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36–343 PDF 2007

MANDATORY MINIMUM SENTENCING LAWS— 

THE ISSUES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JUNE 26, 2007 

Serial No. 110–110 

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 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

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

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

MARTIN T. MEEHAN, Massachusetts 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III) 

C O N T E N T S 

JUNE 26, 2007 

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 Walter Jones, a Representative in Congress from the State 

of North Carolina ................................................................................................. 1 

The Honorable J. Randy Forbes, a Representative in Congress from the 

State of Virginia, 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 ..................... 4 

WITNESSES 

Mr. Ricardo H. Hinojosa, Chair, United States Sentencing Commission, Washington, DC 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Paul G. Cassell, Judge, Judicial Conference of the United States, Washington, 

DC 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 45 

Mr. Richard B. Roper, III, United States Attorney, Northern District of Texas, 

Dallas, TX 

Oral Testimony ..................................................................................................... 102 

Prepared Statement ............................................................................................. 104 

Mr. Marc Mauer, Executive Director, The Sentencing Project 

Oral Testimony ..................................................................................................... 114 

Prepared Statement ............................................................................................. 116 

Mr. T.J. Bonner, President, National Border Patrol Council (AFGE), Campo, 

CA 

Oral Testimony ..................................................................................................... 128 

Prepared Statement ............................................................................................. 130 

Ms. Serena Nunn, J.D., Ann Arbor, MI 

Oral Testimony ..................................................................................................... 140 

Prepared Statement ............................................................................................. 141 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 165 

(1) 

MANDATORY MINIMUM SENTENCING LAWS— 

THE ISSUES 

TUESDAY, JUNE 26, 2007 

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

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:30 a.m., in Room 

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

Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Johnson, Jackson Lee, Davis, 

Forbes, Gohmert, Coble and Lungren. 

Also present: Representatives Conyers, Ellison and Jones of 

North Carolina. 

Staff Present: Bobby Vassar, Subcommittee Chief Counsel; Rachel King, Majority Counsel; Veronica Eligan, Professional Staff 

Member; Michael Volkov, Minority Counsel; Caroline Lynch, Minority Counsel; and Kelsey Whitlock, Minority Staff Assistant. 

Mr. SCOTT. Thank you. I would like to call the meeting of the 

Subcommittee on Crime, Terrorism, and Homeland Security to 

order. We have many excellent witnesses today. We will get to 

them as soon as possible, so I will keep my statement brief. But 

in the meanwhile we have the gentleman from North Carolina, 

Walter Jones, with us today who wanted to drop in. He is in the 

middle of another hearing and has to leave, but he wanted to greet 

us. 

Mr. JONES. Mr. Chairman, I want to thank you and the Judiciary 

Committee Chairman, Mr. Conyers, for holding this hearing. And 

the reason that I am here and my involvement is that for the 

last—since August of last year I have joined many of my colleagues 

in the United States Congress who have been concerned about the 

indictment of Border Agents Ramos and Compean and feel that 

they should never have been brought to trial. So therefore I hope 

that this hearing today will bring many, many sunshine to many 

aspects of the law itself, as well as the fact that these men, in our 

opinion, should not have been prosecuted by the Federal D.A. In 

west Texas. And thank you for letting me say thank you. 

Mr. SCOTT. Thank you. And thank you for being with us today. 

One of the motivations for today’s hearing, as has just been stated, is the conviction and sentencing of the two Border Patrol 

agents, Ramos and Compean, who were sentenced to 11 years and 

1 day and 12 years of incarceration respectively. Regardless of 

2 

what you think of these two agents or whether they were rightfully 

prosecuted, the fact remains that the U.S. District court was restrained when it came to sentencing the two men. The judge had 

to sentence them to at least 10-year minimum sentences. 

Mandatory minimum sentences have been studied extensively 

and have been shown to be ineffective in preventing crime. They 

have been effective in distorting the sentencing process. They discriminate against minorities in their application, and they have 

been shown to waste the taxpayers’ money. In a study, a report entitled, quote, Mandatory Minimum Drug Sentences: Throwing 

Away the Key or the Taxpayers’ Money, the RAND Corporation 

concluded that mandatory minimum sentences were less effective 

than either discretionary sentencing or drug treatment in reducing 

drug-related crime and far more costly than either. 

And the Judicial Conference of the United States has reiterated 

its opposition to mandatory minimum sentencing over a dozen 

times to this Congress, and noting that they severely distort and 

damage the Federal sentencing system, undermine the sentencing 

guideline regiment established by Congress to promote fairness and 

proportionality, and destroy honesty in sentencing by encouraging 

charge and fact plea bargains. 

The Judicial Center, in its report entitled General Effects of 

Mandatory Minimum Prison Terms: A Longitudinal Study of Federal Sentences Imposed, and the Sentencing Commission, United 

States Sentencing Commission, in its study entitled Mandatory 

Minimum Penalties in the Federal Criminal Justice System, found 

that minorities were substantially more likely than Whites under 

comparable circumstances to receive mandatory minimum sentences. The Sentencing Commission also reflected that mandatory 

minimum sentences increased the disparity in sentencing of like 

defendants because they were not applied in 40 percent of the 

cases, and at the same time increased the cost as a result of the 

rate of trials rising from 13 percent of the defendants to 19 percent 

of the defendants with no evidence that mandatory minimum sentencing had more crime reduction impact than discretionary sentences. 

Former Chief Justice Rehnquist spoke often and loudly about 

these wasteful cost increases, and he said mandatory minimums 

are perhaps a good example of the law of unintended consequences. 

There is a respectable body of opinion which believes that these 

mandatory minimums impose unduly harsh punishment for firsttime offenders, particularly for mules who played only a minor role 

in drug distribution in a drug distribution scheme. Be that as it 

may, the mandatory minimums have also led to an inordinate increase in the prison population and will require huge expenditures 

to build new prison space. 

He went on to say that mandatory minimums are frequently the 

result of floor amendments to demonstrate emphatically that legislators want to get tough on crime just as frequently as they do not 

involve any careful consideration of the effect they might have on 

the sentencing guidelines as a whole. 

The Federal Judicial Conference has studied mandatory minimums and has written the House Judiciary Committee over a 

dozen times in the last 10 years urging us not to adopt the mandaVerDate Aug 31 2005 15:23 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\062607\36343.000 HJUD1 PsN: 36343
3 

tory minimum sentences, stating that they distort attempts to enforce an orderly and proportionate sentencing regimen in the Federal system, and they violate common sense by requiring vastly different defendants to get identical sentences simply because they 

technically violated the same section of the criminal code. And we 

know that the title of the offense often is not a good description of 

the seriousness of the crime. 

It also creates a bizarre situation where the decision of when to 

release a defendant is made not at a parole hearing just before the 

person is released and you can review the sentence, what he has 

done to better himself, where he is going to go and what he is going 

to do. It is not even made at the sentencing where the judge makes 

a decision based on the seriousness of the crime and the particular 

defendant before him and all the facts in evidence in that case. But 

it is made when the legislature passes the criminal code. That is 

of the three opportunities, I guess, about the worst time to make 

that decision. 

With that thought I would lead to my distinguished colleague, 

my colleague from Virginia, the Ranking Member of the Subcommittee, Mr. Forbes from the Fourth Congressional District of 

Virginia. 

Mr. FORBES. Thank you, Chairman Scott. And I appreciate your 

scheduling this hearing so that we can fairly assess the importance 

of mandatory minimum sentences in the criminal justice system. 

Mandatory minimum penalties are an effective means to ensure 

consistency in sentencing and to promote the public safety by deterring others from committing crimes and preventing recidivism. 

The need for mandatory minimum penalties has taken on a greater 

significance given the advisory nature of the Federal sentencing 

guidelines. The Supreme Court’s 2005 decision in United States v. 

Booker invalidated the mandatory sentencing requirement of the 

sentencing guidelines. The U.S. Sentencing Commission’s March 

13, 2006, report on Booker’s impact identified substantial concerns 

about unrestrained judicial discretion. Such discretion undermines 

the very purpose of the Sentencing Reform Act to provide certainty 

and fairness in meeting the purposes of sentencing and avoiding 

unwarranted sentencing disparities among defendants with similar 

records who have been found guilty of similar criminal conduct. 

The Sentencing Commission’s data updated through the second 

quarter of 2007 shows continuing sentencing disparities, including 

a steady rate of nongovernment-sponsored below-guideline sentences for defendants; geographic disparities among the judicial circuits; and sentencing reductions in a significant number of drugtrafficking cases, immigration cases, firearms offenses, pornography and prostitution offenses and white collar. Advisory sentencing guidelines that result in lower penalties for the worst offenders only increase the significance of mandatory minimum sentences. 

Beginning in 1984, Democrat Congresses passed important mandatory minimums, along with other sentencing reforms, including 

the Federal sentencing guidelines. Prior to the 1984 Sentencing Reform Act, Federal judges had unfettered discretion to sentence a 

criminal defendant as they pleased. This unbridled discretion resulted in enormous disparity in sentences for similarly situated deVerDate Aug 31 2005 15:23 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\062607\36343.000 HJUD1 PsN: 36343
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fendants. Senator Kennedy, one of the principal advocates of the 

Federal sentencing guidelines, stated that the existing sentencing 

disparity was a national scandal. He noted that the Federal Criminal Code invites disparity by conferring unlimited discretion on the 

sentencing judge. 

The shameful disparity in criminal sentences imposed in the Federal courts is a major flaw which encourages the potential criminal 

to play the odds and beat the sentence. Sentencing disparity is unfair. Aside from ensuring consistency in sentencing, mandatory 

minimum penalties provide prosecutors the tools to secure the cooperation of criminals to dismantle criminal enterprises, gangs and 

other organizations. Without such a penalty, for example, gang 

members will not cooperate with law enforcement. They will simply 

turn their back on cooperation, do the time, and gang violence will 

continue to expand and threaten our communities. 

While some complain about mandatory sentencing schemes there 

is research to show that such penalties have been a significant factor in the reduction of violent crime over the last 30 years. Some 

would say that is coincidence. Statistical researchers have shown 

to the contrary. Increases in prison population have incapacitated 

recidivists and deterred others from committing crime. Professor 

Steven Levitt conducted a study to show that a significant part of 

the decline in violent crime is attributable to increased incarceration. In a more recent study, Joanna Shepherd demonstrated that 

truth-in-sentencing laws have a dramatic impact on reducing serious violent crimes. Other studies confirmed the obvious point. Incarcerating an offender prevents him from repeating his crimes 

while he is in prison. 

Balanced against these reductions in crime from deterrence and 

incapacity, there is significant cost savings to society from reducing 

the occurrence of crime. Mandatory minimum penalties, however, 

need to be specifically tailored and fairly applied. The Sentencing 

Commission’s recent study on the disparity between crack cocaine 

and powder cocaine demonstrated again the need for reform in this 

area. And I commend the Commission for its study and look forward to hearing more about it and possible solutions. 

I am also glad that we are taking the time to examine the Government’s prosecution of the Border Patrol agents’ case. The controversy surrounded this prosecution is significant. I have many 

questions and concerns about the manner in which the Government 

conducted this prosecution. To me the question is not the penalties 

that were imposed in that case, but rather whether the case should 

have been brought at all. 

Mr. Chairman, I look forward to hearing from today’s witnesses, 

and I yield back the balance of my time. 

Mr. SCOTT. Thank you. 

Do any of the other panelists have a statement? 

Mr. CONYERS. Mr. Chairman. 

Mr. SCOTT. I recognize the Chairman of the full Committee Mr. 

Conyers. 

Mr. CONYERS. Thank you so much. I want to commend you and 

the Ranking Member, both from Virginia, for bringing us together 

and to bring such a distinguished set of panelists. We don’t usually 

5 

have two judges, a U.S. attorney and a future attorney all with us 

at the same time. 

Marc Mauer is well known in his work here. He has been before 

the Committee perhaps more than anyone else. This is a—of all 

cases, I can’t understand—we could have a hearing on this case, 

and I know it is on appeal, but there are circumstances in it that 

are so incredible that I find it breathtaking. 

I suppose the main reason we are here is because we have been 

trying to get mandatory minimum sentences in some kind of a different position, and so I just can’t fathom why Border Patrol agents 

working for the Government, doing their job, end up being charged 

and prosecuted under a law that to me seems to be very inspecific. 

And, of course, the case is under appeal. But since it is before us, 

I think that it is something that we really have to deal with. 

I find that mandatory sentences—and I join both the Chairman 

and the Subcommittee Ranking Member—that during mandatory 

minimums we have witnessed a fivefold increase in the number of 

women currently entangled in our criminal justice system as a result of their minimal involvement in some drug-related crime. In 

two States we have almost 20 percent of the people incarcerated 

are serving mandatory minimum terms. We are incarcerating people at a rate higher than any other Nation on the planet. And so 

this brings together some very important considerations. 

I want to thank our colleague from North Carolina, Congressman 

Jones, for having brought this matter to the attention of the Committee. Walter Jones has been unrelenting in his support for hearings in this Committee. He is chairing another meeting, and he will 

be back shortly, I’m sure. And so I thank the Committee for allowing me to welcome all of the witnesses and ask unanimous consent 

that my remarks be included in the record. 

Mr. SCOTT. Thank you. We have a distinguished panel of witnesses here to help us consider the important issues before us. And 

we have been joined by the gentleman from Georgia Mr. Johnson. 

I thank you. 

Our first witness will be the Honorable Ricardo H. Hinojosa, 

Chair of the U.S. Sentencing Commission since 2003 and judge of 

the U.S. District Court in the Southern District of Texas since 

1983. He is a graduate of Harvard Law School. And before becoming appointed judge, he was in private practice in McAllen, Texas. 

Our second witness is the Honorable Paul C. Cassell, judge of the 

U.S. District Court for the District of Utah since May 2002. He is 

a graduate of Stanford Law School. Prior to that he was a professor 

at the Utah College of Law where he worked in many cases, and 

particularly well known for his work with the National Victims 

Constitutional Amendment Network. 

Our next witness is Richard B. Roper, III, U.S. District Attorney, 

Northern District of Texas. In Dallas, Texas, he served as the assistant U.S. attorney since 1987 until he was sworn in as interim 

U.S. attorney on June 29, 2004. Prior to that he served as the 

Tarrant County assistant district attorney for 5 years. He received 

his law degree from Texas Tech. 

Our fourth witness is Marc Mauer, executive director of the Sentencing Project, a national nonprofit organization engaged in research and advocacy on criminal justice issues. He has been enVerDate Aug 31 2005 15:23 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\062607\36343.000 HJUD1 PsN: 36343
6 

gaged in this work for 30 years and has authored two books and 

many journal articles on various aspects of crime policy. He received his B.A. From the State University of New York in Stony 

Brook, and has a master’s in social work from the University of 

Michigan. 

Next is T.J. Bonner, who is the national president of the National Border Patrol Council of the American Federation of Government Employees of the AFL-CIO. He represents the concerns of approximately 11,000 front-line Border Patrol employees. 

And lastly we have Serena Nunn. She served more than a decade 

in Federal prison for her participation as a low-level nonviolent 

conspirator in a cocaine sale organized by her boyfriend. Her case 

received attention in the Minneapolis Star Tribune, which featured 

her in an article about mandatory minimum sentencing. A young 

lawyer brought her case to the attention of President Clinton, who 

commuted her sentence on July 7, 2000. After being released from 

prison after more than a decade, she has finished her bachelor’s degree at Arizona State University and then was accepted at the University of Michigan Law School, from which she graduated last 

year. 

Each of the witnesses’ written statements will be made part of 

the record in its entirety. I would ask that each witness summarize 

his or her testimony in 5 minutes or less. To help stay within that 

time, there is a timing device at your table. When 1 minute is left, 

the light will switch from green to yellow and then finally to red 

when your 5 minutes are up. 

We will now begin with our witnesses. Judge Hinojosa. 

TESTIMONY OF RICARDO H. HINOJOSA, CHAIR, UNITED 

STATES SENTENCING COMMISSION, WASHINGTON, DC 

Judge HINOJOSA. Chairman Scott, Ranking Member Forbes and 

Members of the Subcommittee, I appreciate the opportunity to testify before you today on behalf of the United States Sentencing 

Commission regarding mandatory minimum sentencings generally 

and Federal cocaine sentencing policy specifically. My written testimony provides information on Federal statutory mandatory minimum sentencing compiled from the Commission’s fiscal year 2006 

data file. My testimony does not focus on any particular case. The 

Commission does not generally comment on individual cases, particularly when pending appeal. 

The Commission firmly believes that the sentencing guideline 

system remains the best mechanism for assuring that the statutory 

purposes of sentencing as set forth in 18 U.S.C. Section 3553(a) are 

met, and it has worked consistently with Congress to identify alternatives within the guideline system in lieu of mandatory minimums. 

The Sentencing Reform Act of 1984 specifically directed the Commission to develop guidelines that would achieve those statutory 

purposes. And as the Supreme Court last week recognized in Rita 

v. United States, ‘the result is a set of guidelines that seek to embody the Section 3553(a) considerations both in principle and in 

practice.’’ 

The Commission identified at least 171 mandatory minimum provisions in Federal criminal statutes. In fiscal year 2006, of the 

7 

60,627 Federal offenders for which the Commission received sufficient documentation to conduct this analysis, 20,737 offenders or 

29.8 percent, were convicted of a statute carrying a mandatory 

minimum penalty. Of the 33,636 counts of conviction that carried 

a mandatory minimum, 94.4 percent were for drug offenses and 

firearms offenses. Offenders other than Whites comprise 74.0 percent of offenders convicted of a statutory mandatory minimum penalty compared to 70.9 percent of those offenders in the overall offender population. Black offenders were the only racial or ethnic 

group that comprised a greater percentage of offenders convicted of 

a statutory mandatory minimum penalty, which was 32.9 percent, 

than the percentage in the overall offender population, which was 

23.8 percent. 

To gauge the demographic impact of mandatory minimums, however, it proved helpful to extract the Federal immigration caseload 

from the analysis. Immigration offenders comprise 23.8 percent of 

offenders in the overall caseload, but only 0.8 percent of the offenders convicted of a statute carrying a mandatory minimum sentence. 

The demographic data excluding immigration cases shows that Hispanic offenders comprise 38.1 percent of the nonimmigration offenders convicted of a statutory mandatory minimum penalty, but 

29.7 percent of the overall offender population. And Black offenders 

comprise 33 percent of the nonimmigration offenders convicted of 

a statutory mandatory minimum penalty, but 29.8 percent of the 

overall offender population. 

Many offenders convicted of a statute carrying a mandatory minimum are being sentenced without regard to and below the mandatory minimum because of a substantial assistance provision under 

18 U.S.C. Section 3553(a) and, for drug offenders, because of the 

substantial assistance provision and/or the safety valve provision 

under 18 U.S.C. Section 3553(f). Of the 18,987 mandatory minimum offenders for whom the Commission had sufficient information for the analysis, 13.6 percent, or 2,591 offenders, were sentenced without regard to and below the mandatory minimum because of the statutory substantial assistance provision. Of the 

16,334 drug mandatory minimum offenders for whom the Commission had sufficient information for the analysis, 7,812 offenders, or 

47.8 percent, were sentenced without regard to and below the mandatory minimum because of the substantial assistance provision 

and/or the safety valve provision; 84.2 percent of the offenders convicted of statutes carrying a mandatory minimum sentence were 

drug offenders. 

The impact of drug mandatory minimum penalties on Black offenders is largely driven by crack cocaine offenses. Black offenders 

comprise 32 percent of offenders convicted of drug mandatory minimum statutes, but 29.2 percent of the overall drug offender population. If crack cocaine cases are excluded from the analysis, Black 

offenders comprise 14.4 percent of the remaining drug cases in 

which a drug mandatory minimum applied and 14.8 percent of the 

remaining drug cases overall. 

I would like to address briefly the issue of Federal cocaine sentencing policy. This past year the Commission undertook an extensive review of the issues associated with Federal cocaine sentencing 

policy. The Commission received public comment showing almost 

8 

universal criticism of current cocaine sentencing policy. The Commission’s efforts culminated in the issuance of its fourth report to 

Congress on the subject in which the Commission again unanimously and strongly urged Congress to act promptly to address the 

problem of unwarranted crack cocaine sentencing disparity. 

On May 1, the Commission submitted to Congress an amendment to the drug trafficking guideline that would reduce the base 

offense level for all crack cocaine offenders by two levels. The Commission firmly believes this is only a partial remedy and that a 

comprehensive solution to the problem of Federal cocaine sentencing policy must be legislated by Congress. 

The Commission stands ready to work with Congress as it continues to study the issues of mandatory minimums and Federal cocaine sentencing policy. The Commission is committed to working 

with Congress to maintain a just and effective national sentencing 

policy in a manner that preserves the bipartisan principles of the 

Sentencing Reform Act of 1984. 

Thank you for the opportunity to testify so quickly before you 

today. I look forward to answering your questions, and I appreciate 

your letting me have a little bit of extra time, but that is about the 

fastest I have ever talked. 

Mr. SCOTT. Thank you, Judge. 

[The prepared statement of Judge Hinojosa follows:] 

9 

PREPARED STATEMENT OF RICARDO H. HINOJOSA


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Mr. SCOTT. Judge Cassell. 

TESTIMONY OF PAUL G. CASSELL, JUDGE, JUDICIAL 

CONFERENCE OF THE UNITED STATES, WASHINGTON, DC 

Judge CASSELL. Chairman Scott, Ranking Member Forbes and 

distinguished Members of the Subcommittee, I am pleased to be 

here today to explain the Judicial Conference’s long-standing opposition to mandatory minimum sentencing schemes. The Judicial 

Conference opposes mandatory minimum sentences because they 

block judges from considering the individual circumstances of particular cases. Mandatory minimum sentencing schemes create a 

one-size-fits-all system that requires Federal judges to ignore individual differences in particular cases. 

Testimony in today’s hearing illustrates the wide range of cases 

that come before Federal judges. You will hear testimony from Ms. 

Serena Nunn, a first-time offender who was a minor participant in 

a drug distribution scheme organized by her boyfriend. You will 

hear a representative from the Border Patrol Union talking about 

Ignacio Ramos and Jose Compean, convicted of discharging a firearm while arresting a drug smuggler on the Texas border. And I 

will talk about Mr. Weldon Angelos, a record producer from Utah 

who carried a firearm to several marijuana deals. 

Obviously these are different cases that require different approaches. They require something other than a cookie-cutter approach to justice. But mandatory minimum sentences force judges 

to treat cases such as these as essentially indistinguishable. 

When Federal judges are forced to follow mandatory minimum 

sentencing schemes, truly bizarre sentences result, which can seriously undermine public confidence in the system. In my written 

testimony I talk at length about the 55-year prison sentence I was 

required to hand down to Mr. Weldon Angelos. His crimes were 

possessing a firearm during several drug deals, and he certainly 

deserved to be punished for that. But it made no sense for me to 

give a sentence to him that was far longer than he would have received for such heinous crimes as aircraft hijacking, terrorist bombing, second degree murder, espionage, kidnapping, aggravated assault, sexual assault on a child and rape. 

These are not just hypothetical illustrations. The same day that 

I sentenced Mr. Angelos to 55 years in prison, I also had before me 

Mr. Cruz Visinaiz. He was convicted of murder for beating Clara 

Jenkins, a 68-year-old woman, repeatedly over the head with a log. 

I gave Mr. Visinaiz the maximum sentence recommended by the 

guidelines, 22 years in prison. It was hard for me then and remains 

hard for me to this day to explain to Ms. Jenkins’ family and to 

members of the public why that murderer received a far shorter 

sentence than a drug dealer who simply carried a firearm to several drug deals. Unfortunately the implicit message to crime victims with such bizarre sentences is that their suffering does not 

count for as much as the abstract war on drugs. 

The public, too, will wonder about whether their hard-earned tax 

dollars are well spent to imprison Mr. Angelos for essentially the 

rest of his life. The cost will be in the neighborhood of $1.3 million, 

and probably much more, as the taxpayers will be required to subsidize his geriatric medical treatment in prison. Every empirical 

44 

study with which I am familiar strongly suggests that the taxpayers will get far more bang for their buck by not imprisoning Mr. 

Angelos while he is a senior citizen and using the money saved to 

put additional law enforcement officers on the street or extra prosecutors into the Department of Justice. 

Because of problems like these, the public favors allowing judges 

to make the final decision about what sentence should ultimately 

be imposed. A recent poll shows that three-quarters of all Americans support allowing judges to set aside mandatory sentences if 

another sentence would be, in their judgment, more appropriate. 

On behalf of the Judicial Conference, I urge the Subcommittee to 

start the legislative process to eliminate inflexible mandatory minimum sentencing schemes. A good place to start would be by 

unstacking the 924(c) mandatory minimums that produced the irrational 55-year sentence for Mr. Angelos, that I have just discussed, as well as the 159-year sentence for Marian Hungerford, 

plus we shouldn’t forget 3 years of supervised release after that, 

that I review in my testimony. A more general solution would be 

to allow judges to go below mandatory minimum sentences whenever the sentencing guidelines advise a lower sentence. The guidelines represent the considered judgment of a congressionally created agency, the Sentencing Commission, about what sentence is 

usually appropriate and could serve as a signal that a lower sentence is necessary in a particular case. 

No doubt there are other solutions that are possible as well, but 

in closing I urge the Subcommittee to pass something that will 

allow Federal judges to impose fair and appropriate sentences in 

each individual case. Unfortunately mandatory minimum sentences 

require Federal judges to ignore obvious differences in the cases 

that come before them, to impose absurdly long sentences that lack 

any connection to a logical system of punishment, and to waste taxpayer dollars by incarcerating offenders for decades when the 

money could be better spent to fight crime elsewhere. I urge this 

Subcommittee to start the process which will end mandatory minimum injustices. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

[The prepared statement of Judge Cassell follows:] 

45 

PREPARED STATEMENT OF PAUL G. CASSELL


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Mr. SCOTT. Mr. Roper. 

TESTIMONY OF RICHARD B. ROPER, III, UNITED STATES 

ATTORNEY, NORTHERN DISTRICT OF TEXAS, DALLAS, TX 

Mr. ROPER. Good morning, Chairman Scott and Ranking Member 

Forbes. It is an honor to appear before this distinguished Committee and with these fine witnesses to discuss the Department of 

Justice’s views regarding the continued use of mandatory minimum 

sentences as a part of an overall strategy to reduce crime in our 

country. I hope to give a perspective of a 25-year prosecutor who 

has worked at both the State and Federal levels. 

Petrified neighbors, concerned parents, tragic victims, frustrated 

police officers and our fellow citizens look to us to make our community safer. I believe that tough Federal sentencing laws, including the application of mandatory minimum sentences, when combined with prevention and prisoner reentry programs, can effectively reduce crime. Essentially our tough Federal sentencing laws 

have allowed Federal and local law enforcement to selectively target violent criminal organizations and impact communities. 

If time permitted, I would highlight many successful initiatives 

in my district, the Northern District of Texas in the Dallas-Fort 

Worth area, where strong Federal statutes have been used to rid 

neighborhoods of entrenched drug-trafficking organizations and 

gangs ruining the community. My colleagues across the country 

could give many more examples. One initiative in Dallas resulted 

in a 47 percent reduction in the crime rate in that community. A 

neighbor in that area came up to me at a local weed-and-seed 

meeting and thanked me for giving her the opportunity to come 

outside her house without fear for the first time in a long time. 

There is a common theme in all of these initiatives. These organizations were involved in the commission of violent crimes in addition to significant drug-trafficking activity. Prior efforts at the 

State level were unsuccessful, resulting in defendants receiving little or no time. Our Federal statutes allowed law enforcement to 

garner the cooperation of lower-level gang members, allowing them 

to climb the hierarchical ladder to bring down the leaders, dismantling the organizations. Those statutes ensured that those outlaws 

would not quickly return to these communities and again wreak 

havoc. On the other hand, those deserving defendants received a 

safety valve reduction tempering the application of the mandatory 

minimum provisions. 

Importantly, those Federal statutes sent a clear message of deterrence, echoed in the lyrics of a local Dallas rap artist later convicted in one of our initiatives when he said, ‘‘better call the Feds; 

DPD, the Dallas Police Department, ain’t enough.’’ 

While I can provide several examples of the deterrent effect of 

these sentencing provisions, especially in Texas, that I have observed over the last 25 years as a prosecutor, I offer the success 

we have had in Dallas. Since 2002, newly released parolees and 

probationers are required to attend a reentry program where they 

are educated about the severe Federal penalties associated with 

firearm possession and use. Federal, State and local law enforcement heads, including myself, meet with these people and convey 

to these former prisoners their commitment to vigorously enforce 

103 

the Federal firearm laws. A study conducted by the University of 

Texas in Arlington found that since the institution of this program, 

there has been nearly a 50 percent reduction in the incidence of 

gun crimes in Dallas County. The threat of severe confinement no 

doubt contributed to this reduction. 

And may I add a footnote. If you think the word is not out about 

the possibility of significant time for carrying firearms during drug 

crimes, I had a defendant myself when I was an AUSA, a meth lab 

cook, who took an informant and told an informant not to bring a 

firearm to the lab because I don’t want—he said this—‘‘I don’t want 

that firearm enhancement on me if I am busted by the Feds.’’ 

Finally, I respectfully suggest that it would be imprudent to 

quickly dismiss the thoughtful deliberations of Members of Congress which resulted in the Sentencing Reform Act and the inclusion of selected statutes for mandatory minimums. As a young Federal prosecutor in the 1980’s, I witnessed a dramatic difference in 

sentencing Federal defendants received depending on where in the 

country they were sentenced or even who sat as a judge. 

Those tough Federal statutes, including selected provisions with 

mandatory minimums, when used as a part of an overall strategy, 

including prevention and reentry initiatives, can reduce crime, 

bettering our communities. I ask that Congress should carefully 

consider whether to retreat from this effective sentencing structure. 

Mr. SCOTT. Thank you, Mr. Roper. 

[The prepared statement of Mr. Roper follows:] 

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PREPARED STATEMENT OF RICHARD B. ROPER


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Mr. SCOTT. Mr. Mauer. 

TESTIMONY OF MARC MAUER, EXECUTIVE DIRECTOR, 

THE SENTENCING PROJECT 

Mr. MAUER. Thank you so much, Congressman Scott. 

In my testimony I want to address three key themes that address Federal mandatory sentencing, and these are, first, that the 

Federal mandatory penalties adopted in the 1980’s were essentially 

based on false premises about their ability to reduce crime; secondly, mandatory sentencing has not, in fact, achieved its stated 

objectives; and thirdly, that alternative policies could produce more 

fair and more effective sentencing. 

Now, the first theme is that mandatory sentencing was based on 

false premises. Mandatory sentencing, as we have learned through 

many years, is not, in fact, mandatory; it is not, in fact, consistent. 

As far back as 1991, in the report by the Sentencing Commission, 

a comprehensive report on mandatory sentencing, we learned that 

in about a third of the cases that a mandatory sentence might have 

applied, in fact, the defendant was permitted to plead to a charge 

below the mandatory sentence. Now, there are a variety of reasons 

why that took place. There are also racial and ethnic disparities 

that resulted from those plea negotiations. But in terms of mandatory sentencing, somehow sending a message that if you do the 

crime, you do the time, we know that in a third of the cases that 

was not the case. These people went to prison, but for varying degrees of time. 

Mandatory sentencing is also premised or has also been promoted as having a strong deterrent effect on potential offenders. 

And here I think we have a very serious problem in that the research on deterrence in criminal penalties for a very long period of 

time has shown us that deterrence is much more a function of the 

certainty of punishment rather than the severity of punishment. In 

other words, if a person believes that he or she will be caught for 

a crime, if there is more law enforcement out there or something 

like that, then they may think twice about committing a crime. But 

merely increasing the amount of punishment that someone is subject to for people who generally do not believe they will be caught 

does not add very much to any kind of deterrent value. 

We see the mandatory penalties, as we know, in the Federal system have been overwhelmingly applied to drug offenses. This is the 

area where they are also least likely to be effective, and that is because drug offenders, low-level sellers on the street, are easily replaced. As soon as we snatch up a few on the street corner, there 

is an almost endless supply, as we have seen through the war on 

drugs and the record number of arrests and incarceration and an 

endless supply of people who are willing to take their place for a 

chance to make a quick buck or so. And so their replacement, in 

fact, diminishes any impact that the mandatories may have. 

In terms of the level of success, we now have 20 years of experience with Federal mandatory penalties. Some proponents claim 

that the decline in crime in the 1990’s is evidence of the success 

of mandatory penalties in particular. If we look at the research to 

date on why crime declined in the 1990’s, the best research seems 

to suggest that at most about 25 percent of the decline in violent 

115 

crime was due to rising incarceration. Some researchers believe it 

is as little as 10 or 15 percent. But we are talking here about incarceration in general. Of all the convictions in the U.S. every year, 

approximately 1 million, only 6 percent take place in Federal court. 

Of those, only a small fraction are mandatory penalties. So essentially we are looking at perhaps 1 or 2 percent of all the convictions 

involving Federal mandatory penalties. It is possible that has had 

an effect on crime, but we certainly have no idea from any of the 

research or any of the data, so it is extremely speculative to assume that that is a factor there. 

Secondly, in terms of the level of success, as we have heard very 

clearly from the Sentencing Commission and many others, the drug 

quantity levels established in mandatory penalties, particularly for 

crack cocaine, not only are not effective but they encourage prosecution of lower-level offenders by setting the crack cocaine threshold at 5 grams. The Sentencing Commission data shows us that 

more than 60 percent of the people prosecuted for crack cocaine offenses are low-level offenders. This is not exactly what Federal resources should be doing, and we have seen as well, of course, the 

disproportionate impact of communities of color. 

Thirdly what can we do to develop more effective and more fair 

sentencing policies? Well, since the Booker decision by the Supreme 

Court, we now have an even greater chasm between mandatory 

penalties, particularly for drugs, and all other Federal crimes. The 

sort of disruption in the sentencing grid or the sentencing proportions is even greater now that Federal judges have more discretion 

in nonmandatory cases. And it calls into question the whole structure much more severely. 

What can we do? It seems to me Congress might want to request 

that the Sentencing Commission conduct an updated assessment of 

mandatory penalties. It has been 16 years now since the Sentencing Commission first did that. 

Secondly, we want to review the drug quantities, particularly for 

crack cocaine, and raise that to the level of powder cocaine certainly. 

It seems to me we should consider the expansion of the safety 

valve. This is used in approximately a third of the relevant drug 

cases. Judges are finding significant numbers of cases where it is 

appropriate. It may be time to see if judges should have more discretion in this regard as well. 

Finally we see that the experience in the States over the last several years is one that is very much moving toward reform, reconsideration of sentencing policies. I think we have much to learn 

from that experience in the States. I think the States are moving 

in an interesting direction that suggests that maybe it is time to 

reconsider some of these policies. Thank you. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Mauer follows:] 

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PREPARED STATEMENT OF MARCH MAUER


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Mr. SCOTT. Mr. Bonner. 

TESTIMONY OF T.J. BONNER, PRESIDENT, NATIONAL 

BORDER PATROL COUNCIL (AFGE), CAMPO, CA 

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

Forbes, other distinguished Members of the Subcommittee, for the 

opportunity to try and put a human face on one of these cases. I 

represent 11,000 front-line Border Patrol agents. This agency has 

a long, proud history dating back 83 years. In that span of time— 

and bear in mind, when I entered on duty 29 years ago, there were 

about 2,500 Border Patrol agents, a relatively small agency. In that 

short span of time, more than 100 officers have given their lives 

in the line of duty. As we speak, every 8 hours a Border Patrol 

agent is assaulted in the line of duty. It is a very dangerous job. 

It is a testament to the high-quality training that in almost every 

circumstance when these agents are confronted with danger, that 

they respond correctly according to their training. 

The incident that occurred on February 17, 2005, in Fabens, 

Texas, was no different. Ignacio Ramos and Jose Compean, when 

confronted with an armed drug smuggler who wielded on them 

with a gun, responded properly when they opened fire to defend 

themselves. 

Now, how they ended up in Federal prison is a mystery to me 

because I have examined facts there. And let us be clear about one 

thing: There were only three eye witnesses, the two agents and the 

drug smuggler. Everyone else who was near that area had their vision completely obstructed by an 11-foot-high levee road, so they 

could not see what happened. And we have physical evidence that 

was taken from the body of the smuggler about a month later by 

a U.S. Army colonel, and this colonel testified in court. And also 

his statement as part of the investigative record shows that the 

smuggler’s body was turned at the moment of impact, indicating 

that the agents were telling the truth when they said that the 

smuggler was running dead away from them and turned with his 

left arm and pointed something at them. Now, they had a split second to determine what that object might have been. Many of us 

have had the benefit of months to ponder what someone could have 

possibly been pointing at law enforcement officers as he was fleeing 

from them. I can’t come up with a different answer. It was a gun. 

Someone who is carrying $1 million worth of marijuana, in my experience as a Federal law enforcement agent, is going to be armed, 

and that is borne out by the experience of many of my colleagues. 

The fact of the matter is this person absconded. He got back 

across the border, so we will never know with certainty. The real 

mystery is why did the U.S. attorney choose to believe a drug 

smuggler over the word of two sworn Federal law enforcement officers? 

This case is very troublesome, it is troublesome to the public; it 

is troublesome to not just Border Patrol agents, but other law enforcement officers who are sitting back wondering how this could 

have happened in the United States of America. 

I realize that the focus of this hearing is on mandatory minimum 

sentences, but you can’t get to a sentencing phase if you don’t have 

129 

a prosecution. Why were these agents prosecuted in the first place 

is a question that simply has not been answered to my satisfaction. 

With respect to the mandatory minimum sentences, it bears noting that U.S. attorneys have great discretion as to whether or not 

to bring those charges in the first place. There was an incident in 

January of this year down in Del Rio, Texas, where Border Patrol 

agents, State and local law enforcement officers were fired upon by 

an individual with a high-powered .30-06 hunting rifle. When he 

was arrested, he stated that the only reason he stopped firing at 

the law enforcement officers was because he ran out of ammunition. 

The same U.S. attorney who prosecuted Ignacio Ramos and Jose 

Compean, Johnny Sutton, did not bring charges of 18 U.S.C. 924(c), 

use of a firearm in the commission of a crime of violence. He merely charged him with assault against a law enforcement officer, 

which carries a 20-year maximum penalty, no minimum penalty. 

This case cries out for an investigation. I am not asking for a decision on the spot, but I am asking that this case be fully investigated. It is quite obvious that the Administration is not going to 

lift a finger to investigate itself, so it falls upon the Congress to 

take that action, to appoint someone who is impartial and empowered to go in, subpoena people, and get to the heart of this matter, 

because with each passing day that these agents are allowed to rot 

in solitary confinement in prison, the public confidence goes down. 

The confidence of hundreds of thousands of law enforcement officers around the country is declining. This is a crisis of confidence 

that needs to be addressed now. Thank you. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Bonner follows:] 

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PREPARED STATEMENT OF T.J. BONNER


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Mr. SCOTT. And I just remind you, you indicated that this hearing is on mandatory minimums. Many of the issues that you have 

and the questions you have asked are being considered now on appeal, and we don’t want to inject ourselves in that process. The impact of that case, though, for this hearing is on the fact that the 

judge had to sentence at sentencing and could not consider anything other than the mandatory minimum when they were sentencing. And that is what we want to make sure we focus the attention on. 

Ms. Nunn. 

TESTIMONY OF SERENA NUNN, J.D., ANN ARBOR, MI 

Ms. NUNN. Initially I would like to thank this Committee and 

FAMM for affording me this opportunity to share my experiences 

and opinions regarding mandatory sentencing provisions affecting 

thousands across the country. Also I would like to emphasize that 

nothing I say today should be interpreted as my failure to recognize the far-reaching negative consequences that illegal drugs has 

had on communities across the country. To the contrary, I understand how the illegal drug trade has ravaged communities and individuals across the country. Moreover, I fully accept responsibility 

for my actions and understand that I deserved punishment. However, I will state unconditionally to this Committee that the wide 

net cast in the effort to remove major drug traffickers from the 

community has taken many potentially first-time offenders out of 

the community for lengthy periods of time. 

With that being said, I will briefly discuss how mandatory minimums affected me. I was raised in a single-parent home in the 

inner city of Minneapolis. I was the eldest of three. In high school 

I wrote for the school yearbook and newspaper. I was also homecoming queen and a cheerleader. 

I graduated from high school in 1987. After graduation I attended Morris Brown, an Historically Black College in Atlanta, 

Georgia. While in college I experienced financial difficulties. In the 

summer after my first year, I returned home. I planned to work, 

save money and return to Morris Brown College, but that never 

happened. I met a guy named Monty during the summer after my 

first year in college. After we began dating, it was obvious that he 

dealt drugs. 

In May 1989, Monty and several others were arrested for attempting to purchase 20 kilos from a Government informant. Within a month of his arrest, at age 19 I was indicted on three Federal 

felony counts involving the distribution of cocaine. Our trial lasted 

5 weeks. Then on December 22, 1989, a jury returned a guilty verdict, and I was taken into custody. In May 1990, the sentencing 

judge wanted to give me a lenient sentence due to my age, limited 

role in the conspiracy and the fact that I had no prior criminal 

record, but Federal mandatory minimums forced the judge to sentence me to 15 years and 8 months. 

In December 1997, the Minneapolis Star Tribune newspaper in 

Minnesota featured me in an article about mandatory minimums 

thanks to FAMm. And in December 1997, I received a letter from 

an attorney who was willing to review my case on a pro bono basis. 

After he reviewed my case, he decided that we should file a PresiVerDate Aug 31 2005 15:23 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00144 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\062607\36343.000 HJUD1 PsN: 36343
141 

dential commutation of sentence. The commutation was filed in 

March of 2000 with the support of the Federal sentencing judge in 

my case, the Governor of Minnesota, the State attorney general in 

Minnesota, the Federal prosecutor in my case and our congressional Representative in Minnesota. 

On July 7, 2000, I received a Presidential commutation and was 

released from prison that day. Since my release I received a bachelor of arts degree, I received a law degree. I currently work as a 

law clerk for a criminal defense attorney, and I cohost a radio talk 

show. 

I would just like to add that my lengthy sentence due to mandatory minimums placed a severe strain on my family, it made my 

transition into society extremely difficult, and had it not been for 

a strong support system, it would have diminished all of my hope 

in becoming a successful, productive citizen back into society. 

Simply put, I feel that mandatory minimums should be abolished, and they should allow judges to regain their discretion. 

Thank you. 

Mr. SCOTT. Thank you. 

[The prepared statement of Ms. Nunn follows:] 

PREPARED STATEMENT OF SERENA NUNN

I was raised by a single parent in the inner city of Minneapolis, and I had a good 

childhood. I did well in high school, writing for the yearbook and school newspaper 

while juggling cheerleader duties, and was elected Homecoming Queen. In 1987, I 

graduated from high school. After graduation, I attended Morris Brown College in 

the fall of 1987, and I became the first person in my family to attend college. 

My mother had planned on subsidizing my college costs but was unable to do so 

due to personal and financial problems. Unable to support myself at school, I returned to the inner-city environment that I had tried so hard to leave. My plan was 

to work, save money and return to Morris Brown, but that never happened. 

After returning to Minneapolis, I began dating a young man named Monty, who 

seemed to do well for himself. After moving in with him, it became evident that he 

was dealing drugs. Stupidity, naivete and love kept me in the relationship. 

On May 17, 1989, Monty and several others were arrested for attempting to purchase twenty kilograms of cocaine form a government informant. Within a month 

of his arrest, at age nineteen, I was indicted on three federal felony counts involving 

the distribution of cocaine. While living with Monty, my voice was recorded through 

wiretaps, answering our phone and passing messages between him and his drug associates. 

I was convicted of the three charges against me at a trial that included twentyfour co-defendants. The judge wanted to give me a lenient sentence due to my age, 

limited role in the conspiracy and the fact that I had no prior criminal record. But 

the federal mandatory-minimum sentencing laws forced the judge to sentence me 

to fifteen years and eight months. 

In December 1997, after eight years in prison, The Minneapolis Star Tribune featured me in an article about mandatory-minimums. Soon after, I received a letter 

from a young attorney whom only a week earlier had been sworn to practice law. 

He reviewed my case on a pro bono basis and determined that my only hope of an 

early release was if President Clinton commuted my sentence. At the time, President Clinton had commuted fewer than five sentences. My attorney devoted a great 

deal of time to my case, and in March 2000, he submitted my clemency petition. 

On July 7, 2000, President Clinton commuted my sentence and I was released that 

day. 

A decade in prison taught me many invaluable lessons about life. Shock was my 

immediate reaction to daily confinement. I could not fathom living the next fifteen 

years without privacy, and constantly being told when to wake, eat and sleep. I ultimately survived the mental tribulations by refusing to lose sight of my future, telling myself that my early dreams of earning a college degree were not quashed, just 

postponed. I also realized that my actions in Monty’s conspiracy contributed to my 

community’s degradation and punishment was warranted. However, a fifteen year 

142 

eight month sentence seemed extremely unfair considering I was a first-time, nonviolent offender. 

After five years in prison, I had laid the foundation for my future by completing 

several college and self-improvement courses. Eight years into my sentence, however, I began to feel depressed as a result of spending most of my twenties in prison, 

and I still had several more years left, which would stretch into my thirties. I survived depression through prayer, the support of my family and friends, by hardening my determination, and telling myself that despite bleak circumstances, nothing could prevent me from reaching my goals. 

After my release I attended college full-time at Arizona State University (‘‘ASU’’) 

and worked twenty-hours a week in the political science department. While working 

on my bachelors degree at ASU, I devoted a significant amount of time to traveling 

the country, speaking with members of Congress, law students, undergraduate students and special interest groups about the impact of federal mandatory-minimum 

sentencing laws. In 2002, I graduated from ASU with a degree in Political Science. 

In 2003, I began attended the University of Michigan Law School. During law 

school, I worked at the Public Defenders Service in Washington, D.C. In 2006, I 

graduated from the University of Michigan Law School. 

Currently, I work as a law clerk for a criminal defense attorney in Detroit, Michigan. Additionally, I co-host a Public Affairs Program on one of Detroit’s radio stations. 

Mandatory-minimums negatively affected my life in many ways. They stole many 

of my productive years in life because I went to prison at age 20 and was not due 

for release until age 34. Fortunately, I received a Presidential Commutation so I 

had the opportunity to redeem myself. However, there are hundreds of women, and 

men, serving lengthy sentences under mandatory-minimums who will not receive a 

Presidential Commutation and will serve each day of their sentence. 

Mandatory-minimums placed a severe strain on my family members. After my incarceration my immediate family fell apart. My mother fell into a deeper depression. 

My sister, with whom I share a very close relationship, moved away to another 

state, and my younger brother, who was 13-years old, felt alone and hopeless. Approximately six years into my incarceration, my younger brother was convicted of 

murder. My grandmother, who was a pillar of strength in my life, developed health 

problems during my incarceration. Unfortunately, ten years into my incarceration 

she passed away. 

As a result of the mandatory-minimum sentence I received, I was removed from 

society for almost eleven years. Once I was released, technology was a major obstacle in my life. I did not know how to operate items that are a part of everyday use. 

For instance, I did not know how to properly operate a computer, use a debit card 

at the grocery store or gas station, or know that public bathrooms had self-flushing 

toilets. Technology continues to evolve and when a person is removed from society 

for such a long period in life it makes the transition back into society extremely difficult. 

After many years of my incarceration, I felt that I was a different person, mentally and spiritually. All I wanted was a second chance to try again in life, to show 

everyone that I could be a productive citizen, and that I did not need fifteen years 

of incarceration to become a better person. However, as the years droned on it became harder to believe that my future would be successful because I felt as though 

I was ready to be released, yet I was still incarcerated wasting away. If I did not 

receive a commutation, then mandatory-minimums would have robbed me of my 

hope that I would get another chance in life. 

Simply put, mandatory-minimums should be abolished to allow judges to regain 

their sentencing discretion. 

Mr. SCOTT. And I thank all of the witnesses for your testimony. 

We will now have questions, and I will begin recognizing myself 

for 5 minutes. We have been joined by the gentleman from North 

Carolina Mr. Coble and the gentlelady from Texas Ms. Sheila Jackson Lee. And Mr. Davis has been in. 

First, Mr. Mauer, is there any evidence that mandatory minimums reduce recidivism? 

Mr. MAUER. No, there is no evidence that shows that. And keeping people in prison longer does not reduce recidivism. People are 

going to make it or not make it based on their family and community support when they get out and what we do that is constructive 

143 

in prison, but mandatory sentencing has no effect. And, if anything, 

one can argue that it is counterproductive. In States where you 

have a chance to earn some good time or parole release, there may 

be some incentive built in to participate in programming in prison 

which is taken away when you have a mandatory sentence. 

Mr. SCOTT. You indicated that there was little deterrent involved 

in the longer mandatory minimums. Do you have research to support that? 

Mr. MAUER. Well, we do know that the research, as I indicated 

before, on sort of certainty versus severity, is very compelling in 

showing that potential offenders will respond somewhat to greater 

law enforcement. The example I always think of is if we are traveling on a highway, some of us have been known to go above the 

speed limit from time to time. If it is a holiday weekend and there 

are more State troopers out, most of us will go at the speed limit. 

So the certainty has changed, and it changes our behavior. But 

most of us don’t know whether the penalty for speeding is $50 or 

$100 or whatever, and so we are not really paying attention to the 

severity of the penalty because we don’t expect to get caught. It is 

only when that chance of certainty changes that we may change 

our behavior. 

I think if there is anything in terms of research on mandatories, 

the most obvious cases, just the impact of the war on drugs, we 

have increased the drug offender population in our prisons and 

jails from about 40,000 people in 1980 to nearly a half million 

today, and one would think that if the idea of mandatory sentencing and massive incarceration was a way to send a message to 

drug users and drug sellers, we should have sent that message 

with great force by now, and certainly drug abuse remains a problem in many communities. 

Mr. SCOTT. Let me ask Judge Hinojosa, the punishment for— 

along the same lines, the punishment for crack is substantially different than the sentencing for powder; that for 5 grams of crack, 

you get 5 years mandatory minimum, and you can get probation for 

the same amount of powder. Is there any evidence that the more 

severe punishment has encouraged people to use powder rather 

than crack? 

Judge HINOJOSA. We don’t have any evidence of that. As you 

know, we are again urging Congress to revisit this issue, because 

as our report points out, the 100 to 1 ratio has created and continues to create problems with regards to the type of individual 

who might be punished under the mandatory minimum ratio of 100 

to 1 between crack and powder. And the Commission itself has 

taken some action with regards to the guidelines which we consider 

a very partial remedy to a problem that needs to be seriously addressed by Congress, and we again urge that action by the Congress. 

Mr. SCOTT. You talk about the safety valve and why that—let me 

ask Judge Cassell, because you mentioned the case where you had 

to sentence somebody to 55 years. Why was that person not entitled to a safety valve consideration? 

Judge CASSELL. The safety valve didn’t apply to his kind of case. 

It is not applicable in 924(c) cases. It wouldn’t be applicable in the 

case of the Border Patrol agents that has been discussed. 

144 

Mr. SCOTT. Where it is applicable, why doesn’t it remove the 

manifest injustice in the kinds of sentences that have to be imposed? I have talked to a number of judges who have indicated 

similar same-day sentences for someone with an obviously much 

more severe crime got much less of a sentence because of the mandatory minimums. Why doesn’t the safety valve solve most of those 

problems? 

Judge CASSELL. Well, the safety valve is a step forward, but it 

doesn’t apply in all cases. There are five requirements that people 

have to meet to satisfy the safety valve exception, and some cases 

simply don’t fit into those five criteria. The basic problem here is 

that judges aren’t given the opportunity to assess individual circumstances of individual cases. 

Mr. SCOTT. Thank you. 

Mr. Roper, you indicated that you had a significant reduction in 

crime because you were able to impose long sentences. Why 

couldn’t you have achieved that result with traditional long sentences rather than mandatory minimum long sentences? 

Mr. ROPER. Well, I think the reason is, it is that threat of going 

to jail. It could be under the guidelines. Sure, you could do it just 

like that if the guidelines were mandatory, but the problem is, you 

know, a lot of people don’t want to cooperate against drug trafficking organizations just because they have a sense of public—of 

duty. They do it because they are in a position where they have to 

do it. And I think we need those tools to be able to garner the cooperation of these lower-level drug dealers, give them a break. 

That is one reason that many times 924(c)s don’t apply, the mandatory minimums don’t apply. People do choose to cooperate. And 

being somebody that is right on the front lines, we need that. 

People call us, Chairman, to rid these communities of problems, 

and we have to have the tools to do it. We can’t do it just from 

wiretaps or just from the sense of waiting for people to come forward. We need to infiltrate those organizations, and if we don’t 

have the tools to do it, we can’t do that. 

Mr. SCOTT. My time has expired. 

Mr. Forbes. 

Mr. FORBES. Thank you, Mr. Chairman. First of all, let me thank 

all of our witnesses for being here. We are on a limited time period, 

so I may have to cut you off because I want to get as many questions in as I can. 

I want to set the stage first of all, because one of the things we 

do in these hearings, we bring in six witnesses and we tend to 

blend apples and oranges, and we listen to testimony and we are 

trying to say, who is talking about this? Is that the issue we are 

really looking at? 

Part of our job is to make sure we get the apples in the right 

basket, the oranges in the right basket and so forth. And one of the 

things that I am looking at here, let’s look at, first of all, procedure, 

how we change this. 

We have today the Chairman of the Crime Subcommittee who is 

here, who has said this violates common sense, mandatory sentencing laws are ineffective in stopping crime, it is wasting taxpayer money, no careful consideration by Members of these bills. 

145 

We have the Chairman of the full Committee; at any time we 

could bring a bill before the full Committee saying, do away with 

mandatory sentences, and let’s vote on it, and let’s have a debate 

on it and see if the Members agree with all these things. 

And I encourage them. If that is the route we need to go, bring 

the bill up. We don’t have to have any more hearings on it. Let’s 

just do it. 

The second thing that we look at is, we blend State and Federal 

issues. We talk about, sometimes, what is happening in the State 

system, what is happening in the Federal. But then I heard the 

Chairman raise this argument today. He said—didn’t understand 

why border agents doing their job end up being prosecuted under 

the law. 

Mr. Bonner, that is exactly what you are saying. It doesn’t have 

anything to do with whether it is a mandatory minimum or not. 

What your big issue is today, they should never have been prosecuted at all. If we went to the Nifong case with the prosecution 

of the Duke lacrosse players, and let’s say not only was he able to 

get an indictment by a grand jury, but he somehow got a conviction, we wouldn’t be in here arguing that we ought to do away with 

the rape laws in North Carolina. We would be saying it should 

never have been prosecuted. 

Mr. Bonner, I want to ask you—you raised a good point in your 

testimony. You said, why did U.S. attorneys choose to believe the 

word of a drug smuggler over two sworn officers? And I agree with 

you. But that prosecutor had the discretion of whether to bring 

that charge in the first place, and he also had the discretion of 

whether simply to bring it with assault, with serious bodily injury, 

which was the underlying offense. 

If those agents had gotten 8 years instead of 10 years, would that 

have been any less egregious in your eyes? 

Mr. BONNER. No, it wouldn’t have. If they had received 1 second, 

it would have still been a gross miscarriage of justice. 

Mr. FORBES. So your major concern today—and it is a rightful 

concern—was why they were prosecuted in the first place. Is that 

a fair—— 

Mr. BONNER. That is a fair characterization. 

Mr. FORBES. And Judge Cassell, I listen to you and have the utmost respect for you and appreciate your being here. 

You talked about the message that came to crime victims, of disparity with mandatory sentences. But there is also a message that 

goes to crime victims for judges who have that discretion and abuse 

it by releasing individuals with slaps on the wrist when they commit serious crimes. 

We talked about the message to taxpayers when mandatory sentences result in unfair sentences. But there is also a message to 

taxpayers from judges that release people without giving them adequate sentences. Talking about the message to criminals that they 

get, it is also a message if we say to criminals, if you do the crime, 

you are going to do the time. 

We had a hearing in New Orleans that just astounded me because the reason we went down there was because we hoped that— 

somebody hoped, I think, that we were going to find out that there 

were all kinds of problems after Katrina. In reality, what we found 

146 

out was New Orleans had a lot of problems before Katrina and 

after Katrina; and one of the major reasons—look at these statistics, 7 percent of the individuals arrested ever went to jail and 12 

percent, including the ones for violent felonies and murders, ever 

went to jail. And we had people coming in testifying; it was creating huge problems with morale for police officers, huge problems 

in corruption down there. 

My question to you is, we are always trying to strike a balance, 

and balances aren’t easy. When President Clinton signed the law 

that you had to impose that sentence, when he signed the law on 

the case with—in Mr. Bonner’s case, I know he didn’t intend that 

these results were going to take place. And we always have to modify and get the law; it just doesn’t mean we throw the baby out 

with the bath water. 

In the case of New Orleans, for example, I know it is egregious, 

but what should we do in those situations, Judge? Should we still 

give them unfettered discretion in how they continue to hand down 

their sentences? 

Judge CASSELL. I think you are exactly right. We have a balance 

here. Somewhere between a 55 years for somebody like Mr. Angelo—let me suggest the perfect balance here is what the Sentencing Commission has come up. They have put together guidelines that cover every single case—— 

Mr. FORBES. Mr. Cassell, with all due respect, I have got cases 

right here where the judges aren’t doing that. They are given sometimes 46 percent, 50-some percent and these are in serious rape 

cases and pornography cases that are tough cases. And from our 

position on the legislature, sometimes you sit back and you just 

say, I don’t know how we are going to get those judges to do it. And 

one of the methods we have are mandatory sentences. 

Mr. Roper, you have lived this. You see it on the streets. It is 

not theory to you. How important are these mandatory sentences 

to you in dealing with the crime you have to stop every single day? 

Mr. ROPER. Well, like I said, it allows us to get cooperation from 

folks at a lower level, to work up the food chain, so to speak. And 

it also allows us to take these people out of the community that are 

violent. 

Many of the—what you would consider maybe midlevel drug 

dealers, sometimes those are the most violent offenders that we 

deal with that—in addition to being gang members, drug trafficking organizations, that they also are very violent. 

Mr. FORBES. And if you don’t get them off the streets, then they 

take good people like Ms. Nunn sometimes and they bring them 

into those crime networks, too. Is that not a fair statement? 

Mr. ROPER. Yes sir, they do. That is the sad thing about it. It 

ruins communities. 

Mr. FORBES. Thank you. 

Mr. Chairman, my time has expired. 

Mr. SCOTT. Thank you. 

Mr. Conyers. 

Mr. CONYERS. This is so important, this hearing. I know Marc 

Mauer is sitting to your left, Mr. U.S. Attorney, and I think he is 

entitled to make some comments about the discussion that has 

147 

gone on, that my good friend, the Ranking Member who, I am 

sorry, is leaving us now—— 

Mr. FORBES. Temporarily. I will stay to hear—— 

Mr. CONYERS. Because I am going to talk about you, my man, 

and I don’t want you—— 

Mr. FORBES. I will stay. 

Mr. CONYERS [continuing]. I don’t want you to leave and say, 

Wow. 

As Chairman, I am working overtime and breeding bipartisanship in the Judiciary Committee. And it is long overdue, and I 

want to do it. 

But what my colleague—who, if I remember his track record on 

these matters, is still a proponent of mandatory minimums and the 

death penalty and the gang bills. And then he invites us to vote 

it out of Committee and bring it up for a vote. 

Well, let’s work on that together, Mr. Forbes. And I would be 

willing to—and yes, I will yield. 

Mr. FORBES. Mr. Chairman, first of all, I will proudly say I am 

very much in favor of the gang bills. I think we have enormous 

gang problems in this country. I am proud—I will continue to work 

on that. 

And I still remember the first—— 

Mr. CONYERS. But what about mandatory minimums? 

Mr. FORBES. I will get to that. And I am sure the Chairman will 

give you as much time as you will need, if you don’t mind yielding 

to me since you are the Chairman. 

When we first brought the gang bills before this Committee, your 

question to me was, do we have a gang problem in the United 

States? I don’t see a gang problem. 

Today everybody acknowledges the gang problem. The question 

is, what do we do about it? The death penalty, I believe in the 

death penalty. I don’t mind saying today that I think the death 

penalty cures crime. 

The final thing, let me just answer your question on mandatory 

minimums. I don’t believe in mandatory minimums across the 

board. I think we have an egregious case, and what Judge Cassell 

said, we have got to look at that situation, what Mr. Bonner’s case 

is; I think we have to examine those situations. We don’t get it 

right every time. We don’t always hit the mark. 

But what I also do is, I know what Mr. Roper says is echoed by 

law enforcement agents across—— 

Mr. CONYERS. Well, I don’t know if I shouldn’t have let you leave 

the room since you are using all my time. But I do this in the spirit 

of bipartisanship because we are going to get to the bottom of this 

for the first time in 12 years in the House of Representatives. 

And now I want to turn to Marc Mauer, who has been before this 

Judiciary Committee more times than I can recall, to help us put 

this in perspective. 

And remember, Mr. Mauer, I am trying to win over Republicans 

to support this. So that is why I am being very deferential. 

Mr. FORBES. Chairman, with all due respect, you have got the 

majority. We are riding along here. 

Mr. CONYERS. Yeah. I have got the majority for 6 months. As a 

matter of fact, 6 months and—well, it is 5 months and 25 days, 

148 

so—and it is a pretty thin majority, as I get reminded almost every 

day around here. 

Mr. Mauer. 

Mr. MAUER. I will stay away from political discussion. You can 

work that out. 

But thank you, Mr. Forbes, for being here. 

A couple points on this, first, in terms of looking at sentences of 

incarceration. As you point out, the New Orleans system, I think 

by all accounts the New Orleans system, as everybody recognizes, 

was a mess before Katrina and certainly very much afterwards. 

I think the problem we have in any system, not just New Orleans, if we look at who was sentenced to a period of incarceration, 

rarely is this solely a function of what the judge has done. Much 

more often it is a question of the strength of the evidence the prosecutor has. It has to do with plea negotiations; 90 percent of our 

convictions are results of plea negotiations, the strength of the 

case, the quality of the defense attorney. And so the judge may or 

may not be influential on any given case. 

Often, I think the prosecutor would say, I am glad I got a conviction even though they don’t get much time because it is better than 

nothing. So we have to look very carefully at what is going on 

there. 

On the question of controlling judges, I don’t know who all these 

so-called ‘‘soft judges’’ are these days. I really don’t see much evidence. Certainly, in the Federal system, we have, you know, excellent data pre- and post-Booker, and judges are behaving, I think, 

quite responsibly overall and taking these very seriously, as are 

State judges. 

The broad picture, of course, over the last 30 years we have increased our prison population by over 500 percent. So, somehow, 

somebody is sending many people to prison and keeping them there 

for a long time. 

Now, whether or not we think that is a good idea, I would point 

out one of the things that has happened is, we have had I think 

a very severe imbalance in resources that has developed. The more 

money we have put into the prison system, the less we have on the 

front end of probation and parole supervision; and so probation and 

parole officials will tell you over and over again that their caseloads have mushroomed, they can’t provide effective supervision. 

So I think we have got into a very vicious cycle now whereby offenders who could be managed appropriately in the community 

with services and supervision, now judges and probation officials 

are often unwilling to take a chance on that because they don’t feel 

they have the proper supervision, and so prison becomes the option. That is why the whole reentry problem has been recognized 

so significantly. 

So I think this imbalance, inappropriate incarceration of far too 

many low-level offenders, has put the system considerably out of 

balance and, I think, done a disservice to what everybody would 

agree is that prison should be used for violent, dangerous offenders 

that we need to be protected from. Other people can be supervised 

in the community. 

Mr. CONYERS. Mr. Chairman, based on your promised generosity, 

I ask for 1 additional minute. 

149 

Mr. SCOTT. Without objection. But pending that, I would like to 

recognize the presence of the gentleman from Texas, Mr. Gohmert. 

Mr. CONYERS. Thank you very much. 

We are in a very complicated situation here, and I am just happy 

that Howard Coble is here and Judge Gohmert is here, because 

these are the folks that are going to help us move toward some 

kind of conclusion on this mandatory minimum. 

We have got some more hearings that we will probably have to 

reach, and I would like to ask Mr. Bonner in terms of his feelings 

about—not about the case, about these two Border Patrol agents, 

which I think deserves an investigation and a discussion with U.S. 

Attorney Sutton at another time. But how do you see us moving 

into a more realistic version of criminal justice? 

We are fighting gangs, we are fighting drug dealers. In what direction should we be moving from your experience and perspective? 

Mr. BONNER. Well, that is a very broad question, Mr. Chairman. 

We are clearly losing the war on drugs. Our borders are out of control. Many of our cities have crime problems that are completely 

unacceptable. So I think we need to rethink some of the strategies 

that we have been pursuing. 

Clearly, when the cost of drugs is cheaper today than it was 10 

or 20 years ago, and when our agents on the frontlines at the border estimate that we seize perhaps 5 percent of all the narcotics 

coming across the border, we are not winning the war on drugs. 

We are not securing our borders. We are not stopping illegal immigration. And I could go on for a long time about ways to improve 

the system, but I think it requires a fundamental rethinking of 

some of the aspects. 

I mean, for example—and I know that I am taking up precious 

time, but you opened the door here. So, you know, for example, on 

the issue of why do 3 or 4 million people come across our borders 

illegally every year? They are coming looking for work, and they 

can find work, and as long as that happens, they will come across. 

And the drug smugglers are using them as a shield, as a diversion; and that explains why it is so easy to get anything, whether 

it is drugs, terrorists or weapons of mass destruction across our 

borders. 

Mr. CONYERS. Thank you so much. 

And I thank the Chairman for his generosity. I have a lot of 

questions for the judges, and we will hopefully get back. Thank 

you, Mr. Scott. 

Mr. SCOTT. Thank you. 

The gentleman from North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. Mr. Chairman, I apologize to you and the Ranking Member. I had two other meetings 

and I arrived belatedly. I came in just as Mr. Bonner was speaking. 

Good to have you all with us. 

Mr. Bonner, most of us are not unfamiliar with the Border Patrol 

case about which you testified. What other prosecutions against 

law enforcement or Border Patrol officers have been initiated by 

U.S. Attorney Sutton? 

Mr. BONNER. Mr. Sutton? 

Mr. COBLE. Several? 

150 

Mr. BONNER. Several. The Deputy Sheriff out of Rock Springs, 

Texas, Gilmer Hernandez; Border Patrol Agent Gary Brugman out 

of Del Rio, Texas; you had Border Patrol Agent Noe Aleman out of 

El Paso; you had FBI Special Agent in Charge Hardrick Crawford. 

Mr. COBLE. Do you have concerns about the way those matters 

were handled? 

Mr. BONNER. I do. I think we need to open up an investigation 

and relook at all of those cases because the conduct of the U.S. attorney there—and this is not a universal slam against the U.S. attorneys because we have many, many fine U.S. attorneys in this 

country who get it right consistently. But when you have one who 

is exhibiting a pattern of going after the wrong people and giving 

immunity to drug smugglers, then I think you have to reopen those 

cases and take a long, hard look at them. 

Mr. COBLE. Well, I don’t want the tone or tenor of my question 

to imply that I am trying to slam-dunk Mr. Sutton. I don’t even 

know him. But let me ask you this—pardon? 

Mr. GOHMERT. Go ahead. 

Mr. COBLE. Thank you, Tex. 

But, Mr. Bonner, let me ask you this: What specific concerns, if 

any, do you have concerning the prosecutor’s decision to immunize 

the victim in the Border Patrol case about which you testified? 

Mr. BONNER. Well, I bristle at the use of your word ‘‘victim’’ because the two victims here were the Border Patrol agents. 

Mr. COBLE. Yeah. I don’t disagree with that. 

Mr. BONNER. The drug smuggler was immunized. And out of 

gratitude for that, he continued in his nefarious ways and was 

caught in October of that same year, another load in Clint, Texas, 

very near the same area where he was shot by Border Patrol 

agents when he pointed a weapon at them. 

A van containing 752 pounds of marijuana was discovered, and 

the occupant of that house pointed him out, pulled him out of a 

photo lineup, named him by name, physical description. And his 

brother, who was in Mexico corroborated that. His brother said 

that he couldn’t come back because he had been convicted on drug 

charges in the U.S. and would be incarcerated if he came back. But 

he said, he is the guy that the Border Patrol agent shot about 6 

months ago, taking it back to February of that year. 

Mr. COBLE. Well, as I said, Mr. Bonner, none of us is unfamiliar 

with that case. We all are very familiar with it. And, Mr. Chairman, this may not be for me to say but I think serious consideration should be commuting those sentences, if not pardoning. But 

that will be for another day. 

I yield back, Mr. Chairman. 

Mr. DAVIS. Mr. Chairman, can I make a parliamentary inquiry? 

Mr. SCOTT. The gentleman is recognized. 

Mr. DAVIS. Simply for a parliamentary inquiry, I don’t want to 

waste my questions on this. But there has been a lot of testimony 

about a particular U.S. attorney and a particular U.S. case, and I 

wonder if the record could be opened to give him a chance to respond. 

Mr. SCOTT. It could be. People can send in whatever they want. 

The testimony here is not on the case itself or the prosecution, but 

151 

the impact of mandatory minimums. People can ask questions, I 

guess, about whatever they want to ask. 

Mr. DAVIS. I am just simply troubled, Mr. Chairman. There has 

been significant commentary about a case that is under way, and 

the opposite point of view has not been represented. 

Mr. SCOTT. And on appeal—it is presently on appeal. The point 

is well taken. And if the gentleman submits any response, without 

objection, it will be accepted. 

The gentleman from Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. I am concerned about 

the case involving agents Ramos and Compean, and I appreciate 

the opportunity that you have taken, Mr. Bonner, to let the Nation 

know about what happened. And it was in the context of this hearing, which happens to be on mandatory minimums, that you did 

that. And you did it because these two individuals, Agents Ramos 

and Compean, have been victimized by the mandatory sentencing 

scheme that we have enacted into law here. And that is something 

that Mr. Roper, the former DA and current U.S. attorney, feels 

very passionately about in terms of the propriety of our maintenance of the mandatory minimums because he feels like they go far 

toward enabling crime to be addressed, and crime rates would go 

down as a result. 

But, nevertheless, what has happened here with Agents Ramos 

and Compean is, after they were charged and convicted of assault 

with a dangerous weapon and aiding and abetting each other, I 

suppose, in that offense and also deprivation of rights under color 

of law—and I don’t know what the particulars of the case were, but 

it does appear from your testimony that someone was shot in the 

buttocks, but they were shot from a side angle; and they were a 

fleeing felon with $1 million worth of marijuana. 

And so I guess an argument could be made that these Border Patrol agents were simply doing their job. 

However, a prosecutor decided to charge them, and he charged 

them with a violation of 924(c), which is discharging a firearm during the commission of the assault or during the commission of the 

deprivation of rights, whichever the case may have been. And that 

was a prosecutorial decision that was made by U.S. Attorney Sutton who, by the way, did not make that same decision in a case 

involving a fleeing felon who used a weapon and unloaded it and 

stopped firing only because he had no more ammunition. 

That is what you have testified to, correct, Mr. Bonner? 

Mr. BONNER. That is correct. 

Mr. JOHNSON. And so the prosecutor is exercising his discretion, 

and that discretion translates into what kind of mandatory sentence, if any, would be applicable. 

And so Compean and Ramos got charged with 924(c), Mr. Roper, 

but the other gentleman did not, prosecutorial discretion, and the 

judges don’t have the ability once the prosecutor makes the call as 

to who—as to what to charge with. Then you are locking the judges 

into what they can sentence the individual for, not the facts of the 

case, but the charge that he was convicted of. 

So what we have done is shifted discretion away from the judges 

to exercise discretion, and hoisted it upon the prosecution which— 

by the way, Mr. Roper, I am very impressed with you and, in terms 

152 

of your desire, your strong desire to enforce the law. And I would 

say that you probably would be biased in favor of prosecution as 

opposed to defense. And I would think that the judges, after hearing the evidence, would be less biased toward one group or one arm 

versus the other; in other words, prosecution, defense, the judges 

sitting up there and making the decision would be able to weigh 

all the evidence and decide without bias what the proper sentence 

was. 

I believe that is the reason why you are here today, Mr. Bonner, 

is because the case of the Border Patrol agents illustrates this shift 

of power from the judges to the prosecutor. What do you say about 

that, Mr. Roper? 

Mr. ROPER. Well, if I understand your question right—— 

Mr. JOHNSON. My question is, isn’t it true that mandatory minimums shift discretion, sentencing discretion, ultimately away from 

judges and into the hands of prosecutors? 

Mr. ROPER. I think to some degree that is true, yes. 

Mr. JOHNSON. Let me ask you, Judge Cassell and Judge 

Hinojosa, what are your thoughts on that? 

Judge CASSELL. I think you have hit the nail on the head when 

you transferred discretion into the arms of the prosecutor, they are 

a biased party in the sense that they are representing one side. 

They are representing the prosecution. Our job as judges is to try 

to balance the competing concerns; and I think from an institutional perspective, we are better able to exercise discretion, better 

able to make the individualized judgments that are required in 

sentencing decisions and is one of the parties in the case. 

Mr. JOHNSON. Judge? 

Judge HINOJOSA. Congressman, we have a system in this country 

basically where the prosecutors do have discretion. When we get 

stopped for speeding, it is the policeman who decides if we are 

going to be given a ticket or not. That is just the way the system 

is set up. However, it does lead to situations where a prosecutor 

can bring something before a court based on particular charges and 

therefore deprive the Court of the opportunity to view a range of 

sentences. 

That is why I, as a judge and certainly as the Chair of the Sentencing Commission, believe strongly that the sentencing guidelines try to do away with that prosecutorial discretion to some extent with regards to the modified real offense conduct that is used 

by a judge to determine what the sentence should be; and it goes 

beyond just the particular charges, but the actual conduct in commission of an offense as well as all the other factors that would be 

considered. 

So that is one way that the sentencing guidelines system that 

was set up by the Sentencing Reform Act was supposed to bring 

this into the judges to, overall, look at the picture of an offense as 

opposed to whatever particular charges were brought. 

Mr. JOHNSON. Thank you. I have run out of time. 

Mr. SCOTT. Thank you. The gentleman’s time has expired. 

The gentleman from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. I appreciate that. And 

we had a parliamentary inquiry on the propriety of having hearings with ongoing litigation. I didn’t know if that was talking about 

153 

something today or the EPA hearings yesterday with ongoing litigation. 

Mr. DAVIS. I was talking about the events today. 

Mr. GOHMERT. Not about the—— 

Mr. DAVIS. Yes. Clarity was needed on that. 

Mr. GOHMERT. Okay. Well, I will mention, yesterday was also regarding a matter that is involved in pending litigation. 

But you know, the mandatory sentencing issue has really surprised me as a former district judge and briefly in the court of appeals in the State system. Every felony that we undertook had a 

range of punishment; there was a minimum and there was a maximum, and as a judge, I had discretion to go anywhere within that 

range. That was the legislative prerogative, to make a range of 

punishment, and I never thought much about that being this horrible thing called a mandatory minimum. I had the range of punishment. 

And I appreciate the judges’ comments about their sentencing 

guidelines. Some of us remember when the guidelines took place, 

some of our Federal judge friends were just going nuts about how 

horrible they were, how they could usurp control and discretion of 

the Federal judges. And then it seemed, as time went on—kind of 

like the frog you put in cool water and eventually warm it up—the 

judges got quite comfortable with their discretion having been 

taken away. And then to the point that it seemed, in the last year 

or two I have been in Congress, we heard judges saying, we haven’t 

had that much problem with the guidelines because they took their 

discretion away, so they didn’t have to stand as much heat for sentences. 

But I just have difficulty understanding why there is so much 

problem with the legislature setting a low end and a high end and, 

Judge, you have got the middle. 

Judge Hinojosa, do you have a problem with having a low end, 

or is it that the low end is sometimes too high? 

Judge HINOJOSA. I guess the question is on the issue of mandatory minimums. I guess what mandatory minimums do do is, they 

treat everybody exactly the same. What the Commission has always felt is that the guidelines and the individual considerations 

that get taken into effect, whether it is a mitigating role or an aggravating role, whether it is the use of a firearm or not the use of 

a firearm, in the sense that if there is no firearm, there is no potential difference in the sentence. And so the point that is made on 

the Commission’s part is that the 35-50-3a factors talk about the 

background in the offense conduct of the individual defendants as 

well as all these other factors that are to be considered. The guidelines that take those into effect in that, that system is different 

from a system that automatically starts treating everybody exactly 

the same and where you have some cliffs where you might end up 

with just a very small amount with regards to drugs, for example, 

putting you over the top, as opposed to somebody who has just got 

slightly less. 

Mr. GOHMERT. But that is the minimum, right, Judge? That is 

not the maximum that you can do. That is just the low end; isn’t 

that correct? 

Judge HINOJOSA. Right. 

154 

Mr. GOHMERT. So I am not sure from your answer—well, my 

question was, do you have a problem with the mandatory minimum 

not being low enough or just having a mandatory minimum at all? 

And I am still not sure where we stand on that. 

But I would also point out—I am not—I think McCain-Feingold 

was one of the biggest constitutional blunders we had at Congress 

that said, Gee, we want to sound like we are toughening up on 

this, and as I understand it, it provides for a mandatory prison 

sentence; and the President said, Well, gee, just be aware I am 

going to sign it if it comes up here; I will let the Supreme Court 

take care of it. 

The Supreme Court said, Don’t count on us to be constitutional. 

So—they punted too, so we ended up with a law that I think has 

serious constitutional issues. So it is important that we take a good 

look at these issues and not punt to another body because we can’t 

count on anybody else. 

And I do appreciate the hearing, and I appreciate the Chairman 

of the Subcommittee and the Committee of the whole indicating 

that this is an important issue. But it seems like the focus ought 

to be more on, are the mandatory minimums too high and what 

should those be, rather than should we have them at all, leaving 

absolutely complete discretion to the judge. 

And my time has obviously expired. 

Mr. SCOTT. Thank you. 

The gentlelady from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Let me thank the Chairman and the Ranking 

Member, the Chairman of the full Committee. This is a hearing 

long overdue and an important, instructive hearing by the witnesses’ testimony to give us guidance for what I think is the chief 

responsibility of this Committee in particular—but the Congress, 

Congress first of all, oversight and legislative reform to the extent 

that it works for the American people and certainly protecting the 

Constitution. 

And I do include in the Constitution the issue of the rights of victims and their families, and the rights of those, of course, who have 

been before the judicial system. So I hope that in my questioning— 

and I would ask the witnesses if they would give me brief ‘‘yes’’ or 

‘‘no’’ answers. 

And, Judge Hinojosa, I am very aware of how fast you spoke the 

first time around. But if I could start with you, and just be as brief 

as you possibly can be. Do you think it is possible to have a legislative fix for this issue dealing with mandatory sentencing? Can we 

analyze the facts and come up with a balance that might be responsive to your testimony? 

Judge HINOJOSA. I would hope so. And that is a quick answer. 

However, you know, at the very least, Congress needs to revisit 

this issue and at least start looking at it. Certainly in crack, something needs to be done. The issue of the safety valve applies in 

drug cases. It doesn’t seem to apply—it doesn’t apply in other 

cases. 

There are a lot of situations where I think that it is time for Congress to start looking at this. 

Ms. JACKSON LEE. We should get involved? 

155 

Judge HINOJOSA. And I think from the Commission’s standpoint, 

it is true, our last review was 16 years old. There is a changing 

docket in the Federal system. We are up to 37 percent of defendants in Federal court are noncitizens of the United States. We are 

up to about 24 percent of the docket is immigration. So this is a 

very different docket from what it was in 1991. 

Ms. JACKSON LEE. Thank you. 

Let me just point out the statistic in your Table One, demographics, which I find appalling. All mandatory cases, you have a 

percentage of 32.9 percent African American, 38.2 percent Hispanic. Do you include the Hispanics as immigration cases? 

Judge HINOJOSA. In that table we do. 

Ms. JACKSON LEE. And so if we were to look at this from an issue 

that really faces America on a regular basis, we have got a lopsided, almost seemingly discriminatory approach here where we 

have over 60 percent almost—in fact, 70 percent, it looks like, of 

the defendants are mandatory—happen to be minorities. Is that accurate from your table? 

Judge HINOJOSA. It is on this table. 

Ms. JACKSON LEE. The one I am looking at. I know there are further explanations, but I just want to get that on the record. 

Judge HINOJOSA. We also have to realize that up to 43 percent 

of the docket is Hispanic, which is a big difference from 10 or 15 

years ago, because of the growth of the immigration docket, as both 

of us know living in the Southern District of Texas. 

Ms. JACKSON LEE. Absolutely. Which clearly points to your issue 

of, let’s review this, let’s have the oversight of Congress. Thank 

you. 

Judge Cassell, you were very clear on the fact that the Judicial 

Conference wants to get back in the business of being judges. What 

is the single most important element of that message that you are 

getting? Why is it so important? Because some people are concerned that the abuse was going the other way, that you will—a 

judge, a southern judge of the 1960’s, will throw the book at somebody who happens to be African American, let someone else walk. 

How do you respond to that? 

Judge CASSELL. I think we want judges to be able to make the 

punishment fit the crime. The only way to do that is to give the 

judges the opportunity to assess an individual case, an individual 

crime, an individual offender. 

Now, you mentioned there may be some problems. We have in 

this country an appellate court system that, as the Supreme Court 

told us just a couple of days ago, can review the substantive decisions judges make at sentencing. I am a trial judge; if I make a 

mistake—— 

Ms. JACKSON LEE. That appeal process. Let me go to Mr. Bonner 

very quickly. 

Mr. Bonner, your case is an outrage. I asked the President to 

pardon these individuals. But I think we want to get back on track. 

Let’s focus on that judge. That judge could have done something 

different. 

You were not in the courthouse. Do you know from family members—and this would be hearsay if you were under oath—but do 

156 

you know from family members whether the judge wanted to do 

something else? 

Mr. BONNER. I actually was at the sentencing, and the judge’s 

hands were tied. 

And let me just quickly add that—— 

Ms. JACKSON LEE. We want to make this a sentencing issue so 

I want you to be able to say that. Do you believe the judge might 

have wanted to be more lenient? 

Mr. BONNER. I think the judge was as lenient as she could be, 

given the constraints of the mandatory minimums. On the other 

charges, she downward—departed dramatically because she could 

have, I believe, in one case levied a 120-year prison sentence; and 

what we saw were 11 and 12 years, of course the 10-year mandatory. 

I don’t believe that Congress ever intended that people who carry 

firearms in the performance of their official duties be considered 

under that law when they are acting reasonably within of scope of 

those duties. 

Ms. JACKSON LEE. Thank you. May I get just this last question 

from Mr. Mauer, please? 

We have got incarcerated persons in under the mandatory sentence, many of them under light drug cases. Do you think part of 

our oversight should consider the aging incarcerated persons—nonviolent crimes, nonviolent, inside for something—such as a goodtime, early-release program that might speak to prisoners 40, 45, 

50 years old that complements this whole review of the sentencing 

process? 

Mr. MAUER. Absolutely. And if you talk to corrections officials, 

they will tell you that is one of their biggest concerns, the cost of 

an aging prison population, the health care costs, and the fact that 

everyone knows after the age of 35 or 40, recidivism rates decline 

dramatically. So, in terms of any risk to the public, obviously this 

is a very low-risk population we are talking about. 

Ms. JACKSON LEE. I thank you. 

Ms. Nunn, I thank you so very much. Your story obviously—and 

I close on this note: You were very fortunate. 

Look at what you have done. And I guess you would say—and 

I can’t get the answer probably that you were very fortunate, but 

how many others are languishing that didn’t get the opportunity? 

Is that a ‘‘yes’’ or ‘‘no’’? 

Ms. NUNN. Yes. 

Ms. JACKSON LEE. I yield back. I thank the Chairman for his indulgence. 

Mr. SCOTT. Thank you. 

I recognize the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I appreciate 

that. 

Judge Cassell, I know you have done a tremendous amount of 

work in a number of different capacities for victims of crime. And 

I have always admired your work, and I know that many in those 

organizations appreciate it. 

Let me just ask you this: What, if anything, do victims of crime 

or victims’ family members, in your experience, feel about mandatory minimums? When I was on this Committee in my first life, one 

157 

of the reasons we set up the Sentencing Commission and one of the 

reasons that many of us supported some mandatory minimums was 

the tremendous disparity across the board in Federal sentencing. 

I specifically remember a case where I had a woman in my district from southern California who had received an enormous prison sentence on the Federal level for a certain drug offense when 

she happened to be down in Texas, from a particular judge at that 

time; and virtually every other judge in the Federal system didn’t 

sentence that way. And the disparity just seemed to be so obvious. 

So I saw it from that standpoint. 

But what about from the standpoint of victims who would say, 

wait a second? In this case, the person who assaulted me or killed 

my brother got this sentence. But someone over here got a far 

greater sentence. Same crime. 

I know we tried to take care of that with the Sentencing Commission. The Supreme Court gave us a little more guidance on 

that, where it seemed to me, take the Sentencing Commission very 

seriously, but if you take it too seriously, it is unconstitutional. 

Kind of an interesting concept. 

But—I understand what they were trying to do, but from the victim’s perspective on mandatory minimum sentencing, can you give 

us any guidance on that? 

Judge CASSELL. I think the interesting question is, why are some 

crimes subject to mandatory minimums and others not? 

We mentioned the case just a year or two ago where the same 

day I sentenced Weldon Angelos to 55 years for carrying a gun to 

several marijuana deals, I had a murderer who had beaten an elderly woman over the head with a log. No mandatory minimum 

sentence in that case and the murderer got a shorter sentence than 

the man who carried a gun to a drug deal. 

There are no mandatory minimum sentences for kidnapping, for 

rape, for sexual assault on a child. These crimes are covered in 

general by the sentencing guidelines. We have created a system 

where we have mandatory sentences for some situations, not for 

others. 

I think the solution is to go with the guidelines across the board. 

I am with you on that. I think the guidelines deserve very serious 

consideration in all cases. We put in place an appellate system so 

that if a judge deviates from the guidelines without a good reason, 

that can be reviewed. 

Mr. LUNGREN. Both above the guidelines and below the guidelines and either side could appeal even though that was a controversy at the time? 

Judge CASSELL. Yes. 

Mr. LUNGREN. So would you say that, in your opinion, we ought 

to get rid of all mandatory minimums, or we ought to go back and 

review those mandatory minimums that exist? I mean, do a full review and see how they comport with sentencing guidelines and see 

if they may be still necessary in some cases and not others? Or 

would you argue that mandatory minimum sentences, as a rule, 

are not good? 

Judge CASSELL. I think, as a rule, they are not good. But I certainly understand you are going to need to prioritize your attention, and I would suggest you prioritize situations where you see 

158 

the mandatory minimum being one place and the guidelines somewhere else. I think that is your clue that you have got a serious 

problem. 

When you see my case, Weldon Angelos, who was supposed to get 

9 years or something like that under the sentencing guidelines, he 

ended up getting 55 years. That is an indication that you have got 

a difference between what the expert agency is recommending in 

a particular situation and what Congress has required. 

Mr. LUNGREN. So you are suggesting we are not the expert agency? 

Judge CASSELL. Well, I am suggesting—I am suggesting—— 

Mr. LUNGREN. The darn Constitution always gets in the way, 

tries to tell us what we are supposed to do. 

Judge CASSELL. I am a strong believer in the guidelines. 

Mr. LUNGREN. And the Constitution? 

Judge CASSELL. And the Constitution, absolutely. 

But you have created two voices. You want us to listen to the 

Sentencing Commission, and in that case they told me 9 years, and 

obviously you want me to listen to the mandatory minimum sentencing scheme. It is hard for us to follow two masters. 

We certainly want to do the right thing. But we think there 

ought to be one clear message as to what should be done in particular cases. And the guidelines are the one thing that speak 

across the criminal code, across all crimes, across all offenders, 

across all circumstances. And so it seems to me they should be taking the lead in most of the cases. 

Mr. LUNGREN. And Judge Hinojosa, I know the Sentencing Commission released that report on the disparities between powder and 

crack cocaine sentencing. And I recall when we started that disparity back in the 1980’s; it was a response to the cries of certain 

communities in this country that they were being overwhelmed by 

this. And it was the powerful force that seemed to be upsetting 

their communities and hitting them in ways that weren’t being felt 

in other communities. 

Our response in the Congress was to say, well, one of the ways 

to do that is to create a real deterrent. So in those cases where we 

saw the presence of a particular type of cocaine really impacted the 

community, we were going to give tougher sentences there. I was 

one of those who went along with it at the time, thought it made 

some sense. 

Is your suggestion that we find in retrospect that that disparity 

of impact in the community, based on the different types of cocaine, 

doesn’t exist or did exist and no longer exists? Did we just make 

a mistake in Congress? What would you say on that? 

Judge HINOJOSA. Since you invited the commenting, I think I 

will. 

I think that situation explains to us how we sometimes in our 

country react to a specific situation and jump full steam ahead 

without seriously studying the issue. And as it turns out, 100-to1 was not the correct ratio in the minds of anybody, or very few 

people, today; but emotionally, at the time, there was the additional factor of an additional incident that occurred that led everybody down this path. 

159 

And so my thoughts on that are, when we have these things happen in a particular case, we need to look at the overall big picture 

and study it. 

The Commission has studied this particular issue for a long time; 

as you well know, we have sent the fourth report on this issue to 

Congress. And in our last hearing it was very hard to find anyone 

from all political spectrums, viewpoints, that would come up with 

the idea that a 100-to-1 ratio was the correct ratio. 

Mr. LUNGREN. I know you are referring to the Len Bias case, I 

believe that occurred at that time. I will say that that did add impetus to the effort. But I will say that at that time we were receiving reports from all over the country, and it was a bipartisan—and 

I actually think it was a Member of the other party who brought 

that forward. And we thought we were responding to the request 

from the communities at that time. 

I thank you for your comment. 

Judge HINOJOSA. And I don’t disagree with that. I just think that 

things change and when we find out more information, I think it 

is okay to revisit issues. 

Mr. LUNGREN. Sure. Thank you. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

The gentleman from Alabama. 

Mr. DAVIS. Ms. Nunn, your case is a paradigm for what I think 

Judge Cassell was talking about earlier. It is the way that the 

guidelines interact with mandatory minimums to create results 

that frankly don’t make a lot of sense on paper. 

In your case, what triggered the 10-year minimum in the first 

place was that the judge decided to hold you accountable for a certain amount of cocaine and then what pushed you to the upper end 

of the guidelines was, he held you accountable for even more than 

that. So I want to focus my questions on the provisions of the sentencing guidelines that operate that, frankly, give judges and prosecutors so much power and give juries, frankly, so little power. 

It is the relevant conduct provisions; and let’s take drug cases, 

for example. A jury may hear a case of, say, 10 or 15 accounts alleging a variety of transactions over a period of time. A jury can 

find the defendant not guilty of 14 of those counts and they can 

find him guilty of 1 count, say, of possession with intent to distribute of 25 grams if I am not guilty of all the rest of the conspiracy. 

When the judge gets to sentencing, she is able to take into account, if she wishes, all of the conduct that was the basis of the 

acquittal, conduct that was never presented to the jury, conduct on 

which there is very little evidence, and to base the sentence on a 

finding; and her standard is only a preponderance of the evidence, 

not beyond a reasonable doubt. 

I prosecuted as an AUSA for 4 years. It didn’t matter what the 

jury did as long as there was a threshold conviction. The whole 

heart of the case where someone got a lot of time or virtually no 

time came down to what the prosecutor wanted to put on as relevant conduct and how the judge wanted to evaluate that. 

That strikes me as a significant problem in its own right. It 

undoes the congressional intent for consistency in these cases. It 

160 

undoes the effectiveness of the guidelines because here is how it 

works: If the prosecutor decides, I don’t want to tell the judge 

about the extra 3 kilos of cocaine that was seized in Miami, he 

doesn’t have to do it. So it gives an enormous amount of influence 

to prosecutors. 

And the Supreme Court has tried to weigh into this, and I would 

like your reaction to this, Judge Cassell and Judge Hinojosa. It 

strikes me that, frankly, they have left as many questions as they 

have clarified. The Booker case several years ago, the U.S. Supreme Court said, well, we are bothered by the massive transfer of 

authority to judges and prosecutors. 

Judge Stevens said, there may be some seventh amendment implications, it may undercut the right to a jury trial, so therefore, 

we are going to unanchor the guidelines from their mandatory 

character. So wait several years, another Supreme Court case. Last 

week the same Supreme Court which raised questions about the 

guidelines and said they are not mandatory says, well, they are not 

mandatory, but if you follow them, you are presuming to be acting 

correctly on appeal. 

Now, in the real world where judges don’t want to get reversed 

and try to figure out how to avoid being reversed because they like 

good win-loss records too, a judge says, well, I know I don’t have 

to follow the guidelines, but if I follow them, I will almost certainly 

be upheld and appealed. 

So the Court giveth with one hand and taketh away with the 

other; and frankly, the Court several years ago invited Congress to 

come back and revisit this issue. The Court said, Congress, you 

have had now 20 years to look at how these guidelines operate; go 

back and tell us if you are content with this system. And unfortunately, the Congress said, well, we would rather have the Court 

tell us what is constitutional. We don’t want to even accept the 

Court’s invitation to act. 

But I would like to get the judges to comment on what you think 

if you are comfortable with commenting on it, what you think of 

the Supreme Court jurisprudence and the inconsistency of the jurisprudence in the last several years of the guidelines. 

Judge CASSELL. I think, rather than criticize the Supreme Court, 

let me just hit this particular point which is, I have already criticized some of the things Congress has done. I think the real problem with mandatory minimum sentences is that they are one-dimensional. 

Take Ms. Nunn’s case, the only what kind of drugs were involved 

and what was the quantity? Once he knew what the quantity was, 

that was the end of the story; that was the sentence that had to 

be imposed. 

The advantage of the guidelines is that they are multidimensional. They allow not only consideration of quality, but the role in 

offense, any other mitigating or aggravating circumstances. And 

that is what we have to do. 

You mentioned judges worried about win-loss records, I think we 

are not so much worried about win-loss records as we are about 

doing the right thing in particular cases. We have defendants. We 

have their family members. We have victims, as Mr. Lungren mentioned. We have prosecutors and defense attorneys. 

161 

We have those sentencing hearings with everyone there, and yet 

our hands are tied in these mandatory minimum sentencing cases; 

we can’t do what we think is the right thing. 

Mr. DAVIS. Judge, this is the concern. I am not impugning 

judges. 

The point that I am making is, the way that the system works 

does not have the transparency that I think the Congress wanted 

or the transparency that the Sentencing Commission intended, 

Judge Hinojosa. The way the guidelines work as a practical matter 

is the most important part of whether someone gets the fate that 

Ms. Nunn has, or if someone walks out in a few years is not what 

the jury decides; it is what a given AUSA decides, what a judge decides. 

And I will make this final point. In my experience on both the 

prosecution’s side and the defense side, here is what drives whether or not prosecutors bring in particular relevant conduct. Did the 

defendant cooperate? If the defendant didn’t cooperate, we will 

throw the book at him. If we got ticked off because the jury gave 

us a ‘‘not guilty’’ verdict on some counts, we will really come back 

and make a fourth relevant conduct stage? If the defendant files a 

motion that is too obnoxious, maybe we will come back and decide 

to bring an even more relevant conduct? 

Some of those considerations are blatantly impermissible, some 

of those are borderline; but in all instances, they give an enormous 

amount of power to judges as opposed to the prosecutors to put 

facts in front of judges or not to do so. 

And I can’t imagine that that is what Congress intended 20 years 

ago. And I hope it is not what the Supreme Court intends either. 

Judge HINOJOSA. Could I answer? 

Mr. SCOTT. Certainly. 

Judge HINOJOSA. Congressman Davis, I guess I am one of the 

few judges left who has done sentencing without the guideline system and before the Sentencing Reform Act. I did it for about 4-1/ 

2 years and then have done it since 1987 with the sentencing 

guidelines. 

I will say that the guideline system did bring transparency and 

due process that we did not have. As you all know, beforehand, I 

would just go on the bench and say, zero to 20 years, and pick out 

whatever sentence it was. I did not have to give the defense nor 

the prosecution to go ahead and explain to me why I might be 

wrong. 

I considered acquitted conduct without ever telling anyone, because it made sense to me to treat somebody differently who might 

have heard evidence, might have committed another crime, as opposed to somebody who had not committed, in my mind, another 

crime. So the transparency, the due process, has been brought 

about by the Sentencing Reform Act through the guidelines. 

The other thing that the statute actually says under Title 18, 

section 1661, no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive 

and consider for the purpose of imposing an appropriate sentence. 

And so what we do have is, we do have the relevant conduct. 

162 

We do have—the Supreme Court in Watts said that acquitting 

conduct based on the discretion of the judge could be considered. 

The guidelines themselves say it has to be a reliable indicia of evidence in order for you to be able to proceed with regards to relevant conduct. 

My impression has been that prosecutors try to give us too much 

relevant conduct. My role as a judge is to try to figure out exactly 

what some informant may have said is really true, or not, with regards to the amount of the drugs. So I guess it depends on the 

prosecutor to some extent. But we, as judges, have this role of trying to determine the facts and then determine the appropriate sentence. It is a difficult job. And I know it is difficult for Congress 

to deal with these issues also, but it is about the hardest thing that 

we do in the courtroom. 

Mr. DAVIS. Chairman, if you would indulge me 15 seconds, I 

would simply make this comment. I would like to see us move to 

a world where, frankly, just as in civil cases, juries are asked to 

make a range of factual findings in addition to liability. I would 

like to see us move toward a world where juries made factual determinations of whether or not the person was accountable for 500- 

to-1.5 kilos, whatever the other ranges are. I would like to see us 

move to the point where those determinations were made by juries 

so we didn’t have, in effect, trials happening at the sentencing 

phase with a much lower standard of evidence when it happens 

with a real jury. 

Mr. ROPER. Mr. Chairman, if I could just be recognized for a second. 

I would hate to give the impression that prosecutors across the 

country are engaged in hiding relevant conduct from a judge. I 

don’t permit that in my office. I never did that in the years that 

I served as the prosecutor, trying to manipulate the guidelines. 

I think there is a responsibility prosecutors have to provide evidence so that the court will have the ability to consider the full options under the guidelines, and my fear is, if we do away with the 

guideline sentences, we will go back to what I saw as a prosecutor 

when I had a defendant brought in to testify that received 15 years 

in Texas for a bank robbery, pre-guidelines, and he was complaining because he had a defendant in his cell in prison that received 2 years in Federal prison for a similar type bank robbery. 

Mr. SCOTT. Thank you. I would like to thank all of the witnesses 

for their testimony. 

Excuse me. The gentleman from Texas. 

Mr. GOHMERT. Could I ask unanimous consent to comment on 

Mr. Davis’ good suggestion? Just 1 minute? 

Mr. SCOTT. The gentleman is recognized. 

Mr. GOHMERT. I think Mr. Davis makes a good comment. That 

might be of great assistance if we did require those. 

In some limited cases in Texas State law we have started doing 

that. It is an enormous help. If the jury makes the finding, it takes 

us out of some unknown or unelected or unappointed person back 

there, who is just hired to make these determinations; and I think 

that would be very helpful. 

And it does sound like, though, the mandatory minimum is not 

so much objectionable as it is the way they are enhanced up. And 

163 

if there were a way to look at that and maybe make incremental 

increases so it is not just a huge jump up to some 55-year sentence 

when it should be a 9-year; and the suggestion of Judge Cassell 

that maybe we look at that in terms of where are the discrepancies 

between the Sentencing Commission’s recommendation and what 

the law requires and possibly make those areas where we could 

clean up with legislation. 

I appreciate the gentleman’s suggestion. 

Mr. DAVIS. I thank the gentleman. 

Mr. SCOTT. Thank you. I think we have to differentiate between 

the guidelines and what is permissible to ratchet things up, according to the guidelines, and a statutory mandatory minimum that ignores the guidelines; and if the statutory mandatory minimum is 

above what the guidelines would say, you would start off at the 

mandatory minimum regardless of mitigating circumstances and 

everything else. 

So I think the comment was considering for the purpose of guidelines whether or not you meet the mandatory minimums. That is 

one question. 

The other is—excuse me—for the purpose of guidelines whether 

you ratchet up the sentence, whether you can consider behavior for 

which you were found not guilty. 

The mandatory minimums, you don’t even get to the guidelines; 

you are stuck by statute with a minimum sentence. So they are 

slightly different situations, but they are, as you have suggested, 

very much overlapped. So that is something that we need to look 

at. 

And we appreciate your comments. If there are no further comments, I would like to thank the witnesses for their testimony. 

Members will have additional—who have additional questions 

will forward them, and we will forward them to the witnesses and 

ask that you answer them as promptly as possible for the record. 

Without objection, the hearing record will remain open for 1 week 

for the submission of additional materials. 

Without objection, the Committee stands adjourned. 

[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.] 

(165) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE LOUIS J. FREEH

I support House Bill 71 and the repeal of Delaware’s mandatory minimum drug 

sentencing laws. When these laws were first passed, lawmakers hoped that these 

‘‘tough on crime’’ sentences would catch those at the top of the drug trade and deter 

others from entering it. More than two decades later, we know better. Drugs are 

cheaper, purer and more available than ever before, and America’s prison population has tripled to more than 2.1 million. Today, Delaware houses 7,000 inmates 

at a cost of $230 million per year. Delaware’s prison and jail population has more 

than quadrupled in the last 25 years and our correction expenditures have soared. 

Still, drug use has not declined and our communities are not safer. We don’t need 

any more evidence to know that these laws do not work. 

As a former FBI agent, federal prosecutor, and federal judge, I have first hand 

experience in law enforcement, in prosecution, and on the bench, and I see clearly 

that Delaware’s mandatory minimum drug sentencing laws should be repealed. 

Without question, drug dealers belong off our streets and in prison, but Delaware’s 

mandatory minimum drug sentences do not apply only to dealers or violent offenders. Delaware’s mandatory minimum drug sentencing laws are based solely on the 

type and weight of the drug involved. The equivalent of a few packets of artificial 

sweetener can be enough to trigger a mandatory minimum sentence. Take one away 

and no mandatory minimum applies. Add one and an addict faces a long term of 

imprisonment. 

I have the greatest respect for law enforcement officers and the vital role they 

play in our criminal justice system. The hours are long and the work dangerous, 

and law enforcement officials should be given all of the tools necessary to do their 

jobs. However, we cannot arrest our way out of our nation’s drug problem. With the 

repeal of mandatory minimum drug sentencing laws, Delaware’s judges would again 

be able to consider fully all the aggravating and mitigating circumstances of each 

case, factors including physical and mental impairment, mental retardation and duress. With such discretion, judges will be equipped to identify drug dealers and imprison them; to recognize those in need of drug treatment and treat them; and to 

handle all offenders as unique individuals and sentence them appropriately. Delaware’s sentencing guidelines and Truth-in-Sentencing Law would remain in force, 

helping to guide judges in their decisions and ensuring that offenders complete their 

sentences. 

Research has shown that imprisonment alone does not guarantee public safety 

and there is no evidence that mandatory minimum drug sentencing laws are effective in deterring drug crime. With incarceration rates so high in Delaware, and 

without a corresponding drop in drug crimes or improvement in public safety, it is 

a matter of necessity that we explore effective means of reducing our expanded prison population through solutions that will help our state to focus its resources on 

violent offenders and on programs that will revitalize communities, reduce recidivism, and promote the successful reentry of ex-offenders back into society. It is time 

for Delaware to follow the growing momentum within our state and across the nation and join the many states including New York, Michigan, and most recently our 

neighbor Maryland, that have recognized the need for reform and repealed or restructured mandatory minimum drug sentencing laws. We need to do away with the 

short-term, flawed solution to drug crime posed by these sentences and focus our 

resources on proven alternatives to incarceration. 

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