Transcripts For CSPAN3 Key Capitol Hill Hearings 20151024

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 thats why im a fan of the work thats been done here. And my first question is really along those lines of drug courts. Ive 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. Im 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 its 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 dont. They are trying to do predictions now. Its 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 ive done a lot of work in the Domestic Violence area. Im 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 doesnt 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. Thats what we use. If you are going to depart, you explain why you departd, and its 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 dont 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. Its 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 comeys concern about Violent Crime rates sentence reform more broadly. Can you clarify today whether that is indeed the case. Whether in fact thats director comeys view . Im sorry, i didnt 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. Thats why i think its 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, its precisely the group who is not involved in that. Its those who dont have guns, who dont have leadership positions, who arent involved in violence. In fact, in looking across the country, most recently at some of the pockets that weve 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, id like to talk about retroactivity. Uhhuh. And the nervousness about some of that. And speak to that nervousness about how that would work. Yeah. Because its one thing people say its 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 cant 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 offenders 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 its just that. Its 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 defendants 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 its 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 offenders 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 wouldnt be doing my job if i didnt 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 ill you may go now. Thank you for your time. Thank you, senator. Im going to have the panel come while i introduce you so i dont 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 countrys 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 im pretty darn lenient on how long people run over five minutes, but i would like to im not going to cut you off in the middle of a sentence, but i hope maybe after if you go one minute ill wrap the gavel and you will stop. Go ahead general mukasey. Thank you, mr. Chairman. Im grateful to the chairman and the Ranking Member and the rest of the committee. Ive submitted a written statement that institutes my testimony here. And im not going to burden neither the committee nor the record by repeating it. Its 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, its the crime rate. That has to be watched carefully. Finally with respect to retroactivity, i was relieved to hear it is the departments 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 dont make any mistakes. With that, if the committee has any questions, im 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. Im hilary shelton. Our nations 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 africanamerican males in their 30s one in every ten is in prison or jail on any given day. Despite making up the 13 of our nations overall population africanamerican 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 wed like to see an addressing of all mandatory minimum sentences. An increased use of evidencebased 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. Millss 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. Im 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 nixons 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. Im 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 alcoholrelated 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, thats when i finally found freedom n my faith. So just like chuck, when i speak about reforming the criminal Justice System, i dont 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 societys 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 bills directive to the department of justice to expand recidivism reduction programming such as drug rehabilitation, education, and faithbaseds 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. Ive also submitted a longer version in writing, mr. Chairman. I didnt 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 1990s 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 codefendant 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 sorts dein Business Administration and i started a bachelors 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. Its hard to parent on one 15minute phone call a day. There are no more bedtime stories with kids, no helping them with their homework, no parentteacher conferences. And thats 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 im 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. Id 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 thats been proposed. As i begin what id 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. Ive stood next to the casket of a 19yearold 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 Childrens 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. Ive 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 weve 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 id like to address the bill briefly. There are parts of the bill that we fully support and we recognize the hard work thats 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. Mileanho 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, well see more rational and effective sentencing decisions that are possible. And thirdly well address racial ethnic disparities in the use of incarceration. Let me elaborate a bit on each. In the area of Public Safety, i think its 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 its long been known that offenders age out of crime. The 20yearold 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 its 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 thats 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 wouldnt 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 thats 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 its 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 africanamerican. 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. Im honored to address you today. I want to examine the broader political context of the sentencing reform and corrections act. Were in the midst of a National Movement for deincarceration and decriminalization. That movement rests on the following narrative. Americas criminal Justice System, it is said, has become irrationally draconian, ushering in an era of socalled 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 yearlong 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 cmittee 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 todays federal system is increasingly mired in the pursuit of lowlevel 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. Thats why im 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 s2123. 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 tenyear 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 judges 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 fiveminute round. Ill 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 ive 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 doesnt. 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 tenyear, nor does it remove, for example, under 924 c, the application of a 15year 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, its 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 cs, multiple charges using a gun. And they will serve decades still, potentially, under this regime. It gets rid of, however, the absurd weldonangelos 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. Thats 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 . Isnt it true that our bill simply reforms the enhanced mandatory sentences so it is a better tool for repeat gun offenders . Lets use weldonangelos as an example. Under this bill, weldonangelos 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. Theyve been to several meetings that ive attended to discuss this bill. Im 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. Hes 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, hell still be in prison. Now, if that doesnt 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. Macdonnells testimony, using the word decriminalization twice in her testimony, there is no decriminalization in this law. None whatsoever. What were 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 couldnt agree more. The purpose were 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. Dont 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, whats 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. Were in the midst of a heroin, an Opioid Epidemic like weve never seen. To suggest, as the inference whats been thrown about, that Drug Trafficking is a nonviolent offense, is the way its often said, suggests, the implication is, its not a serious offense. It is a serious offense. No one is suggesting its not a serious offense. Thats not even the suggestion by anyone involved in this. What were 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 ive ever read about. This bill doesnt change that in any way whatsoever. But the street level criminals, like alton mills, hes sentenced to life. How can it possibly be that the kingpins are getting off . They ratted him out and theyre going to be free, theyre going to have their freedom while this fellow is sitting in jail. Of course i dont have the benefit of the entire record. I wish i did. But what happens in cases, many in the Drug Trafficking organization who either dont cooperate or arent eligible for the safety valve. I would take it that this individual didnt cooperate, didnt provide substantial assistance in the investigation. I dont know. I dont have the benefit. It was an 851 case, if that means anything to you. He was characterized a serious crime in his case. It wasnt applied to others. Thats what im 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, africanamerican communities, when they demanded that police come there and do something about the crime. And theyre 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. Ive heard that. And its not a little bitty matter. Mr. Cook, you are very experienced at this. Lets 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, didnt 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, thats one of the things thats 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 thats on the back of the supreme courts 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 followon 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 holders memorandum, minimum sentences against hes required them to limit opposition to minimum mandatory sentences in certain drug offense cases, is that right. That is correct. I dont 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 durbinsessions bill that weve passed, the federal prison population has dropped. Im reading from your data, but its 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 thats all without considering this legislation, is it not . It is. Theres a huge cause for concern, because we knew what the recidivism rates are. Recidivism rates run 45 to 77 . Thats a lot of victims. It is. And thats a conflict too. Mr. Chairman, thank you. Good to see you return, im glad to serve under you as chairman one more time. I was happy to have you with me, ill 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 im going to hope that well 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 dont 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 hasnt been provided with the types of metrics of what is working and what isnt 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 were lavishing praise on title 2. This is what opens the door. Im 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 lets not expect miracles from this initiative and this program. Criminal behavior involvement is a function of a variety of different factors. Its 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 its 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. Thats criminal history and some of those factors that dont 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. Thats 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 coauthoring 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 wasnt really thought possible. So my appreciation to the senator. Thank you, chairman. Thank you. Im not sure what you mean by disposition. Were sensible and thoughtful. Thats 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 its 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 thats 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 thats 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 experiences. I would point out that in a number of these states, for example, georgia North Carolina experienced after the implementation of their Reentry Program something modelled after the corrections act, they saw a 19. 3 reduction in recidivism. Other states, 10 in georgia, 9. 4 , right right. I think rather than take this as a matter of faith or perhaps expressing our hopes and best wishes, we actually have some real results we can point to that demonstrate the workability of some of these programs. I dont think theres as much disagreement as it may look at first. For the people who will revus to avail themselves of the opportunity to get an education, deal with their drug and alcohol problem and the like, incarceration undoubtedly works. But for those people who will come out, it strikes me as just common sense to try to help equip them so they can cope with a productive life as opposed to being in the turnstyle and going back and forth. I appreciate the important contribution that your organizations efforts have contributed to in my state and i think helped contribute tremendously to these results that i mentioned earlier. Thank you for your contribution to our efforts as well. I want to just use the minute and 30 seconds left of my time to say, as i have traveled from houston to austin to san antonio to dallas most recently and asking people whether the faithbased community, whether their criminal whether they are experts in this area in the criminal law or not, they tell me that other problems that many former inmates have, they have problems getting jobs, number one, because they have a criminal record. And even if you eliminate the box as some people have proposed, theres still going employers are still going to do criminal background check as a routine matter. Whether they put it on their job application or not, thats still going to follow them. Obviously, if they cant get a job, even if you are trained in a prison Reentry Program with skills, thats going to limit your opportunity. And i think increase the likelihood you will repeat end up back in prison. The last thing that was mentioned to me and i hope we can address at some point along the way is the difficulty simply in finding a place to live. Because many apartments, for example, will not rent the premises to somebody who has been convicted of a felony. Frankly, i think they are entitled to be skeptical of that. But i think we ought to recognize that theres some real obstacles to people simply getting a job, finding a place to live, becoming reunited with their family, which has to be one of the elements we ought to be find some way to encourage so people can be successful in turning their lives around. A lot of challenges, mr. Chairman. I appreciate the good work. I think the corrections part of the bill is perhaps the least controversial part of this legislation. Now that they have been combined with the sentencing provisions, we have our work cut out for us. Senator lee. Thank you, mr. Chairman. Thanks to you for being here today and thanks for helping us have greater insight into this legislation. I would like to start with you mr. Tollman. You were an ausa. You were a u. S. Attorney. Im sure you prosecuted people under these tough sentencing laws. I know you have. Why do you believe in light of all of your experience as a federal prosecutor that mandatory minimums should be adjusted in the fashion proposed by this legislation . Theres a need for adjustment not out of a need to change the ceiling. The need for the adjustment does not affect the tools that a prosecutor has. The need for the adjustment is because the department of justice and as a prosecutor you care about disparities in sentence and you care about over punishment and under punishment. This bill is the result of years of thoughtful analysis and it is modest and it addresses those areas that had the susceptibility of either abuse or over punishment. But it is in no way a reduction of the tools or a retraction of the ability to deter, to punish and ultimately with title 2, it significantly increases the ability to rehabilitate. We have advanced the ball in all areas. There. There are those who oppose this bill. Of those, many insist that they oppose it because the over punishment concern that those of us who have gotten involved in this effort and who are behind this bill is somehow imagined. That we have imagined or severely exaggerated the over punishment risk. I would like to ask you a couple questions about that. Do you think it was over punishment in the case of weldon angelos, happened to have a gun on his person at the time, didnt discharge it at the time, but did have the gun on his person, do you think thats a just sentence . Thats the appropriate followup question. I have not met anyone that agrees the punishment fit the crime. In fact, the even the prosecutor that prosecuted the case initially offered a 15year sentence. Which is ironic since under this bill, thats roughly about the sentence that would have occurred. But instead, because of the stacking provisions, even the judge was in some ways, i know, so affects that felt that he wasnt sure he could continue being a judge if having to face these kind of sentencings. Thats a real example. Its not just an outlier. You hear many examples. It can be common depending on the aggression of the office or the aggression of the investigators. This judge was not necessarily known as a minimum sentence kind of a guy. No. Law and order. Its not like he was opposed to the law and order movement. Thats correct. In the Eastern District of virginia before. What about, for example, theres a case that came out of the eighth circuit involving a gentleman who was renting an apartment in a home and in exchange for rent he agreed to lay carpet in a living room and a hallway of the home. While laying the carpet, he was required to remove the carpet that had been there previously. In the process of doing that, he discovered a single round of ammuniti ammunition,. 22 caliber round. He didnt take it and put it in a gun. He put it in a box somewhere in the home where he lived and just set it aside forgetting about it. Somehow it was later discovered that he was in possession of this round of ammunition. He was charged with possessing it. He was convicted and was not allowed to possess ammunition and he was given a mandatory sentence of 15 year in prison for possessing one round of ammunition. Do you think thats a just punishment . Im not sure there would be a prosecutor that could justify outside the existence of a homicide that resulted in the use of that ammunition, which obviously is not the case. Its a disparate sentence. If this congress is concerned with the department of justice issuing a mandate to its prosecutors to ignore certain laws, it had you be equally concerned that it could issue a request that they be over aggressive in this same manner. Thats why Congress Taking these issues and addressing them in a thoughtful way can prevent those highs and lows absurd extremes that should concern everyone. If i could take a few more seconds to complete this thought. There are those who have attacked this legislation by suggesting somehow that those of us who are behind this bill who have drafted it, who have introduced it, are acting on the part of a desire to dismantle the major overall of the criminal Justice System that occurred 30 years ago and revert to an area in which criminals went unpunished order und eed o punished. Do you think thats what we are doing with this bill . I think its unfair. It would be akin to someone accusing me for the years that i prosecuted cases that i didnt care about my service, i didnt care about the contribution i made. Were talking about a bill that is being supported by the likes of chairman grassley and senator cornyn and senator lee and senator hatch and individuals that i have watched and senator whi whitehouse, that were hard on crime, tough law and order minded government officials. This should Say Something and should be a wakeup call to people that both sides of the aisle care about this issue and want to make it right. Is there any other areas than when liberty is at stake that we should care about making it right . Well said. Thank you. Thank you, senator lee. Nice to have you back with the committee. You once served on this committee. Great to see you again. Were proud of you. By the way, i chatted with the judge on the angelos case. He was upset that he had to do that. Im puzzled and disappointed that the bill were discussing here today does not include any provisions to shore up criminal intent requirements. The need for robust protection and the inadequacy in our criminal code have been a central part of the over criminalization discussion from the beginning. In the house, members from both sides of the aisle said that the lack of meaningful criminal intent requirements in federal law is a major problem that Congress Must and should address. Advocacy groups have agreed. The Heritage Foundation and National Association of criminal defense lawyers published a study finding that over half of all nonViolent Crimes proposed during the 109th congress contained inadequate requirements and over a quarter contained no requirements. A coalition of left leaning groups including the National Association of criminal defense lawyers, the aba and families against mandatory minimums authored a chapter decrying meaningful intent requirements in many criminal laws and call on congress to pass a statute to direct federal courts to read a protu protective requirement into any criminal offense. From where i sit, i do not see how we can adequately address the problem of over criminalization without getting at the root cause of the problem. One of the root causes is that we have let wither that in order for an action to be criminal, the person must have acted with a criminal intent. When it lack requirements, hard working americans can face criminal penalties for accidental conduct or conduct that a reasonable person would not know was wrong. For this reason, i believe that any package of criminal Justice Reforms that passes this body must include provisions to strengthen those protections. In particular, i believe that such a package should include language setting a default requirement for all criminal statutes. Especially those that lack such a requirement. This is an idea that many others have strongly endorsed. There are three points to emphasize. First, such a provision would not override existing standards set forth in statutes. All it would do is set a default for when congress has failed to specify the criminal intent required for a conviction. Second, a default provision would in no way limit the authority of congress or agency to create new criminal offenses. It would require them to be more thoughtful about selecting criminal intent standards. Third, a default provision would have no impact on statutes or regulations that prescribe Civil Penalties. It would only apply to criminal prosecutions where the question is whether to take away someones freedom or impose other criminal penalties. We can find a way to make this part of the meaningful package of Justice Reforms. I dont think it will surprise anyone to hear me say that i believe the default is as least as important as many of the provisions included in this bill. With those comments, i would like to ask a question or two. You have written about the need for robust criminal intent. You called on congress to require proof of guilty knowledge unless congress has length lated to the contrary. Could you explain the need for a default statute . What such a statute would do and what it would not do . Sure. I think that the need becomes especially pressing when you consider the number of criminal statutes that exist. Many people arent aware of exactly how many criminal laws we have. When you combine the criminal statutes that are in title 18, 21 and elsewhere throughout the federal code with regulations, its my understanding that the library of congress was unable to come up with accurate statement of how many criminal laws we have. You add to that the fact that many of them do not have mens rea requirements and its a minefield out there for people who are trying to obey the law. This would not prevent the enactment of statutes in the Public Safety area where standards have to be very high, where you are talking about the possibility of mass effect of behavior. It would not prevent the enactment of laws in dealing with food and drugs and things of that kind. Possibly lowering the intent requirement. As to other crimes you have spoken on this i know. We are all familiar with the examples. The fellow who out here was working at a veterans facility and hosed down some waste into the drain because thats what he was told do his job. Found out that he was polluting a river because it eventually went in and had to plead guilty to a felony as a result. Thats ridiculous. You have to have some sensible standard. Across the board requirement other than in cases where there is a Public Safety element involved where congress has legislated that the standard is lower. A law that was kind i think would be enormously valuable. We are happy to have you here. Some individuals have expressed concern its an effort to unwind the regulatory state and to make enforcement more difficult. You can respond to that . Could you explain the difference between default mens rea and other proposals targeted at cutting back regulation such as the proposal in the safe justice act, the sunset criminal regulation. It is what it says which is that in the absence of a standard set by congress, the standard is unlawfully, unknowingly. It would not prevent congress from setting a different standard in those areas of activity where it felt it was necessary and where there was a considered judgement made it was necessary. Nor would it set aside regulations that impose Civil Penalties and other sanctions. The only thing were dealing with are situations where people are potentially being deprived of their freedom plus whether they are deprived or not of being tarred as criminals. In those areas, i think a default requirement is absolutely necessary. Thank you. Senator sessions, let me add that i dont see how you can have this bill and really reduce the injustices that currently seem to exist without a mens rea provision. I dont see how you can. Thank you. This is all important. And i thank you all of you. Excellent witnesses. You have added something to this discussion. It is clear that criminal Research Shows that releasing just 1 of the current federal prison population will result in approximately 32,8 32,850 additl murders, rapes, theft and incidents of all persons. I dont flknow if thats accura or not. Thats what he testified to before. If you have 11 reduction in the population, that could be 361,000. There are costs when cars are burglarized. Well, you have to call the insurance and the police. Take time off from work and testify at a trial and all these things are ramifications of crime that are important. We are on the right track. With regard to the federal we have been on the right track to reduce the surge in crime we saw in the late 80s. Senator hatch was one of the architects of the effort that paid off, i believe. Now, i do believe that we have exaggerated the number of people who are serving long sentences for minor offenses. My experience is contrary to that. Not that it doesnt happen. A lot of things have happened since miss campbell you were incarcerated. A lot of things have happened. According to the bureau of prisons, mr. Cook, i believe 50 of the federal prisons prisoners serve less than are from one to tenyear sentences. 50 of the people in there. Isnt it true that Deputy Attorney general yates can tell the prosecutors not to prosecute small cases if thats what the policy is of the department of justice and focus on larger cases . If we have people convicted today for cases inappropriate for federal court because they are too small, that can be handled by a policy of the attorney general, can it not . It can, sir. There fact, its already being dictated to some degree in extreme fashion, i would think. It has and, of course, the statistics reflect that. I think both the bureau of prisons statistics, Sentencing Commission statistics as well as the judicial administration, all of those statistics reflect a steep decline in the prosecution of drug offenses in the federal system. One of the things senator hatch was saying is the fiveyear mandatory minimum for carrying a gun during an offense, crime and possession of a firearm after conviction of a felony have fallen under the Obama Administration steadily, which is one reason im not too impressed with the idea of move l more laws to impact lawful people who want to maintain a firearm. We have seen a decline in existing gun law prosecutions rather significant numbers actually. So all of you, thank you. Senator cornyn, i do think i believe you mentioned that the ability of having people in prison begin to work before they are released has real potential. I do think that can work. My observation over the years of attempts to have education and other kind of character building programs in prison before they are released doesnt seem to have much benefit. Do you agree with that . Its very hard to find excuse me, its hard to find a prisoner who has not been offered programs galore. They do exist in prisons. But i think work gives a sense of selfesteem and is the best training for reentry that we have got. The Risk Assessment, the cognitive therapy, thats already being done. Im afraid that the judgement that was reached in the 1970s, which is that its very hard to find a Therapeutic Program that reduces recidivism significantly remains the case. Thats by the Justice Departments own evaluations. Work is something we have not tried. Incremental improvements. Senator cornyn mentioned a 19 improvement. Thats enough. Show me a program that has a 19 improvement rate, im interested. The only problem is, i have never seen a new program that the first few years that data always looks great. As time goes by, they havent proved to be able to maintain that success. Thats worth considering. Thank you, senator cornyn and all of you for your work. One thing strikes me as true, its for people who dont want to change. They never will change. There are people in prison, ms. Campbell maybe an example of that, who haif given an opportunity to reduce their level of confinement by dealing with their underlying issues, whether its drugs, alcohol, Mental Health issues, work skills, education general education, can earn a lower level of confinement, perhaps halfway house, perhaps inhouse confinement, which is the goal of the corrections act to provide those incentives for people who have the desire to turn their lives around. For those who dont, i agree, we cant design enough programs because none of them will work if somebody hasnt made the decision in their own mind that they want to turn their life around and take advantage of that. Whats your experience been with the prison fellowship . Thank you, senator. For all the senators, in the testimony that i submitted theres a citation of some of the results that our through time. Senator cornyn, one is a study done bit tey the texas policy cl of the interchange Freedom Program that started in 1998 in texas that shows, i think, senator sessions point, significant numbers. We have seen that through the Iowa Department of corrections, Minnesota Department of corrections. These things are available. I do think that they should be expanded. I think that they should be available to people. The mention i make in my testimony was i said i had a drinking problem. I had to enter recovery for alcoholism because alcohol was my solution. I think too often we think the person, the crime theyre doing is their problem. Its not. Its their solution. And so, what we need to do is we need to go in when people have the willingness, and we work at prison fellowship, even if someones never going to leave prison, that says im going to live my life differently for the rest of my time here, and make that transformation worth something. Its been demonstrated through studies throughout this country that people can when they have the willingness change their character. And faith plays an Important Role in that, senator, and i think that can be demonstrated right in the facilities in texas. Judge mull casey, weve been talking about mandatory members and the length of those sentences, but could you just comment . Is it the length of sentence that provides deterrence . Your view . They both do, obviously, but i think its certain at this thats far more of a deterrent than once you get beyond five years. I think a lot of people who are involved with the criminal Justice System are involved because they dont think in segmentis longer than five year, and sometimes not as long as that, sometimes not longer than five minutes. But the sentence is a major deterrent. And thats one reason that the old guideline system before booker was more effective. And why i think mandatory membeinimu minimums to some extent ought to be retained. We seem like weve been through a swing of pendulum here, from the time back when the last time we, we took a systemic view of our criminal Justice System. We realized crime was rampant and Something Else needed to happen. So the incarceration rates went up, the mandatory members and the stacking thats been described here. The reason that was done, i think was at least in part the sense that people who committed same offense, tried in different courts could end up with vastly different sentences, which is not what i would call equal justice under the law. So weve seen a swinging of the pendulum. And maybe its time to look at and i believe this legislation does carefully look at some of the mandatory members specifically with regard to nonviolent offenders. But we do need to do both. We need to have the certainty of punishment as deterrence. And we also need to make sure that people who commit the same acts are treated similarly and not dissimilarly. I dont know how we aspire to a system of equal justice under the law where people receive such wildly disparate punishments for the same crime, which has been the goal of some of the mandatory minimum policies. So i just think we do need to be very careful, and i think, appreciate this great panel. Youve made us all think and question some of our assumptions, and i hope youll hang in there with us as we work through this process, not only on this committee, but through the senate and also with the house and eventually to the president. Thank you, senator, youre absolutely right. I was here when we did the mandatory members, and we were tired of some of the courts that didnt enforce the law and didnt give sentences away when they should have. I think some feel its gone way too far and we need to find some way to resolve that. Thats one reason for this bill. I believe youll be the last senator. Thank you, mr. Chairman. I want to echo and agree with and build on what senator cornyn said a minute ago, with one clarification, which is i dont think we should see this bill as something thats going to reverse the pendulum. I think by and large the American People feel good about the direction of our criminal Justice System in the sense that no one is calling for a return to the system that we had prior to 30 years ago. No one that im aware of thats involved in this effort on this bill would say lets go back to what we had before. Thats not what this is about. Nor would it be fair to say that this bill starts to push the bend lum back in that it swings in only one direction. Thats not true either. Were making adjustments in this legislation to the existing framework. In some instances, those adjustments might result in shorter sentences. In other cases those adjustments might result in larger sentences. In effect, we do create some new minimum mandatory sentences. And we extend the mandatory maximum. So this is an adjustment made nesby what weve seen in recent years. Its occurred to us that in some instances we overpunish crime, and thats not always a good thing. Overpunishing crime generally results in a waste not only of money but of human lives, and we want to avoid that wherever we can. Judge, i was awondering if i could ask you a question. Youve spoken about the Important Role that Congress Plays in setting the limits of punishment, often the top end and the bottom end. If we as a congress can agree. If we can get to a point where most of the senators and most of the members of the house agree that certain penalties under current law are greater than necessary, and if we decide to reduce those penalties, wouldnt it also be appropriate in that circumstance for us to make those reductions available not only to those who will go through the system in the future, but also those who have already been sentenced . It may or may not, depending on the case. I think many of those cases, particularly those that end in paradoxically, those that end in pleas rather than trials are the result, essentially of the negotiation involving both charges and length of sentence, such that you would not necessarily want to conin after the fact and decide that that bargain doesnt make sense anymore. And thats why we wouldnt want to make them automatic. Correct. We would want to make sure they apply on a case by case basis such that it wouldnt occur automatically but in a subsequent proceeding in front of our article one sentencing judge. I think that also lodging the responsibility in the individual districts is important, because they are the people who a are familiar with the case and b, are going to have to put up with the consequences. So that part of it is very important. And i spoke to the attorney general about this on friday, and i, the deputy testified here today that thats going to be their policy. So i think thats all for the good. Thank you, judge. You were asked some questions about the mens rea component. Every since i came i have been concerned about the mens rea problem in particular. We have so many federal crimes on the books that when we ask groups like the Congressional Research service who pays people to Research Things like this. When we ask them, how many federal crimes there are on the books, they cant tell us. So one of the things this bill does is to identify the number of crimes that are out there. Weve got to first get a handle on the number of crimes that are out there. And, as we do that, i think well find ourselves in a better and better position to address the mens rea problem. Not every federal crime on the books has an inadequate mens rea. Based on your understanding of the bill, the crimes addressed in this bill are not the kind that were talking about, are they . No. They have mens rea, and with respect to the mens rea issue, it is a worth while endeavor, and i would love to work with senator hatch going forward. It appears as though its an appropriate vehicle to follow the current legislation. And the reason is, is this legislation will identify what those crimes are. Some estimate over 30,000 potentially. There needs to be a, as careful an analysis of those crimes and the appropriate mens rea to apply that may not be there in applying the current legislation to this legislation. It is, however, something that should be on the near, you know, the near future of this congress to address the mens rea issue, and i would be happy to work with the congress in doing that. But theres certainly no reason to delay this legislation for that. In fact, you would argue that we do the opposite. You know, having worked here, i, certainly this hearing is evidence of the fact that members of congress can get along on both sides of the aisle and propose a bill together, still. Its evidence that members of Congress Work past 5 00. But i also know that it sometimes adding bills that are very well supported to an existing negotiated package, that would be my concern, senator hatch, and others that adding the mens rea at this point may disrupt the ability to pass this legislation, which is, frankly, is, hangs on a very, very thin precipice on whether it will succeed or fail. Well, ill just add it may pass without support if we dont do something about mens rea, because i think that is essential to any criminal action. And, by the way, it could come into play in these matters as well. I think youd have to admit that. Ive learned to never underestimate you, senator hatch, and your ability in the senate. I do appreciate that it is a significant issue that the senators highlighted. You are absolutely right to highlight that and i would really look forward to working