RACIAL DISPARITIES IN THE CRIMINAL 

JUSTICE SYSTEM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 29, 2009 

Serial No. 111–78 

Printed for the use of the Committee on the Judiciary 

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Available via the World Wide Web: http://judiciary.house.gov 

RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM 

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53–093 PDF 2010

RACIAL DISPARITIES IN THE CRIMINAL 

JUSTICE SYSTEM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 29, 2009 

Serial No. 111–78 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

OCTOBER 29, 2009 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 6 

WITNESSES 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 11 

Mr. Barry Krisberg, President, National Council on Crime and Delinquency, 

Jacksonville, FL 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

The Honorable James M. Reams, President-Elect, National District Attorneys 

Association, Alexandria, VA 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 24 

Mr. Wayne S. McKenzie, Director, Program on Prosecution and Racial Justice, New York, NY 

Oral Testimony ..................................................................................................... 30 

Prepared Statement ............................................................................................. 32 

Mr. Marc Mauer, Executive Director, The Sentencing Project, Washington, 

DC 

Oral Testimony ..................................................................................................... 55 

Prepared Statement ............................................................................................. 58 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Report entitled ‘‘Created Equal: Racial and Ethnic Disparities in the US 

Criminal Justice System,’’ submitted by Barry Krisberg, President, National Council on Crime and Delinquency, Jacksonville, FL ............................ 82 

Report entitled ‘‘Report to Congress: Cocaine and Federal Sentencing Policy,’’ 

submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative 

in Congress from the State of Virginia, and Chairman, Subcommittee on 

Crime, Terrorism, and Homeland Security ........................................................ 125 

(1) 

RACIAL DISPARITIES IN THE CRIMINAL 

JUSTICE SYSTEM 

THURSDAY, OCTOBER 29, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:42 a.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Conyers, Cohen, Quigley, 

Gohmert, Goodlatte, and Lungren. 

Staff present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Jesselyn McCurdy, Counsel; Joe Graupensperger, Counsel; Veronica Eligan, Professional Staff Member; and Robert Woldt, 

Minority FBI Detailee. 

Mr. SCOTT. Good morning. I want to welcome you to today’s 

Crime Subcommittee hearing on ‘‘Racial Disparities in the Criminal Justice System.’’ 

Racial disparities exist when the percentage of a racial or ethnic 

group involved in the system is significantly greater than the representation in the general population. In the United States, Blacks, 

Hispanics, and Native Americans are significantly overrepresented 

at every stage of the criminal justice system, as compared to 

whites. 

There are many reasons why racial disparities exist. Disparities 

are often created when police focus more attention on AfricanAmerican and Hispanic communities, which result in more people 

from these neighborhoods being arrested and processed through the 

system. 

Also, so-called tough-on-crime policies that direct more of law enforcement attention to certain crimes, as opposed to others, and decisions by prosecutors who have broad discretion can contribute to 

racial disparities. Even more troubling is when racial disparities 

are the result of conscious racial bias. 

Crack cocaine arrests and prosecutions are an example of how directing Federal attention to prosecuting a particular drug as opposed to other drug cases being left to the states can result in racial disparities. About 80 percent of those prosecuted in Federal 

court for crack cocaine offenses are Black, and some of those are 

for possession-only cases. Whites and Hispanics are more likely to 

be prosecuted for powder cocaine offenses. 

2 

Crack cocaine is pharmacologically identical to powder cocaine, 

but because it is marketed in smaller doses and cheaper forms, the 

drug is more prevalent in low-income neighborhoods, particularly 

communities of color. Powder cocaine is usually distributed in higher volumes compared to crack cocaine. It is more often sold and 

used in wealthier neighborhoods. 

Now, if the objective of law enforcement is to reduce illegal drug 

use, the approach of concentrating enforcement efforts on the minority communities is not likely to be very effective. According to 

annual drug use data, there is no indication that Blacks are more 

prone to use cocaine than whites, nor that the prevalence in one 

community as opposed to the other, whether the form is crack or 

powder. Yet, for crack cocaine, almost all of the enforcement effort 

is concentrated in predominantly Black neighborhoods. 

Now, one reason for this is that sentences for crack cocaine are 

much longer than those for the same amount of power. Possession 

or distribution of five grams of crack cocaine result in a mandatory 

minimum sentence of 5 years, whereas it takes 500 grams of powder cocaine to get the same 5-year mandatory minimum sentence. 

Now, disparities often exist at every stage of the criminal justice 

system. Over-representation of people of color at each stage of the 

system is impacted by decisions and outcomes at various stages. 

Unfortunately, disparities tend to grow, rather than narrow, as defendants move through the system. 

For example, if people of color are routinely denied bail before 

trial as compared to whites being routinely granted bail, Blacks 

will also be at an advantage at trial and during sentence, because 

they are not able to assist with their defense, for example, locating 

witnesses, nor will they have access to community or treatment resources. 

Disparities are also made worse by tough-on-crime policies which 

tie the hands of judges to address the reason for the disparity at 

various points in the criminal justice system. Mandatory minimum 

sentencing, or truth in sentencing, where no credits for good behavior and other restrictions during discretion further exacerbate disparity treatment. 

And we see this impact in the prison population. We now have 

on an annual basis—or, excuse me, on a daily basis, approximately 

2.3 million people locked up in our Nation’s prisons and jails, a 500 

percent increase over the last 30 years. The United States is now 

the world’s leading incarcerator by far, with an incarceration rate 

of about 700 per 100,000. And the chart shows the disparity. 

You see the green bars, incarceration rates all over the world. 

The only bar rivaling the blue bar, which is the United States, is 

Russia, at about 600 and some per 100,000. The United States, 

number one in the world, at about 700 and some per 100,000. The 

first purple bar is African-American incarceration rate, about 2,200 

per 100,000. The larger purple bar, African-American incarceration 

rate, top 10 states approaching 4,000 per 100,000, but 50 to 200 

per 100,000 in most countries, up to 4,000 in the African-American 

community. 

Now, when we look at the impact of this, we find that it is also 

not free. The Pew Research Forum estimated that any incarceration rate over 500 per 100,000 was actually counterproductive. 

3 

And when you look at the cost of that, you will find that the—we 

have a little chart showing the cost of—what happens if you could 

reduce the incarceration rate from 2,200 to 500, the maximum at 

which you get any value for incarceration, and just go through the 

arithmetic, you will find that cost in a community of 100,000 for 

providing that counterproductive incarceration, if divided by the 

number of children, would be about $1,600 per child, per year, or 

targeted to the one-third of the children that actually need the help 

to about $5,000 per child, per year, since on counterproductive incarceration. 

And in the next chart, in the top 10 states, where the incarceration rate is 4,000 per 100,000, if you reduce that by 3,500 to 500 

per 100,000, and go through the arithmetic per child, targeted to 

the one-third of the children most at risk, you will find that—one 

more—you will find that you are wasting approximately $10,000 

per child, per year, in counterproductive incarceration because the 

rate is so high. 

Now, when you look at the racial impact of incarceration, we find 

that African-Americans make up about 13 percent of the general 

population, but 40 percent of the prison population, and that is a 

disparity that we are actually talking about. 

And the tragedy of spending all this money is that we could use 

that money for a more productive purpose, to keep people out of 

trouble. The Children’s Defense Fund calls this system we have got 

now the cradle-to-prison pipeline and that one of every three Black 

boys born today, if we don’t change things, can be expected to serve 

time in prison, and we could use this money to dismantle the cradle-to-prison pipeline and create a cradle-to-college or cradle-to-theworkforce pipeline. 

There is legislation pending that I introduced, the Youth PROMISE Act, which would help dismantle the cradle-to-prison pipeline, 

and hopefully it will be considered later today. 

We have several expert witnesses who will testify today during 

today’s hearing about the growing racial disparities in the criminal 

justice system and ways that these disparities can be addressed. 

So at this time, I would like to recognize the Ranking Member 

of the Subcommittee, the distinguished gentleman from Texas’ 

First Congressional District, Judge Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott—prevention programs do play an important role in deterring our youth from committing crimes and joining gangs. 

Unfortunately, H.R. 1064, the ‘‘Youth PROMISE Act,’’ goes far 

beyond simply authorizing Federal assistance for community prevention programs. The bill proposes to—I am sorry. Sorry. Got the 

wrong statement. 

Mr. SCOTT. Now, you weren’t going to speak against the Youth 

PROMISE, were you? 

Mr. GOHMERT. I hate to. I hate to mess up a good surprise, but 

thank you, Chairman. 

Anyway—this part of the hearing focuses on H.R. 1412, the ‘‘Justice Integrity Act of 2009,’’ and March 2009 report issued by the 

National Council on Crime Delinquency, both of which address racial and ethnic disparities in the criminal justice system. 

4 

At the outset, it is an important issue. It is a cause for great concern when groups from any race or ethnic group are greatly overrepresented as a percentage of arrests, convictions, or some other 

objective measure within the criminal justice system. 

Congress should carefully examine any disparity at the Federal 

level and attempt to root out any problems without relying on any 

preconceived ideas about why disparities exist or how properly to 

address them. Statistics and percentage may tell us that there is 

a problem, but without proper, unbiased analysis, that problem 

may never be resolved. 

Additionally, we here in Congress should not be getting into the 

business of directing any state’s criminal justice system based on 

what we think is the right thing for these states to do within the 

state. It would not be possible or advisable for Congress to adequately learn about all the disparities that exist in every state and 

formulate a one-size-fits-all approach from Washington that has 

been tried and failed. 

The states must work toward achieving fairness in their respective systems, and the Department of Justice can prosecute egregious abuses when necessary. Instances of true bias or prejudice in 

investigating or prosecuting criminal matters should be handled 

within the existing framework for civil rights violations. 

I appreciate the work of the witnesses that we are going to hear 

today and their respective organizations that do attempt to call 

these important issues to our attention. And we here in Congress 

understand that the missions don’t necessarily need or desire to 

make the distinction between the Federal system and the various 

state systems. 

I know the Sentencing Project did a study earlier this year entitled ‘‘The Changing Racial Dynamics of the War on Drugs,’’ noting 

that from 1999 to 2005, the number of whites incarcerated at the 

state level for drug offenses went up approximately 42 percent, and 

the number of African-Americans went down approximately 21 percent. 

That said, there still remains a significant over-representation of 

African-American inmates incarcerated for drug offenses at the 

state level. There are obviously a number of theories attempting to 

explain this phenomenon: increased enforcement of methamphetamine laws, the high numbers of African-Americans already incarcerated for drug offenses, and a host of others. What I have not 

seen is a lot of meaningful, data-driven analysis of those numbers. 

Just as each state should look at those numbers and attempt to 

analyze what part they play in them, we here in Congress should 

make sure that we take a look at disparities within the Federal 

criminal justice system and attempt to analyze them to discover 

the legitimate and illegitimate explanations for them. In doing so, 

Congress should be careful not to attempt to solve any disparities 

on the Federal level without a regard to the nature of the problem. 

Guideline rules that hamper the discretion of Federal agents and 

prosecutors without proper analysis without serve to create additional problems. We saw what happened in the 1980’s when the 

Congressional Black Caucus came pushing in demanding that 

there had to be vast disparities in the difference in sentences for 

crack cocaine and powder cocaine, because crack cocaine had beVerDate Aug 31 2005 14:41 May 05, 2010 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\102909\53093.000 HJUD1 PsN: 53093
5 

come an epidemic in the Black community, we were told, and 

therefore, if you did not vote for dramatically higher sentences for 

crack cocaine than powder cocaine, then it was tantamount to 

being racist, because you did not care about the African-American 

community. 

So Congress dutifully, not wanting to be racist, voted for these 

dramatic disparities in sentencing, following the lead of the Congressional Black Caucus back in the 1980’s, and voted this huge 

disparity in crack cocaine versus powder cocaine. Now we are told 

to rush in and let’s push things through to fix problems again. 

As a judge, I saw some disparities in a greater percentage of African-American population than the population overall of AfricanAmericans in our area coming before me as a felony judge. But 

there was an even greater number of percentage of individuals who 

came before me who came from homes in which there was no father than there was any over-representation of any racial group. 

The greatest common denominator among the people that I had 

to sentence was the breakdown in their home. It seems like, if we 

are going to really study this issue, we shouldn’t just look at the 

end result. One of our witnesses cites the Bureau of Justice statistics that points out that using rates per 1,000 persons, a non-white 

person is twice as likely to be the victim of a crime of violence as 

a white person. A non-white person is more than four times as likely to be the victim of a rape or sexual assault as a white person. 

A non-white person is more than three times as likely to be the victim of a robbery as a white person. 

We have seen statistics that indicate non-white persons most 

often identify non-white defendants as being the perpetrator. Do 

we need to study whether there is prejudice among African-Americans in identifying African-Americans as the perpetrators of the 

crime against them? 

We need to look at the full picture, because if we just come in 

and look at the end effect, the fact that there are a disproportionate number of African-Americans going to jail as African-Americans in the population, we may never get to the root cause. 

And I think, if the truth be known and when an adequate study 

is done, we will come back to Congress—Congress in the 1960’s, 

with the most wonderful of intentions, and that is to help poor, unfortunate young women who have babies and the deadbeat father 

would not assist at all, so Congress, out of the greatest of intentions, the most wonderful of hope, said, ‘‘Let’s help them. Let’s give 

them a check for every child they have out of wedlock.’’ 

And 40 years later, we have gotten what we have paid for. I sentenced young women—repeatedly were lured into a rut financially 

from which they had no way of getting out and how government 

gave them no way of getting out. Only if you will have another 

child, we will give you another check, until eventually some of 

them would get a job, not report it, hoping that that combined with 

their child support from the government would get them out of 

their hole, only to find they had committed a Federal crime of welfare fraud and have to come before me or resort to drug selling to 

try to get out of that rut that our government lured them into with 

no hope of getting out. 

6 

I think there are greater problems here we need to be studying 

and not the end result, but get to the heart of the problem, so this 

government does not lure people into a rut with no hope. It gives 

them incentives to avoid the rut and, if they are in the rut, incentives to get out and reach their God-given potential, which I think 

Congress has helped eviscerate. 

And I appreciate the time, Mr. Chairman. I do look forward to 

the testimony today, and hopefully, we will do the right thing by 

the people here in this country. 

I yield back. 

Mr. SCOTT. Thank you very much. 

Our first witness is Congressman Steve Cohen from—I am sorry. 

The gentleman from Michigan, the Chairman of the Committee, 

Mr. Conyers? 

Mr. CONYERS. Thank you, Mr. Chairman. 

This is a significant hearing. And I just wanted to thank Judge 

Gohmert for his concerned observations that grow out of his experience. 

Very important here today, we are going to have a hearing and 

a markup on the Youth PROMISE Act. And I think these things 

go together with things that are happening right around us. You 

see, last night, we were at the White House where the Hate Crimes 

Act was signed into law. 

I think Chairman Cohen was there, weren’t you? Or that was another event. Okay, you weren’t there. 

But Zoe Lofgren was there, and there were others on the Committee that were there. And the Hate Crimes Act started under 

President Bill Clinton. Well, how do you know that? Well, because 

I was invited to the White House when Clinton was President, 

where he called in the southern governors, because there was a 

rash of cross-burnings, mostly throughout the South, not entirely, 

and he said, ‘‘This has got to end. We have been treating these as 

arson cases, and from now on, we are not. We are going to treat 

them as a hate crime. It is more than just burning something 

down. This is an act of violence motivated to intimidate people.’’ 

And you could have heard a pin drop. And shortly thereafter, I 

introduced the Hate Crimes Act. And it is grown over the years 

until yesterday at 4:30 p.m., the 44th President of the United 

States signed another extension of hate crimes, extending it into 

sex and gender and choice violations would now be criminalized, 

that is, enhanced penalties would be put onto whatever the basic 

crime was, because of hate crimes. 

I am sitting in front of a former criminal defense lawyer of many 

years. What Steve Cohen has done in his State of Tennessee as a 

legislator for a couple decades before he ever came to the Congress 

has a great deal to do with what propels him to want a comment 

before we start this hearing. 

And all I want to do, Chairman Scott and Judge Gohmert, is to 

indicate to you that we are dealing with a historical problem. We 

had a problem before we got into this disparate sentencing. We 

come out of a history that now has international significance, because of things we are doing and not doing in terms of the violence 

and oppression and the economic hardships that we make people 

face, the genocides that go on. 

7 

All this is not unconnected. Only a few days ago, the courts in 

Texas determined that a young person should be executed even if 

there was no direct evidence, that his life should be—this is in the 

21st century. 

After libraries of examination of social circumstances, crime and 

punishment, how to build a just society, we just executed a person, 

a young person, who there was no—we are still taking lives of people when there is no connection, no evidence that the prosecutor 

could produce to determine that he was guilty. We not only sanctioned that he would be found guilty, but he would give up his life 

in addition. 

And so this whole thing brings us to the Sentencing Project, and 

CURE, and the people that have followed the great work of this 

Committee. 

The only thing I want to be of assistance on with my close friend, 

Judge Gohmert, is his thoughts about the Congressional Black 

Caucus. Now, I was not only a founding member of the Black Caucus, I was one of the three people that said that there ought to be 

a Black Caucus for us to found. And it is true that we had—and 

I am trying to get back, Judge Gohmert, associate membership in 

the Congressional Black Caucus—so that race and color and previous dispositions will not be any bar. 

But I want to be the first to assure you that the Congressional 

Black Caucus has never advocated or supported or endorsed the 

disparate sentences that we have been trying to eliminate between 

crack, powder and cocaine, never. 

Well, how do you know that, Chairman Conyers? Because I was 

the first African-American in the history of this country to ever 

serve on the Judiciary Committee. And I was once the Chairman 

of the Crime Subcommittee. And I follow these matters very closely, even before there was a Congressional Black Caucus. And I just 

want—— 

Mr. GOHMERT. Will the gentleman yield for a question? 

Mr. CONYERS. With pleasure. 

Mr. GOHMERT. Has the gentleman seen the list of co-sponsors for 

the bill that created the disparate sentencing and the list of the 

members ultimately who were part of the Black Caucus? 

Mr. CONYERS. Have I seen that list? No. 

Mr. GOHMERT. Of the co-sponsors of that list. 

Mr. CONYERS. No. 

Mr. GOHMERT. Then I would suggest the gentleman might be 

surprised, but it is a who’s-who. 

Mr. CONYERS. Well, but—— 

Mr. GOHMERT. And Charlie Rangel was recognized by President 

Reagan as being a major leader and mover and shaker in helping 

that come about, but I appreciate the gentleman yielding. 

Mr. CONYERS. Yes. Well, I will check that out, but it was not a 

Congressional Black Caucus position, I can assure you. 

Well, that is the thrust of my feelings about the importance of 

this hearing and this markup. And I am pleased that you gave me 

this time, Chairman Scott. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

Our first witness is Congressman Steve Cohen. Representative 

Cohen will testify about H.R. 1412, the ‘‘Justice Integrity Act of 

8 

2009,’’ legislation which he introduced to address the racial disparities in the Federal criminal justice system. 

Chairman Cohen chairs the Judiciary Committee’s Subcommittee 

on Commercial and Administrative Law and also sits on the Subcommittee on the Constitution, Civil Rights, and Civil Liberties 

Subcommittee. He is also a Member of the Transportation and Infrastructure Committee. 

Congressman Cohen? 

TESTIMONY OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mr. COHEN. Thank you, Chairman Scott, Ranking Member 

Gohmert, and Chairman Conyers, and all the fellow Members of 

the Subcommittee. 

Thank you for holding this hearing today and providing me to 

testify. I appreciate the opportunity to be part of this crucial discussion on the real and perceived racial disparities that permeate 

the criminal justice system. Today, I would like to bring to the Subcommittee’s attention a bill I have introduced that would further 

this discussion. 

Studies, reports, and case law from the last several years have 

documented racial disparities at many stages of the criminal justice 

system. This includes racial profiling of potential suspects, prosecutorial discretion over charging and plea bargaining decisions, mandatory minimum sentences, and countless other policies and decisions that may contribute to the disparities that we may see today. 

Even laws that are race-neutral on their face may lead to racially 

disparate outcomes. Our cocaine sentencing laws are one obvious 

example of this, and I commend Chairman Scott for his leadership 

in finally getting this issue properly addressed. 

The cannabis laws in this country are also similar. And they affect both African-Americans and Hispanics in a greatly disproportionate way. And my hometown of Memphis and the city of Virginia Beach are two cities where you see a great increase in arrests 

of African-Americans for cannabis over non-African-Americans. 

In addition, racial disparities are often the consequence of unconscious bias on the part of police, prosecutors, and others involved 

in the criminal justice system. That makes them no less real. Just 

like institutional racism exists in our country, it is racism whether 

it is there by tradition or not. 

It is important that we understand the extent of these racial disparities, the causes, and, most important, the solutions. We also 

need to determine whether our perception of these disparities is 

greater than the actual problem. 

That is why I introduced H.R. 1412, the ‘‘Justice Integrity Act.’’ 

This legislation would establish a pilot program to study the real 

and perceived racial and ethnic disparities in Federal law enforcement and the criminal justice system and make recommendations 

to address any disparities or perceptions of bias that are found as 

a result of this study. 

One of our witnesses today on another panel is going to say there 

is no deliberate racial discrimination or disparity. I would disagree 

with that decision or that thought. But regardless, if it is not delibVerDate Aug 31 2005 14:41 May 05, 2010 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\102909\53093.000 HJUD1 PsN: 53093
9 

erate, if it exists, it is still wrong. And if there is perception, it is 

wrong, too. 

The Justice Integrity Act would establish a 5-year pilot program 

to create an advisory group in 10 United States judicial districts 

headed by the U.S. attorney for those districts. The advisory groups 

would consist of Federal and state prosecutors, public defenders, 

private defense counsel, judges, correctional officers, victims’ rights 

representatives, civil rights organizations, business reps, and faithbased organizations, the gamut. 

The advisory groups would be responsible for gathering data on 

the presence, cause and extent of racial and ethnic disparities at 

each stage of the criminal justice system. Each advisory group 

would then recommend a plan, specific to each district, to ensure 

progress toward racial and ethnic equality. 

The U.S. attorney would consider the recommendations of the 

group, adopt a plan, and submit a report to the attorney general. 

The bill would require the attorney general then to submit a comprehensive report to Congress at the end of the pilot program, outlining the results of all 10 districts and recommending best practices. 

I would like to emphasize two of the bill’s most important elements. First, it envisions an inclusive process that brings together 

all of the relevant stakeholders, both sides of the bar, all people involved. Second, by establishing advisory groups throughout the 

country, it recognizes different communities may face different 

problems and require different solutions. Just as Justice Brandeis 

talked about the beauty of laboratories of democracy in different 

states, you get a representative sample of the Nation. 

I am pleased to be joined in this legislation by Chairman Conyers 

and nearly 30 other co-sponsors, including several Members of this 

Subcommittee and the full Judiciary Committee. Companion legislation has been introduced in the Senate by Senators Cardin and 

Specter. I would note the original Senate sponsor was the distinguished Vice President, the Honorable Joe Biden. 

The bill has also been endorsed by numerous organizations, including the American Bar Association, the NAACP, the American 

Civil Liberties Union, the Brennan Center for Justice, the Sentencing Project, among others. 

Racial disparities have engendered a crisis of public trust in the 

integrity of the criminal justice system and fueled community perception of bias. When the system is perceived to be unfair toward 

racial minorities, communities can become reluctant to report 

crimes or cooperate with law enforcement and prosecutors. This reluctance to work with law enforcement can make it more difficult 

to catch criminals and protect the very people who distrust the justice system, thereby perpetuating a mistrust of the system. We 

must do what we can to end this cycle of mistrust. 

The first step is to understand the full scope of the problem we 

are facing. This hearing is critical to that endeavor. 

I believe the Justice Integrity Act would expand upon today’s important hearing. It would also undertake a systematic process to 

bring together all of the stakeholders and develop concrete solutions. It would help restore public confidence in the criminal justice 

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system and ensure the fair and equitable treatment of all Americans. 

I understand that the deputy attorney general is currently leading a task force to examine many of these same issues we are talking about today, and I applaud Attorney General Holder and the 

President for their commitment to criminal justice issues. I think 

the Justice Integrity Act is a perfect complement to these efforts, 

and I would welcome the input of the Administration and Members 

of the Committee as we move forward. 

Mr. Chairman, I appreciate your holding this hearing today and 

giving me the opportunity to testify. As Mr. Conyers mentioned, I 

have 24 years’ experience as a state senator, working on criminal 

justice issues on the Judiciary Committee in Tennessee and was a 

criminal defense attorney. All you have to do is go to my city in 

Memphis, Tennessee, at 201 Poplar, the criminal justice center, 

and you can’t help but see that there is racial disparity. Whether 

intentional or unintentional, they exist. And the system has perpetuated it, and it is just as much a failing in this country’s efforts 

to get a more perfect union as any problem we have today. 

The health care system is a problem. The criminal justice system 

is a sin. 

I look forward to the testimony of the witnesses in the next 

panel, and I thank you for the opportunity to testify. 

[The prepared statement of Mr. Cohen follows:] 

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PREPARED STATEMENT OF THE HONORABLE STEVE COHEN, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE


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Mr. SCOTT. Thank you. 

You have any questions? No question. We appreciate your testimony today. 

Mr. GOHMERT. Unless he wants us to ask him questions. 

Mr. SCOTT. We will ask our next panel of witnesses to come. And 

as they come forward, I will begin introducing them. 

Our next witness will be Barry Krisberg, who is the president of 

the National Council on Crime and Delinquency. He has been 

president since 1983. He is known nationally for his research and 

expertise on juvenile justice and race and justice issues. He is currently a lecturer in the University of California-Berkeley School of 

Law and a visiting scholar at the Center for Race and Justice at 

John Jay College. 

After he testifies, we will hear from James Reams, presidentelect of the National District Attorneys Association. He was first 

elected Rockingham County, New Hampshire, attorney in 1998. He 

began his legal career when he was appointed assistant Rockingham County attorney in 1977. 

And witnesses following will be Wayne McKenzie, who joined the 

Vera Institute for Justice in 2005 as director of the Prosecution and 

Racial Justice Project. Prior to joining Vera, he was a prosecutor 

in the Kings County district attorney’s office, where he held several 

supervisory positions, including deputy bureau chief of the crimes 

against children bureau. He is a past president of the National 

Black Prosecutors Association. 

And our final witness will be Marc Mauer, who is one of the 

country’s leading experts on sentencing policy, race, and the criminal justice system. He has directed programs under criminal justice 

policy reforms for 30 years and is the author of some of the most 

widely cited reports and publications in the field, including ‘‘Young 

Black Men and the Criminal Justice System’’ and ‘‘The America 

Behind Bars’’ theories. ‘‘Race to Incarcerate,’’ Marc Mauer’s 

groundbreaking book on how sentencing policies led to the explosive expansion of the U.S. prison population, was a semi-finalist for 

the Robert F. Kennedy Book Award in 1999. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. I ask that the witnesses summarize your 

testimony in 5 minutes or less. And to help stay within that time, 

there is a lighting device on the table which will start green when 

1 minute is left in your time. It will turn yellow and turn red when 

your time is expired. 

Mr. Krisberg? 

TESTIMONY OF BARRY KRISBERG, PRESIDENT, NATIONAL 

COUNCIL ON CRIME AND DELINQUENCY, JACKSONVILLE, FL 

Mr. KRISBERG. Thank you very much, Chairman Scott and Chairman Conyers. I am very honored to be invited at this very important hearing. 

The stakes of this hearing are very high. I would say that the 

very legitimacy of the justice system is at stake. And the effectiveness of our law enforcement system is certainly at stake if we cannot make progress on this issue of enormous racial disparity in the 

system. 

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We read in the media about a so-called no-snitching culture, and 

we have had some tragic examples of that recently. When I talk to 

young people, a lot of what is wrapped up in the no-snitching concept is fundamental distrust of the fairness of the justice system. 

As the kids say to me, ‘‘Justice means just us,’’ and these are not 

white kids. 

Jury nullification, certainly we have had examples of where racial antagonisms and concerns have led juries to otherwise acquit 

people who look awfully guilty. 

And, more generally, the effectiveness of the system. Who comes 

forward? Who reports crimes? Who supports law enforcement in 

communities? These are all the issues at stake. So this is not a 

problem for minorities. This is a problem for our whole society. 

Now, I have included—and I will not go through it now—a report 

called ‘‘Created Equal: Racial and Ethnic Disparities in the US 

Criminal Justice System.’’ We produced it in March of this year 

with funding from the Open Society Institute and the Impact Fund. 

And it contains pretty much a straightforward analysis of the latest available Federal data on race and ethnic disparity at every 

stage in the system, including not only the African-American/White 

distinctions, but also issues relating to Latino Americans and Native Americans that also have disparate rates. 

The bottom line of this report is that disparity exists at every 

stage of the system. Racial disparity in the prison system in the 

U.S. is so extreme, oftentimes what is held out is the enlightenment and very low levels of incarceration that we find in Western 

Europe. Well, the fact of the matter is, if we only calculated white 

rates of incarceration, we would look like the Netherlands. We 

would look like Western Europe. 

The entire contribution to the very high rate of incarceration of 

the U.S.—highest in the world—is because of the incarceration of 

people of color. So I think we need to understand that. 

Others here will talk about other parts of the system, but I want 

to quickly address the front end of the system. We are becoming 

increasingly aware of an increasing legitimacy being raised about 

claims of racial profiling by police and others. And although there 

were years of resistance, police leadership across this country is acknowledging that this is a problem and beginning to raise more 

issues about it. 

Recently, I have been involved in situations in a number of 

states where police are literally targeting recipients of HUD Section 8 funding, which has direct racial impact and I think ought 

to be very concerning to the Federal Government, if we are trying 

to encourage people to move out of the housing projects and then 

what happens is the police decide they need to target folks. I could 

say more about that later. 

I am concerned about the impact of a change from community policing to other forms of policing that may have made racial disparity worse. And I think it is pretty clear that we need to go back 

and rediscover the true meaning of community policing. And some 

of the best and most progressive leadership in law enforcement in 

this country is, I think, heading back there. 

I will just give you a couple of examples. Well, one example. In 

the city of San Jose, California, in which there were huge amounts 

16 

of persons arrested for public intoxication—now, under California 

law, there is no standard definition of public intoxication, so just 

about anybody could be stopped for this—85 percent of the people 

stopped by the San Jose police were Latino. And when the local 

newspaper raised issues about this, this policy is now being 

changed. 

So it is an example of how police department, maybe even well 

meaning, engages in a policy—in New York City, we have certainly 

seen that a huge number of arrests have occurred for the crime of 

marijuana in public view. And all of the people arrested for marijuana in public view in New York City are African-American or 

Latino. 

There is also research indicating that bench warrants and probation violations are disproportionately impacting and used for people 

of color. And we also know that when we implement alternatives 

to jail, very often the system separates them out and these end up 

being sort of set-asides for white defendants. 

Overall, the research on this issue would indicate that better decision-making, objective decision-making, improved legal representation, which in this tough financial situation is hard to accomplish, and more options than the traditional formal and expensive 

criminal justice system would help to reduce this disparity. 

Finally, in terms of a specific recommendation, I have two specific recommendations for the Federal Government. I applaud Congressman Cohen’s bill. I would go you one up. I would recommend 

that, just like the Federal Juvenile Justice Act, we amend the 

Byrne grant act to require that any state receiving Federal funds 

have to conduct the kind of analysis that your laws suggest, a disparity analysis and, if they find disparity, submit good-faith plans. 

We have done that since 1980 in the Juvenile Justice Act. It has 

worked quite well. I don’t know of anybody who is complaining 

about it. And I think what it is produced on the juvenile side is 

enormous research, demonstration projects, conferences, a lot of improvement that we haven’t yet seen on the adult side. So, again, 

I applaud Congressman Cohen’s act, and I think we ought to think 

about this as an amendment to the Byrne act. 

Finally, I just want to end with what Congressman Scott has 

sometimes called the law of holes. This was taught to me by my 

father, which is, when you find yourself deep in a hole, stop 

digging, he would say. And I think that is the other thing I would 

suggest is, I would urge you to consider current legislation pending 

in front of the Senate and the House, particularly the legislation 

that involves gangs, and I would urge you to scrutinize that legislation to ensure that some versions of those laws might make racial 

disparity worse. Others might actually lessen the problem. 

And I would suggest that you look very carefully that we don’t 

do anything to make the situation even worse than it is right now. 

Thank you very much. 

[The prepared statement of Mr. Krisberg follows:] 

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PREPARED STATEMENT OF BARRY KRISBERG


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Mr. SCOTT. Thank you, Mr. Krisberg. 

Mr. Reams? 


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TESTIMONY OF THE HONORABLE JAMES M. REAMS, PRESIDENT-ELECT, NATIONAL DISTRICT ATTORNEYS ASSOCIATION, ALEXANDRIA, VA 

Mr. REAMS. Thank you, Chairman Scott and Ranking Member 

Gohmert, for having me here. 

Is that on? Okay. 

Thank you, Chairman Scott and Ranking Member Gohmert, for 

having me here representing the National District Attorneys Association. We appreciate the opportunity to have some input here in 

Congress. We represent almost 39,000 district attorneys, state’s attorneys, attorneys general, city and local prosecutors, and we are 

the ones that are responsible for prosecuting 97 percent, 98 percent 

of the crimes that occurs in this country. The small remaining percentage is done by U.S. attorneys’ offices at the Federal level. 

The National District Attorneys Association has been in the forefront of trying to deal with these issues. We have concerns about 

the Justice Integrity Act that we are talking about here today. 

I think part of our real concern is the lack of understanding of 

the victimization that goes on in these minority communities, as 

Ranking Member Gohmert talked about. The chances of being victimized if you are a person of color in this country is dramatically 

worse than your chances if you are white. There is something 

wrong with that statistic. 

We need to be looking at that statistic. We need to be looking at 

those victims of color, because it has a huge impact on our entire 

system. 

As was indicated, I am the Rockingham County attorney. I prosecute for roughly 25 percent of the population of the State of New 

Hampshire. We have two major interstates that go through my 

county, which are both drug pipelines. We have New Hampshire 

Route 101, which connects those two drug pipelines, so about 

roughly 40 percent of the cases that I prosecute in my office are 

drug-related in some fashion. 

When our state troopers stop somebody on Interstate 95 or 93 or 

101 at 3 o’clock in the morning, they have no idea of the color of 

the person driving that vehicle. It is the conduct of the vehicle that 

drives the state police to pull that vehicle over. It is not any ethnic 

information about that person. 

When my young prosecutors look at cases to decide whether we 

are going to file felony charges against them, the color of the victim 

and the color of the defendant do not enter into that decision-making. Frankly, most of the time, we don’t know the answer to either 

of those questions, nor are we greatly concerned about it at that 

time. We are trying to decide whether the police have put together 

a case sufficiently documented that we can go ahead with that 

case. 

I got a call a couple of years ago of—in the middle of the night, 

a woman that had her throat slit. We hoped that she was going to 

live, and I was asked that—would I approve the extradition of the 

defendant, regardless of what state he went into? I said absolutely, 

yes, we would. 

I had no idea the color of the victim or the color of the defendant. 

It was a decision that had to be made for the victim for justice in 

my community. 

23 

As it turns out, I signed all the extradition papers, applications 

to go to the governor. He was caught in West Virginia, thanks to 

the state police in West Virginia, who brought him back to New 

Hampshire. We tried him. It was only long after he was back in 

New Hampshire that anybody in my office have any idea of the 

race of the defendant, because it is not noted in any of the paperwork in any way that would jump out at us, and it doesn’t figure 

into what we do on a day-to-day basis. As it turned out, he was 

Black, the victim was white, which is unusual, because the victimization studies show that it is usually one race upon the other. 

Bureau of Justice statistics obviously have lots of documentation 

that we are all talking about here today, but the thing that I think 

should be shocking to the Committee is the way in which the minority community suffers victimization. We need to be looking at 

that and figure out a way to impact that. 

My suggestions to you are, instead of spending this $3 million 

that is indicated here on studies, particularly at the Federal level, 

on what is going on in our criminal justice system, you could take 

that same money, fund the National Advocacy Center, which is currently at about 3 percent of what it is authorized, and allow us to 

train people more about these issues and let us have a real impact 

on what happens in the community. 

Or you could fund the John R. Justice Act, which is a way to hire 

and retain minority prosecutors. All the prosecutors are coming out 

of law school with over $100,000 worth of debt. My office has a 

very difficult time competing with large law firms to trying to attract minority prosecutors, and that is an issue that is across this 

country. 

If we are lucky enough in the criminal justice system to hire minority prosecutors, we have a very difficult time keeping them 

there, because of the difference in salaries between what the private firms can offer and what we offer. This act, the John R. Justice Act, would really have a huge impact on our ability to compete 

with those firms who have a huge impact on our offices. 

I see that I have run out of time. I am available to answer any 

questions that the panel might wish. 

[The prepared statement of Mr. Reams follows:] 

24 

PREPARED STATEMENT OF THE HONORABLE JAMES M. REAMS


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Mr. SCOTT. Thank you, Mr. Reams. 

Mr. McKenzie? 

TESTIMONY OF WAYNE S. McKENZIE, DIRECTOR, PROGRAM 

ON PROSECUTION AND RACIAL JUSTICE, NEW YORK, NY 

Mr. MCKENZIE. I would like to thank Chairman Scott and the 

Members of the Subcommittee for giving me the opportunity to appear before you this morning. 

As was recognized, I am the director of the Prosecution and Racial Justice Program at the Vera Institute of New York, an independent, nonpartisan, nonprofit organization that works to make 

justice systems fairer and more effective through research and innovation, or, as I am fond of saying, a think-and-do-tank. Prior to 

arriving at Vera, I was also a management-level prosecutor in the 

Kings County district attorney’s office in Brooklyn, New York, for 

15 years. 

The overwhelming majority of prosecutors are motivated by a desire to enforce the law in ways that will produce justice for everyone in the communities they serve. In determining how best to follow and enforce the law in seeking punishment for alleged violations, prosecutors are often guided by little more than a code of 

ethics and an internal moral compass. Yet, prosecutors are expected to exercise their discretion in a manner that is free from racial bias or stereotyping. 

Given the discretion available to prosecutors and in light of their 

relative independence, one must wonder whether a good-faith belief 

that prosecutors will act without bias is sufficient to ensure that 

African-Americans, Latinos, and other minorities who come into 

contact with the criminal justice system in numbers that are far 

disproportionate to their representation in society will be treated 

fairly. 

The question of whether or how prosecutors may contribute to 

this disproportion is one that all prosecutors should strive to answer and to remedy whenever and wherever it exists. Since the creation of PRJ in 2005, a number of high-profile cases in which race 

and prosecutorial discretion collided, such as those involving the 

Duke University lacrosse team and those six students in Jena, Louisiana, have focused additional attention on this issue. 

Additionally, bipartisan reform has been proposed in Congress to 

address disparities in Federal prosecutions. And we have been talking about the Justice Integrity Act. In partnering with district attorneys in three major metropolitan cities—Milwaukee, Wisconsin; 

Mecklenburg, North Carolina; and San Diego, California—PRJ is 

piloting an internal oversight procedure designed to help prosecutors identify evidence of disparate effects and respond appropriately to unwarranted disparities or biased decision-making. 

PRJ does this by helping prosecutors collect data at the key discretion points in case processing so they can use this information 

to drive management reform. The early results of our work have 

confirmed that, in the initial screening of drug cases, for example, 

significant racial disparity is, indeed, injected at the front door of 

the prosecutorial process. We have also observed disparate outcomes in terms of how these cases are treated once they enter that 

door. 

31 

More importantly, we have observed managers examine and 

question data findings and the decisions made in their offices and 

then take positive steps to remedy identified disparities. District 

Attorneys John Chisholm, Peter Gilchrist, and Bonnie Dumanis 

have made a commitment to sustaining the public’s confidence. 

They have done so by assuming a leadership role in the investigation and ensuring that neither race nor ethnicity are intentionally 

or unintentionally producing unfair outcomes or inappropriate racial disparities. 

Our experience has shown, moreover, that even when a disparity 

is not racially motivated, PRJ’s approach to internal oversight can 

enhance public confidence in the fairness of the prosecutorial function. It can therefore serve as an important model for prosecutors 

everywhere. 

Progressive prosecutors like Dumanis, Gilchrist and Chisholm, 

and many others, understand that as leaders in the criminal justice 

system, the perception of racial bias supported by disproportionate 

arrest and incarceration rates and the loss of confidence in the system requires that they take an active role in reducing racial disparities, while at the same time ensuring public safety. We need 

only to provide them with the tools to get the job done. 

Thank you. 

[The prepared statement of Mr. McKenzie follows:] 

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PREPARED STATEMENT OF WAYNE S. MCKENZIE


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ATTACHMENT 1 


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ATTACHMENT 2 


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Mr. SCOTT. Thank you. 

Mr. Mauer? 

TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR, 

THE SENTENCING PROJECT, WASHINGTON, DC 

Mr. MAUER. Thank you, Chairman Scott. 

We are here today to discuss racial disparities, I believe, for two 

reasons. One, because our justice system needs to be fair and perceived as fair. And, secondly, because I think we can’t have public 

safety unless we have racial justice, and we want to keep that in 

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I want to just summarize what I think are four key areas to look 

at in assessing where racial disparities in the justice system come 

from. The first is a question of, to what extent does disproportionate involvement in crime produce racial disparities in incarceration? 

There has been a series of studies by leading criminologists—Alfred Blumstein, Michael Tonry—over some number of years, looking at this question. Originally, the first study of the 1979 Prison 

Population concluded that 80 percent of the disparity in incarceration of African-Americans could be explained by greater involvement in crime. The most recent study, looking at the 2004 prison 

population found that the figure had declined to 61 percent. 

So nearly 40 percent, they find, could not be explained by differential involvement in crime. They attribute much of the difference, the unexplained variation, to policies related to the war on 

drugs and other social policies. 

The second area has to do with disparities in criminal justice 

processing. When we look at the area of law enforcement, it is certainly the case that many agencies are taking the issue of racial 

profiling very seriously. We would never say that all law enforcement officers or agencies engage in racial profiling, and yet it still 

remains the case to a troubling extent. 

Just this week, 20 police officers in Dallas, Texas, were cited for 

having given tickets for ‘‘not speaking English’’ to Latino motorists 

in the city of Dallas. The other major disparity, as we have discussed in criminal justice processing, is the impact of the war on 

drugs, and we see this coming about through two overlapping 

trends. First, the vast expansion of the drug war. We go from a 

point of having 40,000 people in prison or jail for a drug offense 

in 1980. Today, that figure is 500,000. And as that expansion has 

taken place, the vast majority of the resources going to prosecute 

the war on drugs have taken place in communities of color, to the 

point where two-thirds of the people incarcerated for drug offense 

are African-American or Latino, far out of proportion to the degree 

that those groups use or sell drugs. 

The third area that relates to disparity has to do with the overlap between issues of race and class in the justice system. And I 

think the key issue here is the quality of defense counsel. 

There are many very fine public defenders and assigned counsel 

around the country doing a very high-quality job for their clients. 

Unfortunately, there are far too many jurisdictions in which the 

quality of defense counsel in indigent cases is far from adequate, 

far from giving their clients a reasonable defense. This has been 

well documented by the American Bar Association and many other 

organizations, and it doesn’t provide a fair system of justice. We 

also see differential outcomes in access to treatment programs and 

alternatives to incarceration that may be influenced by access to 

resources. 

A fourth area that contributes to the disparities we see has to 

do with the impact of what we view otherwise as race-neutral policies, sentencing policies in particular. We have had much discussion about the effects of Federal crack cocaine policies. 

We also see differential outcomes in the so-called school zone 

drug law policies that penalize drug offenses near a school zone, 

57 

whether or not they take place during school hours or involve 

schoolchildren. Because they penalize laws in urban areas more 

harshly than suburban or rural areas, African-Americans and 

Latinos who commit a drug offense similar to one that may be committed by a white in the suburban or rural area are punished more 

severely. A recent study in the State of New Jersey found that 96 

percent of the people sentenced under a school zone drug law were 

Black or Latino. 

In terms of what we can do to address some of these issues, four 

quick recommendations for consideration here. First, I think we 

should look at the example in some states that have begun to adopt 

racial impact statements for sentencing legislation. Just as we now 

routinely do fiscal impact statements for social policy, the states of 

Iowa and Connecticut last year adopted legislation that policymakers should have available information about the racial impact 

of proposed sentencing laws. It would not require that they vote 

against the law if there was undue racial impact, but it is information to consider as they look at the proposed effect of the law. 

The second area, as Representative Cohen said is the Justice Integrity Act. And let me just note here: There is nothing about the 

act or the process described that would not permit and, indeed, 

would require and encourage a full consideration of involvement in 

criminal activity that might explain disparities. 

I think the thrust of the legislation is to look at unwarranted disparities that are not caused by involvement in criminal behavior. 

Those are the issues that we need to surface. 

The third area to reconsider are drug policies. We can have better outcomes in substance abuse, better outcomes in how we use incarceration, and also reduce racial disparity if we shift the emphasis on drug policy toward prevention and treatment and away from 

harsh punishment. 

And, finally, I think we just need to level the playing field. The 

problem is not that we don’t incarcerate enough white offenders in 

this country. The problem is we need equal access to justice, and 

we should have high-quality legal representation, we should have 

a broad array of sentencing options available to judges. If we can 

level the playing field, I think we would get better outcomes for all. 

Thank you. 

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PREPARED STATEMENT OF MARC MAUER


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Mr. SCOTT. Thank you. 

And I want to thank all of our witnesses. 

We will now take questions from the panel under the 5-minute 

rule. And I recognize myself to begin. 


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Mr. Reams, in your printed testimony, you made reference to the 

Webb study, the legislation creating a study of the criminal justice 

system, but didn’t indicate whether you necessarily supported it. It 

sounds like in your testimony that you would support to a study, 

as Senator Webb has suggested, so long as it is comprehensive and 

not just focused on one aspect or another of the criminal justice 

system. Is that right? 

Mr. REAMS. Well, I don’t think there is a real simple answer to 

that in some ways. The bill, as I understand it, is in flux. It is a 

little hard to commit to it in advance. Certainly, the findings that 

have been circulated by Senator Webb suggest to be that the outcome is predetermined, and that is probably one of the problems 

with this act, as well. 

It assumes that the system is somehow being driven by race. I 

don’t think that is accurate, and so I am not prepared—I don’t 

think the District Attorneys Association are yet prepared to take 

a position on that particular piece of legislation. 

Mr. SCOTT. Okay. You indicated that, in New Hampshire, race 

makes no difference to police stops. 

Mr. REAMS. That is correct. 

Mr. SCOTT. Are you aware of the Maryland study that was ordered by a court that, on police stops and subsequent searches, it 

showed not only a disparity in stops, but a significant disparity in 

who got searched? 

Mr. REAMS. I am aware of the Maryland studies. The most significant study I have seen is the one that was whether the death 

penalty is, you know, imposed on people of race more than whites. 

Down in Georgia, the court looked at that and did an extremely 

long opinion, the district court, about that and found that it wasn’t 

race-based. That is one of the best summaries I have seen of the 

issue. 

Mr. SCOTT. That the race of the victim was not a factor? 

Mr. REAMS. No, it was not. In most cases, the race of—I should 

back up. The race of the victim and the race of the defendant are 

usually the same. Cross-racial crime is the exception to the rule. 

Mr. SCOTT. Mr. Mauer, have you seen studies that show that the 

race of the victim is a significant factor in who gets the death penalty and who doesn’t? 

Mr. MAUER. Well, I think there is a series of studies by David 

Baldus and others on the death penalty that shows that, in cases— 

the case that came before the Supreme Court, McCleskey from 

Georgia 20-odd years ago or so, showed that persons who killed a 

white person had a far greater chance of receiving the death penalty than persons who killed a Black person. 

And I am not an attorney, but my understanding of the Supreme 

Court ruling there was that Mr. McCleskey could not demonstrate 

direct racial bias on the part of anyone in the court process, which 

is a rather high threshold to—— 

Mr. SCOTT. And the discrimination would have to be shown in 

his particular case? 

Mr. MAUER. Exactly. 

Mr. SCOTT. The fact that there is general discrimination was not 

relevant? 

69 

Mr. MAUER. And the court did not dispute the findings of the research, broadly speaking. 

Mr. SCOTT. Mr. Krisberg, you indicated that you didn’t want to 

make the situation worse and referred to pending gang legislation. 

Can you make a brief comment on what kinds of provisions would 

be counterproductive and which would be helpful in the racial disparity? 

Mr. KRISBERG. Sure. There are a couple of bills going forward 

which purport to enhance punishment for people who are gang involved one way or the other. If you look at the existing enforcement 

of current statutes, they are, to my knowledge, exclusively applied 

to minority defendants in the Federal system. So a further expansion of that definition would make the situation worse. 

Also, any Federal expansions that would push forward gang injunctions beyond current local laws, I think, would create additional problems. A gang injunction defines as illegal simply the 

state of being in an area if someone defines you as a gang member. 

By the way, I have just seen legislation—I guess the Congress 

passed a bill as an amendment to the defense appropriation act 

which bars some gang members from participation in the military. 

I think the key issue here is, there are no objective standards for 

this. Getting labeled a gang member, getting into a gang, intelligence computer system is not subject to due process or equal protection of law. And once you are in it, there doesn’t appear to be 

any way to get out of it. 

So if I get labeled a gang member and then it turns out I can 

convince people that I am really not one, there is really no mechanism to have these records purged. 

So those examples, gang injunctions, the use of alleged gang 

membership as opposed to proven gang membership, and increased 

penalties have almost always impacted young people of color. 

I can tell you, for example, that in California, where we enacted 

via ballot measure very tough penalties in terms of gang members, 

the enforcement of those tough penalties in terms of prosecuting juveniles as adults and so on has been exclusively used on minority 

defendants. 

Mr. SCOTT. Thank you. And I have other questions that we will 

go to in a second round. 

Mr. Gohmert? 

Mr. GOHMERT. Thank you. 

Mr. Krisberg, are you proposing for, with regard to gang membership in the military, a ‘‘don’t ask/don’t tell’’-type policy? Is that 

what you are suggesting? 

Mr. KRISBERG. No, what I am suggesting is that we follow the 

dictates of the Constitution of the United States and require due 

process of law when people are denied access to—— 

Mr. GOHMERT. But with regard to—— 

Mr. KRISBERG [continuing]. Federal benefits. 

Mr. GOHMERT. With regard to the studies that have been done 

and the figures that we already have, you know, there are some 

problems, as you have pointed out. The NCCD had a report that 

indicated that African-Americans make up 13 percent of the general U.S. population, yet they constitute 28 percent of all arrests. 

That causes me tremendous concern. That seems so disproporVerDate Aug 31 2005 14:41 May 05, 2010 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\102909\53093.000 HJUD1 PsN: 53093
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tionate to the representation within the general population, but 

then constitute 40 percent of inmates held in prison. 

But I haven’t heard anybody talking about studies that indicate, 

could there be a disproportionate number of African-Americans arrested possibly partly because there are a disproportionate number 

of African-Americans that have committed the crimes? I mean, is 

anybody open to that possibility? 

Mr. KRISBERG. Absolutely. And, again, what I would really urge 

is to pay attention to what we have accomplished by amending the 

Federal Juvenile Justice Act. 

Mr. GOHMERT. Well, and you addressed that in your statement. 

Mr. KRISBERG. Research on that—— 

Mr. GOHMERT. Right. 

Mr. KRISBERG. I think the issue is—— 

Mr. GOHMERT. And you mentioned that in your statement. My 

time is so limited, let me just get to what my concern is. 

When you see that a non-white person is four times more likely 

to be a victim of rape or sexual assault than a white person, that 

a non-white person is three times as likely to be the victim of a 

robbery as a white person, you would have to be saying that those 

non-white people are unfairly accusing non-white people when you 

get down to the crux of those statistics. 

And my first job—you look confused. Let me tell you, my first job 

out of law school was as a prosecutor. And in a small town in east 

Texas, which I love very dearly, I was shocked when working for 

a D.A. who didn’t care what race the victim was. If they were a 

victim, then we were going to prosecute the case. 

And I was shocked to find out in my home town people would 

ask, ‘‘Why are you prosecuting these cases?’’ When I would go out 

to get witnesses, ‘‘This is Black on Black. They just have more violence. Why do you want to do that?’’ And the response I gave was, 

‘‘Because they deserve to have the protection of the law like everyone else.’’ 

So my concern is, number one, when you have 28 percent of the 

rest being African-American and 40 percent of the inmates held in 

prisons are African-Americans, that indicates there may be a problem there within the justice system that needs to be addressed, but 

the difference between 13 percent and 28 percent of the arrests 

tells me there is likely a fundamental problem underlying that. 

What is causing more minorities to be victims and point to minorities as being the perpetrators? Possibly because they are the 

perpetrators. Then a concern I have is, if we push through some 

agenda that says you cannot arrest a disproportionate number of 

minorities, then we are back to fighting the battle I did when I 

came out of law school, saying a victim has a right to be protected 

with the full power of the law, no matter what their race is. 

And we would be saying, well, yes, you are a minority, and you 

are accusing a minority of attacking you, and we are arresting too 

many minorities, so we are going to have to let your attacker go. 

Mr. SCOTT. Would the gentleman yield? 

Mr. GOHMERT. That is a concern I have, if we don’t approach this 

the right way. 

I certainly would. 

71 

Mr. SCOTT. I think, in Mr. Mauer’s former testimony, he suggested that 60 percent of the disparity could, in fact, be attributable to crime rates. And could we have him expand on that to 

see—— 

Mr. GOHMERT. I would certainly invite that. 

Mr. MAUER. And let me just echo your concerns. Yes, this is not 

just a criminal justice problem we are talking about. This is a societal problem. You know, I would strongly encourage the Congress 

and state policymakers to address why some people are more likely 

to engage in criminal behavior. That is a critically important issue. 

At the same time, it seems to me the criminal justice system 

should not exacerbate any existing disparities. If there are processing issues that are based on involvement in crime, that is the 

job of practitioners in the system, but it is also the job of the practitioners and policymakers to make sure that people are treated 

fairly, regardless of the rate at which they come in the system. And 

I think that is what we are trying to address today. 

Mr. GOHMERT. And I am pretty sure that we certainly agree on 

that. And I do appreciate the indulgence. 

Thank you, Chair. 

Mr. SCOTT. Mr. Chairman? 

Mr. CONYERS. This is a fundamental discussion here. And I am 

impressed by the attempt of Judge Gohmert to be fair, in terms of 

analyzing questions of race. And how we get to when is it unfair 

or not is very fundamental. 

Now, I don’t think anybody—I have never heard of anybody not 

wanting to protect people who suffered from violence or crime. That 

is one consideration. 

The other, Judge Gohmert, is that one explanation about these 

staggering figures that astounded you as a young man coming into 

the criminal justice system and astounds you now is that racism 

is a question that figures into all of this. 

Now, I would be very much more relieved if you tell me that a 

certain explanation, a certain amount of the explanation for these 

figures that shocked you as a young lawyer is due to racism. 

Remember, when I started my soliloquy earlier today, I said that 

we are studying about a question that is historical in nature. I 

mean, this isn’t some new phenomenon. From the beginning of this 

country, those brought unwillingly to America from Africa had a 

different status. They were brought here in bondage. 

And this isn’t a movie or a novel. This is what happened. They 

were brought here as indentured servants, but worse. They were 

brought here as slaves. This goes back to 1619, before the country 

was even formed. 

So put that into your intellectual processes and remember that 

out of that came an attitude about people that didn’t come from 

Europe, that didn’t come from England, were in a different category. They had no rights. 

And it wasn’t just a view of some people. It was embedded into 

the law. Think about this with me. Many of the founders of our 

great country were slaveholders. When they wrote about the freedom and the importance of liberty, they were talking about their 

fellow white Americans. They weren’t talking about the people that 

were held in chains and were producing some of the great things 

72 

in this country. The agricultural system couldn’t have existed. That 

is why the South had to go to the extent of breaking away from 

the union, because there was no way that their whole system could 

exist without somebody donating their labor and ultimately their 

life to sustain their economic circumstance. 

Then, to make it more complicated, the laws kicked in. What 

were the laws, Mauer? The law said, if you are a person of color, 

you have no rights. The courts kicked in. The courts said that you 

not only had no rights economically or socially, but you had no 

rights legally that anybody was bound to recognize or give cognizance to. 

So this was—we are talking about something deep. And there 

came a time in our great country when they said that, rather than 

even discuss this subject, we would be better off separating. Let’s 

form two countries. All you folks that don’t want to continue slavery on which this country was built, form another country. 

And up until World War II, that had cost more lives—that war 

took more lives and left more people, families, at one another. 

There were violent states of opinion. 

And then we went through this period of reconstruction after the 

war was won. And by the way, it was barely won. I mean, this 

wasn’t any—like we went out and just the won the war and settled 

it. It was barely won. It took Lincoln every bit of his resources for 

us to emerge victorious. 

And so then the first people of color ever elected to serve in government came about during reconstruction, and they came out of 

the South, because that is where most people formally held in subjugation came from. And then you had the reconstruction. This is 

all legal now. Remember, no rights. Supreme Court, nobody has 

any responsibility to give any rights to anybody of color. 

And then after reconstruction, you had this great electoral contest in 1877. What happened then? Hayes and Tilden, deadlocked. 

There were so many irregularities on both sides that nobody could 

figure out who really won the election. They met in a hotel here 

in Washington. I think it was at Ninth and Eighth Street. I wasn’t 

there, by the way. [Laughter.] 

But it was—the hotel has been removed for many generations. 

But they met in this hotel, and finally somebody said, if you will 

remove the troops from the South, we will give you the presidency. 

That is what one political party said to the other. That was as simple as that. Get the troops out of the South. 

And finally, the one party conceded and said, okay, we will do 

it. What happened then? Well, that was the end of reconstruction. 

They drove physically—anybody in elected office of color as driven 

out of the Senate, the Congress, any powerful positions that they 

may have accrued at the state or Federal level. And that was the 

end of it. 

The Klan emerged and the organizations that perpetuated violence. You have read about the fact that lynchings occurred with 

such frequency that they were family occasions. People would take 

their family to observe a lynching. It was an event. Little kids, they 

had pictures back then or paintings of people watching someone 

being lynched. 

73 

And they went through this terrible period in American history 

where there weren’t—now, all this is building up generation after 

generation. Understand why this is such a big problem now. It is 

much better understood and it has been corrected, but nowadays, 

what have we come through? 

I can remember—I mean, I wasn’t here then, and I can’t remember it, but I know in history when the first African-American came 

back to the Congress. Who was the first African-American? Who? 

The priest, yes, Chicago, right. One person was—was it 1919 or 

something like that? One person came in. And then, a little later 

on, you got Mitchell from Chicago and Adam Powell from New 

York. And then, finally, you got a few more started coming in. 

But this is an important part of our history that we have got to 

understand in speaking to the problem here of, why is there such 

a discrepancy? It is because color was a factor, regrettably, and 

that is what we have been looking at and examining and not always arriving at the same conclusion, but most people realize. 

And I do remember this, when Clarence Mitchell, as the head of 

the NAACP, used to have an anti-lynch law that he brought to 

make it a crime to lynch Black people. And I know who in the Senate would pocket it every time. His name was Lyndon Johnson. He 

was the leader of the Senate, and he said, ‘‘No way.’’ Year after 

year after year, they came there and made that plea. 

And so when you say, ‘‘Why is there a disparity?’’ There has always been a disparity. What we have been doing is examining the 

disparity, and it has been less. The disparity is less. 

We just signed a hate crimes bill last night at 4:30 one mile from 

here, on 1600 Pennsylvania Avenue, hate crimes. And so when we 

come here talking about why are more Blacks in prison, it is because the system is set up that way. Mauer and Krisberg and 

McKenzie and other organizations have been—their organizations 

have spent—that is all they have been doing. 

A kid was just executed, what was it, 2 days ago in Texas, a person of color, no direct evidence. His life was taken. They went up 

to the Supreme Court of the United States, and Scalia said, no, we 

don’t care. The state has decided this. The state is not for it. And 

we are not giving him an appeal, and they executed him 2 hours 

after Scalia made that decision. 

So here we are today, still figuring this out. We have got a 

former attorney general from the State of California. Goodness 

knows what he has been through in his career, and a trial lawyer, 

as well. And what has Marc Mauer been doing all of his life? 

Charles Sullivan, CURE, he has been coming to these hearings as 

long as I can remember, almost. 

And I would like to, just in closing, have enough time to ask, 

with your indulgence, sir, that Marc Mauer have just a word about 

the historical relationship of the issue before this great Subcommittee. 

Mr. MAUER. Well, Congressman, I couldn’t do anything nearly as 

eloquent as you do, so let me just say, briefly, you know, it strikes 

me, as I say in the opening of my written testimony, we are at a 

point today where, according to research from the Justice Department, one of every three Black males born today can expect to go 

74 

to prison in his lifetime. One of every six Hispanic males can expect to go to prison in his lifetime, if current trends continue. 

It seems to me, regardless of whatever differences we may have 

and how we view the causes of that problem, that is a disgraceful 

situation that we are in. Some people may blame this on family 

functioning. Some people may think it is a racist criminal justice 

system. It seems to me we have an obligation to make sure that, 

in fact, does not become the future for children born today. 

Mr. CONYERS. And all of it isn’t intentional. After a system gets 

used to doing things these ways—what do you think driving while 

Black was all about? There were places that—in Detroit—I am 

born and raised in Detroit. We had a city that incidentally I now 

represent, in the suburb, that if you were in that city driving 

through it, you would expect to be stopped by the police. It was 

Ford Motor Company that hired a lot of people that came from the 

South to Detroit to work. 

And it got so that the people going to work, Dan, knew the police 

officer that pulled them over, and they would greet each other. You 

are just checking, because you did not come into that city unless 

you were going to work and going back out. You could come to 

work. You would go back. 

But if you got stopped by the police so frequently that the policemen know you and you knew the officer that was apprehending 

you, that was just the way it was then. That is not in the South. 

That wasn’t Texas or Mississippi. That was a Detroit suburb of 

Michigan. 

And I would like Barry Krisberg to give me just one little 

thought that is going through his head now, as this discussion 

ends. 

Mr. KRISBERG. Well, I would like to focus in on one statistic—— 

Mr. CONYERS. Push your button. 

Mr. KRISBERG [continuing]. In this report—oh, I am sorry. I want 

to focus on one statistic in this report, which is that 75 percent of 

all the persons under age 18 that we put in adult prison in this 

country are African-American males. That statistic breaks my 

heart, and I think it should break all our hearts. 

Mr. CONYERS. What does that mean, when you say that, 75 percent of the youngsters? 

Mr. KRISBERG. Yes, of persons under age 18 who are sent to 

adult prisons are African-American males. And when we think 

about the consequences of adult incarceration for children and everything we know about that, that this would so overwhelmingly 

fall on one group in the population, it should give us great pause. 

And my mentor in the field a long time ago said, you know, that 

the fundamental principle was, if this was your kid, if this was 

your grandchild, what would you want? And I think when we look 

at these practices of very young children, you know, in Florida, 6- 

year-olds being arrested by the police and what have you, we can’t 

imagine that these behaviors would go on if those young children 

were white kids. 

Mr. CONYERS. But what does that prison sentence do? You know, 

there is nothing more criminalizing in our society than being in 

prison. I mean, when you go to—you can go to prison, and when 

you come out, you have been criminalized. You want revenge. You 

75 

have been there with people that are bad. And that changes and 

starts a new life going down for you. 

Mr. SCOTT. If we are going to try to get in the other questioners 

before we have to go to vote, so the—— 

Mr. CONYERS. Thank you very much, Mr. Chairman. 

Mr. SCOTT. Have you got a—did you ask a question? Have we got 

a quick answer to it? 

Mr. CONYERS. No, I am okay. Thanks. 

Mr. SCOTT. Thank you. 

We will go to the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. And I appreciate your reflections on both your personal experience and historical experience of the United States. 

I would just like to mention in the record, I believe the first African-American Member of Congress was a Republican from South 

Carolina, Joseph Rainey. I hope that we don’t forget that. 

And yesterday, we had the opportunity to honor Senator Brooke 

from Massachusetts, the first African-American senator since reconstruction, who was a Republican and someone that I worked 

with on a national committee. 

I am—I don’t know—somewhat troubled by some of the testimony here today. When I was attorney general of California, we 

had the responsibility of handling all criminal appeals from the 

time the conviction came in, as long as it was a felony, and I can 

just tell you, if I had any evidence whatsoever of racial bias among 

any of my prosecutors, they would have been fired immediately, if 

not prosecuted. 

If we found that an office were operating in that way, we would 

have taken over the office, because I had the authority to do that. 

If we found that a case was infected by race, we felt duty bound 

to recognize that in our handling of the appeal. 

But one of the most emotional things that ever happened to me 

as attorney general was going to an inner-city school in Los Angeles and talking about a school safety program, which we were trying to promote, and when it was all over, having a young girl, African-American student at the high school, saying to me, ‘‘Why is it 

that you folks don’t show up until after someone has been killed?’’ 

Because a young man in her high school had been killed. And 

she wasn’t looking at me as a white guy. She was looking at me 

as the attorney general of California and asking me why we 

weren’t doing more to give security to her school. 

Mr. Mauer, you say that we have gone from 80 percent to 60 percent now as a basis for why people are in prison by racial identification because of how it coincides with victimization. I mean, one 

of the things that bothers me about part of the discussion here is, 

for instance, we just had a major takedown of a major gang in Los 

Angeles. I believe there were a thousand officers involved in it. It 

was taking down—it happens to be a Mexican street gang in Los 

Angeles that is terrorizing a community. 

Every one of the people arrested, I believe, is a Mexican-American or Mexican national. And they are in the hundreds. And if you 

would then step back and look at it from a racial analysis, you are 

going to say, ‘‘My god, they are overwhelmingly going after MexiVerDate Aug 31 2005 14:41 May 05, 2010 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\102909\53093.000 HJUD1 PsN: 53093
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can-American kids and young adults.’’ But they are going after 

gangs. 

I just sometimes think, as we look at this—and I appreciate all 

the testimony we have had here—we do not give enough attention 

to the victimization rates. You now have law enforcement, starting 

with Bratton in New York and then coming to Los Angeles, and 

now other police departments, now use a computerized analysis on 

a daily basis to see where the hotspots are. I suppose, if you are 

talking about street crime, more of the hotspots take place in the 

inner cities and other places. That is unfortunate, but I think that 

is a fact. 

Are we saying that, because of the disproportionate impact of the 

people involved in the crimes there and, therefore, the arrests, if 

they are done on an objective basis, that somehow that is racial in 

nature? And so I just wonder what the implication is of some of the 

studies that you are suggesting we do and the analysis that we do. 

Would it be wrong for a police department to use that analysis 

as they do now, to try and go to the hotspots where the violent 

crime is taking place, number one? And, number two, violent crime 

visits minority victims far more than it does white victims. That 

happens to be an unfortunate fact in life. 

If I am a police chief, if I am a prosecutor, is it inappropriate for 

me to have an emphasis on dealing with violent crime over other 

crimes because in my judgment it has a more serious impact on the 

community that I serve? Or I will hear from a young girl at a high 

school saying, ‘‘Why do you wait until someone is killed before you 

do it?’’ And my response would be, ‘‘Because I was focusing on 

white-collar crime instead of this.’’ 

I mean, I think there are judgments that are made that are not 

racial in intent, in motivation or anything else, except if you were 

saying you are responding to the legitimate concerns of a minority 

community. And that is one of the concerns I have. 

And, frankly, I will just say this. It is not a question; it is a 

statement. If we don’t have the guts in this Congress to stand up 

to major unions who stop us from trying to answer to the people 

in the inner city who are crying out for better schools, and we don’t 

give them options, like charter schools, and, frankly, we don’t have 

the guts to say we will give you a voucher, you mother or father 

in the inner city, you don’t have the income to be able to send your 

kid to a better school, we are going to give it to you, but if we don’t 

have the guts to do that, frankly, I don’t know how we can look 

those communities in the face and say, ‘‘Yes, we are really concerned about the long-term interest of your communities. We are 

concerned about those people going to prison in disproportionate 

numbers.’’ 

When we are not concerned about them failing school in disproportionate numbers, going to lousy schools in disproportionate 

numbers, going to schools with violence in disproportionate numbers, how could I—I don’t know how I could have learned going to 

school if I had to fear going into that classroom that somebody was 

going to have a knife or have a gun or I am going to walk out. 

Or in the city of Richmond this last weekend, a young girl gets 

raped for 21⁄2 hours, a gang rape, and people sit there and do nothing. I know nothing of what the racial make-up of her attackers 

77 

are, but, doggone it, that kind of thing that we are allowing to go 

on in our schools kills anybody. I don’t care what race you are. And 

unless we get serious about that, we can do all the statistics we 

want, but we are not going to help that young child in the school. 

And I am sorry I get carried away on this—— 

Mr. CONYERS. Mr. Chairman—— 

Mr. LUNGREN [continuing]. But I just hear these people talking 

to me personally about what they see. And I didn’t think I was 

doing the wrong thing by saying, yes, we are going to send cops in 

there. Yes, we are going to prosecute those guys. And, yes, I am 

going to make sure they are put away. 

Mr. SCOTT. I don’t mean to cut the gentleman off, but we are trying to get—as a courtesy to the gentleman from Tennessee, who 

also would like to ask questions before we have to adjourn, the gentleman from—— 

Mr. CONYERS. I just wanted to congratulate Dan Lungren for 

that exposition and think that these may be some matters that this 

Subcommittee that we are all on could begin to inquire in a way, 

Dan. Would you concur? 

Mr. SCOTT. And I would also point out that there are proven costeffective alternatives to the disproportionate incarceration that not 

only reduce crime, but do some of the things that the gentleman 

from California suggested. 

The gentleman from Tennessee? 

Mr. COHEN. Thank you, Mr. Chairman. 

Mr. Mauer, in his testimony, mentioned that African-Americans 

constitute 14 percent of current drug users, but they constitute 34 

percent of people arrested and 53 percent of people sentenced to 

prison for such drug offenses. There are other studies that are 

similar that I referred to in my testimony. 

Mr. Reams, you talked about victimization and Blacks being the 

victim of more crimes, African-Americans, et cetera. How about 

victimless crimes? Why is it that African-Americans and Hispanics 

are more likely to be arrested and incarcerated for victimless 

crimes? Why is that? 

Mr. REAMS. Well, I could think it partially depends on what your 

definition of victim is. 

Mr. COHEN. Cannabis and crack and cocaine. 

Mr. REAMS. Well, crack cocaine and the sale of drugs in the inner 

city wreaks havoc on those communities, so—— 

Mr. COHEN. It doesn’t wreak havoc on people elsewhere? Are we 

not protecting them from themselves so they—because they become 

dependent on these drugs? 

Mr. REAMS. Well, I think what we are trying to accomplish—and 

I think more prosecution officers are trying to accomplish—is to 

protect the community. If that means arresting somebody who is 

selling crack cocaine—— 

Mr. COHEN. Let me ask you this. How about cannabis? Are we 

protecting the Black community from people that are buying 

donuts? 

Mr. REAMS. Well, I think we are. You know, if you talk to—I was 

in Arizona recently. And the drug task force and ICE put on a presentation in Arizona, and it is the importance of marijuana that 

pays for all other smuggling in that area, including the smuggling 

78 

of human beings who are dragooned into bringing the drugs across. 

They think they are paying their way in the United States. 

Mr. COHEN. That is sale. That is not possession. We are talking 

about possession. 

Mr. REAMS. Well, it is all related, you know, to the possession. 

You come into possession of it because you bought it from a dealer. 

The dealer is wreaking havoc on that community. 

Mr. COHEN. But whites possess it more than Blacks, but they 

don’t get arrested more. 

Mr. REAMS. I am not sure about that statistic, but we—you 

know, it is not a system where we go out and—— 

Mr. COHEN. So, Mr. Reams, you are telling me that the reason 

we enforce these marijuana laws is because those are the way they 

make money to do other crimes? 

Mr. REAMS. Well, that is part of it. And—— 

Mr. COHEN. So why don’t we decriminalize it? And then we will 

take the money away from them, and they can’t do these other 

crimes, and then we will protect everybody. 

Mr. REAMS. Well, you know, that is a judgment you will have to 

make. I mean, my obligation is to enforce the law that you write 

to protect the community as best I can. If you decide to decriminalize it, then that is a decision you make and we carry out. 

Mr. COHEN. But you make a decision on which crimes you 

prioritize in prosecuting, because you can’t prosecute everything. 

Mr. REAMS. Well, that is true. 

Mr. COHEN. That is right. And let me—— 

Mr. REAMS. We try to, obviously, prioritize the violent crimes in 

the community. 

Mr. COHEN. In your statement, you said that you were afraid 

that the Justice Act was predetermined what it was going to state. 

But in your statement, you say, ‘‘State and local prosecutors are 

blind in matters of race, color, gender, nationality, and sexual orientation. They prosecute offenders under the rule of law only.’’ 

That is a pretty black-and-white statement. How do you know 

that every prosecutor, including those maybe in Selma, Alabama, 

or Americus, Georgia, are blind to sexual orientation, race, color, 

and gender? 

Mr. REAMS. Well, I can tell you that that is their obligation to 

do that. Are there people in that system, any system in this country, that are racists? Probably, unfortunately, as Mr. Conyers 

pointed out—— 

Mr. COHEN. In your statement, you agreed that the crack cocaine 

sentencing laws are wrong and they should be changed, but you 

also say, ‘‘It is important to note that when the crack epidemic was 

at its peak, it was prominent Members of the Congressional Black 

Caucus, many of whom now are pushing for lighter punishments, 

who called for current sentencing guidelines.’’ 

What difference does it make who called for the changes in the 

laws? Isn’t the only concern we have today to make the law right? 

Mr. REAMS. Well, yes, that is your concern, to make the law 

right. But I think, you know, it is not lost on people that it is not 

static. You keep changing it. And, as Mr. Gohmert pointed out—— 

Mr. SCOTT. You know, the 15 minutes is up. 

79 

Mr. COHEN. Okay. Better go in. So I thank you for the time, and 

I thank you for the opportunity to question the gentleman. 

Mr. SCOTT. I apologize to the gentleman and would ask people 

to return quickly right after the votes for markup. And I would like 

to thank our witnesses for the testimony today. Members may have 

additional questions we will forward to you and ask that it may be 

answered as promptly as possible so that the answers can be made 

part of the record. 

I would ask unanimous consent that the report from the sentencing commission on crack and power disparity be made part of 

the record. 

The hearing record will remain open for 1 week for the submission of additional materials. 

And without objection, the Committee stands adjourned. 

[Whereupon, at 11:34 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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REPORT ENTITLED ‘‘CREATED EQUAL: RACIAL AND ETHNIC DISPARITIES IN THE US 

CRIMINAL JUSTICE SYSTEM,’’ SUBMITTED BY BARRY KRISBERG, PRESIDENT, NATIONAL COUNCIL ON CRIME AND DELINQUENCY, JACKSONVILLE, FL 


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f 


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REPORT ENTITLED ‘‘REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY,’’ SUBMITTED BY THE HONORABLE ROBERT C. ‘‘BOBBY’’ SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND CHAIRMAN, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY


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Æ 


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