Allen. Right. Mr. Turner. The crime rate is declining. But I do think that we do need to work very diligently when we all are faced with the fact and the reality that drug use is on the rise. Mr. Allen. Sure is, right. Mr. Turner. That there has to be some public policy changes to ensure that we stem that tide. And a lot of those efforts, I am afraid, have to be centered on drug treatment, drug prevention, and to be sure that we are utilizing our prisons to hold the violent offenders and not the nonviolent. If we end up with a system where we have incarcerated a whole lot of nonviolent drug offenders and we do not rehabilitate them properly, we are probably just perpetuating a cycle. And the thing that always amazed me in my time of practicing law was for certain elements of our society, how oftentimes a prison term does not result in a rehabilitated individual. We have to get smarter, I think, about doing that in our States and at the Federal level. But I do appreciate your testimony today and your thoughts on the subject and I concur with your sense that we must continue to be sure that we work diligently on this problem and I commend you on your initiative. Mr. Allen. Congressman, I commend yours, as well. I think the key to determining some of this is what is your definition of a drug offender? If the definition of a drug offender is if that person is a drug dealer, I think they ought to be incapacitated. And while yes, the prison population is increasing across the country, also the crime rates are going down. And, as you well know, and I know you seem to have very good common sense and good knowledge about all of this from your experience in the State legislature, as well as here and as an attorney, is that if the incarceration was not at the rate it was now, the crime rates would not be dropping as much. And there is a cost. Just as there is a cost of incarceration, there is also a cost to letting violent criminals or drug dealers and so forth loose and running rampant. There is a cost and I know you care very much that you do not want to see more victims of crime because there is a cost to that, as well. So I commend you for your care, your patience and also your insight. Mr. Turner. Thank you, Mr. Chairman. Mr. Mica. Thank you. And I would again like to thank you, Governor Allen, for coming before us today, sharing with us your experiences as Governor, the Virginia experience, and also responding to questions and concerns about addressing mandatory minimum sentences. We will excuse at this time. Thank you again for being with us and we wish you well. Mr. Allen. Thank you, Mr. Chairman. Mr. Mica. With that, we will call our second panel at this time. I am pleased to call before our subcommittee the Honorable John Steer, who is with the U.S. Sentencing Commission. He is a Commissioner with that body. Mr. John Roth is Chief of the Narcotics and Dangerous Drug Section of the Criminal Division of the Department of Justice. And Mr. Thomas Kane, Assistant Director, Information Policy and Public Affairs with the Bureau of Prisons in the Department of Justice. As I did indicate, this is an investigations and oversight subcommittee of Congress. We do swear in our witnesses. Also, if you have lengthy statements or documentation that you would like to have submitted as part of the subcommittee's hearing record today, just make a request through the chair and we will grant that request and put that information or lengthy documents, where possible, into the record of today's hearing. With that, I would like you all to stand and be sworn, please. [Witnesses sworn.] Mr. Mica. Welcome. Now is it Mr. Steer who has a tight schedule, Commissioner Steer? Mr. Steer. Thank you, Mr. Chairman. Mr. Mica. You have a tight schedule, so I want to recognize---- Mr. Steer. I tried to loosen it up a little bit. Mr. Mica. I want to recognize you first. We have been looking forward to hearing from you and welcome. You are recognized. STATEMENTS OF JOHN STEER, U.S. SENTENCING COMMISSIONER; JOHN ROTH, CHIEF, NARCOTICS AND DANGEROUS DRUG SECTION, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE; AND THOMAS KANE, ASSISTANT DIRECTOR, INFORMATION POLICY AND PUBLIC AFFAIRS, BUREAU OF PRISONS, DEPARTMENT OF JUSTICE Mr. Steer. Thank you, sir. I did have a plane that I had scheduled to catch to Columbus, OH but I think it is leaving here in a minute or two. I will try to schedule a later flight. Mr. Mica. I apologize. Again we got a delay because of the votes. So thank you for hanging in there, but we have been waiting for your testimony and look forward to it at this time. Mr. Steer. I appreciate that. This is a very important hearing and I am pleased to be here as a representative of the newly reconstituted Sentencing Commission. As of last November 15, seven new Sentencing Commissioners were sworn in. We had had an unprecedented break of more than a year prior to that when there were no voting Sentencing Commissioners. And when we came on board, we found that there was quite a backlog of work awaiting us, no less than seven major crime bills that Congress had enacted for which the Commission has a responsibility to write sentencing guidelines to implement the penalty provisions. So we got right to work on those, and I think in this first amendment cycle which just concluded with the submission of amendments to Congress on May 1, we have made a lot of progress in implementing each of those bills. For the most part, they dealt with economic crime policy and new technology offenses. They did, in one respect, deal with drug policy in the methamphetamine area, and in that regard, what we did was to conform the drug sentencing penalties and the guidelines to the heightened mandatory minimums that Congress had legislated in 1998. By the way, Mr. Chairman, I should have asked at the beginning. I have a lengthy statement with some charts attached and I would ask permission that they be placed in the record. I am going to be summarizing my remarks. Mr. Mica. Without objection, your entire statement will be included in the record and the attachments will be made part of the record. Mr. Steer. The remainder of my testimony focusses primarily on three areas. First, I want to do a quick review for the committee if I could of the four major statutory enactments over the last 16 years that more or less set the stage for our drug sentencing policies today and hit the highlights of the way that the guidelines mesh or attempt to mesh with those major enactments of Congress. Then I want to move into some discussion of some data. The commission collects quite a lot of data on the application of the sentencing guidelines, and we hope to share with you today some figures and charts that we have made that show some of the trends that have occurred over the last several years. Along the way, I will be commenting on the interactions of the guidelines and mandatory minimums and will discuss some of the problems in trying to make those two systems as compatible as possible. As far as the historical development of drug sentencing policy, as I said, there are essentially four laws over the last 16 years that comprise the major framework. The first of these was the Sentencing Reform Act of 1984. That was the law that set up the Sentencing Commission, and directed and authorized the creation of sentencing guidelines, which were to be presumptively mandatory. These guidelines took effect on November 1, 1987. And incidentally, in the discussion of the legislative history for that particular act, Congress showed a distinct preference for the use of guidelines, mandatory sentencing guidelines, over a system of statutory mandatory minimum penalties. But that was in 1984. Two years later in 1986, as Mr. Cummings alluded to, Congress switched gears dramatically and enacted a series of 5 and 10-year mandatory minimum penalties for all of the major street drugs. Now interestingly, again I would like to just recall a bit of the legislative history that was written here on the House side and to some extent reinforced in the Senate. The theory of the 5-year mandatory minimum penalties that were prescribed for each of these major drugs was that it would impact, although it was designed based on type and quantity of drugs, it was hoped that the 5-year mandatory minimum would impact primarily on what Congress considered to be the serious traffickers, and that was described further in the legislative history as the manager at the retail level primarily--the individual who was in charge of the street-level distribution dealers but who had a management role in the events. And the 10-year mandatory minimum Congress described as being appropriate for what was considered to be the major trafficker, the individual who was if not a kingpin, someone who was the head of a regional distribution network. Just to give an example, under that regime of mandatory minimum sentences, the 5-year mandatory minimum was set for 100 grams of heroin or 500 grams of powder cocaine; the 10-year mandatory minimum was set for 1 kilogram of heroin or 5 kilograms of powder cocaine. There were also heightened mandatory minimums for individuals who had prior drug convictions. As the Commission was developing the sentencing guidelines pursuant to the 1984 enactment, what it did when Congress passed the 1986 mandatory minimums was to also switch gears and to hitch, if you will, the drug sentencing guidelines' basic reference points to the mandatory minimums. So the 5-year mandatory minimum under the drug sentencing guidelines for a first offender corresponds to what we call an offense level of 26 as a measure of offense seriousness, and that, in turn, corresponds to a range of 63 to 78 months. The 10-year mandatory minimum, in turn, corresponds, again for a first offender--no other adjustments--to a level of 32, 121 to 151 months. Of course, the guidelines also have a range of other aggravating and mitigating factors--the aggravating factors, such as use of a weapon, obstruction of justice, involving a minor in drug sales; mitigating factors such as mitigating role and acceptance of responsibility. The third major enactment was the Anti-Drug Abuse Act of 1988. In that bill, Congress, on the one hand, applied the mandatory minimums to simple possession of more than 5 grams of crack; on the other hand, Congress doubled the mandatory minimum for continuing criminal enterprise offenses and, very importantly, made a decision, not much discussed in the consideration of the bill, but very important, that the conspiracy offenses, drug conspiracy offenses, should be subject to the same mandatory minimums as the substantive trafficking offenses. And finally in the scheme of things, there was the Violent Crime Control and Law Enforcement Act of 1994. That is the bill that contained the so-called safety valve for low-level nonviolent drug offenders. The way that works essentially is that if the defendant can show that he meets five criteria spelled out in the law and mimicked in the sentencing guidelines, basically no violence, no weapon, no aggravating role, not more than one criminal history point, and that he tells all that he knows about the offense to the government, then it lets the defendant out from under the mandatory minimums and allows the guideline system to work with its mitigating factors that may apply. As a result, the sentence may be reduced below the mandatory minimum. The Commission responded in 1995, and made a further response to the safety valve enactment in 1996 by reducing, for those who meet the safety valve requirements, drug offenses by an additional approximately 25 percent, so that this brought down all of the drug penalties across the range for those who meet the criteria of the safety valve. With that as background, I would like to turn to a discussion of some of the data that we have summarized today. The first chart that these gentlemen have put up shows the way that drug types have changed over time. Again we are focussing here not on law enforcement but rather on who actually has been sentenced in Federal court. As you will see, the trend line for powder cocaine offenses, drug trafficking offenses, has been downward until, in this last year it has trended back up. That is the top yellow line as you see it. For crack offenses, the red line, the trend has been mostly up over the years. The number of crack offenses has essentially doubled. Methamphetamine and marijuana have also been on a fairly rapid growth track. Marijuana has become the predominant drug type in each of the last 3 years. And now if we could look at two maps together you can see for two drugs, crack and methamphetamine, how they have changed in terms of the predominant drug type over the years. In 1992, crack offenses, which are shown in yellow on these maps, were the predominant drug type sentenced in only three States and methamphetamine, shown in pink on the maps, was the predominant drug type in only one State, Hawaii. Now, you can see how rapidly that has changed over a period of time. By 1996, crack was the predominant drug type in 17 States, mostly in the Southeast and Midwest, and methamphetamine had become the predominant drug type sentenced in 10 States, mostly in the West. Last year, the most recent one for which we have statistics, crack has declined somewhat as the predominant drug type and is now predominant in 10 States. Methamphetamine has continued to grow and is the predominant type in 12 States. And by the way, Mr. Chairman, Florida is not shown in color on these maps, but powder cocaine has been the predominant drug type in Florida throughout this period but has decreased somewhat in importance, from 60 percent in 1992 to about 46 percent in 1999, while heroin and crack have been growing as drug types for which offenders were sentenced. Now let's look at sentence length. This next chart shows that crack offenses are significantly the most severely sentenced and have been over time. The length of sentence has varied from 92 to 118 months. Methamphetamine sentences are likely to increase by one-third in the future years, according to Commission projections, because of recent Commission amendments, as I mentioned, that conform the guideline penalties to the mandatory minimums. But overall, the trend lines have been down as far as length of sentence for most all of the drug types. I now have several charts that discuss some of the interactions between mandatory minimums and the guidelines. This first chart looks at a group of cases that did not qualify for the safety valve, and were not substantial assistance cases. It shows how, in some respects, the mandatory minimums interfere with the workings of the guidelines. For example, the red bar at the second from the bottom shows that, for these defendants, 60 percent of these defendants who received a mitigating role adjustment under the guidelines had their sentence trumped and made irrelevant as far as guideline factors by the mandatory minimums. Thirty- eight percent of the defendants who qualified for a downward adjustment for acceptance of responsibility were trumped, and about a third of those who were in criminal history category one, had an absence of a weapon, and had no aggravating role were nevertheless subjected to a mandatory minimum. If we can look at the next two charts, they compare how mandatory minimums apply in respect to guideline role adjustments. The chart on the left shows that mandatory minimums do impact defendants with a mitigating role. The red bar indicates the 5-year mandatory minimum, the white, the 10- year mandatory minimum, and the yellow, the 20-year mandatory minimum. This shows the percent of defendants in each year that were subject to those mandatory minimums and yet had a mitigating role. The chart on the right shows, for the same years, those defendants who were subject to an aggravating role. Now, if you recall again the theory, the conceptual theory that Congress used in 1986, this shows some divergence from that theory. The chart on the left shows that mandatory minimums are impacting quite frequently defendants with a mitigating role, i.e., a minor or a minimal role in the offense and are not necessarily hitting regularly defendants who have an aggravating role in the offense. Now, if we could turn for just a moment to the operation of the safety valve for the low-level nonviolent defendants, overall, the safety valve that was enacted in 1994 and implemented in the guidelines seems to be working very well to differentiate among offenders with lower culpability. About 25 percent of drug trafficking defendants now receive the safety valve and get somewhat lower sentences as a result. As you can see, this chart indicates the incidence of the safety valve over time with respect to the highest mandatory minimum to which they were subject. As you would expect, most of these defendants--they tend to be lower level defendants--escaped from the 5-year mandatory minimum most frequently; some were subject to the 10-year mandatory minimum and because they met the criteria, were no longer subject to it, and rarely would they have escaped from a 20-year mandatory minimum. Now although the benefit of the safety valve is substantial in terms of reducing sentence, it nevertheless results in a substantial sentence, depending on the quantity of drugs involved and the other culpability factors. So these two figures or, these two bar graphs, contrast the sentence for defendants who were subject to the safety valve and those who were not and who were sentenced to imprisonment. The bar graph on the left shows that defendants who were subject to the safety valve go to prison very often, but their average sentence is 59 months, compared to 102 months for those who did not meet the safety valve. Finally, lets just look very quickly at some of the demographic factors. I should tell you that the age of Federal offenders who are sentenced for drug trafficking has remained fairly constant at about 35 years but is lower for crack cocaine defendants, who are about age 28. Drug trafficking is predominantly dominated by males, although we have seen an increase in the degree to which females are represented in the drug trafficking population. As far as the impact on race, these two charts indicate that there has been a differential impact with respect to the mandatory minimums. The first chart indicates that over time, mandatory minimums have applied differently based on the race of the defendant. The impact on White offenders has gone down somewhat; the impact on Blacks has evened out and has held fairly steady, and the impact on Hispanics has generally become greater. In the most recent full year for which we have data, this chart on the right indicates that, insofar as the particular mandatory minimum that impacts on defendants, White defendants were more often subject to the 5-year mandatory minimum; with regard to the 10-year mandatory minimum, Blacks began to be impacted more frequently; and as far as the heightened mandatory minimums, the 20-year mandatory minimum and the life, mandatory life imprisonment, they impact most heavily on Black defendants. I would add a note of caution in interpreting these data. These data indicate differential impact. They cannot be said to necessarily represent a systemic discrimination problem. They are based primarily on the defendants who had a particular quantity of drugs or, in some cases, quantity and prior drug conviction. In conclusion, let me make just a couple of summary comments about the interaction of guidelines and mandatory minimums. I think that our data indicate over time that the guidelines can achieve the requisite level of toughness that Congress desires but also can do that by tempering toughness with individuality and proportionality. Mandatory minimums are a very broad-brush approach. They look at just one or two factors, and they tend to treat offenders who may be very different as if they were similar. They tend to have the effect of blocking legitimate mitigators under the guideline system in deserving cases. In conspiracy cases they tend to reach very broad because drug quantities are aggregated over time and quantities trafficked by one offender can be attributed to another offender. That is not true for the substantive offenses. The crack possession mandatory minimum creates a unique structural problem with respect to the guidelines, and it is a situation where the guidelines simply cannot compensate for the way the statute is written. Specifically, under the statute, for a defendant with up to 5 grams of crack, the maximum sentence--the maximum sentence is 1 year. If you have any minute fraction over 5 grams, then the minimum sentence is 5 years. So there is that cliff effect and that gap effect. Again I think the Commission can respond to direction from Congress. We can make the guidelines as tough as Congress wants them to be while also doing a superior job of recognizing important distinctions among offenders. In the final analysis, of course, whatever system is in place is up to Congress. Congress is the ultimate arbiter of sentencing policy. The Commission, as a group, exercises delegated authority and we try to mesh these two systems as best we can. As I hope our data indicates, we have a growing body of information and expertise to assist Members of Congress in understanding the impact of these policy decisions, and we certainly are anxious to work together with Congress to achieve the most effective and fair sentencing policy that we can. Thank you, Mr. Chairman. [The prepared statement of Mr. Steer follows:] [GRAPHIC] [TIFF OMITTED] T0887.007 [GRAPHIC] [TIFF OMITTED] T0887.008 [GRAPHIC] [TIFF OMITTED] T0887.009 [GRAPHIC] [TIFF OMITTED] T0887.010 [GRAPHIC] [TIFF OMITTED] T0887.011 [GRAPHIC] [TIFF OMITTED] T0887.012 [GRAPHIC] [TIFF OMITTED] T0887.013 [GRAPHIC] [TIFF OMITTED] T0887.014 [GRAPHIC] [TIFF OMITTED] T0887.015 [GRAPHIC] [TIFF OMITTED] T0887.016 [GRAPHIC] [TIFF OMITTED] T0887.017 [GRAPHIC] [TIFF OMITTED] T0887.018 [GRAPHIC] [TIFF OMITTED] T0887.019 [GRAPHIC] [TIFF OMITTED] T0887.020 [GRAPHIC] [TIFF OMITTED] T0887.021 [GRAPHIC] [TIFF OMITTED] T0887.022 [GRAPHIC] [TIFF OMITTED] T0887.023 [GRAPHIC] [TIFF OMITTED] T0887.024 [GRAPHIC] [TIFF OMITTED] T0887.025 [GRAPHIC] [TIFF OMITTED] T0887.026 [GRAPHIC] [TIFF OMITTED] T0887.027 [GRAPHIC] [TIFF OMITTED] T0887.028 [GRAPHIC] [TIFF OMITTED] T0887.029 [GRAPHIC] [TIFF OMITTED] T0887.030 [GRAPHIC] [TIFF OMITTED] T0887.031 [GRAPHIC] [TIFF OMITTED] T0887.032 [GRAPHIC] [TIFF OMITTED] T0887.033 [GRAPHIC] [TIFF OMITTED] T0887.034 [GRAPHIC] [TIFF OMITTED] T0887.035 [GRAPHIC] [TIFF OMITTED] T0887.036 Mr. Mica. Thank you for your testimony. We will withhold questions until we have heard next from Mr. John Roth, who is Chief of the Narcotics and Dangerous Drug Section, Criminal Division of the Department of Justice. Welcome, sir, and you are recognized. Mr. Roth. Thank you. Mr. Chairman and members of the subcommittee, my name is John Roth. I am the Chief of the Narcotic and Dangerous Drug Section in the Department of Justice. I come to you today as a career prosecutor, someone who has represented the United States in criminal courts, primarily in narcotics cases, for the last 14 years. I have done so in two different U.S. Attorneys Offices, as well as in the Criminal Division of the Department of Justice. I have had the opportunity to be involved in the prosecution of literally hundreds of narcotics cases and I have seen the operation of the guidelines and the mandatory minimum sentences at a first- hand level. On behalf of the Department of Justice, I thank you for the opportunity to speak here today. We are the Nation's prosecutors. The Department enforces Federal criminal laws enacted by Congress, including those laws that carry mandatory minimum sentences. We believe that the existing sentencing scheme for serious Federal drug offenses provides prosecutors with a valuable weapon in the fight against major drug traffickers. At the same time, the current mandatory minimum laws strike the right balance between allowing nonviolent offenders to escape the mandatory minimum sentences in appropriate circumstances. Mandatory minimum sentences are reserved principally for serious narcotics offenders based on the quantity of narcotics distributed. Additionally, criminals with serious violent or drug felony convictions or who have operated a continuing criminal enterprise also receive stricter sentences. These crimes threaten our safety and should be dealt with severely. Mandatory minimums assist in effective prosecution of drug offenses by advancing several important law enforcement interests. I will talk about two of them. First, mandatory minimums increase the certainty and the predictability of incarceration for certain crimes and ensure uniform sentencing for similarly situated offenders. The department believes that uniform and predictable sentences deter certain types of criminal behavior by forewarning the potential offender that, if apprehended and convicted, his punishment will be certain and substantial. Mandatory minimum sentences also incapacitate certain dangerous offenders for long periods of time, thereby increasing public safety. In addition to serving important sentencing goals, mandatory minimum sentences also provide an indispensable tool for prosecutors because we are allowed to provide, under a substantial assistance departure, we are allowed to ask the court to relieve specific defendants who cooperate in the prosecution of another individual from the mandatory minimum sentence. In drug cases this is especially significant. Unlike a bank robbery, where a witness, for example, could be a bank teller or an ordinary citizen, typically in narcotics cases, especially serious narcotics cases, the only other witnesses are other drug traffickers. Drug dealers take pains to ensure that their distribution takes place far from the prying eyes of law enforcement and the more sophisticated the drug dealer, the more cautious he is about dealing with anyone who might be law enforcement. As a result, Congress has given us a tool to conduct effective narcotics investigations. The offer of relief from the mandatory minimum sentence in exchange for truthful testimony and other forms of substantial assistance allow us to move up that chain of supply, offering the sentence against the lesser dealers to go after the more serious drug traffickers-- the organizers and the source of supply. Substantial assistance agreements also give us the best evidence that we can possibly have concerning a trafficking organization--evidence from the inside of the trafficking organization as to what was involved. It allows us to strip away the secrecy in which narcotics traffickers conduct their business and to obtain the truth. Such cooperation is essential in our efforts, and we use it every day. It is no exaggeration to say that it would be impossible to do our jobs without substantial assistance departures. While the Department views mandatory minimums as effective law enforcement tools, we also recognize the need to apply the provisions appropriately, protecting the rights of the individual defendants and to prevent miscarriages of justice. In this regard, the primary change of the law in 1994 was the addition of the safety valve provision, which Mr. Steer discussed. It allows the courts to impose a sentence without regard to any mandatory minimum sentence in certain cases. Specifically, the safety valve allows even an otherwise serious drug defendant who didn't use a firearm or violence, who is not a leader, manager, organizer, and who does not have a serious criminal history, to be sentenced below the mandatory minimum, provided that the offense did not result in death or serious bodily injury. The defendant, in exchange, must truthfully tell the prosecutor all of the facts he knows about the case--the fact that those facts are not useful for cooperation or in other cases is irrelevant. He still is allowed to have the safety valve. The sentencing guidelines also provide a reduction of two levels for those individuals who meet the safety valve criteria. I will just give one example of how the safety valve works. Assume a defendant is charged with possession with intent to distribute cocaine, approximately 5 kilos of cocaine, which has a rough wholesale value of $100,000. He does not have a significant criminal history, does not possess a firearm or violence, no death resulted, and he has expressed some responsibility for his crime. Normally, that is a 10-year mandatory minimum, 120 months, but because he is eligible for the safety valve, he would be subject to a sentencing range of between 70 and 87 months, a little under 6 years on the low end of that guideline range. If the court found that he, in fact, played a minor role in the offense, he would actually get between 57 and 71 months, or just under 5 years for 5 kilograms of cocaine. So essentially it is a 50 percent reduction from the mandatory minimum for a minor role offender. The safety valve provision has succeeded in its purpose of preventing mandatory minimum provisions from sweeping too broadly. Its provisions are mandatory and not discretionary and it is widely used. According to Sentencing Commission data for 1998, there were 12,055 drug defendants sentenced where the mandatory minimum was applicable. Of those cases, 4,185 or about a third were provided relief from mandatory minimum sentences. As a result in large part of these amendments to the mandatory minimum sentences, sentences for Federal drug cases on the whole have decreased. In 1992, the average drug sentence was 89 months; in 1998, the average was 78 months, or a 12 percent decline. In the Department of Justice we have an obligation to apply the law fairly and without discrimination. We promote uniform and equitable application of the guidelines and mandatory minimum sentences in two ways. First, we are required to charge the most serious readily provable offense or offenses, consistent with the defendant's conduct. We have no discretion to charge a lesser offense, except under narrow circumstances. Second, prosecutors must seek a plea to the most serious, readily provable offense charged. While these rules are subject to limited exceptions, the prosecutor must have a specific approval of the U.S. Attorney or a supervisor in the office and the reasons for that departure must be set forth in the file and disclosed to the court. I would like to address finally the contention that mandatory minimums put too much discretion in the hands of the prosecutor. First, it is important to note that the provisions of the safety valve are mandatory; they are not discretionary. If a criminal defendant meets the characteristics within the safety valve, the government or the judge has no discretion but to award that reduction to the defendant. Second, if the prosector makes a substantial assistance motion to the court because the defendant has assisted in the prosecution of another, the court has complete discretion to sentence the defendant without regard to the sentencing range. While the prosecutor could recommend a sentence, the court would not be bound by that sentence and could sentence the defendant to whatever sentence the court saw fit. And finally, because the sentencing guidelines are based to a great extent on offense conduct, rather than simply on the crime charges, and that is especially true in narcotics cases, the prosecutor's ability is limited to determine the guideline sentence simply by the charges. Taken as a whole, the Department of Justice believes that the system of mandatory minimums is fair and effective, promoting the interests of public safety while protecting the rights of the individual. We also recognize the need to periodically review the mandatory minimum provisions and to adjust their levels in light of our experience. Again, thank you for the opportunity to speak on this important issue and I welcome your questions. [The prepared statement of Mr. Roth follows:] [GRAPHIC] [TIFF OMITTED] T0887.037 [GRAPHIC] [TIFF OMITTED] T0887.038 [GRAPHIC] [TIFF OMITTED] T0887.039 [GRAPHIC] [TIFF OMITTED] T0887.040 [GRAPHIC] [TIFF OMITTED] T0887.041 [GRAPHIC] [TIFF OMITTED] T0887.042 [GRAPHIC] [TIFF OMITTED] T0887.043 [GRAPHIC] [TIFF OMITTED] T0887.044 Mr. Mica. Thank you and we will suspend questions until we have heard from our final witness, who is Thomas Kane, Assistant Director, Information Policy and Public Affairs, with the Bureau of Prisons. Welcome, sir, and you are recognized. Mr. Kane. Thank you, Mr. Chairman. I do have a longer witness statement that I would submit for the record and would summarize---- Mr. Mica. Without objection, your entire statement will be made part of the record. Thank you. Mr. Kane. Thank you. Mr. Chairman and members of the subcommittee, I appreciate the opportunity to appear before you today to provide information regarding Federal sentencing policy and practices as they impact the Federal Bureau of Prisons. The Sentencing Reform Act of 1984, which established determinate sentencing, abolished parole, and reduced good time, as well as mandatory minimum sentences for drug and weapon offenses and increases in prosecutions and convictions, all have given rise to a dramatic increase in the Federal inmate population. From 1980 to 1989, the inmate population more than doubled, from over 24,000 to almost 58,000. During the 1990's the population more than doubled again, reaching 140,000 early this year. Based upon our population projections, we anticipate in fiscal year 2007 a Federal inmate population of approximately 205,000. That is growth of nearly 50 percent over the current level. Overcrowding in BOP facilities is currently 34 percent over capacity systemwide. At medium and high security facilities it is at 58 percent and 52 percent respectively. We must reduce overcrowding at those facilities for the safety of surrounding communities, staff, and inmates. We are making substantial progress, with 22 new prisons fully or partially funded, and for fiscal year 2001, we are requesting additional funding for nine new prisons over the next 3 years, as well as 6,000 additional contract beds, primarily for low security criminal aliens. Since the passage of the Anti-Drug Abuse Acts of 1986 and 1988, both of which included an increased emphasis on resources for drug treatment, the Bureau has redesigned its drug treatment programs. These programs are designed to treat offenders with substance abuse problems, regardless of the offense for which they are incarcerated. Upon entry into each institution, all inmates are interviewed by our psychology staff concerning their past drug use and their records are reviewed to determine their need for drug treatment. Based upon the result of these reviews, some inmates are required to participate in a drug abuse education course which is available in every Bureau institution. Participants in drug abuse education receive information on the physical, social, psychological and criminal impact of alcohol and drugs. In fiscal year 1999, 12,200 inmates participated in the drug abuse education course. Currently, there are 47 drug abuse treatment programs in Bureau institutions, with a combined annual capacity of over 12,000 participants. Residential program participants are housed together in a separate unit of the prison that is reserved for drug treatment. The programs average 9 months in duration and provide a minimum of 500 hours of drug abuse treatment. An inmate is eligible for a residential drug abuse treatment program if he or she meets the following three criteria: No. 1, has a diagnosis based on the American Psychiatric Association diagnostic criteria for alcohol or drug abuse or dependence disorders and a record review supports this diagnosis; No. 2, signs an agreement to participate in the Bureau's drug abuse programs; and No. 3, is ordinarily within 24 months of release. Ninety-two percent of inmates who are eligible for these treatment programs have volunteered to participate in the program. Residential treatment typically is provided within the last 2 years of an inmate's sentence, close to the inmate's release to the community. This ensures continuity with an inmate's transitional treatment program, which includes 6 months of community corrections center or halfway house placement with drug treatment. In fiscal year 1999, 10,800 inmates participated in residential drug abuse treatment programs. In fiscal year 2000, 12,400 inmates are expected to participate. In 1998, the Bureau's Office of Research and Evaluation completed the interim report for a study of the effectiveness of the residential drug abuse treatment program. The study, conducted with funding and assistance from the National Institute on Drug Abuse, revealed that the program has a beneficial impact on the ability of inmates to remain drug-and crime-free upon release from confinement. In comparison to inmates who did not receive residential treatment, inmates who completed treatment were 73 percent less likely to be rearrested within 6 months of their release from custody and 44 percent less likely to use drugs within 6 months of release from custody. The results also showed that program graduates had a lower incidence of misconduct while incarcerated than did the comparison group of individuals who did not participate in the program. The results of the final report based on a 3-year followup will help us determine whether the positive effects continue beyond the initial period. In addition to the 47 residential programs, nonresidential drug counseling is available in every Bureau institution and is provided by staff from the psychology services department. This treatment is available for drug-abusing or drug-dependent inmates who have minimal time remaining on their sentences, have serious mental health problems or are otherwise unable to participate in one of the Bureau's residential units. In closing, we continue to effectively meet the statutory requirement to treat 100 percent of eligible offenders prior to their release. Thus far this year, the Bureau has opened four new residential drug abuse treatment programs. As our population continues to grow, including the addition of approximately 7,000 more D.C.-sentenced felons by the end of 2001, we will evaluate our need for additional beds and request them as appropriate. Mr. Chairman, this concludes my prepared remarks. Thank you very much. [The prepared statement of Mr. Kane follows:] [GRAPHIC] [TIFF OMITTED] T0887.045 [GRAPHIC] [TIFF OMITTED] T0887.046 [GRAPHIC] [TIFF OMITTED] T0887.047 [GRAPHIC] [TIFF OMITTED] T0887.048 [GRAPHIC] [TIFF OMITTED] T0887.049 [GRAPHIC] [TIFF OMITTED] T0887.050 [GRAPHIC] [TIFF OMITTED] T0887.051 [GRAPHIC] [TIFF OMITTED] T0887.052 [GRAPHIC] [TIFF OMITTED] T0887.053 [GRAPHIC] [TIFF OMITTED] T0887.054 Mr. Mica. Thank you, and I will start out with a few questions. First, Commissioner Steer, the offenses that you talked about, these are all for drug trafficking. There is no one involved here because of use of illegal narcotics; is that correct? Mr. Steer. That is correct, Mr. Chairman. Mr. Mica. And they are involved in drug trafficking in significant quantities, as set by law? They are exceeding or meeting that requirement; is that correct? Mr. Steer. Well, they are involved with whatever quantity was trafficked, which may vary from a little to a lot. Mr. Mica. The reason I bring that up, the marijuana, of course, has a high sentencing but people sometimes say that people are sitting in jail for our Federal--we have to limit this to Federal prisons right now--because of use of marijuana or a small quantity. None of these are those cases, right? Mr. Steer. That is right. That is rarely the case in Federal prison, that you would find someone who has been sent there for use of a small quantity of drugs. Mr. Mica. Also, the statistic, and I am not sure if you said 20 or 25 percent of those sentenced are now getting lesser sentences, and over what period of time is that? Mr. Steer. The safety valve is applying to about 25 percent of the total number of defendants sentences for drug trafficking, including the reduction that is available under the drug guidelines for those who are, because of quantity or other factors, above the mandatory minimum. Mr. Mica. One of my concerns early on with it, the administration, was the lack of prosecution in Federal drug courts and I have a chart here, 1981 to 1998. In 1992 there were 29,000 Federal drug prosecutions and then it dropped in 1993, dropped in 1994, dropped in 1995, dropped in 1996, dropped in 1997 below those levels. It did increase in 1998. We finally got an increase in drug prosecutions. It did not seem to be a priority. Now we are back to 1992 levels of prosecution but let me share with you, and I might ask Mr. Roth to respond to this, this is last month, a Knight Ridder report. It said, ``Convicted drug offenders are spending less time behind bars but more of them are being prosecuted.'' That would bring us up to date. My concern is we were prosecuting less; now they are spending less time behind bars, and this is according to a new study of judicial records. Shorter sentences over the 1992 to 1998 time span--that includes most of the Clinton administration--suggests that the Federal judges and prosecutors are finding ways around tough mandatory minimum sentences mandated by Congress to crack down on drug offenders. To some experts, the findings also suggest that Federal agents are increasingly nailing ``small fry'' drug offenders rather than the kingpins whom the Federal agencies are uniquely suited to pursue. This study by the Transactional Record Access Clearinghouse, a government performance analysis center in Washington that is associated with Syracuse University, found the average Federal drug sentence dropped by about 20 percent between 1992 and 1998. I guess we are hearing up to 25 percent. Is this the case, Mr. Roth? Is this our policy? Mr. Roth. I do not believe it is, Your Honor, or chairman. A couple of issues. One, the TRAC data uses different data than the Sentencing Commission. The Sentencing Commission's own data indicate that there has been a drop of about 12 percent in the average sentence length between 1992 and 1998. Much of that, I think, can be attributed to the fact that there is a safety valve. So in roughly a third of the cases, we are not sentencing people who would otherwise be eligible for a mandatory minimum sentence to the mandatory minimum sentence. The example I gave, for example, of a 5 kilogram cocaine dealer who had a minor role in the offense, instead of getting the 120 months, he is going to get 60 months. It is the department's policy that we honor the law and the spirit behind the mandatory minimums and the sentencing guidelines, that we charge the most serious criminal offense that is readily provable, and that we plea defendants, except in narrow exceptions, to the most serious readily provable offense, and we take that very seriously. Mr. Mica. Congress also created a safety valve, Commissioner Steer, to allow for mitigating circumstances. Mandatory minimum sounds good and it probably should be applied. I think if we polled Members of Congress, they would want strong sentences for those who commit serious crimes but sometimes when you do a law one-size-fits-all, you do need some mitigating circumstances. Is the safety valve adequate enough or should we do away with mandatory minimum sentences because there is not the ability to be fair or flexible? Mr. Steer. Well, Mr. Chairman, I think that the safety valve is doing, relatively speaking, a good job of sorting among offenders, and those who are less culpable and less dangerous are receiving lesser sentences. I think in an ideal world, when you have a well-functioning system of mandatory guidelines, and I think you have a pretty good system, not a perfect system at the Federal level but a good system, then arguably there is not the need for mandatory minimums that there may have been without mandatory sentencing guidelines. Some of the data that I attempted to share indicates that there are defendants who have mitigating factors about them that are left behind, that do not necessarily meet the safety valve criteria. After all, we are talking about in some cases a difference of one criminal history point, one prior conviction for driving under the influence or one prior conviction for some other very minor offense that can disqualify the defendant. That one prior conviction may result in a total of two criminal history points and, as a result, the defendant does not meet the criteria for the safety valve. Or some other small change in sentencing factors can make a big difference in sentence because---- Mr. Mica. The question was is there enough flexibility or do we need to change the law again? Mr. Steer. Well, I think that we could improve on the current law. In my estimation, we could have a good system without the mandatory minimums by relying on tough sentencing guidelines that make appropriate distinctions. We can make them as tough as Congress wants, in response to whatever direction Congress chooses to give the Commission. Beyond that, if that was not acceptable to Congress, and realistically, it probably is not at the current time, there are a number of things that could be done with respect to fine- tuning the system of mandatory minimums or expanding the safety valve that might make them work better overall. Mr. Mica. Has the Commission recommended any legislative changes to modify the safety valve provision or are you prepared to make any recommendation at this time? Mr. Steer. I am not on behalf of the Commission prepared to do that today because we are so relatively new and we have not had a chance to focus on drug mandatory minimum sentencing policy. I think we will be doing that and we will be glad to, at an appropriate time, share some recommendations with the Congress on what changes they might make. Mr. Mica. Thank you. We look forward to that. Finally, Mr. Kane, what percentage of our Federal prisoners have access to drug treatment? Did you say we now have about 140,000 Federal prisoners? Mr. Kane. We do, Mr. Chairman. Mr. Mica. OK. What percentage of those prisoners now have access to drug treatment? One of the things we are hearing is that there is a lack of access to drug treatment among prisoners at large, but our direct and immediate responsibility is over our Federal prison system. We can look beyond that but in your case, can you give us a guesstimate as to where we stand? Mr. Kane. Yes. We are meeting the statutory requirement to provide 100 percent of individuals who require residential substance abuse treatment that type of treatment. We also do nonresidential treatment and drug education programs for the kinds of people, for the latter two, for the kinds of people, Mr. Chairman, who I think you mentioned in your opening statement, who may be users, occasional users, even regular users but do not rise to the level of drug abuse or dependency. The dependency or addiction people are typically treated in the residential programs. I would say virtually all Federal offenders who are in Bureau of Prison facilities have access to the level of treatment that they need. Mr. Mica. Virtually all? Mr. Kane. Yes. Mr. Mica. And residential, I consider them residents when they are sitting in prison, but residential also would have a different connotation. I am trying to look at from the entire spectrum. You are telling me virtually all of our Federal prisoners in prison, in residential programs and others, have access to some drug treatment? Mr. Kane. Yes. Actually, of the 122,000 Federal prisoners who are actually in Bureau of Prison facilities; some are also in halfway houses, some are also in contract facilities; but within Bureau of Prison facilities, there are three types of drug treatment programs. One is residential and it is only called that because the individuals who participate actually live in a dedicated area and do their drug programming in that area; so by definition, residential treatment program. There are also nonresidential treatment programs that involve individuals who live anywhere in a Bureau institution but who would go to a psychologist for diagnosis and then participate in programs as part of their daily routine. That also involves such things as work programs, education, etc. And then third, for individuals whose crimes may have been related to their involvement in drugs or alcohol, those who are under the influence, as you mentioned in your opening statement, anyone who has been recommended by the court for treatment and an individual who may have violated a condition of release, supervised release, parole, etc--all of those folks must--they are required to undertake a drug treatment education program. In the education program, those who have higher needs-- regular users, for example, those addicted--are then educated and encouraged to go on to nonresidential programming, if that is what they need, or the residential programming if they rise to the level of dependency or abuse. So again, literally virtually all offenders have access to those treatment programs. Mr. Mica. We have about 11 minutes left. I will just yield it to the minority. Mr. Cummings. I will just be very brief. Mr. Roth, in a recent report, the Leadership Conference on Civil Rights found that the U.S. Attorneys Office in Los Angeles had prosecuted hundreds of minorities on crack cocaine offenses but not a single White person had been similarly prosecuted in a 6-year period. And I am just wondering what is the Justice Department's feeling on that? Mr. Roth. That is a good question, Mr. Cummings. I think I will have to get back to you on that because I do not have an answer for you. Mr. Cummings. That is incredible, isn't it? Mr. Roth. I am sorry, sir? Mr. Cummings. I said that is incredible, isn't it? Mr. Roth. As I said, I cannot comment on it until I actually see it. Mr. Cummings. OK. Our first panelist, can we go to chart No. 11? Can you explain that to me real quick? What does it mean? I mean I see it but tell me what it means. Does that mean that---- Mr. Steer. This looks at the highest mandatory minimum to which defendants were subject and sorts according to the race of the defendant. So it shows that the 5-year mandatory minimums most frequently impacted on Hispanic defendants; the 10-year mandatory minimum most frequently impacted on Black defendants, the same for the 20---- Mr. Cummings. Is that the percentage, say, of Black folks being sentenced or Hispanics being sentenced, or is that the percentage that---- Mr. Steer. Mr. Cummings, I believe it is a percent of those who were subject to that particular mandatory minimum. Mr. Cummings. OK, I got you. I am just wondering, what do you think accounts for that? Even the chairman had to kind of look at that one. That is a substantial change. I mean when you look at the figures as the years go up, what accounts for that? Mr. Steer. I think we do not know fully what accounts for that. I can speculate to a certain extent. Part of it is certainly the conduct of the defendant. The quantity of drugs in particular, the quantity and type of drugs for which they were held accountable at sentencing explains largely the 5 and 10-year mandatory minimums. The 20-year and life mandatory minimums bring in another factor--prior record in many instances, prior felony conviction. And in those instances, the prosecutor also has to make a decision to file a piece of paper, to file an information seeking the application of the heightened mandatory minimums. So it is a combination of conduct, prior conduct, and a decision of the prosecutor to seek that higher mandatory minimum. Mr. Cummings. Now, the safety valve provision was enacted to allow judges to sentence first-time nonviolent drug offenders to less than the mandatory minimum if they provide substantial assistance to the government. If the Federal drug policy concentrates on kingpins and major traffickers, how can the testimony of the low-level people be helpful? Shouldn't the low-level people be prosecuted in State court? Mr. Roth. Mr. Roth. It is a combination of two. Low-level people are prosecuted in State court. When you look at the statistics of State prosecutions versus Federal prosecutions, it is far and away predominantly State prosecutions. On the other hand, when you are investigating a conspiracy or an organization, it is fundamental that you have to start at the bottom because the kingpin is not going to be dealing with the undercover officer, the informant, or the person who is actually selling the drugs on the street. You just have to work your way up the chain. Frankly, the only way we have to do that is with the substantial assistance departure. Mr. Cummings. And you found that to be very helpful? Mr. Roth. It is one of the most effective tools that we have to prosecute the kingpins. I cannot recall a single large conspiracy case involving significant drug traffickers where we have not given somebody a substantial assistance departure. Mr. Cummings. Because of time, I am going to have to yield to Mr. Turner. Mr. Turner. Mr. Roth, I certainly can understand how you believe mandatory minimums are a powerful tool for the prosecution, how they increase certainty and predictability of crimes. I am not sure that I agree that they always result in justice. The thing that I really want to ask in my very limited time here, Mr. Steer, what would it take for us to get a recommendation from the Sentencing Commission with regard to improvements in the mandatory sentencing scheme? Mr. Steer. Well, I think you just need to ask and give the Commission some time to focus on that. As I said, we have only been in our positions for a few months and have not had a chance to focus broadly or deeply on Federal drug sentencing policy. But part of what we are statutorily authorized and directed to do is to provide recommendations to Congress from time to time that would help improve Federal sentencing policy and I think we are anxious to do that. Mr. Turner. Well, I will certainly ask. You might give me some indication of how long it will take. Mr. Steer. Well, we are meeting in a few weeks--excuse me-- in just a couple of weeks to reflect on this past amendment cycle, which has been a fairly hurried, compressed one, and to try to do some mapping of plans for the future. I am sure that the topic of drug sentencing policy will come up. Now, I think it will take a while for us to develop a whole slate of recommendations, but we will be glad to get to work on that. Mr. Turner. Give that some thought. I will talk with you after the hearing. I would like to know what kind of timetable it might be on, but I think it would be very helpful to the committee to have the recommendations from you. Obviously, the presentation you made indicated that there is some need for improvement. We notice in your own testimony you cited two Supreme Court justices who have been critical of the mandatory sentencing laws and I think if we can take an objective look at it, this Congress would be doing the right thing. Mr. Steer. Thank you, sir. Mr. Turner. Thank you, Mr. Chairman. Mr. Mica. I thank the gentleman. Well, we do have additional questions, both Mr. Cummings and myself, but unfortunately we do have also a total of five votes. So I guess this panel is very fortunate to be excused at this time, but we will be submitting additional questions to you for the record and trying to work with you as we sort out the law and trying to make minimum mandatory as effective as possible and the laws relating to illegal narcotics trafficking and violent offenses against our society as effective as possible. So I thank each of you for your participation at this time and excuse this panel. The bad news is for the third panel, we are going to recess until 2:05 in order to accommodate the five votes that are coming up. So approximately 2:05 we will regather here and this hearing will stand in recess until 2:05. [Recess.] Mr. Mica. I would like to call the subcommittee back to order. Our next order of business is our third panel of witnesses. The three witnesses consist of Frances Rosmeyer from Families Against Mandatory Minimums; Mr. William Moffitt, who is president of the National Association of Criminal Defense Lawyers; Mr. Wade Henderson, executive director of the Leadership Conference on Civil Rights. I am pleased that these witnesses have joined us. Again this is an investigations and oversight subcommittee of Congress. I will swear you in in just a moment. If you have lengthy statements or material which you would like to have made part of the record upon request of the chair, unanimous consent will be granted. I am pleased also to be joined by our ranking member, Mrs. Mink, who was not with us. Did you have an opening statement or some comments you would like to make? Mrs. Mink. No, I just want to apologize for missing the earlier portion, but we had an event at the White House on pay equity that I had to be present for. Thank you very much. Mr. Mica. Thank you. And we have, with the consent of the minority, left the record open for 2 weeks and we will be submitting questions to our witnesses. With those guidelines, let me ask our witnesses to stand, please. [Witnesses sworn.] Mr. Mica. Witnesses answered in the affirmative and we are so pleased to have each of you with us today. I appreciate so much your patience. We have had two full panels and a recess on any number of votes. Some days we can get through the whole process without those interruptions but today was not one of those days. So again we thank you for your patience. I will first recognize Frances Rosmeyer, again with Parent, Families Against Mandatory Minimums. You are welcomed and recognized. STATEMENTS OF FRANCES ROSMEYER, PARENT, FAMILIES AGAINST MANDATORY MINIMUMS; WILLIAM MOFFITT, PRESIDENT, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AND WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP CONFERENCE ON CIVIL RIGHTS Ms. Rosmeyer. Thank you. Good afternoon and thank you for the opportunity to speak to the committee this afternoon. I am Frances Rosmeyer and I reside in Alpharetta, GA, a suburb of Atlanta. I am a very proud member of FAM, Families Against Mandatory Minimums. My daughter, Kellie Mann, is incarcerated at the Federal prison camp in Alderson, WV and has entered her 7th year of incarceration. Kellie was sentenced in 1994 for a crime that was committed in 1992. Her sentence was under the mandatory minimums as a first-time, nonviolent drug offender, along with her ex-boyfriend, Patrick. Both Kellie and Patrick were charged with three Federal conspiracy drug charges for 19 grams of LSD. The actual weight of the drugs was 0.33 gram but because of the carrier, which was paper, the weight was increased to 19 grams. Hence the charge of 19 grams. The weight of the LSD triggered the 10-year mandatory minimum sentence, something I have always questioned. Kellie's sentence includes 10 years in prison, 5 years supervised release, and countless hours of community service. Her sentence began in 1994 and will not officially end with a release from the government until about 2007, and I am sure it will affect her much further into her life far past 2007. Patrick, on the other hand, received 36 months and served approximately 18 months because of his ability to help the government. This began in 1992 when Kellie visited Atlanta from our home in San Francisco. We formerly lived in Atlanta and moved to California for career opportunities. At the time, Kellie had not dated Patrick for about 2 years and had moved along in her life wonderfully. She was a full-time college student, working full-time, and still living at home. While visiting Atlanta, she had a chance meeting with Patrick. They ran into each other at a friend's house. Their relationship had always been one of testing and daring, and he proposed another test. He asked her to send him some LSD on her return to San Francisco. When she returned home, she began her search. Being relatively new to the area, she knew very few people and it took her a while to locate any drugs, which she finally located at a concert. She purchased the drugs, placed them in an envelope and mailed them to Patrick. When Patrick went to the post office to pick up the package, he was arrested by DEA agents and this ordeal began for all of us. He gave her name to help himself and soon the government was at my door in San Francisco. The words mandatory minimum laws were foreign to me. I had never heard of these laws. Kellie has never professed her innocence. She realized she broke the law; she admitted she broke the law. She admitted to her crime. Our question has always been does her punishment fit her crime? She is serving a sentence longer than many violent criminals, longer than repeat offenders and longer than those receiving the benefit of the safety valve. Why? In 1994, Congress passed a new crime bill which included the safety valve, but what they failed to include was retroactivity for inmates like my daughter. At that time, about 5,000 inmates would have been affected. Today, after attrition, it is below 1,000. This has not only affected Kellie; our entire family went to prison. It has cost us not only economically but the larger cost is the psychological effect that it has on all of us as a family and will continue to deteriorate and hold us hostage for many years after her sentence. My husband and I live in fear daily--in fear not only of her daily life because of where she is, but the larger fear is of her future. Kellie is an intelligent woman but now has many more obstacles to overcome. Losing her 20's, where does she go when she has to start over? My daughter is not and never has been a threat to society. I do have a picture of my daughter. Do you have it? Thank you. While professing we are fighting a war on drugs, where does the war end? We must clear our vision and realize what we are doing. It is not working. Help my family and thousands of others. Change these laws to treat each individual as an individual, to have the ability to look at the way they lived their lives before that one dreaded mistake. She is not a violent woman, never has been, and I can tell you if you went to the prison today, they would tell you she will never be a violent person. Sunday is Mother's Day, a very difficult day for me. I have spent many Mother's Days without her and it is time for her to come home. I am here to beg my government to make changes. This kills families. It not only takes fathers away, it takes mothers away, it takes daughters away, and sons. There are many women in prison with small children that have become part of the government housing because they have been taken away as first- time nonviolent offenders, not just for drugs--for being bookkeepers of people who were laundering money. Please bring them home. These laws are not working. The basis is there but changes need to be made. Someone here in this city has to stand up for me, in my city. I elect the officials here. I expect them to do my voting and to do what is good for me. I am the citizen. I am the taxpayer and I am begging you all to stand up and take a stand, a deep look at what we are doing. This morning I heard something that I never thought would affect me, such simple words. Someone on the panel announced that we had 2 million people in prison in this country. It smacked me in the face because when he said it it was with some form of pride. It does not make me proud to live in a country where we house people in prisons, where we refuse to help the drug addicts on the street, where we refuse to even help the homeless. It does not make me proud. I want to be proud of my government my country, so please help me get there. I have a few words for the Governor that I just wrote down this morning from his own testimony. I want to thank him for realizing that the war on drugs is not working. He said those words and then he contradicted himself. Governor Allen uses a very broad brush to paint the people in prison. They are not all murderers; they have not raped people; they have not stolen money. Some of them, like my daughter, made a bad decision and she has always been willing to take that responsibility, but 10 years--and actually, it is not 10 years; it turns into 16 years--of her young life to pay for that mistake it is outrageous. It is despicable. We need to start thinking about our children. My daughter has lost her 20's. She was a bright girl in school, had a wonderful future as an anthropologist. It is gone. It is absolutely gone. She is paying that price. And on many occasions throughout the years she has been in prison I have wondered why our government doesn't stop to look at children like mine who were young, bright, and have so much to give. Why did they not choose to use her mistake to educate other teenage kids, other kids in college? Why not use that intelligence intelligently, versus locking her up somewhere where she does not pay taxes, she is useless; she costs us money. That is what she does as a taxpayer. That is how I look at people there. They have so much to give this country, so much to offer, so much intelligence, so much knowledge. Use them. Put them in the high schools. Put them in colleges to educate the children. You know, a Senator one time told me many years ago when I first got involved in this, when this all first happened, I asked him what it was going to take for the government to realize that they are passing laws that citizens like me know nothing about. I said, ``Don't you, as my representative, think that I deserve an education about the laws? Don't you think that the kids that you are putting in prison, the college students, the high school students, don't you think that they deserve to be educated on the laws that you are going to sentence them to?'' And his words to me were incredible. He told me that they were going to use my daughter to teach other college students. That is despicable. The government has a responsibility to its citizens and if you are going to pass laws in this town, we deserve to be educated. Thank you. Mr. Mica. Thank you for your testimony and we will now hear from William Moffitt, who is the president of the National Association of Criminal Defense Lawyers. You are most welcome today. I again thank you for your patience, and you are recognized. Mr. Moffitt. Thank you very much. We at the National Association of Criminal Defense Lawyers are greatly appreciative of this opportunity to be heard on this issue of primary importance. Not only am I president of the National Association of Criminal Lawyers; I am a member of the Virginia Bar for 25 years and I think I could be helpful to this committee in expressing and telling this committee that the system described this morning, the Virginia system, is very different from the Federal system that you are confronted with. In the Virginia system as it currently exists, the system imposed by Governor Allen, a citizen avoids the imposition of a mandatory minimum penalty simply by pleading guilty or avoiding a trial by a jury. The judge at that point is left with the discretionary call as to what the sentence is, regardless of the fact that the statute imposes a mandatory minimum. So a statute that imposes a 5-year mandatory minimum, if the person simply pleads guilty or is tried without a jury, does not cause the person to suffer a penalty of 5 years. The judge in that situation is allowed to impose whatever penalty he or she deems is appropriate. The guideline system in Virginia is not mandatory. It is advisory. Thus, the sentencing guidelines in Virginia are used by judges if they choose and they can avoid the use of the guidelines merely by sentencing the individual to a sentence outside the guideline range, either above or below. This is very different than the current Federal system, which has inviolable mandatory minimums and a mandatory guideline system. We would suggest to you under the circumstances that one of the major issues in the Federal system, as opposed to any other system, is the absolute lack of discretion in the judiciary. What the mandatory minimum sentencing scheme has done has taken discretion from the judges and placed it in the hands of the prosecutor. Now on its face, that means very little. In reality, it simply means this. Every discretionary call of a judge is reviewable by another set of judges. No discretionary call by a prosecutor is reviewable by anyone. So under the circumstances that you see, many of the discretionary calls that cause the disparities that you are seeing and that we have seen over the years that have existed in this system are unreviewable by anyone, and we suggest that this is a misplacement of discretion in the system. It is an interesting placement of discretion in the system, where we spend a lot of time deciding who the Federal judges are going to be. We spend a lot of time vetting them and reviewing their credentials and questioning their judgment as to whether or not they are the appropriate people to exercise judgment over other human beings. We spend no such time questioning the prosecutors in the same way. So we replace the discretion of people who have participated in the system for 20 or 30 years in order to get to the point of being a judge with that of a 26 or 27-year-old prosecutor who is just out of law school. And I suggest to you in an intelligent system, that is nowhere to place discretion. Discretion ought to be placed at the other end of the system. One other thing that you do not see because we get caught in the elastic of the statistics and the numbers is the most important thing for a person to be in our system to avoid the impact of the mandatory minimum is to be a large and successful drug dealer. The larger and more successful the drug dealer, the more the drug dealer has to sell to the government at the time of his or her arrest, the easier therefore it is to avoid the mandatory minimums that exist supposedly to incarcerate the drug dealer at the highest level. And I suggest to you what is happening in our system, in our current system, is the high level drug dealer avoids the consequences of the mandatory minimum system because the high level drug dealer has something to offer. It is the low level drug dealer that suffers the impact of the mandatory minimum system in the current system. I am struck as I sit here. The drug war, as I remember it, began in 1968 when Richard Nixon began it. I was 19 years old and I was in college. I am 51 years old and I am the president of the National Association of Criminal Defense Lawyers and I have been a practicing lawyer for 25 years. My entire career, this country has been engaged in a drug war. My entire career, this drug war has been met over and over by people seeking greater penalties for political gain, and yet the war continues unabated, undisturbed. I sat here this morning and listened to the fact that more of our children, despite since 1987 and the mandatory minimum system, I sat here while we listened to the Governor suggest that more people are using drugs today than were using when we began the mandatory minimum system. The mandatory minimum system has not solved the problem. It will not solve the problem. You will not incarcerate us out of the drug problem in America today. We have to finally decide to be more intelligent about how we view this problem. This problem is symptomatic of other problems that exist within the framework of our system. And it is often the people who suffer most those other problems that suffer at the hands of these drug problems, and the laws as we define them. We have got to begin to get intelligent about this. We have got, when we see the skyrocketing rates of incarceration of African Americans and Latinos in this country and we all turn our eyes to them and say this is horrible, it is time for us to do something about it. I stood with a million men outside this Capitol. We were simply there asking, in part, that the 100 to 1 disparity of crack cocaine versus powder cocaine be changed. One million men petitioning their government. That very week this body was addressing that problem. That very week we were unheard. I, too, have a daughter, a 16-year-old daughter who goes to high school. I have two explanations I have to give her. I have to talk to her about drugs and then I have to talk to her as an African American woman and answer her question as to why this society punishes people of color differently than it treats people not of color. And every day I have to talk to her and tell her that she has to have faith. And every day generations before me told me I had to have faith, told my mother that she had to have faith, told my father and my grandfather that they had to have faith. We are losing faith. Faith is no longer enough. We today must do something. We have international treaties in the United Nations that suggest that when we have laws that have adverse racial impact, they are to be changed, and yet the United States does nothing. When will we change? When will we provide more than lip service to the notion that we cannot keep incarcerating minorities using these types of laws for the lengths of time, in the numbers? We have already disfranchised 1.4 million African American people in this country through the use of drug incarcerations. How many more? When will it end? When will we declare peace and begin to change how we perceive this problem so that we might be progressively solving it? I really do appreciate the opportunity to be heard today. This is an important issue. It is an important issue not just because of mandatory minimums. It is an important issue because of the signal that it sends to the people of this country about whether we care or not, whether we are concerned or not. I appreciate your concern. I hope that it is time that we stop talking and we begin doing and that we change this. The war has gone on long enough. It seems a bit irrational to me that as a society, we declare war on ourselves. So thank you for having me. 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Thank you so much for your testimony. I am pleased to now recognize Mr. Wade Henderson, who is the executive director of the Leadership Conference on Civil Rights. You are welcome and recognized, sir. Mr. Henderson. Thank you, Mr. Chairman and thank you, Mrs. Mink, for the opportunity to appear before you today. I am Wade Henderson, the executive director of the Leadership Conference on Civil Rights. I would respectfully request that my complete statement and its attachment be made a part of the record of today's hearing. Mr. Mica. Without objection, so ordered. Thank you. Mr. Henderson. The Leadership Conference is the nation's oldest and most diverse coalition of civil rights organizations. The Leadership Conference on Civil Rights consists of over 180 national organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians and major religious groups. It is a privilege to represent the civil and human rights community in addressing the subcommittee today. We commend you for convening this timely hearing. Last week the Leadership Conference released a new policy report entitled, ``Justice on Trial: Racial Disparities in the American Criminal Justice System.'' I will first provide an overview of our report and then discuss the specific issue of drug sentencing. The new Leadership Conference report compiles evidence about disparities in every aspect of the criminal justice system from police tactics to sentencing laws. We conclude that the criminal justice system is beset by massive unfairness. Both the reality and the perception of racial bias have adverse consequences for minority communities and for the criminal justice system itself. We respectfully submit the full report for the record. It is also available over the Internet at www.civilrights.org. In the half century since the Leadership Conference was founded, the Nation has made great strides in combating racial discrimination. With the criminal justice field in particular, racial inequality is growing, not receding. Law enforcement disparities threaten 50 years of hard-fought civil rights progress. For example, the Civil Rights Act of 1964 bans employment discrimination but today, 3 out of every 10 Black males born in the United States will serve time in prison, severely limiting their prospects for legitimate employment. The Voting Rights Act of 1965 guarantees the franchise but today, 31 percent of Black men in Alabama and Florida and 1.4 million Black men nationally have lost the right to vote as a result of felony criminal convictions. Our civil rights statutes abolished Jim Crow laws and gave minority citizens the right to travel and to use public accommodations freely but today, racial profiling and police brutality make such travel hazardous to the dignity and health of law-abiding Black and Hispanic citizens. ``Justice on Trial'' details how unequal treatment of minorities characterizes every stage of the process. Minorities are victimized by profiling and other police tactics, by racially skewed charging decisions of prosecutors, by biased sentencing practices and by the failure of judges to redress inequities that become more glaring every day. These disparities are unjustified. The vast majority of Blacks and Hispanics are law-abiding citizens. Enforcement tactics that assume otherwise are unfair and intolerable. Now our report discusses the consequences of these policies. For example, almost one in three young Black males is under some form of criminal supervision, either in prison or jail or on probation or parole. A Hispanic male born in 1991 has a one in six chance of spending time in prison. There are more young Black men under criminal supervision than there are in college and for every 1 Black male who graduates from college, over 100 are arrested. In my written testimony and in the Leadership Conference report itself, we present a number of recommendations to address these disparities, including more accountability for police and prosecutorial decisionmaking, more diversity in law enforcement, juvenile justice laws that do not turn Black and Hispanic youth into hardened career criminals, and a ban on racial profiling. We do not propose less public safety. The issue is not whether to be tough on crime but whether to be fair and smart while being tough on crime. There is no contradiction between effective law enforcement and the promotion of civil rights. Let me now discuss the report's specific recommendations regarding the subject of this hearing--drug sentencing. The decision to sentence a convicted criminal to prison has traditionally been entrusted to impartial judges but in recent years, sentencing has become mechanistic--a decision effectively controlled by legislators, prosecutors and sentencing commissioners. This change in the culture of sentencing has had disastrous consequences for racial minorities. Our report analyzes mandatory sentencing laws enacted in the 1980's and concludes that they have led to racial injustice. These laws deprive judges of the discretion to tailor a sentence based on the culpability of the defendant and the seriousness of the crime. Mandatory minimum sentencing laws are not truly mandatory because prosecutors may grant exceptions. Prosecutors can choose to charge some defendants with offenses that do not carry mandatory penalties or they can accept a plea in which charges carrying mandatory penalties will be dismissed. These laws transfer sentencing authority from experienced, impartial judges to young adversarial prosecutors. Now, some civil rights supporters originally favored mandatory minimums, but the evidence is clear that minorities fare worse under mandatory sentencing laws than they did under a system of judicial discretion. By depriving judges of the responsibility to impose fair sentences, mandatory sentencing laws represent injustice on autopilot. The effect of current sentencing policies has been dramatic. Since 1972, the populations of Federal and State prisons have increased 500 percent to 1.2 million individuals. Including jail populations, America now incarcerates about 2 million people. An increasingly large percentage of those in prison are charged with drug crimes. Between 1980 and 1995, the number of those serving time for drugs increased more than 1,000 percent. There are now 400,000 Federal and State inmates serving time or awaiting trial for drug offenses. These statistics describe a national strategy to address the public health problem of drug abuse with massive incarceration. A drug control strategy that depends so heavily on prison building is unwise for many reasons, including the racial disparities it creates. My written testimony and the LCCR report document these racial disparities in detail, but I will provide some highlights. Whites who serve time for felony drug crimes serve shorter prison terms than Blacks--on average, 27 months for Whites and 46 months for Blacks. From 1970 to 1984, Whites comprised about 60 percent of those admitted to prisons and Blacks around 40 percent. By 1991, these ratios had reversed, with Blacks comprising 54 percent of prison admissions versus 42 percent for Whites. Hispanics represent the fastest growing category of prisoners, having grown 219 percent between 1985 and 1995. Between 1985 and 1995, the number of White drug offenders in State prisons increased by 300 percent while the number of similarly situated Black drug offenders increased by 700 percent. Now, these disparities in drug sentencing do not occur because minorities use drugs at a higher rate than Whites. According to Federal health statistics, drug use rates per capita among racial minorities and White Americans are similar and studies show that drug users tend to purchase drugs from sellers of their own race. But while Blacks constitute about 12 percent of the population, they constitute 38 percent of those arrested for drugs, 59 percent of those convicted of drug offenses, and 74 percent of those sentenced to prison for a drug offense. The statistics in certain cities are extraordinary. In Columbus, OH, Black males comprise 11 percent of the population but 90 percent of the drug arrests. In Jacksonville, FL, Black males comprise 12 percent of the population but 87 percent of drug arrests. Much of this discrepancy can be traced to practices such as racial profiling. The assumption that minorities are more likely to commit drug crimes and that most minorities commit such crimes prompts more minority arrests. Whites commit drug crimes, too, but police enforcement tactics do not focus on them. Drug arrests are easier to accomplish in inner city neighborhoods than in middle class White neighborhoods. At the Federal level, differences in laws governing crack and powder cocaine cases cause disparity; that has already been noted. As members know, 5 grams of crack triggers the same mandatory sentence as 500 grams of powder cocaine. But in 1993, 95.4 percent of those convicted of Federal crack offenses were Black or Hispanic. Whites were prosecuted in State courts instead. In 1995, the U.S. Sentencing Commission recommended that the differences in cocaine sentencing thresholds be abolished. And after Congress blocked that change, the Commission recommended a less dramatic reduction in the 100 to one disparity. Five years later, Congress has not adopted any of the Commission's recommendations on this subject. The result is continued enforcement of a law that everyone agrees is irrational at best and racist at worst. Few policies contribute more to minority cynicism about law enforcement than the crack/powder cocaine disparity. If anti-drug efforts are to have credibility in minority communities, these penalties must be equalized, as the commission initially proposed. Mandatory sentencing laws are engines of racial injustice. They have filled America's prisons to the rafters with thousands of nonviolent minority offenders. Repeal of these laws would be a significant step toward restoring racial fairness in the criminal justice system. Thank you very much, Mr. Chairman. [The prepared statement of Mr. Henderson follows:] [GRAPHIC] [TIFF OMITTED] T0887.098 [GRAPHIC] [TIFF OMITTED] T0887.099 [GRAPHIC] [TIFF OMITTED] T0887.100 [GRAPHIC] [TIFF OMITTED] T0887.101 [GRAPHIC] [TIFF OMITTED] T0887.102 [GRAPHIC] [TIFF OMITTED] T0887.103 [GRAPHIC] [TIFF OMITTED] T0887.104 [GRAPHIC] [TIFF OMITTED] T0887.105 [GRAPHIC] [TIFF OMITTED] T0887.106 [GRAPHIC] [TIFF OMITTED] T0887.107 [GRAPHIC] [TIFF OMITTED] T0887.108 [GRAPHIC] [TIFF OMITTED] T0887.109 [GRAPHIC] [TIFF OMITTED] T0887.110 [GRAPHIC] [TIFF OMITTED] T0887.111 [GRAPHIC] [TIFF OMITTED] T0887.112 [GRAPHIC] [TIFF OMITTED] T0887.113 [GRAPHIC] [TIFF OMITTED] T0887.114 [GRAPHIC] [TIFF OMITTED] T0887.115 [GRAPHIC] [TIFF OMITTED] T0887.116 [GRAPHIC] [TIFF OMITTED] T0887.117 [GRAPHIC] [TIFF OMITTED] T0887.118 [GRAPHIC] [TIFF OMITTED] T0887.119 [GRAPHIC] [TIFF OMITTED] T0887.120 [GRAPHIC] [TIFF OMITTED] T0887.121 [GRAPHIC] [TIFF OMITTED] T0887.122 [GRAPHIC] [TIFF OMITTED] T0887.123 [GRAPHIC] [TIFF OMITTED] T0887.124 [GRAPHIC] [TIFF OMITTED] T0887.125 [GRAPHIC] [TIFF OMITTED] T0887.126 [GRAPHIC] [TIFF OMITTED] T0887.127 [GRAPHIC] [TIFF OMITTED] T0887.128 [GRAPHIC] [TIFF OMITTED] T0887.129 [GRAPHIC] [TIFF OMITTED] T0887.130 [GRAPHIC] [TIFF OMITTED] T0887.131 [GRAPHIC] [TIFF OMITTED] T0887.132 [GRAPHIC] [TIFF OMITTED] T0887.133 [GRAPHIC] [TIFF OMITTED] T0887.134 [GRAPHIC] [TIFF OMITTED] T0887.135 [GRAPHIC] [TIFF OMITTED] T0887.136 [GRAPHIC] [TIFF OMITTED] T0887.137 [GRAPHIC] [TIFF OMITTED] T0887.138 [GRAPHIC] [TIFF OMITTED] T0887.139 [GRAPHIC] [TIFF OMITTED] T0887.140 [GRAPHIC] [TIFF OMITTED] T0887.141 [GRAPHIC] [TIFF OMITTED] T0887.142 [GRAPHIC] [TIFF OMITTED] T0887.143 [GRAPHIC] [TIFF OMITTED] T0887.144 [GRAPHIC] [TIFF OMITTED] T0887.145 [GRAPHIC] [TIFF OMITTED] T0887.146 [GRAPHIC] [TIFF OMITTED] T0887.147 [GRAPHIC] [TIFF OMITTED] T0887.148 [GRAPHIC] [TIFF OMITTED] T0887.149 [GRAPHIC] [TIFF OMITTED] T0887.150 [GRAPHIC] [TIFF OMITTED] T0887.151 [GRAPHIC] [TIFF OMITTED] T0887.152 [GRAPHIC] [TIFF OMITTED] T0887.153 [GRAPHIC] [TIFF OMITTED] T0887.154 [GRAPHIC] [TIFF OMITTED] T0887.155 [GRAPHIC] [TIFF OMITTED] T0887.156 [GRAPHIC] [TIFF OMITTED] T0887.157 [GRAPHIC] [TIFF OMITTED] T0887.158 [GRAPHIC] [TIFF OMITTED] T0887.159 [GRAPHIC] [TIFF OMITTED] T0887.160 [GRAPHIC] [TIFF OMITTED] T0887.161 [GRAPHIC] [TIFF OMITTED] T0887.162 [GRAPHIC] [TIFF OMITTED] T0887.163 [GRAPHIC] [TIFF OMITTED] T0887.164 [GRAPHIC] [TIFF OMITTED] T0887.165 [GRAPHIC] [TIFF OMITTED] T0887.166 [GRAPHIC] [TIFF OMITTED] T0887.167 [GRAPHIC] [TIFF OMITTED] T0887.168 [GRAPHIC] [TIFF OMITTED] T0887.169 [GRAPHIC] [TIFF OMITTED] T0887.170 [GRAPHIC] [TIFF OMITTED] T0887.171 [GRAPHIC] [TIFF OMITTED] T0887.172 [GRAPHIC] [TIFF OMITTED] T0887.173 Mr. Mica. I would like to thank all of our witnesses for their testimony and participation and again their patience in coming before us both this morning and this afternoon. First of all if I may, Ms. Rosmeyer, I think we all are in great sympathy with you for the plight of your daughter. It appears that when mandatory minimum went into effect for her offense, she was harshly penalized and it appears that the safety valve change, I guess that we did in 1994, left many people, as you testified, who were not given the opportunity of that safety valve any opportunity for rehearing. Did you testify that there are about 1,000 left? Ms. Rosmeyer. About 1,000 left in prison. Mr. Mica. There were originally 3,000. Ms. Rosmeyer. 5,000, approximately 5,000. Mr. Mica. It is a difficult situation and unfortunately your daughter got caught in it. I think you are aware of the provisions of the safety valve and those requirements, as I understand, and we had testimony today, are not discretionary; they are mandatory as far as application. Do you think that they are adequate? Now, I want to separate you from your daughter's situation. I know that you would like to see that retroactive, but what we have in place, is that adequate? Ms. Rosmeyer. The safety valve? Mr. Mica. Yes. Ms. Rosmeyer. Well, it is only going to affect the safety valve at this point with the retroactivity, obviously it will affect the 1,000 individuals left. You are talking about presently, going forward? Mr. Mica. I know your position, but we now have in place this mechanism for mitigating circumstances---- Ms. Rosmeyer. Yes, I am in agreement with the safety valve as it is now. Mr. Mica. I just heard some testimony by Mr. Henderson about several instances of racial disparity in, I guess, sentencing and prosecution. I think you cited Columbus, OH and Jacksonville; is that correct? Mr. Henderson. Yes, sir. Mr. Mica. Has your organization complained to the Department of Justice or asked for investigation of these cities or areas, jurisdictions where there is such a discrepancy? Mr. Henderson. Well, Mr. Chairman, our organization has written to the Attorney General, actually to President Clinton over a year ago with respect to the broader issue of racial profiling. In that letter we did not cite the specific examples of Columbus, OH and Jacksonville, FL at that time. The report which we published was only recently published last week. But I can assure you we will be following up both with the Attorney General and in correspondence to the President himself, followup to these disparities that we have documented. Mr. Mica. It seems to me where we have had incidents, even in the area that I live in, central Florida, we have had a sheriff who is very active in going after drug traffickers and there were charges of disparity. There was a State investigation; there was a Department of Justice investigation. We had it investigated from stem to stern and I am wondering why, if you have, and your statistics are correct, instances where there is such a disparity, that we do not have the Department of Justice reviewing those instances. I thought that was part of our oversight responsibility as a Federal law enforcement agency. Mr. Henderson. Mr. Chairman, I think you raise an excellent point. Certainly the concerns which we have documented in this report with regard to the appearance of racial profiling--in fact, really more than the appearance, the actual fact of racial profiling in incidents that have helped to create the disparities we have documented--we think is a serious problem and we think it is one that the Department of Justice does have a responsibility to examine thoroughly. I think one of the problems we have encountered is that the law enforcement community, broadly defined, has resisted accepting responsibility for racial profiling as an enforcement technique that they employ in carrying out their own responsibilities. That is to say many communities deny the existence of racial profiling in terms of their official response to the problems that we have identified. Certainly we think that the disparities which we have helped to unearth and the disparities of such wide magnitude as reflected in our report raise serious presumptions about inherent unfairness in the way the system operates. We are not contending, I should point out, that in every instance the disparity results from intentional discrimination or some widespread bigotry that could be rooted out by dismissing someone who happens to be in a leadership position. We think that the problem is really systemic and we think that the way to root it out is to, of course, confront it, to have the problem identified, accepted as a real problem, and to have prescriptive steps taken to resolve it, and we are pressing the Department of Justice to do a more vigorous job in bringing these issues to light. I should note that recently in the city of Los Angeles the Civil Rights Division has noted that because of apparently a widespread pattern of police misconduct, that it is contemplating bringing action in that community and is, in fact, in negotiation now, I gather, with city officials to address those problems. That is the kind of step that we hope the department will take not just in Los Angeles but in other communities where this evidence is unearthed. Mr. Mica. Thank you. We are getting hit by the buzzer again, with votes. I am going to yield the balance of the time to the ranking members, Mrs. Mink. Mrs. Mink. Thank you very much. All three of you raised some very profound and provocative questions about the current system that we operate under. Knowing the general climate of Congress in wanting to find easy answers to very complicated questions, they plunged into this whole area of mandatory sentencing as perhaps one way of demonstrating their vehement objection against the whole problem of drug abuse in our society. But each of us, in our own offices, have had innumerable examples of the terrible injustice that has occurred because of the way in which mandatory minimums are set. Now, noting again the reluctance of Congress to admit they were wrong and need to correct these wrongs with any degree of rapidity, I ask this question in the sense of some sort of an intermediary step, just short of any repeal or rescission of what we have done. Is there any thought that perhaps if we allow the courts to enter into this judgment area, once the individual has been arrested and sentenced, arrested and brought to trial, if we allowed in the same context to have the judge pass judgment as to the fairness and equity of the mandatory sentence? Is that workable or is that just throwing more sop to the whole situation? Mr. Moffitt. Mr. Moffitt for the NACDL. There are several things that we would suggest. No. 1, the discretionary call in the system as to whether or not a sentence ought to be reduced below the mandatory minimum, that should be vested in the judiciary and not in the prosecutor. Mrs. Mink. Well, if we take that absolute statement that we cannot live with mandatory sentencing at all, my suggestion is that leaving mandatory sentencing to some extent in the hands of the prosecutor but allowing the courts, upon motion by the attorneys in question, to review the equity of that situation, given our testimony here where the person who was the one who instigated this activity gets off with just a couple of months and her daughter gets 10 years; on the face of it, it is so inequitable. Couldn't we find some way to---- Mr. Moffitt. Certainly that would be an improvement. That would certainly be an improvement in a system which you have also---- Mrs. Mink. Well, you know, in Congress we deal with incrementals. Mr. Moffitt. I understand. Mrs. Mink. And I wondered whether that little incremental would be of any help at all. Mr. Moffitt. Certainly my constituency would take any help that Congress would be willing to give it under these circumstances, but you also have to understand that under I believe it is Title VIII, 28 U.S.C. 993, when the mandatory minimum sentences were passed, many other things were passed along with them. For instance, the socioeconomic status of a particular defendant cannot be taken into account as a sentencing factor any longer. So all the things that traditionally were issues that judges normally took into consideration when they imposed sentences, many of those, by statute, have been taken away. So we would ask that some of those, judges be allowed again to exercise some discretion in the sentencing area. When you speak about the safety valve, one of the problems with the safety valve you heard this morning is that something as innocuous perhaps as a DWI can affect a person's eligibility for the safety valve. Something as innocuous as the codefendant's possession of a firearm can affect eligibility for the safety valve. So it might not be that this particular accused had a firearm; it might be that someone in the conspiracy had a firearm and that will affect that person's eligibility for the safety valve. So the safety valve needs to be less restrictive than it is currently for it to have a larger impact. And particularly in areas, minority areas, where people get small arrests that affect their prior record, any small conviction affects eligibility for the safety valve. That is why the safety valve sometimes does not have the impact on minority communities that it was intended when you initially passed it. So those are issues that can be dealt with that are incremental in change and I would ask that they be looked at and discussed. Further, I do have some remarks that are written and I would ask that they be made a part of the record. Mr. Mica. Without objection. Mrs. Mink. Could I have a unanimous consent request. Our colleague Maxime Waters has a statement and I ask unanimous consent that it be inserted in the record. Mr. Mica. Without objection, Ms. Waters' entire statement will be made part of the record. [The prepared statement of Hon. Maxine Waters follows:] [GRAPHIC] [TIFF OMITTED] T0887.174 [GRAPHIC] [TIFF OMITTED] T0887.175 [GRAPHIC] [TIFF OMITTED] T0887.176 Mr. Henderson. Mr. Chairman, may I respond to Mrs. Mink's request for interim steps that might be taken? Mr. Mica. Yes, go right ahead. I think we have a moment or two left. Mr. Henderson. I think there are three things that I would recommend as short-term steps toward improving this problem. I do believe the Federal Government has an obligation to show leadership in this area and to lead by example. Certainly I think that over the last 2 years in particular, the problem of racial profiling has been highlighted and documented extensively. It exists; it is a problem; it should not be tolerated. I think the President could issue an Executive order banning the use of racial profiling in Federal law enforcement agencies. I think it would make a major step toward putting the imprimatur of the Federal Government against that policy and it would certainly encourage States and local law enforcement agencies to reflect on the use of this policy carefully. Second, I think that the Department of Justice should be encouraged to review its support for mandatory minimum sentencing. I was surprised and, in fact, troubled by the testimony of the Department of Justice witness at your hearing today, which announced the Department's support for these policies, and I think they should be encouraged and we will do so, make an effort to do so, to review these issues and to hopefully adopt a more enlightened policy. And third, the U.S. Sentencing Commission, which testified through Commissioner Steer here today, at least the Commissioner expressed his concern about the use of mandatory minimums and seemed to suggest that the Commission itself would have trouble supporting such provisions. We know, for example, that the Commission issued a report in 1991 that made clear its opposition to the use of mandatory minimums. We would hope that that report could be updated with new additional research and information and presented to the Congress with its findings for review. And certainly this committee is in a position to ask the U.S. Sentencing Commission to provide an update on its 1991 report and we would certainly encourage you to do that, as well. Mr. Mica. Thank you. Thank each of you for your participation, for your testimony. Ms. Rosmeyer. Could I say one more thing, please? Mr. Mica. Very quickly. Ms. Rosmeyer. Yes, very quickly. I want to just clarify what I said earlier because I am new at this and they are not, so I am going to clarify myself. With respect the safety valve, I feel it should be broader because of exactly what Mr. Moffitt was saying--the fact that the smallest of incidents in someone's life takes that ability away--no safety valve. Mr. Mica. Thank you for clarifying. Ms. Rosmeyer. Thank you. Mr. Mica. And if any of you wish to submit additional testimony or remarks for the record, we are, by unanimous consent request, leaving the record open for 2 additional weeks, and we welcome again submissions to be made part of the record. Unfortunately, our time has expired but I do thank you. I appreciate your being with us. There being no further business to come before the subcommittee, this meeting is adjourned. 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