tv Key Capitol Hill Hearings CSPAN October 24, 2015 2:00am-4:01am EDT
where we need them the most. additionally this proposal gives us other tools that we didn't have before. with respect to 924c, this proposal adds as a predicate state offenses where a defendant is convicted of a state offense where he or she is carrying a gun. it can be used as a predicate for 924c and 851. it also provides that not just drug cases, not just drug convictions in cases that work toward the 851 statute, but also crimes of violence, which are even more important than the drug cases. so i believe that you have struck the right balance and you have given us other additional tools that will be helpful to us in keeping our community safe. >> my last question, as part of this compromise, we agreed to lower some of the harshest mandatory minimums and apply those changes not just going
forward, but also to people who were convicted and sentenced under old laws. inmate sentences under the old mandatory minimums can ask a judge to sentence them in accordance with the new mandatory minimums. but a prosecutor gets to weigh in also. and the inmate will only get a lower sentence if the judge agrees it is appropriate after the judge has considered factors like the inmate's danger to the community. but others have raised concerns about the department of justice going to stand idly by and let dangerous criminals walk. so this is my question, kind of a statement. i hope that i have your commitment that the department of justice will review each of these resentencing on a case-by-case basis and that the determination on these
resentencings will be made by local u.s. attorney offices. >> senator, we are anything but idle at the department of justice. you have our commitment that we will carry out the retroactive application of the provisions of this proposal in a thoughtful manner, on an individualized basis at the u. s. attorneys' office considering the specific facts and circumstances of each case. and then this matter will go before a sentencing judge who sentenced the defendant originally. so we are committed to ensuring that we carry this out in a way that keeps public safety foremost in our minds. >> thank you very much. senator leahy? >> thank you. you answered a question i was going to ask about retroactivity. i would note on the mandatory minimums my experience from both judges and prosecutors has proven many, many times a problem, not an aid.
when you have two cases that is the same but both the prosecutor and the judge know the level of culpability is dramatically different between them and yet they are going to be treated exactly the same, a lot of prosecutors tell me that ruins their ability to have any kind of discretion. >> and i think that's right, senator. when you look at our drug mandatory minimum that is based on drug quantity, which doesn't take into account the other factors that are important factors we should be considered in determining how dangerous this particular offender is. >> we have a question in the state of vermont in opioids and heroin. we're trying to find ways through that, but the hearings i have held there, we've had police officers and faith community and medical people, parents, educators, they all agree on one thing.
you simply can't arrest your way out of it. you need more drug courts, more treatment programs, more officers on the street. that, of course, costs money. and in our state a lot of money is going to jails. and in the federal system, a huge percentage of the department of justice's budget goes to the prison system. if we pass this, do you think it will free up money and save you money so you can put it on the things that really count? >> well, it certainly will free up money. one of the things we think is going to be important is that this money is reinvented. and other ways to ensure we are keeping our communities safe. that includes prosecutors and agents. but importantly, it includes more than that. we need to be focusing more on prevention. we need to be doing more about
prisoner re-entry. that is one of the things i like so much about this. recidivism reduction on the back end here will put people in a position to be able to stay on the straight and narrow when they come out. every time somebody reoffends there is a new victim. freeing up the money to use it in a thoughtful way to keep our community safe is very important. >> you know, for years we've heard from several some justice department and elsewhere that mandatory minimums were absolutely necessary to get defendants to flip. it became almost a mantra. you and your own experience as a prosecutor said what many other prosecutors have told me in my experience that mandatory sentences are not necessary to get defendants to cooperate. is that the department's position now?
>> yes, it is. as i mentioned, that's exactly what we heard before smart on crime. look, i understand it. if this is the manner in which you have been prosecuting and you had mandatory minimums, one might have assumed that's why the defendants were cooperating. but what we have seen from a data standpoint is that simply is not the case. since smart on crime, defendants are cooperating at precisely the same rates and they are pleading guilty at the same rates. likewise, you can look at other statutes that don't have mandatory minimums. and you can see some of those statutes have even higher rates of guilty pleas and cooperation. so my personal experience of all of these years of being a prosecutor doesn't bear out the concern that we need mandatory minimums, nor does the data that we have collected since smart on crime. >> i have talked to a lot of current and former federal prosecutors who think that the changes are reasonable and appropriate. we have heard from a small
fraction of the federal prosecutors raising concern. what do you say to those people in the field? >> well, i would say i think reasonable people can disagree. and people can have a different philosophical approach, but just as we had ausa that were worried about what would happen with smart on crime when the attorney general directed having more judicious use of mandatory minimu minimums, thing they will see the same thing here after hopefully this legislation is
enacted as well. >> thank you. >> i believe everybody that's at the table here was when the gavel called. i will call based on seniority. >> thank you. i appreciate your leadership on crime issues over a number of years. i believe the senate with senator leahy and you and senator biden and kennedy and thurmond created mandatory minimums, sentencing guidelines, ended parole. and did a number of other things that ended the revolving door in criminal justice and created the framework that states followed through increased prosecutions and ending the revolving door. and murder rates are half what they were in 1980. half what they were. thousands of people since 1980 are alive today living productive lives because they weren't murdered on the path we were on. we know recidivism is a big issue.
we know that according to the department of justice 75% of those released after five years have been rearrested. we don't know what other crimes they might have committed that they weren't arrested for and got away with. certainly that's true with the problem of drug dealers. so we have a lot of people that are concerned about it. the legislation has been produced. the national district attorney's association, national sheriffs association, the federal bureau of investigations agent associations, they say, quote, this bill should not be advanced by the senate committee at this time. the national narcotics association, our membership remains opposed to the changes in the federal questioning laws that are proposed. the national immigration and customs enforcement council who think it will also have unintended consequences of further hampering immigration
enforcement in the united states, and the federal law enforcement officers association. well, deputy attorney general yates i want to get this right. surely you would agree, would you not, that when mandatory minimums are either eliminated or reduced substantially it reduces the ability of law officers to negotiate and protect the public? >> senator, i actually don't agree with that. >> i won't argue with you. i will just take that as it is. >> i was up for arguing, if you wanted to. >> i've been there. i've prosecuted cases. when they are not going to go before the judge and talk their way out of it, it makes a difference. to suggest otherwise i think is
incorrect. >> may i follow up on one thing, senator? i do agree with you. the prospect of a lengthy sentence certainly provides a powerful incentive for a defendant to cooperate, but i don't think it has to be a mandatory minimum sentence and that's what we have seen since smart on crime. there is always an incentive to want to cooperate. it doesn't require the mandatory minimum to give them that incentive. >> all right. i don't agree. the national association of the united states attorneys said if this bill is passed it will add further fuel to a raging fire on increasing crime rates that correspond to criminal justice reform efforts at the state and federal level. these are reforms are reversing 20 years of crime reductions and endangering the american public.
so i would offer those for the record. >> they will be put in the record. >> all right. now the director of the fbi just this month, october 1st recently said he was, "very concerned about the increase in violent crimes and murder in cities across the country and it will prompt him to be thoughtful about move to reform the nation's criminal justice system. on october 14th, the director said, quote, we have hit historic lows in violent crimes recently and if we let it slide back, we need to explain to those who come after us what we did or didn't do to let that happen. that is exactly the way i feel about it. i was appointed to being a united states attorney in 1981. i saw it was increasing at 15% a year in some years. the american people were really upset about it. and these efforts have worked.
in recent years we have taken a number of steps to undermine the guidelines already. the supreme court, the department of justice, federal judges now don't have to follow the guidelines. the only real teeth out there are the mandatory minimums. they haven't gotten around that. mr. chairman, i see you're getting nervous. my time is up. i'll wrap up with that. thank you for working at this. i think you've avoided some of the most dangerous things that have been proposed, but i do believe we need to be very careful about this, do the right thing, and we have to know that certainty in sentencing is important. the reduction of crime, the good reduction of crime we've seen can be -- can get away from us if we make errors today as the director said. >> senator feinstein?
>> thanks very much, mr. chairman. my exposure to mandatory minimums was a very long time ago in california when i set sentences and granted paroles as part of a paroling authority under the indeterminate sentence for women convicted of felonies. what i discovered at that time is they were very unequal. i suspect it is the same problem today with federal minimums. i have never had a deep regard for mandatory minimum sentences. my concern has been that when the minimum is changed and the six-month period, as i understand it, ms. yates, is triggered that there be some ability for a united states attorney to sign a document or otherwise indicate that they are in agreement with this. and if they have particular
concerns, that they have an opportunity to indicate those concerns. i have submitted language to you. it's my understanding as a saturday that your chief of staff signed off on it. and i've submitted language to senators durbin and whitehouse who were good enough to sit down with me one afternoon and we had an opportunity to go over the bill. so i am hopeful that we will be able to have some sign-off of a prosecutor on the sentence. it's my understanding that you are in agreement with this. you sent me a letter dated october 16th. is that correct? >> yes. the proposal that you sent over certainly reflects the kind of process that we would go through at the department of justice before agreeing to any sentencing reduction. we recognize how important it is that we be thoughtful with respect to every single
defendant and to carefully review their case before agreeing to any such sentencing reduction. so this process that we would be following in the department of justice anyway. whether you all include this in the actual legislation, i will leave that to you all as to whether it's part of the legislation. this is a reflection of the type of process we would be following. >> thank you very much. thanks, mr. chairman. >> senator cornyn. >> thank you, mr. chairman. thanks, ms. yates, for being here. i'm proud to be a cosponsor of this legislation. i would point out to my friend from alabama three things. this legislation does not eliminate a single mandatory minimum. it does not reduce sentences for any violent offender, and it actually creates new mandatory minimums and extends the scope of several existing ones related to violence. i know the senator speaks from experience in the criminal justice system. he is urging us to be very, very
careful. and i agree. we should be very, very careful. because the public safety is at stake. but mr. chairman, i appreciate your willingness to include the cornyn-whitehouse corrections act as a key element of the effort. ms. yates, thank you for your efforts about the so-called back end of the criminal justice system. of course in my case, the motivation for this legislation came from my experience in texas. we are proud to be tough on crime. we finally decided to be smart about crime too and realized people who go to prison typically get out of prison. many of them are woefully unprepared to deal with the real world, and so they end up back in prison and you've alluded to that earlier. but thankfully our experiment in texas and other states, senior whitehouse state had the similar experience. we have been able to reduce our crime rates by dealing with the
causes or at least the issues that inmates are dealing with. whether it's mental illness, whether it's drug or alcohol, whether it's lack of basic skills or even basic education, we've been able to reduce both our crime rate and our incarceration rate. the recipe for success, i believe, in my state has been three elements. it's been rehabilitation. something we all learned about in law school in our criminal justice courses but we seemed to have forgotten over the years the importance of actually getting people who will avail themselves of the opportunity to actually turn their life around. not everybody will. but some will. and we ought to be giving them the tools they need to do that. secondly, flexible sentencing and alternatives to prison for low-risk, nonviolent offenders. and at the same time targeting our efforts on high-risk career
criminals. we learned that from criminologists who found long-term prison sentences for low-risk nonviolent offenders often make them more dangerous and more likely to commit crimes in the future. call it higher ed for criminals, which is what our prisons sometimes end up being. so we implemented flexible sentencing options and alternatives to incarceration for low risk ande offenders. and then we were able to actually shutter three different prisons and save $3 billion since 2007. something that's pretty popular in my state, as you can imagine. but i would say we need to be extraordinarily careful that we don't just take that money and not plow it back in to providing people with the opportunity to turn their lives around. i'm glad we have all the
witnesses here with us today, but particularly glad that mr. deroach who is here who will talk a little bit about their work at the prison fellowship ministries. a faith-based volunteer program going into the prisoners -- and it's volunteer participation by the inmates -- gives people additional incentive and motivation not to just rehabilitate themselves but transform their lives. while this negotiation process wasn't easy to bring such to people of different political folks, and i agree with senator leahy. it is not a panacea. this bill hopefully will be voted out of committee this week. it is a good start. we have a long and arduous process ahead of us. and i hope the senator from alabama and others who are skeptical of this work help us
make it better and that's what this process is designed to do. actually, i am delighted to be a part of a process of finding solutions to our problems. it's unfortunate in our polarized politics these days people tend to be on the end of the political spectrum and not try to find common ground, and that's what we tried to do to improve public safety, reduce costs, and give a second chance to prisoners who are willing to take the opportunity to turn their lives around. i want to conclude by telling the chairman and the ranking member and the other senators and our cosponsors thank you for their good work and we look forward to continuing to work on this legislation. thank you. >> senator durbin? >> senator, thank you very much for chairing this hearing. a little over two years ago when senator leahy and i introduced the first version of this bill, trying to call for sentencing reform when it came to mandatory minimums. i thought we made a good faith
effort. we drew a lot of cosponsors. we wouldn't be sitting here today with the very real prospect of enacting this bill into the law of the land had not a number of people joined us in this effort. first and foremost among them is chairman of this committee. it was a lot of hard work involved in it. most done by our staff. that's the case around the united states senate in most cases. but i think we have meaningful historic reform. and i want to thank ms. yates from the department of justice for encouraging us and grading us as we made progress on this effort. i'd like to address a couple things that we wanted to make clear. first, we believe that there are many nonviolent drug offenders
currently serving lengthy mandatory minimum sentences. and that is the category we were looking at. in 2011, the sentencing commission did a comprehensive study on mandatory money mums. they found 55,000 people were were in prison for a drug crime. 55,000 is more than 50% of all federal drug offenders and more than one quarter of all federal prisoners. many of those serving are low-level offenders. and it's true some low-level offenders don't often receive mandatory minimums. but others are frequently sentenced. so what is your response to the claim that this is much ado about nothing, that we are really not going to address or potentially address a large sector of the federal prison
population? >> i think that we absolutely will. if you look statistically at the profile of drug defendants that are currently in the prisons right now, you'll see that there are a number of what we call low-level nonviolent drug defendants. for example, less than 1% of the defendants in federal prison actually had violence or threats of violence in connection with their drug offense. half of them had little or no criminal history at all. and only 7% of them are leaders. so just those statistics alone should tell you there is a fairly sizable group of folks out there that don't need to be serving a prison sentence for as long as they are and that's what i believe this reform is designed to address. >> so my colleague, senior sessions, rightly addresses the incidence of murder and violent crimes. what we have tried to do in crafting this safety valve prosituation -- provision is to make certain if you are engaged in violent crimes, you will be
ineligible for the safety valves of this bill. i applaud him. i think he's right. i can point to the city i represent, chicago or other cities where gun crime is up dramatically. i don't want to make it any easier for those who are sentenced under those circumstances. do you see what we are trying to achieve with these drug offenders? >> absolutely. that's why the individualized assessment is going to be so important in each case. we will look at not only what the offensive conviction was but the defendant's history. we will be addressing the concerns that you've had there so we're cutting sentences only for those low-level nonviolent offenders. >> the bill does not repeal any mandatory minimum. it establishes two new ones. it does not lower any maximum sentences. when you're dealing with the bad actor, that judge still has an opportunity to sentence at the highest level, the maximum
level, in this case. >> absolutely. that's one of the things. a mandatory minimum is just that. it's a floor for the sentence, not the ceiling. >> there are few federal judges engaged in criminal sentencing who have not had the disheartening of experience of seeing major players in crime before them, immunize themselves from the mandatory minimum sentences by blowing the whistle on their minions while lower levels find themselves ski skillfully avoided by the kingpins. what we have tried to do is make it clear. kingpins will not get a break at all in the changes we make. is that description clear to you? >> it is clear. nor should kingpins get a break. >> thank you. >> thank you very much, mr. chairman. thank you, general yates, for being here and for all the
assistance you've given us whenever we've had questions. we appreciate the department's willingness to not only reach out but also respond quickly to our questions. since my time as a federal prosecutor, i've been concerned prosecutor, i've been concerned about the excesses of our federal criminal justice system. in many cases the long sentences required by our federal minimum mandatory laws result in sentences that simply don't fit the crime. that's to say, they are too long, and in many cases they are objectively unjust. that's why more than two years ago senator durbin and i teamed up on this issue. and we first introduced the smarter sentencing act. now, i believe we can make federal sentencing more fair and more efficient without doing anything to undermine public safety. in fact, i believe we can do this in way that will actually
enhance public safety, by increasing the efficiencies, and therefore, the effectiveness of our federal criminal justice system. the sentencing reform and corrections act achieves that goal by doing some thing to reform the most severe penalties that often lead to disproportionate sentences by expanding the availability of the safety valve, and by increasing opportunities and incentives for rehabilitative programming within the prison system for those that are already there. now, general yates, you testified a minute ago -- and i just want to reiterate -- that this bill does nothing to eliminate any minimum mandatory sentence available under existing law, does nothing of the sort, correct? >> no, they are all still in place. >> nor does it do anything to reduce the statutory maximum for any crime currently on the books within the federal penal system? >> no, it does not.
>> doesn't do anything. in fact in some cases it raises the maximum and other cases we create new minimum penalties that don't already exist. some own entz of the type of reform effort we are trying to take here believe reducing mandatory minimums will necessarily unavoidable undermine ourable to keep the american people safe. you've been an outspoken opinion leader on this issue and you have testified that you believe sentencing reform will actually enhance our ability to keep the american people safe. tell us a little bit why you think this is the case. elaborate on this belief that you've got. >> well, i believe that we need to act now really to be able to ensure the safety of our communities by being able to take some of the money that we're unnecessarily spending on the bureau of prisons and to be able to use it more thoughtfully to be able to keep our communities safe. the senator was speaking a moment ago about some of the
innovative programs in texas. we are not doing enough of that in the federal system. we are trying to do some, but frankly we are not doing enough. we need to be spending more time on prevent, we need to be spending more time and more money on reentry. those are the things that are going to be having an impact on keeping our communities safe. the senator mentioned our recidivism rate. it has stayed the same over the last 30 years despite our high incarceration rates. that tells you we need to be investing mompl that's one of the reasons i believe it's going to keep our communities safer. we can also look at the experience of the states and see the 29 states across the country that have enacted meaningful sentencing reform. nearly all of those koois states have experienced a decrease in violent crime. violent crimes decreased entirely across the country but more in states that have enacted meaningful criminal justice reform than any place else. >> some critics of this legislation will point to that
aspect of our bill and will criticize it saying that federal offenders are by nature just very different than their state counterparts, that they are a different type of offender such that the type of reform mechanism in place already in many of the states, these reform programs that are so successful in so many of our states just have no place within the federal system. now, perhaps that may have been true 100 years ago or even 50 or 60 years ago. but in my experience as an assistant u.s. attorney, i don't think it's always the case anymore. >> right. >> there are certainly areas where that's true. but there are plenty of others where those who are being prosecuted in the federal system are not necessarily inherently different than those that are being prosecuted in the state system. so in light of that, in light of the fact that not everybody we are going after in the nonviolent drug offender arena is necessarily a kingpin, don't you think some of those lower level offenders could benefit
from these programs in the same way that many offenders have benefitted within the state system. >> absolutely. there is certainly a category of defendants be that qualitatively different in the federal system than the state system. but importantly, this reform is not aimed at those defendants. this reform is aimed at the defendants very much like those that are being prosecuted in the state, again, the lower level drug defendants. >> and there may have been a time, many decades ago when we weren't going after he very many of those peoplethrough our federal system. we are now. there are a variety of reasons for that. we don't have to get into that night but that's one of the reasons why we need these provisions in federal law today, am i right. >> that's correct. >> my time has essex pird. >> senator white house? >> thank you senator grassley. before i ask questions, let me join the colleagues on the panel who have thanked you for your chairmanship of this process. you have brought very distinct
views of your own, but as chairman you have facilitated all of us coming together and making this happen. i appreciate that very much. i also want to mention, although he is not here that senator graham played a very significant role working behind the scenes of bringing all of us together based on his experience as a military prosecutor. so thanks to both of them. and thank you, ms. yates, for the support that you and the department of justice has given to us as we have worked through some very complicated issues. senator feinstein asked a question about making sure that when a referral was made for the return to society part of the bill that the assistant united states attorneys and the united states attorneys would not let the ball fall between the cracks and ignore their responsibilities. and i just wanted to reassure her we are very keenly determined to make sure that that takes place. i'm i think more confident than
she is that that would happen in the ordinary course and that something would be developed under the u.s. attorney's manual to put that into place. but i'm delighted to work with her and with you to make sure that there is something that cot phis that as long as it's not creating unnecessary bureaucracy and delay, becomes a part of this bill. looking forward to working with you to nail that last piece down. charging decisions are traditionally the preserve of prosecutors. prosecutors, because of mandatory minimums, have the ability to actually affect sentencing. traditionally, the preserve of judges. that has given prosecutors power to coerce cooperation from people who are in their targets, in their gun sights. and that has had a, i think,
good effect on assuring cooperation. but defendants were cooperating long before these mandatory minimums emerged. and i just want to hear your views on what effect you think there will be of this power that moved from judges to prosecutors now beginning to move back more towards judges. >> you are correct, senator, that defendants were cooperating before we had these mandatory minimums. in fact, defendants cooperate in cases where we are using statutes that don't have mandatory minimum sentences at all. again our experience in smart on crime reflects that a mandatory sentence not necessary and we are confident we will be able to work our way up the chain of operations for this narrow class of defendants who would not be covered then. >> on the cornyn white house section regarding return of
inmates to society, there are a variety of timing requirements by which various acts have to be undertaken by the deputy and by the bureau of prisons. are you confident that those can all be met? >> we are absolutely committed to making -- to meeting those deadlines. >> very well, and this is going to require some effort and some initiative -- >> it is. >> -- oeptd particularly of the bureau of prisons to do the legwork to identify the programs that are most likely to be effective, to put them into place and make sure that the system gets up and running. what is your perception of the degree of excitement over at the bureau of prisons about accomplishing this? do you think they intend to truly lean into this task? if not, will you make sure that sufficient excitement is induced? >> well, i don't have an excitement meter at dop right
now to tell you what their reaction is. what i can tell you is how committed they are as we all are at the department of justice to ensure we are doing everything we can, in fact, we are doing more to reduce recidivism more effectively than we've been able to do thus far. >> thank you chairman. thank you ms. yates. >> senator cloeb czar. >> thank you to you. and welcome, i was just in georgia. everyone misses you there. >> i miss them, too. >> yes, well thank you for your good work. i'm really proud of the work that the senators did on this bill. as a former prosecutor from a state that actually values treatment, values sort of a -- i'd say a carrot and stick approach, does a lot of work with drug courts in the state of minnesota. and compared to other states while we still have our challenges with crime especially in the last few weeks in the
cities of minneapolis and st. paul. and that is on the violent crime side, we tend to have a lower crime rate than a lot of other states while at the same time keeping our incarceration rate lower by using more probation and using more treatment options. so that's why i'm a fan of the work that's been done here. and my first question is really along those lines of drug courts. i've led some. efforts here on drug courts and getting funding for drug courts carrying on the work of many that came before me, including ted kennedy and jim ram stead over on the house side. when we look at what this bill might save, we know that drug courts save money. and we know that getting some of the nonviolent offenders out of the prisons will save money -- or reducing their sentences. do you think we could use some of this money to pay for things like drug courts ms. yates, do you think that will be helpful as we look at how we are going to make up for the fact that we are going to be bringing people out of prison.
but they not only need reentry programs, they may also need treatment down the line or to prevent them from getting into trouble in the first place. >> i'm hopeful we will be able to use some of the money saved for a variety of intervention programs, which include drug courts and alternatives to incarceration that the states being the leaders have proven is more effective than just throwing everybody in jail sometimes for longer than they need to be there. i think it's important we spend money on drug courts, alternatives, as well as the back end, reform and reentry as well. >> what do you see from the department of justice in a reduction in funds? >> we don't. they are trying to do predictions now. it's hard to get our arms around exactly how many defendants will be impacted by this. >> thank you. also, in this bill in the sentencing reform and corrections act it adds a ten year minimum mandatory sentence when the death of the victim
includes interstate domestic violence. or if the oftener uses a dangerous weapon during the offense. as you know i've done a lot of work in the domestic violence area. i'm glad this is in here. could you talk about the importance of this to the bill? >> yes. and we agree and support these provisions. ten years doesn't seem like too long to spend in prison for someone who is convicted of domestic violence that has that kind of result. particularly when you compare that again to some of the sentences for drug defendants. so we are very happy that this is a provision in the bill and support this as well. >> very good. could you talk a little bit -- in my state, we have more sentencing guidelines. that's what we use. if you are going to depart, you explain why you departd, and it's not exactly done in the same way as the mandatory minimums on the federal level. i know senator white house has been asking you about this, but especially in a state like mine
where we tend to have lower incarceration rates for drug crimes, the five year -- the lower level five year sentence was very important to me in our office when we would handle the bulk of the cases in our state, actually, probably nearly half of the crimes in the state of minnesota because our population of our county was approximate 25%. could you talk a little bit about how that works for the local prosecutors? again i know you answered some of this with him and how this law, if you think it affects it in any way. especially for states that have really relied on the power of the lower level federal drug sentencing to try to get pleas in their state laws or at least get the five year when we don't have much like that in our state. >> well, the five year will still be there and still be available for defendants who really need the mandatory minimum the most. it's still going to be effective for defendants who have prior records, for those who have guns, who were involved in violence, who were any kind of
leader in an organization. and from a federal resources standpoint it does seem those are the defendants where we should really be targeting our resources to begin with. >> very good. thank you very much. >> senator from minnesota? >> thank you, mr. chairman. ms. yates, earlier it was suggested that fbi director comey's concern about violent crime rates sentence reform more broadly. can you clarify today whether that is indeed the case. >> whether in fact that's director comey's view? i'm sorry, i didn't entirely understand the question. >> it was suggested that fbi director comey was concerned that that sentencing reform might increase crime -- rate of crime. what are hise views on sentence reform.
>> i know from my conversations with director comey he is supportive of the goals of sentencing reform. with respect to -- i mean i think we all share concern and want to ensure any reforms we undertake are not going to contribute to an increase in violent crime. that's why i think it's really important to look at the specific provisions of this bill and to see the defendants who are being provided relief here are not those that are responsible for violent crime. in fact, it's precisely the group who is not involved in that. it's those who don't have guns, who don't have leadership positions, who aren't involved in violence. in fact, in looking across the country, most recently at some of the pockets that we've seen of increased gun violence across -- across the country, we are not finding any correlation at all there with states that have enacted sentencing reform or criminal justice reform and an increase in gun violence. nor are we seeing a profile of those defendants that would lead us to believe that they would
match up with the defendants that would be provided relief here. >> well, i'd like to talk about retroactivity. >> uh-huh. >> and the nervousness about some of that. and speak to that nervousness about how that would work. >> yeah. >> because it's one thing -- people say it's one thing for a judge to be taking, you know, all these factors in when they are sentencing, but when you are releasing people, you can't just release people retroactively and give them a get out of jail free cord. but just -- i wanted to talk to the reality of this, which is that the sentence reductions would not be automatic. as i understand it, the justice department and judges would have to look at the facts of each
case. can you explain how, if enacted, the resentencing process would work and what factors a judge would have to consider before reducing an offender's sentence? >> retroactivity, we believe, is an important component of this bill because it gives defendants who received prison sentences that are longer than necessary to keep the public safe an opportunity to have their sentence reconsidered. but it's just that. it's an opportunity to have that sentence reconsidered. and the prosecutor who handled the case and the judge who sentenced the case would then look individually at each defendant that comes up, would look at the circumstances of this case, would look at the background of the defendant, and would make a determination as to whether or not public safety would be negatively impacted by reducing the defendant's sentence in this specific case. and it would be done on a case by case basis. now, some had expressed experience about retroactivity
and the ability to be able to implement that. i can tell you there are some aspects of retroactive application that the department strongly supports in this bill. for example, the fair sentencing act. there are other aspects of it that will be more challenging for us. but we are committing to ensuring we do that case by case analysis, regardless whether it's the retroactive application, or the fair sentencing act or the other provisions of the bill. >> so what you are saying is that resentencing would depend heavily on the facts. >> absolutely. >> of each case. and offenders seeking a reduced sentence would file a petition. every petition would have to be evaluated on its merits, each offender's criminal history and individual circumstances would have to be thoroughly examined. and doing this the right way would really require a commitment of the department and judicial resources. can you speak to whether doj has
the resources? certainly time, but also an adequate number of staff to process and respond to petitions for retroactive sentence reductions? >> >> well, we can always use more prosecutors. i wouldn't be doing my job if i didn't make a pitch for more resources. >> there is a time and place to do that. >> and this is the wrong committee. i know that. yes, we will allocate our resources within the department of justice in a way to ensure we are meeting our obligation to ensure we are keeping the community safe. >> thank you. thank you, mr. chairman. >> yes. ms. yates, we thank you very much for your testimony. and appreciate very much your being here. for you and also let me announce for the second panel that since several members around here, you may get questions and answer in writing. and those questions have to be submitted i think within seven days. for you, ms. yates and the
department and for the secondible pa, if you get questions in writing, we would approve -- appreciate a prompt response. thank you very much. and i'll -- you may go now. thank you for your time. >> thank you, senator. >> i'm going to have the panel come while i introduce you so i don't waste a lot of time. i welcome our second panel. judge michael mukasey served as attorney general under president george w. bush. he was also a u.s. district court judge in new york. he is now a partner at the law firm of debavouse and plimpton. hilary sheldon is the washington bureau director and senior vice president for policy and advocacy for the naacp, one of
the leading civil rights organizations in the united states. craig deroche is an executive director, justice friendship and senior vice president of christian prisoner ministries. debi campbell is a member of families against mandatory minimums and served 16 years in prison for crimes related to the distribution of meth. steven cook, president, national association, assistant u.s. attorneys, and is testifying today in that capacity. he is also an assistant u.s. attorney, tennessee. marc mauer, executive director, the sentencing project, and one of the country's experts on sentencing policy, race, and
criminal justice system. heather macdonald is a thomas w. smith fellow at the manhattan institute for policy research and a contributing editor in -- at city journal. she has written widely on criminal justice reform, policing, racial profiling, and race relations. brett tollmman is a former u.s. attorney and former chief council for crime and terrorism subkeb of this subcommittee. easy a shareholder at the law firm of ray quinny and nebekker. i would like to personally extend my thanks to mr. tolman because he had to rearrange his schedule so that he could testify today. normally i'm pretty darn lenient
on how long people run over five minutes, but i would like to -- i'm not going to cut you off in the middle of a sentence, but i hope maybe after -- if you go one minute i'll wrap the gavel and you will stop. go ahead general mukasey. >> thank you, mr. chairman. i'm grateful to the chairman and the ranking member and the rest of the committee. i've submitted a written statement that institutes my testimony here. and i'm not going to burden neither the committee nor the record by repeating it. it's easily summarized. i think that sentencing is a matter not only for judges but for the political branches as well, including particularly the congress. and that i think this bill achieves the proper balance by preserving mandatory minimums where they are necessary and yet increasing the flexibility with which judges can approach sentencing. i think the principle measure
the success of my system is not the incarceration rate, it's the crime rate. that has to be watched carefully. finally with respect to retroactivity, i was relieved to hear it is the department's position that the position of the government on retroactivity is going to be set in each district by the prosecutors in that district where the case was originally brought and decided of course by the sentencing judge applying all of the standards that are set forth in 35503a of title 15, the appropriate sentencing consideration in addition to the record of each defendant while incarcerated so as to assure we don't make any mistakes. with that, if the committee has any questions, i'm happy to answer them. >> well, you are done already? mr. shelton. >> perhaps he could yield the duration of his time. good afternoon chairman, ranking members, and members of the esteemed committee. i appreciate the ability to i
pro with you the thoughts and opinions of the naacp. i'm hilary shelton. our nation's criminal justice system of which sentencing policy is an integral part is not working. despite the fact that americans are being discriminated at high rates we are not seeing an equivalent drop in crime. too many people are being locked up for too long over nonviolent offenses and they are not getting the support they need to become protective members of sort either in prison or once they are released. furthermore, the racial disparities which exists among people who come into quack our criminal justice system as led whole communities as well as many others throughout our nation to lose faith that the system is fair and unbiased. too many americans are being convinced that the justice is not blind when it comes to race and ethnicity. 2.2 million people currently in our prisons or jails, approximately 1 of every 110 adults are longed up in america
today. today more more than 205,000 people in prison alone. a growth of almost 800% since 1980 when changes in our sentencing laws began to be enacted. too many of those in jails are incarcerated for nonviolent offenses. the rapid increase in incarceration is especially disturbing to the naacp since more than 60% of men and women currently ins cars rated today are racial and ethnic minorities. for african-american males in their 30s one in every ten is in prison or jail on any given day. despite making up the 13% of our nation's overall population african-american comprise 30% of offenders convicted of an offense of carrying a mandatory minimum sentence in 2014. the question as to why racial
and ethnic minor it is is overrepresented among those incarcerated is complicated. the naacp is committed to reducing the number of those incarcerated. thus the naacp was pleased with the introduction of a 21223 the sentencing reforming act of 2015 occurred. it address some of the prominent flaws in our sentencing system today. and it speaks to the overwhelming severity of the problem and acknowledgment by all that something must be done. specific language supported by the naacp include a reform of mandatory drug sentences for prior felonies including three strikes you are out. a broadening of the existing safety valve and the creation of a second safety val. a retroactive application of the fair sentencing act. juvenile record sealings and expungement. a prohibition on solitary
confine men for juveniles and the right that they establish procedures for background checks. the naacp feels the act is a good start yet more can be done to reform the system. we look forward to enact additional sentencing reform, including we'd like to see an addressing of all mandatory minimum sentences. an increased use of evidence-based sentencing alternatives, including drug, veteran, and mental health courts. a concentration on using prison space for career and violent criminals, reducing recidivism through education and with job training opportunities for prisoners, this includes restoring eligibility for prisoners among other steps. endeath reports by congress to the department of justice to the
extent on which reforms have addressed overincarceration and racial disparities. allow me to conclude my sharing with you one anecdote of an individual who will be helped by this legislation. mr. alton mills has served 22 years of a mandatory life sentence for enacting as a street level courier in a crack cocaine conspiracy. at his 1994 sentencing the federal prosecutor conceded that the thrust of the evidence against mills was that mills did whatever the drug ring leaders told him to do. prior to his federal life sentence, mr. mills had never spend a single day in prison. he received a mandatory life sentence only because the prosecutor contended mr. mills' two prior probation sentences for simple crack possession involving less than five grams on each occasion warranted a mandatory lifetime imprisonment. mr. mills' sentence was particularly harsh because every
person above him in the drug conspiracy will be released from prison by 2020, before him. unable to apply his discretion at the 1994 sentencing the federal judge called the sentence farcical and drooul cruel and unusual, with no avenues for legislative or judicial relief mr. mills's only hope at that point is columnentsy. s 2123 would render mr. mills eligible for a petition for a reduction in his sentence which would lead to his release from prison in the near future it is our hope. mr. mills' case is one example of our problems with our current systems and policies. the naacp is pleased to work with this committee and produce and enact legislation to abate and eventually end the injustices that plague our system today. mr. chairman, i thank the committee again for inviting me here today and stand ready to answer your questions. >> thank you mr. deroche.
>> thank you mr. chairman, ranking member leahy and the member of this committee for the ability to testify about the significant criminal justice legislation you will be considering. i'm privileged to speak in my capacity as the advocacy arm of prison friendship. the bipartisanship of this act represents our faith community which has long advocated for a more restorative approach to crime and punishment. our founder went from being president nixon's council to being a federal prisoner as a result of his involvement in the watergate scandal. although his power and pride crumbled, his faith in jesus christ was strengthed. upon his release, he vowed never to forget those he met in prison. today we are the largest prison
minist ministry. we mobilize volunteers to serve in 1400 correctal facilities and reach over 200,000 men and women in prisons nationwide. in 2014 our angel tree program provided over 330,000 with a christmas gift on behalf of their incarcerated parent. this includes working alongside many of you to pass the religious freedom restoration act, the fair sentencing act, and the second chance act. when i explain to people how i got involved in this instree i like to joke that chuck colson would do anything for the prisoner but he never bothered to take the time to get addicted to anything. and so he brought a recovering alcoholic to the ministry. i'm also a recovering politician. 11 years ago i served as the speaker of the house in michigan. and chuck approached me and said that he thought my experience in government as well as my
experience in addiction and recovery could be used for the benefit of others. after my two alcohol-related arrests, i had lost everything. i had been relying on alcohol as my solution to the problems in my life. when i hit bottom and entered recovery, that's when i finally found freedom n my faith. so just like chuck, when i speak about reforming the criminal justice system, i don't speak about those people. i am one of them. and what we need is justice that restores. rooted in accountability as this bill does. for me and so many other people watching today who have been impacted by crime and incarceration, this bill represents a historic turn away from the flawed politicalent at that times like lock them up and throw away the key and focuses on restorative model. the reforms are significant to the faith community because disproportional punishment disparages human dignity and is
itself an injustice. we applaud this bill applies some of these sentencing reforms retroactively. this honors a moral imperative. the bible calls kristens to remember those in prison as if you were there yourself. what message to we send about respect for human dignity if we acknowledge we have condoned unwarranted punishment but we are willing to disregard the years of human life behind bars. this brings the question of how we punish and for what purpose. taxpayers and victims of crime expect a return on society's large investment in the criminal justice system. unfortunately, many prisons today teach people how to become good prisoners rather than good citizens. prisons that provide programs that accuracy crimeiogenic needs and instill a culture of hope and purpose can result in positive fiscal and social return. accordingly, we commend the bill's directive to the
department of justice to expand recidivism reduction programming such as drug rehabilitation, education, and faith-baseds class and work programs for all federal prisoners. we believe the faith community can and should play a significant role in delivering these programs. faith based programs have shown a significant reduction in recidivism. an intensive friendship program in minnesota for example, has shown a 26% decrease for rearrests and a 40% decrease for reincarceration for a new crime providing a more robust opportunities for federal prisoners and incentives for completion of programs will kprof public safety, strengthen families and improve the effectiveness in culture of our prisons n. close we believe this should awaken the value of human lives affected by crime and incarceration. we look forward to helping this body advance towards the
president's desk. i've also submitted a longer version in writing, mr. chairman. >> i didn't make that clear, but all your longer versions will be included in the record. ms. campbell? >> hi. chairman grassley, ranking member leahy, and members of this committee, thank you for giving me the opportunity to speak here today. my name is debi campbell, i was ng born in long beach, california, i currently live in virginia. i experienced the federal criminal justice system in the most personal way. i spent more than 16 years in a federal prison for a nonviolent drug offense. i do not have any excuses for my crime. in the early 1990's my then husband and i began using meth amphetamine at a point in our lives when we should have known better. i am sorry to admit that i became addicted to the drug and began selling it to others for monetary gain to support my own habit. i was not a drug kingpin. and i was not major manufacturer.
i just wanted the extra money in hopes that it would help me keep my family together. a woman that my co-defendant sold drugs to was arrested and agreed to cooperate with prosecutors in he can change for a shorter sentence. i was arrested. i knew i was guilty, and i knew i was going to prison. with that said, i want to stress this important point. people who support mandatory minimum sentencing laws think these long punishments will deter people from using or selling drugs. that is not the case. i can assure you that i had no idea that there are mandatory minimum sentences when i became addicted to drugs or when i was caught. i had no idea how much prison time i would face. federal prosecutors charged me with conspiracy to sell ten kilograms of meet people, a quantity that was based on testimony from the woman who
pled guilty and cooperated with them. i never even saw that much drugs, much less sold it. i did not understand that my conspiracy charge meant i would be sentenced for everything my codefendants did and everything that they said i did. when i went to prison, i learned that i was not the only person with this misunderstanding. many other women were doing time not just for their own mistakes, but also for the mistakes of their codefendants, their husbands, their partners, other family members, or anyone else being charged in the conspiracy, whether they knew them or not. even though i pled guilty and i had no criminal history points under the sentencing guidelines, i still received a mandatory minimum sentence of ten years plus almost another decade under the then mandatory sentencing guidelines.
in may of 1994, i was sentenced to 19 years and seven months in a federal prison. the woman who cooperated received probation. i deserved to go to prison. i had broken the law. and more importantly, i needed to go to prison because i desperately needed a wake up call. but i did not need nearly 20 years in prison to learn my lesson. the first few years are the worst. i committed myself to self improvement. i was sober. i earned sort's dein business administration and i started a bachelor's degree on social science. i participated in prison fellowship ministry and stayed in close contact with my family. i kept my spirits high by believing i would never serve my full sentence. but there i sat year after year
with man other women just like me. not only did i waste years of my life sitting in prison, but taxpayers wasted hundreds of thousands of dollars to keep me there. the worst part was not being able to be with my four daughters. i had already failed them once. and now they were growing up in foster care. visits are rare for many moms in prison, and very painful. prison time passes slowly, but children grow quickly. i wanted to get out and be a better, wiser parent while my children were still young enough for it to matter. my long sentence made that impossible. it's hard to parent on one 15-minute phone call a day. there are no more bedtime stories with kids, no helping them with their homework, no parent-teacher conferences. and that's a lot to mess and a
lot to make up for. being that there is no parole in the federal system, the only sentence reduction prisoners can earn is up to 15% off for good behavior. i earned the full 15%. and i also asked to have my sentence commuted on three different occasions. all three times, i was deny. the last rejection from president obama arrived after i was already home. i was released in 2010 after serving 16 years and one month. since my release, i have struggled to make up for lost time with my now adult children. i provided child care to my grandchild so that one of my daughters could pursue her own education. i volunteered with prison reentry groups, continued my own education, and imnow an advocate for all the grandmas, moms, and
daughters that i left behind. even if the bill you are considering now had passed years ago, it would not have shortened my sentence. i wish that this bill went further to help more people. i would actually like to see congress repeal all mandatory minimum sentence -- drug sentences. but this is a start, and it will help a lot of the women that i left behind. but i'm hoping that it will only be a start. there is so much more work to do if this bill becomes law. thank you for considering my views, and i will be happy to answer any questions you might have for me. >> thank you very much. mr. cook? >> chairman grassley, members of the committee, i appreciate the opportunity to be here. i'd like to begin, though, by making two clear points. first is in our view the criminal justice system, the federal criminal justice system is not broken.
secondly, we have some i think very legitimate concerns about the legislation that's been proposed. as i begin what i'd like to do is point out to you that my perspective is not one from 100,000. my per effect suspective is at street level. i say that because my perspective comes as seven years as a police officer, 29 years as a federal prosecutor. i have experienced up close the death, destruction and heartache that violent criminals and drug traffickers, the individuals who stand to gain from this statute, this proposed legislation -- i have viewed what they would bring to our communities. i've stood next to the casket of a 19-year-old boy while his mother asked me in tears, how it is we could let that poison be sold on the street. i have stood in the neonatal care ward of our local children's hospital and watched as the innocent babies went through drug withdrawal knowing
that was nothing but a preclude to life complicated by physical and mental health issues. i've been to my share of homicide scenes. go back to the mid 1980s, a time when in our history what we had seen and what we were seeing was violent crime had more than tripled over the more than two and a half decades before that. more than tripled. drive byes seemed commonplace to us. in many areas of the inner cities they were controlled by drug traffickers. crack was king. and it brought on a blood letting like we had never seen before. the american public said they were fed up. they demanded change. and congress responded. they responded by fundamentally changing our criminal justice system. parole was eliminated. judicial discretion was narrowed through mandatory minimums for krils that were literally tearing at the fiber of our country. a strong bipartisan congress in
our country had a vision and a sense of determination to take back our streets and to make those streets safe again. dedicateds assistant u.s. attorneys across the country working with our local, federal and state law enforcement partiers and district attorney offices worked with these tools to take armed career criminals off the street. we used the mandatory minimums to dismamgts drug trafficking organizations often working from the very bottom up. and this criminal justice system with truth in sentencing shut the revolving door of justice and became the model of the criminal justice system, one that was followed by states across the country. putting these armed career criminals and drug traffickers in prison enabled us to drive crime down. in fact we drove violent crime down askand cut it in half by 2. and even more by 2014.
then someone started the refrain of mass incarceration and nonviolent drug offenders in an attempt to suggest that the federal and state systems were broken and to suggest that the solution was to let criminals out skpft slowly we entered the era of sentencing reform. one source reports that states -- 30 different states enacted sentencing reform. on the federal side we began by backing away from prosecution of drug traffickers and from using mandatory minimums. in 2007, as we know, we started what has now become the early release of 70,000 drag traffickers some of whom have committed murder since being released while they should have been incapacitated. as these reform mochltsd have spread across the country for and more criminals have been released or avoided incarceration all together. violent crime is returning to cities across our country. on top of that, our country is in the grips of the worst heroin
and observe yoid epidemic we've ever seen. over 46,000 people are dying every year, 120 a day, from drug overdoses. still, people call for more reform. and there are -- you would ask are there too men people in federal prison? of course there are. but they are there because they have committed serious crimes. the slurks i would submit to you, is not to let them out of prison. it is to address the root causes of the crime. with that i'd like to address the bill briefly. there are parts of the bill that we fully support and we recognize the hard work that's gone into it. but a huge but not only vice of the bill is the retroactive application. retroactivity will have a real and very immediate negative consequence on our community. retroactivity will further destabilize an already destabilized criminal justice system. victims will be notified. the cases they thought were
closed and had come to an enwill be reopened. the cornerstone to a healthy criminal justice system is one that we can have confidence in. one that has finality. so i close with these questions. questions that i suggest the committee should ask, and that every informed american will ask. with thousands of federal prisoners being released into our community early with the violent crime surging upward and with the country in the grips of the worst epidemic -- addiction epidemic in history is the time right to make thousands of convicted criminals, violent criminals, eligible for release? this is the time to weaken the tools for front line prosecutors to use to dismantle drug trafficking organizations? >> we submit that the prudent thing is to step back, measure the impact of the reforms already in play, and work aggressively to address the root causes of violent crime. >> thank you mr. cook.
now mr.mile-an-ho mauer. >> mr. chairman, thank you. i have submitted written. the i have three objectives that i believe this legislation can produce and i want to describe them briefly. those three are first i think we will see better outcomes for public safety if this legislation is enacted. second, we'll see more rational and effective sentencing decisions that are possible. and thirdly we'll address racial ethnic disparities in the use of incarceration. let me elaborate a bit on each. in the area of public safety, i think it's become quite clear that we are well past the point of diminishing returns in terms of what we get for public safety through incarceration. and much of that is a function of the fact that it's long been known that offenders age out of crime. the 20-year-old robber is much less of a risk to public safety by the time he turns 30, 35, or
40 or so. and this is true more or less across the board. so what happens is that for each successive year that we keep people in prison, as those risk factors are starting to decline we are getting less public safety that we produce through incarceration, and it's coming as an increased cost as offenders age in prison. it costs more to keep them there, largely because of health care costs that are produced. we have empirical data that supports the impact of excessive incarceration. last year the national research counsel of the national academies of justice convene a panel of 20 of the leading scholars and practitioners in the field of criminal justice and incarceration, they produced a massive report looking at these impacts. when they looked at the effect of incarceration on crime their conclusion was that yes
incarceration has some impact on crime. but the scale of that impact, was, quote, unlikely to have been large. unquote. i think that this measure will also help to produce public safety by giving us a better balance of criminal justice resources. we saw in 2007 when the sentencing commission adjusted its sentencing guidelines for crack cocaine offenses. then persons in federal prison for these released on average about two years less than they previously might have been. the commission looked at recidivism rates following the releases. and they found essentially is that the people who released two years earlier than the other cohort did previously had recidivism rates that were virtually identical. we can reduce sentences, save cost without an adverse effect on public safety. in terms of sentencing outcomes,
i think one of the real challenges and problems of mandatory sentencing is that we have a sentencing process there by where one size fits all is the situation. and i think every judge in the country would tell us that no two offenders, no two offenses are exactly alike. and that's why we need an individualized approach. the safety valve over two decades now has provided a very appropriate option for cases that do not require a mandatory sentencing and would be unjust as well, substantial number of drug cases, many federal judges the sentencing commission provided very good examples of additional cases that could benefit from an expanded safety valve as is being proposed. i think there is no reason to believe judges wouldn't use it in the same careful and thoughtful manner that they have for 20 years now. in terms of the racial ethnic
disparities in incarceration, as we sit here today, one of every ten black males in his 30s is incarcerated in prison or jail. and regardless of what each of us may think are the contributing factors to those outcomes that's a situation that should be disturbing to all of us. one of the factors that contributes to that have been excessive penalties particularly for drug offenses. and this legislation, by making the provisions of the fair sentencing act retroactive would take a major step towards helping to ameliorate part of that problem. i think it's very difficult to explain to poem on the street how a person sentenced a day before the legislation was adopted is serving considerably more time in prison than an equally similar defendant the day after the legislation was adopted. the estimates are that something like 6500 people might benefit from retroactivity. more than 80% of this population
will be african-american. most of these people will still serve a very substantial prison term, just not quite as long. let me just close by saying i think this legislation can produce a better balance in our approach to public saechlt i think it can reduce excessive incarceration. i think we will see a more effective and more fair criminal justice system resulting from this. thank you. >> thank you. ms. macdonald? >> chairman grassley, members of the committee. i'm honored to address you today. i want to examine the broader political context of the sentencing reform and corrections act. we're in the midst of a national movement for deincarceration and decriminalization. that movement rests on the following narrative. america's criminal justice system, it is said, has become irrationally draconian, ushering in an era of so-called mass incarceration. the driving force behind mass
incarceration, the story goes, is a misconceived war on drugs. as president barack obama said in july in philadelphia, quote, the real reason our prison population is so high is that we have locked up more and more nonviolent drug offenders than ever before for longer than ever before, end quote. the most poisonous claim behind the deincarceration movement is that our criminal justice system is a product and a source of racial inequity. the drug war in particular is said to be infected by racial bias. mass incarceration is allegedly destroying black communities by taking fathers away from their families. finally, prison is condemned as a gross waste of resources. nothing in this dominant narrative is true. prison remains a lifetime achievement award for persistence in criminal
offending. drug enforcement was not the driving factor in the growth of the prison system. violent crime was and is. since 1999, sly len offenders have accounted for all of the increase in the prison sentences and they were the predominant factor before then. violent crime is also the reason why americans' prison population is larger than other countries. the u.s. homicide rate for example, is seven times higher than the combined rate of 21 western nations plus japan. the most dangerous misconception about our criminal justice system is it is pervaded by racial bias. for decades criminologists have tried to find evidence for that bias and they have always come up short n. fact, racial differences in criminal offending account for all of the racial disproportionality of blacks in prison. the drug war was not a war on blacks.
it was the congressional black caucus that demanded a federal response to the 1980s crack epidemic, including more severe penalties for crack trafficking. the demand for suppression of open air drug markets continues today. go to any police community meeting in harlem, south central los angeles, or anacosty in wshds and you will hear some variation of the following plea. we want the dealers off the corner. you arrest them, and they are back the next day. such voices are rarely heard in the media. and indeed, not often in the halls of congress. incarceration is not destroying the black family. the black marriage rate was collapsing long before incarceration started rising in the late 1970s. indeed, the late senator daniel patrick moynihan wrote his present call for attention to
black out of wedlock child rearing in is the 65 just as that eraese deincarceration and decriminalization movement was gaining speed. it is crime, not incarceration, that sequel ofs freedom and enterprise in urban areas. and there have been no more successful government programs for liberating inner city residents from fear and disorder than proactive policing and the incapacitation of criminals. compared to the costs of crime, prison is a bargain. the federal system spends about $6 billion on incarceration. the state spent $37 billion in 2010 on institutional corrections. the economic, social, and so logical costs of uncontrolled crime and drug trafficking dwarf such outlays. to be sure, the federal drug
penalties are not sacrosanct. our current penalty structure was arguably arrived at empirecally through trial and error. sentences were and 1970s. those rising crime rates were themselves the product of an earlier era of deincarceration and decriminalization. sentences lengthened until they took a serious bite out of crime. as has been noted today, crime is shooting up again in cities across the country. police officers are backing away from proactive enforcement in response to the year-long campaign that holds that the police are the greatest threat facing young black men today. with pedestrian stops, criminal summons and arrests falling precipitously in urban areas, criminals are becoming emboldened. while i do not think that the
current crime increase is a result of previous changes in federal sentencing policy, it behooves the government to tread cautiously in making further changes. however, i unequivically support the part of the act that attempts to engage all prisoners in work. i also support the supervised released pilot program of section 206, although it needs some tightening up to faithfully implement the swift, certain, and fair principles which inspire it. in closing, let me say that the committee could provide an enormous public service if it could somehow rebut the myth that the criminal justice system is racist. thank you for your attention. >> chairman grassley, members of the committee, thank you for the opportunity to testify today. as i have said in prior testimony, my experience in nearly a decade with the department of justice revealed the need for certain federal criminal justice reforms that
are not only meaningful but the result of thoughtful analysis of deficiencies in the administration of justice, and there are some deficiencies. it remains puzzling to continue to read statements of some who apparently do not recognize or acknowledge any significant issues with the current system and urge congress to resist any meaningful reform. such a position raises questions of credibility and whether such are in touch with the experiences of those who have actually labored in the trenches of the criminal justice system. nearly all of the changes contained in the bill before this committee are the result of former united states attorneys and assistant united states attorneys identifying issues within the federal criminal justice system which are in need of attention. the reality is today's federal system is increasingly mired in the pursuit of low-level offenders who are too often over punished by extremely long sentences that often do not match the gravity of the crimes
committed. the results of these very real deficiencies is a burgeoning prison population that ironically, with its rising costs is becoming a real and immediate threat to public safety. that's why i'm here to praise the efforts of this committee on the remarkable bipartisan negotiations which have resulted in a thoughtful bill aimed at making needed changes to the front and back ends of the federal criminal justice system. i hope to convey today while there are additional issues that need to be addressed in the area of criminal justice, i am pleading to express my endorsement of s 2123. i am not alone in this position. many of my former colleagues have joined me in signing a policy statement of former prosecutors and other government officials, signed by federal judges including the likes of the honorable larry thompson, and others which describes the need for these meaningful reforms and endorses s-2123.
i ask it be submitted into the record of this hearing, mr. chairman. specifically, there are a few provisions i believe to be the most important and impactful provisions on the front end of s 2123. it preserves the five and ten-year mandatory minimum sentences but broadens the existing safety valve and creates a second safety valve that focuses the minimums to higher level drug offenders. it clarifies and reduces the sentence for certain firearms offences but expands its application to include similar prior state level convictions, a very useful tool for assistant u.s. attorneys. it raises the statutory maximum for unlawful possession of a firearm and creates an overlapping range by reducing the mandatory minimum for armed career criminals. it applies the sentencing reforms retroactively. these are important because they refocus mandatory federal
resources on higher level offenders and provide additional new tools to help law enforcement target criminals and enhanced penalties. they provide a more accurate focus on the role of the offender instead of drug quantity alone and increase a judge's ability to utilize limited discretion when determining appropriate sentences. this is the only way to be more effect i feel -- to more effectively tie the mandatory sentences to the higher level drug offenders and violent criminals. further, they fix the outlier problems associated with a recent trend toward count stacking. applying these reforms retroactively does not eliminate the mandatory sentence nor the additional time for the underlying offense which they will be sentenced for. i make clear that it is not enough to focus on sentencing reforms. by themselves, sentencing reforms do little or nothing to reduce recidivism. we must acknowledge the absolute
essential inclusion of the corrections act in addressing the issues associated with risk and recidivism reduction. consequently the back end changes of s 2123 are perhaps even more immediately important, because they put a new focus on rehabilitation and establish risk and needs assessments as the cornerstone of more effective recidivism reduction programming. we will assess prisoners as they enter prisons and periodically reassess them over time as they complete the number, types, and intensity of programs they need and work in real jobs rather than sitting idle as most do today. this reassessment is vital. as it goes to the heart of the need for this legislation. it is true that risk of recidivism will go down with good programming but we need to identify dynamic risk factors and indicators of real change. make prisoners show this change and then reassess them to
measure them over time as they complete their programs. this will be a major advancement in the federal system, in fact it will establish a new standard for corrections in this country. it will incentivize prisoners to not only participate in programs and jobs alone but to personally contribute to the reduction of their own risk of recidivism. lower risk prisoners will be eligible to spend up to 25% of their sentences in home confinement and community supervision, producing significant savings. congress must act on this legislation. otherwise it will continue to tacitly allow the terms to be dictated by the executive and judicial branches. the reforms contained in s 2123 have proven successful in a number of states across this country. they have proven to increase public safety while reducing costs.
i urge members of the committee to act quickly to report this bill to the senate floor. thank you. >> we will have a five-minute round. i'll start with judge mukasey. in 2014, you and other prosecutors signed a letter that opposed sentencing reform. you said that you believed, quote, our sentencing regimen strikes the right balance between congressional direction and the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety, end quote. i have also been a strong defender of our current sentencing framework. but i've always said that i was open to reform. two questions together for you to respond to. would you agree that this reform bill seeks to preserve our current sentencing framework by making reasonable and responsible changes, to wit, and two, does this bill still give prosecutors the tools to go after dangerous and violent criminals?
>> the answer is yes to both. what i was against in 2014 was taking the structure apart. this, as you pointed out, preserves the structure and indeed, as a number of people have pointed out, it preserves intact mandatory minimums, while at the same time providing flexibility to both prosecutors and judges. so yes, that accounts for my change in not supporting that bill and not supporting this one. >> the bill applies mandatory minimum sentences to serious offenders in a way that current law doesn't. it applies the enhanced drug minimums to serious violent offenders, not just drug offenders. it raises maximum sentences for unlawful possession of a firearm. and it counts gun crimes for the first time towards enhanced firearm minimums.
so can you explain how these provisions target the application of mandatory minimum sentences towards some of the worst offenders? are these new tools good for prosecutors? >> these tools are good for prosecutors. i personally prosecuted an individual that provided the gun and ammunition that killed the longest serving police chief in utah at the time, chief cecil gurr. that individual under this bill would be able to receive 15 years in federal prison for his giving of the firearm with the instruction to kill, where we would not have been able to under current law. it was a source of frustration that the sentence did not seem to capture an individual such as that. this bill would provide that additional tool to an assistant u.s. attorney. >> then a followup for you. the bill applies many of the mandatory minimum reductions retroactively.
some people have claimed it will release violent and dangerous offenders. but these inmates will still face the new mandatory minimums. can you explain why making these provisions retroactive does not mean that violent and dangerous offenders are going to be released on the street? >> absolutely. it does not remove the five and ten-year, nor does it remove, for example, under 924 c, the application of a 15-year mandatory minimum on top of a violent crime. if you were to take, for example, many of those 924 c use of a gun in a violent felony, oftentimes the judge is facing so many years of sentence that they have to administer refuse to even sentence on the underlying crime that they were arrested for, the drug deal for example, and will instead just sentence on the mandatory minimum. under this bill, it's providing
more integrity to the sentence, so that you sentence on the mandatory minimum and the underlying offense. they will serve very long sentences if convicted of multiple 924 c's, multiple charges using a gun. and they will serve decades still, potentially, under this regime. it gets rid of, however, the absurd weldon-angelos type cases where you have 55 years with no criminal history to account for the sentence. >> i think you answered this question just now, but let me bring emphasis to the fact that some critics of our bill claim that it is soft on criminals and that it eliminates stacking on gun crimes under section 924 c. that's not true. so could you explain why under our bill a defendant will still face a consecutive mandatory minimum sentence for each and every gun crime he commits?
isn't it true that our bill simply reforms the enhanced mandatory sentences so it is a better tool for repeat gun offenders? >> let's use weldon-angelos as an example. under this bill, weldon-angelos is not getting out and is not being sentenced to a small time in prison. he would be receiving at a minimum 15 years in federal prison, plus be sentenced on the underlying drug crime, which has a maximum of up to 15 years. so for anyone to say this is going to be weak on crime is not necessarily seeing what the application of the bill will be, even in those most extreme circumstances. under this bill you would still see a sentence of at least 15 years. >> senator durbin. >> thank you, mr. chairman. mr. shelton, i met alton mills' mother and father. they've been to several meetings
that i've attended to discuss this bill. i'm glad that you mentioned his case before us, because it is clearly a miscarriage of justice. the sentencing judge, judge aspen, not considered a pushover by anybody, said that this was a terrible outcome in this case. this man has now been in prison 20 years and no end in sight. he's been sentenced to life in prison for what appears to be two minor crack offences and the third one that put him away for life. while the kingpins who were ratting him out will be out of prison, he'll still be in prison. now, if that doesn't speak to the injustice of some of our current sentencing guidelines, then turn the page to ms. debi campbell. is there anyone here who thinks, having heard this woman give her candid testimony about her life experience, that she should have served 19 years and seven months in federal prison? does that make sense to anyone here?
those arguing against reform are basically saying leave the system as it is. and i disagree. keep in mind that despite ms. macdonnell's testimony, using the word "decriminalization" twice in her testimony, there is no decriminalization in this law. none whatsoever. what we're doing is saying that a judge in his or her discretion can look at an individual case, a mandatory minimum case, still impose the maximum if they feel the case is so egregious and unjust, but has the flexibility in some cases to bring the sentence down to a lower level. maybe they would have decided ms. campbell would serve only 16 years and seven months or 12 years and seven months. and each one of those instances, i would raise the question, is that serving justice? is that making us a safer nation? is that the right investment? mr. cook, i thank you for your service as a law enforcement
officer and for your service as a prosecutor. and when you talk about the importance of police work, as ms. macdonnell has spoken, i couldn't agree more. the purpose we're trying to serve here is to have resources to put them into law enforcement in our communities, into the investigation of crimes, the arrests and conviction of those serious criminals that you described. the people who are dangerous. i want dangerous people off the street as much as you do. but we are putting more and more money into the incarceration of people like ms. campbell, for her case, 16 years. 16 years. don't you think justice is served and community safety is served by from time to time making an honest assessment as to whether our resources can be applied in communities to make us safer, more than keeping people in jail for decades? >> i do. and i think, though, what's been lost in the debate is, drug
trafficking is a very serious crime. it has very serious consequences in our community. people by the scores are unfortunately dying every day. as i said, 120 people are dying by drug overdose every day here in the united states of america. we're in the midst of a heroin, an opioid epidemic like we've never seen. to suggest, as the inference what's been thrown about, that drug trafficking is a nonviolent offense, is the way it's often said, suggests, the implication is, it's not a serious offense. it is a serious offense. >> no one is suggesting it's not a serious offense. that's not even the suggestion by anyone involved in this. what we're trying to do is take those at the lowest level and say, they can be subject to sentencing guidelines which are different from those who are kingpins. you mentioned opiates. we have dirty doctors who are peddling those opiates.
they should have the book thrown at them. their worse than any drug dealers that i've ever read about. this bill doesn't change that in any way whatsoever. but the street level criminals, like alton mills, he's sentenced to life. how can it possibly be that the kingpins are getting off? they ratted him out and they're going to be free, they're going to have their freedom while this fellow is sitting in jail. >> of course i don't have the benefit of the entire record. i wish i did. but what happens in cases, many in the drug trafficking organization who either don't cooperate or aren't eligible for the safety valve. i would take it that this individual didn't cooperate, didn't provide substantial assistance in the investigation. i don't know. i don't have the benefit. >> it was an 851 case, if that means anything to you. he was characterized a serious
that's what i'm concerned about. and ms. macdonnell, i think you correctly mentioned that it goes from community based policing to broken windows philosophies to police presence in the communities. and i have been in communities, african-american communities, when they demanded that police come there and do something about the crime.
and they're tired of their children being victimized and afraid to go out on the street at night like they did when they were a child in that community. i've heard that. and it's not a little bitty matter. mr. cook, you are very experienced at this. let's see if we can run down this kind of briefly. the booker decision a number of years ago that has undermined the sentencing guidelines significantly, did it not, didn't that in effect reduce prison sentences throughout the country? >> it did, sir. as well, it returned a huge amount of judicial discretion to the courts. the courts of course had been limited because of the sentencing guidelines. >> well, it did, that's one of the things that's already happened, since ms. campbell was sentenced. the sentencing commission has proposed a sweeping amendment to redefine what a career offender is.
how does that impact? >> of course that's on the back of the supreme court's decision in johnson, which strikes down part of the armed career criminal act. we will as a consequence revisit all armed career criminal act convictions. and many of them will be eligible for much earlier release. the sentencing commission follow-on with the guideline amendment -- >> that will in effect reduce sentence? >> as to all career offenders and other criminals. if made retroactive, that will open a huge class. >> these are not little criminals. these are serious criminals. >> yes, sir. >> as a result of attorney general holder's memorandum, minimum sentences against -- he's required them to limit opposition to minimum mandatory sentences in certain drug offense cases, is that right.
>> that is correct. >> i don't know how he can do that. >> we have backed away from prosecuting many drug offenders under the mandatory minimums because of that. >> now, as a result of these things and others, the durbin-sessions bill that we've passed, the federal prison population has dropped. i'm reading from your data, but it's prison data. in 2014 alone, 5,000 down. 8,000 in '15, fiscal year '15. the bureau of prisons predicts that the population will decline 12,000 inmates by the end of fiscal year '16, meaning in three years the population in federal prison will drop 11%. that sounds like a pretty significant trend. and i guess it would continue. and that's all without considering this legislation, is it not? >> it is. there's a huge cause for concern, because we knew what the recidivism rates are. recidivism rates run 45 to 77%.
that's a lot of victims. >> it is. and that's a conflict too. mr. chairman, thank you. >> good to see you return, i'm glad to serve under you as chairman one more time. >> i was happy to have you with me, i'll tell you. senator whitehouse. >> thank you, chairman. first of all, thank you to the panel for being here. if i were to summarize the testimony, it would be that there is fairly widespread support for title 2 of this bill related to the improvement of reentry preparation for inmates who are being returned to society. and certainly no direct criticism of any part of it. so i'm going to hope that we'll
be able to move smoothly forward with that part of the bill. in fact, with the whole bill. but we have obviously a house process to get through, and a conference to get through before the bill goes to the president's desk. so i would like to ask three of you, mr. tollman and mr. maur and mr. de roush, think forward to when the bill passes, presume it has title 2 in it intact, and give us advice on what we should be looking for from an oversight point of view, what should be the benchmarks or other advice you might have as to what should inform the implementation of that title by the bureau of prisons and the department of justice.
why don't we start with you, mr. de roush, and work on to mr. maur and mr. tollman. >> thank you. as senator sessions said earlier, if something is working, you would expect it would be expanded. in our experience in the federal sentencing and the bureau of prisons that this legislative body with your oversight hasn't been provided with the types of metrics of what is working and what isn't working at the same level that is done in the states. when states look for alternative sentencing and a different way for a mandatory minimum for a drug use to a drug court where the accountability was done outside, they measured the success of sobriety on the other end of the sentence. they wanted to report to the policy makers and the budget counters as toss wheth whether
making community safer or not. i believe -- we're lavishing praise on title 2. this is what opens the door. i'm saying as you are talking with the house and you are talking with other negotiators in this, to make sure that you are looking for empanded use of programming, ligfe skills, mentoring. these are the things that transform the system that are baked into every successful criminal justice reform we have seen. >> thank you. first, i very much appreciate your combined issues. one is i think let's not expect miracles from this initiative and this program. criminal behavior involvement is a function of a variety of different factors. it's critically important we do more inside prisons. then we have transition outside. even modest successes we should celebrate and we should try to build on those.
in terms of the risk level in the legislation -- i understand, i think, the rational for setting it up and using different risk levels. i would hope over a period of time if this legislation can be successful that we could gradually begin to take on all risk levels in prison. 95% of the people are coming home some day. to say a certain group of people should not participate in a way we may be setting ourselves up for a bigger problem than we anticipate. those are the people -- >> it's a great question. the states that have addressed similar title 2 have realized that risk of recidivism is the crux. they have used to date primarily static risk assessment measurement tools. those are improved now with a great work of individuals like ed latessa who said static is
one thing. that's criminal history and some of those factors that don't change. but in this bill, it uses static and dynamic. so it requires reassessment of the risk of recidivism as they serve. so you know whether or not they are actually reducing their risk. that's where congress can inject itself and identify is it appropriately reassessing? because if they are, then you experience what texas did. the closure of prisons and a savings of billions of dollars. >> thank you. mr. chairman, as i conclude, let me express my appreciation to senator cornin, it was a pleasure co-authoring this mesh with him. everything from size to disposition, there are considerable dispositions between rhode island and texas. but one place where we have the same outcome is that we have applied these techniques in our prisons and we have seen prison populations come down and crime
rates comes down together, which was something that wasn't really thought possible. so my appreciation to the senator. thank you, chairman. >> thank you. i'm not sure what you mean by disposition. >> we're sensible and thoughtful. >> that's what i thought you meant. >> senator. >> i appreciate the point that you made, all the points you made, but one point where you say the test of sentencing reform is not on the incarceration rate but rather it's on the crime rate. and would you say that same standard should be used for the success of rehabilitation or reentry programs that we have been talking about here as well? >> sure. those are in fact even more so because you are talking about the circumstances under which
people are leaving prison and then that's where the rubber meets the road when it comes to recidivi recidivism. to the extent you have reentry programs that are capable of changing the rate that would be -- that's obviously a welcome thing. >> as some who believes that not all good ideas emanate from the district of columbia and then spread out to the rest of the country but rather they should come the other direction from the states and local communities where we can learn from the best practices, i think we can be encouraged that some of the provisions of the corrections act, which deals with the education, training, reentry programs, actually has some real promise. mr. chairman, i would ask unanimous consent to make part of the record this report from the national reentry resource center relating to the states'