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S. HRG. 113–356 

REEVALUATING THE EFFECTIVENESS OF FEDERAL 

MANDATORY MINIMUM SENTENCES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 18, 2013 

Serial No. J–113–30 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 32 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

prepared statement .......................................................................................... 34 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 5 

WITNESSES 

Witness List ............................................................................................................. 31 

Paul, Hon. Rand, a U.S. Senator from the State of Kentucky ............................. 6 

prepared statement .......................................................................................... 37 

Levin, Marc, Policy Director, Right on Crime Initiative at the Texas Public 

Policy Foundation, Austin, Texas ....................................................................... 9 

prepared statement .......................................................................................... 40 

Tolman, Hon. Brett, Shareholder, Ray Quinney & Nebeker, Salt Lake City, 

Utah ...................................................................................................................... 11 

prepared statement .......................................................................................... 62 

Burns, Hon. Scott, Executive Director, National District Attorneys Association, Alexandria, Virginia .................................................................................... 13 

prepared statement .......................................................................................... 68 

QUESTIONS 

Questions submitted by Senator Franken for Marc Levin ................................... 73 

Questions submitted by Senator Franken for Brett Tolman ............................... 74 

QUESTIONS AND ANSWERS 

Responses of Marc Levin to questions submitted by Senator Franken .............. 75 

Responses of Brett Tolman to questions submitted by Senator Franken ........... 80 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Saris, Patti B., Chair, United States Sentencing Commission, statement ......... 83 

Bell, Robert Holmes, Chair, Committee on Criminal Law, Judicial Conference 

of the United States, Grand Rapids, Michigan, September 17, 2013, letter ... 96 

Stewart, Julie, President, Families Against Mandatory Minimums (FAMM), 

statement .............................................................................................................. 105 

Angelos, Lisa, statement ......................................................................................... 123 

Hopwood, Shon, The Justice Safety Valve Act of 2013, statement ..................... 126 

The Need for Meaningful Federal Criminal Justice Reform, Policy Statement 

of Former Federal Prosecutors and other Government Officials, submitted 

by Brett Tolman ................................................................................................... 134 

Summary of Sample Mandatory Minimum Cases ................................................ 140 

Armstrong, Sherrie A., and Thomas C. Means, Attorneys, Crowell & Moring 

LLP, Washington, DC, statement ....................................................................... 168 

Immigrant Justice Network (IJN), statement ....................................................... 176 

Group of former judges, prosecutors and law enforcement officials, Letter 

to Senators Durbin and Lee regarding the Smarter Sentencing Act, September 17, 2013 .................................................................................................... 181 

American Correctional Association, Alexandria, Virginia, Public Correctional 

Policy on Sentencing, statement ......................................................................... 187 
Page

IV 

American Correctional Association, Alexandria, Virginia, Supporting the 

Elimination of Mandatory Minimum Sentences and the Enactment of ‘‘Safety Valve’’ Legislation, statement ......................................................................... 189 

Haase, Mark and Sarah Walker, Co-Chairs, Minnesota Second Chance Coalition, letter ............................................................................................................. 190 

Ford, Wayne, Former Iowa State Representative, Des Moines, Iowa, statement ...................................................................................................................... 193 

Eaglin, Jessica M., Counsel, Brennan Center for Justice at NYU School 

of Law, statement ................................................................................................ 194 

American Civil Liberties Union (ACLU), Washington Legislative Office, statement ...................................................................................................................... 202 

Tyler, Jasmine L., M.A., Deputy Director, National Affairs, Drug Policy Alliance, Berkeley, California, statement ................................................................ 214 

Federal Criminal Justice Clinic, the University of Chicago Law School, statement ...................................................................................................................... 223 

Ginatta, Antonio M. Advocacy Director, Human Rights Watch, statement ....... 240 

Henderson, Wade, President & CEO, The Leadership Conference on Civil 

and Human Rights, Washington, DC, statement .............................................. 246 
(1) 

REEVALUATING THE EFFECTIVENESS OF 

FEDERAL MANDATORY MINIMUM SENTENCES 

WEDNESDAY, SEPTEMBER 18, 2013 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Durbin, Klobuchar, Franken, 

Blumenthal, Hirono, Grassley, Cornyn, and Lee. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Thank you for being here. 

Today we are meeting to confront the unsustainable growth of 

our federal prison population. Let me emphasize that: the 

unsustainable growth. After years of debate, I am encouraged that 

we have bipartisan agreement that we must act, that we must reevaluate how many people we send to prison and for how long. Fiscal responsibility demands it. Justice demands it. 

One piece of the problem is the extensive use of mandatory minimum sentences. It is a problem that Congress created, but it is 

also a problem Congress can fix. 

I want to be clear that some offenders deserve long sentences. I 

certainly learned that as a prosecutor. And no one is saying that 

we should not send dangerous criminals to prison. As any prosecutor knows, behind our most serious crimes, of course, are victims, and victims deserve peace of mind knowing that the criminal 

who robbed them or raped them or defrauded them of their life savings is off the streets and is being punished. We know that in some 

cases, especially white-collar crimes, long sentences can serve as a 

deterrent to others. I also want to emphasize that our efforts 

should in no way be seen as a criticism of the tireless efforts of law 

enforcement officials who dedicate their lives to keeping us safe. 

They deserve our appreciation and support. We saw an example of 

their efforts just this week here in Washington, D.C. 

But we also have to acknowledge that our federal prison population is expanding at a rate that is simply unsustainable. In the 

past 30 years, it has soared by more than 700 percent. We now 

spend—and this is just on federal prisons, not State prisons. We 

spend approximately $6.4 billion a year on federal prisons; that is 

about a quarter of the Department of Justice’s budget. This spending means fewer federal prosecutors and FBI agents, less funding 
2 

for investigations, less support for State and local law enforcement, 

and fewer resources for crime prevention programs or victim services or reentry programs. 

Now, the skyrocketing costs might be acceptable if mass incarceration improved public safety. But we know it does not. While Congress has continued to pass legislation mandating ever longer sentences, the States have focused on successful alternatives. New 

York, South Carolina, Georgia, Ohio, Rhode Island, and Michigan 

have undertaken reforms like reducing sentences, repealing mandatory minimums, investing in recidivism reduction, and they have 

saved taxpayer dollars—all while crime rates have decreased. So I 

think we should look to the States and see what lessons they have 

learned. 

The number of mandatory minimum penalties in the Federal 

Code nearly doubled from 1991 to 2011. Many of those mandatory 

minimums originated right here in this Committee room. When I 

look at the evidence we have now, I realize we were wrong. Our 

reliance on a one-size-fits-all approach to sentencing has been a 

great mistake. Mandatory minimums are costly, unfair, and they 

do not make our country safer. 

I will give you an example. Weldon Angelos, a 23-year-old with 

no criminal history, received a 55-year mandatory minimum sentence for selling $350 worth of marijuana on three occasions while 

in possession of a firearm. Now, there is no question Mr. Angelos 

committed a crime and he should be punished. But 55 years? He 

will be in prison until he is nearly 80 years old. His children, only 

5 and 6 at the time of his sentencing, will be 60 years old. And for 

selling that $350 worth of marijuana, we the taxpayers will have 

spent more than $1.5 million to lock him up. 

The federal judge who sentenced Mr. Angelos—and incidentally, 

the federal judge was a conservative Republican—called this sentence ‘‘unjust, cruel, and irrational’’ and noted the sentence, which 

involved no violence, was much more than the minimum for hijacking or kidnapping or rape. So we have to ask ourselves: What good 

does this do society? 

Mr. Angelos’ sister is here today, as are many family members 

with similar stories of loved ones sent to prison for decades, and 

I thank them for being here. 

Attorney General Holder’s decision last month not to pursue 

mandatory minimum sentences for certain drug cases is an encouraging step, but it will not reach cases like Mr. Angelos’. And the 

Department of Justice cannot solve this problem on its own. Congress has to act. 

In March, Senator Rand Paul and I introduced the Justice Safety 

Valve Act of 2013, which would restore the sentencing discretion 

judges used to have if they determine that a mandatory minimum 

punishment is unnecessary and counterproductive. And I believe I 

speak for both Senator Paul and myself—and he is going to be testifying—that judges, not legislators, are in the best position to 

evaluate individual cases and determine appropriate sentences. 

Our bipartisan legislation is neither liberal nor conservative. It has 

received support across the political spectrum. 

I am also a cosponsor of the Smarter Sentencing Act, which was 

introduced by Senator Durbin and Senator Lee and makes nec-
3 

essary reforms to federal drug sentences. I know that Senator 

Cornyn, Senator Whitehouse, and others are working on legislation 

to reduce the size of our prison population. I hope we can combine 

the best ideas from all of these pieces of legislation, because we 

cannot afford to stay on our current path. 

Reducing mandatory minimum sentences, which have proven unnecessary to public safety, is an important step that we desperately 

need. This is not a political issue. It is a practical one, and it is 

long overdue. 

Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. 

SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you for holding this hearing. There is 

quite a bit of misunderstanding concerning this topic. Prior to 

1984, federal judges had almost unlimited discretion in sentencing. 

Sentences imposed depended much more on which judge was giving 

the sentence than the nature of the offense or of the criminal’s history. Parole and excessive judicial discretion led to unwarranted 

disparity. Congress thus adopted Sentencing Guidelines. They considered the nature of the criminal offense and the history of the offender. Those guidelines were normally binding on any federal 

judge. So no longer would sentences turn on which judge a criminal 

appeared before. The guidelines eliminated disparities. Judges 

could not consider factors that often led to wealthier defendants receiving shorter sentences for similar crimes than the less wealthy. 

Racial bias, conscious or unconscious, also was addressed 

through the guidelines. Lengthier sentences protected victims’ interests and reduced the changes that other innocent people would 

become victims. All this had wide bipartisan majorities. 

Congress also increased the number of mandatory minimum sentences, although they have existed since 1790. Since then, due in 

part to tougher federal criminal penalties, elimination of parole, increased number of inmates, better police practices, and other factors, crime rates have dropped significantly. 

The Supreme Court undermined the excellent sentencing legislation. 

First, the Court created from whole cloth a novel interpretation 

of the Sixth Amendment. 

Second, the Court in Booker unnecessarily extended that line of 

cases to mandatory sentencing guidelines and help them to be unconstitutional. 

Third, rather than strike down the guidelines, the courts rewrote 

them. 

In a particularly egregious example of judicial activism, they 

overrode congressional intent and made the guidelines advisory. It 

was only because the guidelines were clearly intended to be mandatory that Congress ever passed them in the first place. 

Following Booker, Congress has only one tool to make sure that 

sentences are not too lenient and do not reflect unwarranted disparity. That, of course, is mandatory minimums. 

Under the current state of the law, if Congress, reflecting the 

will of the American people, is to have any effect on sentences imposed, protecting victims, deterring crimes, punishing appro-
4 

priately, mandatory minimums are our only option. Otherwise, 

judges will be able to exercise effectively unbridled discretion that 

existed before 1984. 

Some people think that the cost is a reason to do away with 

mandatories, so we have this oddity. For the first time in 5 years, 

this administration finally found one area of federal spending that 

it wants to cut, and that is, prison expense. Perhaps in an era of 

voluntary guidelines, the first place to think about cutting spending on sentencing would be abolishing the Sentencing Commission. 

Private parties can analyze this data and issue reports just as well, 

and taxpayers will not have to fund an entity that favors retroactive leniency at various opportunities. 

The sentencing disparities that exist today are not due to mandatory minimum sentences, which existed both before Booker and 

after. In fact, Congress has reduced mandatory minimum sentences 

since Booker. Rather, the disparities are due primarily to the Supreme Court’s Booker decision that made the Sentencing Guidelines advisory. Minimum sentences imposed now turn on which 

judge the offender appears before. The quality of the lawyer, and 

other factors that produced disparities before the Sentencing Reform Act are now creeping back into sentencing. 

The Sentencing Commission in December issued a report that 

compared sentences of African Americans and white males at the 

time the guidelines were still mandatory until now when they are 

advisory only. For cases overall, when the guidelines were mandatory, African American males served 11.5 percent longer sentences 

than white males. Now that the guidelines are advisory, African 

American men serve 19.5 percent longer sentences than white 

males. 

In firearms cases, African American men received sentences that 

were 6 percent longer than white men when guidelines were mandatory. Today African American men receive sentences 10 percent 

longer than whites for these crimes. 

For drug trafficking, African American men received sentences 

that were 9 percent longer than white men in 2005, but since the 

guidelines were made advisory, they now receive sentences that are 

13 percent longer. 

As the Sentencing Commission concluded, ‘‘Although sentence 

length for both black male and female offenders and white male 

and female offenders have decreased over time, white offenders’ 

sentence length has decreased more than black offenders’ sentence 

length.’’ 

We should certainly continue to examine federal sentencing policies. We may decide that the length of some mandatory minimum 

sentences should be adjusted up or down. But there are two areas 

in which we ought to consider adding new mandatory minimum 

sentences because federal judges are departing downward from 

guidelines excessively. These are financial crimes and child pornography possession. We should consider imposing mandatory minimum sentences for these offenses. 

Mandatory minimum sentences are not as inflexible as they are 

often characterized. According to the Sentencing Commission, almost half of the offenders convicted of an offense carrying a mandatory minimum sentence are not given such sentences. We hear over 
5 

and over again that mandatory minimum sentences are not one 

size fits all or that they are unfair. We hear that low-level and first 

offenders always receive harsh sentences, and that is not so. It effectively—the safety valve provision requires judges not to impose 

mandatory minimum sentences for first-time low-level nonviolent 

drug offenders who have cooperated with authorities. The combination of mandatory minimum sentences and the reduction for substantial assistance provides investigative leads against bigger fish. 

It is a benefit of mandatory minimum sentences that is not always 

appreciated. 

I will put the rest of my statement in the record. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Chairman LEAHY. Thank you. 

I mentioned that Senator Durbin, who chairs one of the major 

Subcommittees here, has legislation. He wanted to say a couple 

words, and then we will go to Senator Paul, if that is all right. Senator Durbin. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Mr. Chairman, thank you for this hearing. Senator Paul, thank you for being part of a bipartisan effort. Senator 

Lee has also been working with me on companion legislation, parallel legislation. I commend it to you. I hope that you will look at 

it. It is very, very similar to what you have, but it takes a slightly 

different approach. 

I just want to tell a story. It is a story of a young black woman 

named Eugenia Jennings. Eugenia Jennings from Alton, Illinois, 

was a single mom with three children. She became addicted to 

crack. There was a time when she was desperate, without money, 

and she sold a small quantity of crack to a man in exchange for 

clothing, and she ended up being arrested. 

At the age of 23, she was arrested, convicted, and sentenced to 

22 years in prison for the sale of a handful of crack cocaine. Twenty-two years in prison. She left behind three small children. Her 

brother, Cedric Parker, a true hero, stepped in to raise those kids 

while his sister went off to prison for 22 years. He did a great job, 

and he came and testified and told us her story. 

I decided to look at it more closely and get to know Eugenia Jennings. I met her in a federal prison in Greenville, Illinois, and 

found out that she had been a model prisoner for 10 years. She had 

done everything right. There was nothing to say negatively about 

her, and I met with her in a room, and she looked up at me, and 

she said, ‘‘Senator, if you can get me back with my kids, I promise 

you I will never, ever commit another crime in my life.’’ 

I told that story to a former Senator from Illinois named Barack 

Obama. He commuted her sentence. She has been home now for a 

year and a half. She is struggling with cancer, but she is back with 

her children. They are reunited. They are a family again. 

Was America safer if she spent another 10 years in prison at 

$29,000 or $30,000 a year? Was her family better if she was separated from them for another 10 years? Is 22 years a just sentence 
6 

for what I just described to you, even if it was one of multiple offenses? And I will be very honest with you—it was. 

In fact, the President saw it differently, and he did what I think 

was the right thing. 

What we are talking about here is doing everything that we can 

do sensibly to reduce the level of incarceration. In our bill, it focuses on drug cases, and those represent about 50 percent of the 

increase in prison incarceration. 

I have talked to judges, prosecutors, all across the board. They 

have begged for the opportunity to be able to reduce these mandatory minimums in cases just like Eugenia’s. Before the President 

commuted her sentence, he went back to the sentencing judge, 

went back to the U.S. Attorney’s Office, and all of them said, ‘‘Turn 

her loose.’’ They knew that there was a miscarriage of justice in 

her case. 

Let us be smart about reducing crime in America. Let us not be 

punitive in the belief that somehow that makes us a safer nation. 

Mr. Chairman, this is the right time for this hearing, and this 

is the right time for the Judiciary Committee and Congress to address this issue. 

Chairman LEAHY. Well, thank you very much. 

Senator Paul and I have had a lot of discussions on this. I know 

of his sincerity and his feelings about this. Senator, please go 

ahead. 

STATEMENT OF HON. RAND PAUL, A U.S. SENATOR FROM THE 

STATE OF KENTUCKY 

Senator PAUL. Good morning. Thank you for allowing me to testify today about mandatory minimums. 

If I told you that one out of three African American males is forbidden by law from voting, you might think I was talking about 

Jim Crow 50 years ago. Yet today a third of African American 

males are still prevented from voting because of the War on Drugs. 

The War on Drugs has disproportionately affected young black 

males. The ACLU reports that blacks are four to five times more 

likely to be convicted for drug possession although surveys indicate 

that blacks and whites use drugs at about the same or similar rate. 

The majority of illegal drug users and dealers nationwide are 

white, but three-fourths of the people in prison for drug offenses 

are African American or Latino. Why are the arrest rates so lopsided? Because it is, frankly, easier to go into urban areas and 

make arrests than it is to go into suburban areas. 

Arrest statistics matter when applying for federal grants. It does 

not take much imagination to understand that it is easier to round 

up, arrest, and convict poor kids than it is to convict rich kids. 

The San Jose Mercury News reviewed 700,000 criminal cases 

that were matched by crime and criminal history of the defendant. 

The analysis revealed that similarly situated whites were far more 

successful than African Americans and Latinos in the plea bargaining process; in fact, ‘‘at virtually every stage of pretrial negotiation, whites are more successful than non-whites.’’ 

I know a guy about my age in Kentucky, who grew marijuana 

plants in his apartment closet in college. Thirty years later, he still 

cannot vote, cannot own a gun, and when he looks for work he 
7 

must check the box, the box that basically says: ‘‘I am a convicted 

felon and I guess I will always be one.’’ He has not been arrested 

or convicted for 30 years, but he cannot vote, he does not have his 

Second Amendment rights, and getting a job is nearly impossible 

for him. 

Today I am here to ask you to create a safety valve for all federal 

mandatory minimums. Mandatory sentencing automatically imposes a minimum number of years in prison for specific crimes— 

usually related to drugs. By design, mandatory sentencing laws 

take discretion away from judges so as to impose often harsh sentences, regardless of circumstances. 

Since mandatory sentencing began, America’s prison population 

has exploded, quadrupled, 2.4 million people in jail. America now 

jails a higher percentage of its citizens than any other country in 

the world, at a staggering cost of $80 billion a year. 

Recently Chairman Leahy and I introduced the Justice Safety 

Valve Act. This legislation is short and simple. It amends current 

law to provide ‘‘authority to impose a sentence below a statutory 

mandatory minimum.’’ In other words, we are not repealing mandatory minimums, although I probably would. What we are doing 

is merely allowing a judge to sentence below a mandatory minimum if certain requirements are met. 

There is an existing safety valve, some will argue, yet it is very 

limited. It has a strict five-part test, and only about 23 percent of 

all drug offenders are qualified for the safety valve. 

The injustice of mandatory minimum sentences is impossible to 

ignore when you hear the stories of the victims: 

John Horner was a 46-year-old father of three when he sold some 

of his prescription painkillers to a friend. His friend turned out to 

be a police informant, and he was charged with dealing drugs. 

Horner pleaded guilty and was sentenced to the mandatory minimum of 25 years in jail. He will be nearly 80, like the other people 

we have heard from earlier. 

Edward Clay, 18 years old, was a first-time offender when he 

was caught with less than 2 ounces of cocaine. He received 10 

years in jail from a mandatory minimum sentence. 

Weldon Angelos, who the Chairman mentioned, was 24 years old 

and was given 55 years in prison for selling marijuana. There is 

no justice here. It is wrong, and it needs to change. 

Federal Judge Timothy Lewis recalls a case where he had to 

send a 19-year-old to prison for conspiracy. What was the ‘‘conspiracy’’? The young man was in a car where drugs were found. I 

do not know about you—this is Judge Lewis—but I am pretty sure 

one of us might have been in a car in our youth at one point in 

time where there might have been drugs in the car. Imagine this— 

and I am glad the President has such great compassion, because 

he has admitted, like a lot of other individuals who are now elected 

to office, that one time he made mistakes as a youth. And I think 

what a tragedy it would have been had he gone to prison. What 

a tragedy it would have been if America would not have gotten to 

see Barack Obama as a leader. I just do not know why we cannot 

come together and do something about this. 

Each case I think should be judged on its own merits. Mandatory 

minimums prevent this from happening. Mandatory minimum sen-
8 

tencing I think has done little to address the real problem of drug 

abuse while also doing a great deal of damage by destroying so 

many lives. 

I am here today to ask you to let judges start doing their jobs. 

I am here to ask that we begin today the end of mandatory minimum sentencing. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Paul appears as a submission for the record.] 

Chairman LEAHY. Well, thank you, Senator Paul. As I said, you 

have talked many, many times about this, and I do not question 

your sincerity. I know the Sentencing Commission found that African American and Hispanic offenders constitute the large majority 

of offenders subject to mandatory minimums. And as a result, African American offenders make up 26 percent of drug offenders convicted of crimes carrying mandatory minimums. But they account 

for 35 percent of those at sentencing. And, you know, the statistics 

are very clear on this. They are also very clear that this has not 

really done anything to protect us or make us safer. 

Senator PAUL. Could I make one final point? It is not just the 

unfairness of the sentencing. This is a lifelong problem with employment. People talk about it. You have got to check the box that 

you are a convicted felon. It makes it very difficult, and I think for 

a nonviolent felony, we need to get away from a lifelong punishment where you really have difficulty getting employment after 

this. 

Chairman LEAHY. You know, it is interesting. On the voting, in 

my State, if you are convicted of a felony, you do not lose your right 

to vote. In fact, when I first ran for the Senate, I was very interested in what the votes were coming out of our State prison insofar 

as about a third of the people in there had been prosecuted by me. 

[Laughter.] 

Chairman LEAHY. But I have always supported allowing people 

to vote. 

Senator Paul, you have asked if you can stay, and you are most 

welcome to stay for any part of this hearing you want. 

Unless there are questions of Senator Paul, we will go to our 

next witness. Thank you very much. 

Senator PAUL. Thank you. 

Chairman LEAHY. Senator Grassley, go ahead. 

Senator GRASSLEY. I ask unanimous consent to include in the 

hearing record a statement from Wayne Ford, Des Moines, Iowa, 

a former member of the Iowa Legislature, on this subject. 

Chairman LEAHY. And, without objection, of course, it will be. 

[The statement appears as a submission for the record.] 

Chairman LEAHY. Our first witness is Marc Levin. He is the director of the Center for Effective Justice at the Texas Public Policy 

Foundation and policy director of its Right on Crime Initiative. 

Since he started Right on Crime with colleagues in 2010, the initiative has become a national leader in conservative criminal justice 

reform. His work played a key role in Texas criminal justice reforms that I understand saved $2 billion in avoided incarceration 

costs while still maintaining low crime rates. 
9 

Mr. Levin, please go ahead. And what we are going to do, we are 

going to hear from each of the witnesses, and then we will have 

questions. And I would ask you to keep within 5 minutes. Your 

whole statement will be placed in the record. Go ahead, sir. 

STATEMENT OF MARC LEVIN, POLICY DIRECTOR, RIGHT ON 

CRIME INITIATIVE AT THE TEXAS PUBLIC POLICY FOUNDATION, AUSTIN, TEXAS 

Mr. LEVIN. Thank you, Chairman, and it is a real privilege to be 

here with our very distinguished, outstanding U.S. Senator, John 

Cornyn, who has done a great deal to advance public safety over 

the years as well. 

We launched Right on Crime back in 2010 following our successful work since 2005 to strengthen the criminal justice system in 

Texas, and I am pleased to tell you we have now our lowest crime 

rate since 1968, even as our incarceration rate has fallen by more 

than 10 percent. 

Back in 1999, Ed Meese, who was one of the signatories to our 

Right on Crime Statement of Principle, said, ‘‘I think mandatory 

minimum sentences for drug offenders ought to be reviewed. We 

have to see who has been incarcerated and what has come from it.’’ 

Now more than 2 decades later since Ed Meese said that, we now 

have a chance to review these mandatory minimums, and I thank 

the Committee and the Chairman for that. 

I am really pleased that Senators of both parties have come together to see how we can improve the federal criminal justice system and, frankly, learn from our laboratories of innovation, the 

States around this country, including Texas. And as a great believer in the Tenth Amendment, I think it is a great opportunity 

for the federal prison system to see some of the evidence-based 

practices in community supervision, strengthening reentry, and 

other solutions that have proven to be successful in many States. 

We want to emphasize that public safety, whether accomplished 

through our military or justice system, is one of the few functions 

government should perform and perform well. As crime began increasing in the 1970s, Americans, and particularly conservatives, 

were correct to react against the attitudes and policies that 

stemmed from the 1960s, which included an ‘‘if it feels good, do it’’ 

mentality, as well as a tendency to emphasize societal causes of 

crime while disregarding the fundamental individual responsibility 

for crime. In the ensuing decades, we have seen a six-fold increase 

in incarceration, and we want to emphasize some of that, particularly as it relates to ensure violent and dangerous offenders were 

kept off the streets for a long time, was necessary. 

But the pendulum went a bit too far. We swept too many lowrisk nonviolent offenders into our prison systems. Thankfully, we 

have seen a great deal of advances both in techniques and research 

since that time, whether it is risk and needs assessments, electronic monitoring, Drug Courts, the Hawaii HOPE Court, which 

has reduced recidivism and substance abuse by two-thirds. We are 

seeing many States around the country achieve great success with 

strengthening alternatives to incarceration for nonviolent offenders. 

And in Texas, as the Chairman observed, we were able to do that 

back in 2007 with a justice reinvestment package; since that time 
10 

we have seen double-digit drops both in our crime rate and our incarceration rate, including saving more than $2 billion on building 

prisons that we did not have to do. 

Now, building on the success in Texas, we launched our Right on 

Crime Initiative in 2010, with our Statement of Principles signed 

by conservative leaders such as Jeb Bush, Newt Gingrich, Bill Bennett, Grover Norquist, and J.C. Watts, as well as leading experts 

in the field of criminology and policing such as John DiLulio and 

George Kelling. And so our focus here in this Statement of Principles is on personal responsibility for offenders, accountability for 

the system, restitution for crime victims, and ensuring we combat 

overcriminalization by reducing the growth of non-traditional 

criminal laws and ensuring there is an appropriate mens rea or intent requirement in criminal justice. 

Now, I want to talk about some of the States where we have seen 

tremendous success in the last several years in addition to Texas. 

Georgia, for example, South Carolina, Ohio, Pennsylvania—in each 

of these States, we have seen conservative Governors taking the 

lead in enacting far-reaching reform packages that have included 

expanding Drug Courts, in some cases increasing penalties on certain violent crimes such as in South Carolina, while lowering penalties on low-level drug possession, implementing earned time policies for offenders, risk and needs assessments. In Georgia, we also 

saw the enactment of a mandatory minimum safety valve for drug 

cases that is very similar to the legislation by Chairman Leahy and 

Senator Paul. 

Now, while in the last 2 years the incarceration rate at the State 

level has declined, the federal incarceration rate continues to increase. Let me conclude by just touching on some of the issues with 

mandatory minimums. 

We believe that they do result in excessive prison terms in many 

instances. For example under 21 U.S.C. 851, if a federal defendant 

is convicted of as little as 10 grams of certain drugs and has one 

or more prior convictions, the mandatory minimum is 20 years 

with a maximum of life in prison. And one of the issues that we 

have seen is that judges and juries have much more information 

as to the specific facts of the case, yet are prevented from looking, 

for example, at the risk level of the defendant. 

The other thing that I want to emphasize is that mandatory 

minimums do not take into account the wishes of the victim in the 

case. They also have not succeeded in, frankly, creating uniformity. 

For example, a defendant in the Northern District of Iowa, ‘‘who 

is eligible for a Section 851 enhancement is 2,532 percent more 

likely to receive it than a similarly eligible defendant in the bordering District of Nebraska.’’ And, again, it is just really random 

in some instances whether this enhancement ends up being administered. 

So it is important to remember that if we did not apply mandatory minimums to certain drug cases as proposed, these offenders 

would still be going to federal prison. And recent experience shows 

they would still be going for a long time. 

Since the crack-powder disparity was narrowed in 2010, those 

convicted subsequently in crack cases have received an average federal prison term of 97 months. 
11 

So to wrap up, we really applaud the work that this group is 

doing here. We would refer you to the copy of our paper, ‘‘The Verdict on Federal Prison Reform,’’ that you have been given, and we 

stand ready to work with each of you to improve the federal criminal justice system and learn from the successful models in States 

across the country. 

Thank you. 

[The prepared statement of Mr. Levin appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Levin. 

Brett Tolman is a shareholder at Ray Quinney & Nebeker, cochair of the firm’s white-collar criminal defense, corporate compliance practice group. He was the U.S. Attorney for the District of 

Utah from 2006 to 2009. He worked in the same office as Assistant 

U.S. Attorney from 2000 to 2004. He served as chief counsel for 

Crime and Terrorism to Chairman Specter, and prior to that as 

counsel to Chairman Hatch on this Committee, which is where we 

first met. 

Welcome back to the Committee. You are as familiar with this 

room as anybody in it. Go ahead. 

STATEMENT OF HON. BRETT TOLMAN, SHAREHOLDER, RAY 

QUINNEY & NEBEKER, SALT LAKE CITY, UTAH 

Mr. TOLMAN. Thank you, Chairman Leahy, Ranking Member 

Grassley, and the many Senators, especially the good Senator from 

Utah and long-time friend, Senator Lee. 

Prior to my service in the U.S. Senate, I was an Assistant United 

States Attorney in Utah. As a line prosecutor in the federal system, 

I personally prosecuted hundreds of felonies. While I prosecuted 

mostly violent crime felonies, I also participated in the prosecution 

of white-collar criminals, drug traffickers, child predators, violent 

illegal immigrants, and others. Indeed, in my nearly a decade with 

the Department of Justice, I was responsible for the prosecution of 

individuals who are currently serving long prison sentences—some 

longer than 30 years in prison. 

I am here today because my experience, while at times rewarding, revealed the need for federal criminal justice reforms that are 

not only meaningful, but the result of thoughtful analysis of the deficiencies in the administration of justice in the federal system. I 

am not alone in this position. Several of my former colleagues, 

many of which were appointed by Republican Presidents, have 

joined me in signing a ‘‘Policy Statement of Former Federal Prosecutors and Other Government Officials,’’ which I have brought 

with me and ask that it be made part of the record. 

The signers of this statement are a diverse group of former federal prosecutors, judges, Department of Justice and other officials 

who deeply believe in notions of fairness in the administration of 

justice. 

Rather than focusing valuable resources on the highest levels of 

criminal conduct, the reality is that today’s federal system is all too 

often mired in the pursuit of low-level offenders who are too often 

overpunished by the Federal Government and who, a growing number believe, should otherwise be prosecuted by the States. More 

and more individuals, on both sides of the political aisle, are recog-
12 

nizing that many of these low-level offenders are being given extremely long sentences in federal prisons—sentences that too often 

do not match the gravity of the crimes committed. 

The result, ironically, is a burgeoning prison population that, 

with its rising costs, is becoming a real and immediate threat to 

public safety. Department heads and congressional leaders have become painfully aware that the growing prison budget is consuming 

an ever-increasing percentage of the Department of Justice’s budget. 

It is with these concerns in mind that I appear before this Committee. It is my hope and intention to highlight areas of concern 

and to engage at all levels necessary to assist in achieving meaningful and thoughtful reforms. Specifically, the Committee should 

focus its attention on several unfortunate consequences of our current front-end policies and practices, including the use and abuse 

of certain mandatory minimums. 

Under current laws, federal prosecutors exercise virtually complete control over the entire criminal justice process. Federal prosecutors decide who to charge, what to charge, how many counts to 

charge, the terms of any plea agreement, and all too often what the 

range of sentence will be. 

Unfortunately, the substantial majority of federal drug prosecutions are utilizing mandatory minimum statutes based solely upon 

quantity rather than the position of the individual in the trafficking organization. Adding to the problem is the use of sections 

like Section 851, which is effectively a way in which a drug mandatory minimum can be doubled simply by the existence of a prior felony for—even if they had not served any time in jail. Section 851 

continues to be a problem that prosecutors have highlighted for 

years, but have fallen on deaf ears. 

It is of particular concern that mandatory minimum sentences 

have become the sought-after result by which many in the criminal 

justice system measure success. The practical implications are such 

that the federal criminal justice system has become overly reliant 

on the use of mandatory minimum statutes in making its charging 

decisions. All too often, prosecutors and investigators associate the 

success of their investigations and prosecutions with the amount of 

time a particular defendant receives in sentencing. And, in fact, 

agents and prosecutors will attempt to utilize the facts in a way 

that add to the sentence, even above and beyond the existing or underlying mandatory minimum that was charged. 

I had a conversation with a federal judge last night who informed me of a case that I was unaware of. Patrick Washington, 

convicted in Kansas of distribution of crack cocaine, under his conviction was to be sentenced to around a decade of prison time based 

on the charging decisions of the prosecutor. However, because Patrick was so forthright in his interview after conviction, the probation officer learned that he had distributed crack cocaine on previous occasions, and as a result applied four 30-year mandatory 

minimums to achieve a sentence of over 120 years. In the end, Mr. 

Washington served over 20 years, was saved through a habeas corpus petition in which the prosecutor testified on Mr. Washington’s 

behalf. That extreme effort by a prosecutor in order to save—or to 

enable the fairness in the administration of justice is something we 
13 

should not always be dependent on or hope for when these sentences are distributed. 

I look forward to the opportunity to work with this Committee. 

I applaud the dedication and determination to do front-end and 

back-end changes. I have been honored to work with Senator 

Cornyn, Senator Hatch, and Senator Lee on fashioning a bill, but 

look forward to working with Senator Leahy and those on the 

Democratic side, and the Republican side, who have joined hands 

in addressing the mandatory minimums. 

Thank you. 

[The prepared statement of Mr. Tolman appears as a submission 

for the record.] 

Chairman LEAHY. Thank you, Mr. Tolman, and, again, welcome 

back to the Committee room. 

Mr. TOLMAN. Thank you. 

Chairman LEAHY. Our next witness is Scott Burns, who is the 

executive director of the National District Attorneys Association, 

one of the largest professional organizations representing district 

attorneys, State’s attorneys, Attorneys General, and county and 

city prosecutors. Before I gave up that position for the anonymity 

of the U.S. Senate, I was once a vice president of the NDAA and 

had to make the difficult choice of being elected president of the 

NDAA or taking the Senate seat, and I took the Senate seat. 

Previously Mr. Burns served as the Deputy Director at the White 

House Office of National Drug Control Policy, and as an elected 

county attorney and chief prosecutor in Iron County, Utah. 

Mr. Burns, always good to have you here, sir. Go ahead. 

STATEMENT OF HON. SCOTT BURNS, EXECUTIVE DIRECTOR, 

NATIONAL DISTRICT ATTORNEYS ASSOCIATION, ALEXANDRIA, VIRGINIA 

Mr. BURNS. Thank you, Senator, and thank you, Ranking Member Grassley and members of the Committee, for inviting me to testify today on behalf of the National District Attorneys Association, 

which has been around for some 60 years and is the voice of America’s 40,000 prosecutors. 

To begin with, I would like to acknowledge and thank you, Senator Grassley, for your statement on the Senate floor this week regarding the importance of federal mandatory minimum sentences. 

And like you, Senator Grassley, prosecutors across the country listened closely to the policy announcements made by General Holder. 

And like you, some of the items and priorities that he outlined we 

agree with. Coordinating with State, local, and tribal enforcement 

and prosecutors in order to maximize federal resources in criminal 

prosecutions is a good thing. 

In addition, General Holder talked about something that NDAA 

has made a priority for years, and that is, providing support for 

survivors of sexual assault and domestic violence. 

But what America’s 40,000 prosecutors—and I think I can speak 

for law enforcement—did not agree with are General Holder’s repeated statements that the criminal justice system is broken—or 

the current popular phrase that is repeated over and over, it is ‘‘in 

crisis.’’ The truth is that crime is down significantly in the United 

States, and many at record low levels. I met with Willie Meggs yes-
14 

terday. He came up to testify in the Stand Your Ground hearing 

that was canceled and spent the day with him. Willie Meggs is the 

long elected DA in Tallahassee, Florida, and he told me that in 

Florida crime is at the lowest rate it has been in 42 years, and 

many other prosecutors across the country echo that sentiment in 

their respective States. Homicides are down 50 percent in the 

United States. Think about that: 50 percent in the past 30 years. 

And every other category of crime—rape, robbery, assault, burglary—they are all down 30 to 40 percent. This is a success story. 

If we recall the 1980s, those of us that were around then, when 

crime was rampant in the urban cities, and citizens demanded not 

only of federal, State, and local legislators but their prosecutors 

and law enforcement, ‘‘Do something about it.’’ And with laws 

passed in this Congress and State and local legislatures, we did 

something about it, and prosecutors and law enforcement got the 

message as well. Crime is down significantly, and I think you are 

to be applauded for many of the steps that you have taken right 

here. 

I submit to you that prosecutors across the country collectively 

shook their heads when General Holder directed United States Attorneys to no longer prosecute or send to prison ‘‘first-time offenders,’’ no longer send to prison low-level drug offenders. U.S. Attorneys have never, to my knowledge, prosecuted low-level cases. They 

have never in my opinion, unless there is a gun—it is the same on 

the State level, it is a serious offense—sent first-time offenders to 

prison. Prosecutors across this country would tell you in the real 

world—and, by the way, we do 95 percent of the prosecutions in 

this country, and I appreciate my colleague and friend Brett 

Tolman’s statement that State and local prosecutors should do 

more. But they prosecute more cases in 6 months in the city of 

Philadelphia than all U.S. Attorneys handle, all federal judges handle in all the federal courtrooms across the country, over 10 million 

non-misdemeanor cases. So we are willing to step up and do more, 

but we already do 95 percent of the criminal cases in this country. 

The fact that the system is broken or ‘‘in crisis’’ is a myth, and 

it is a myth that must be dispelled if we are going to work together 

to make a great criminal justice system even better. 

The prosecutors I know—and we have prosecutors here in the 

Committee and throughout the Senate and the House—we look at 

treatment programs, diversions, plea in abeyance, Drug Courts— 

which have been highly successful—supervised probation, and we 

work with judges and defense counsel to look at every single alternative. And if you were a prosecutor, you know what I am saying 

is true. The last thing a prosecutor wants, a defense attorney 

wants, a judge wants, if there is any possible means of doing something different, is to take a valuable prison cell and lock up somebody that does not deserve to be there. I promise you we go to 

great lengths to look at every alternative we can. 

The reality is, together with that attitude and those policies, 

mandatory minimums have become an important tool for State and 

local prosecutors. Again, it is kind of the game inside the game, but 

people are out there listening that understand the criminal justice 

system. State and local prosecutors all the time, to go up the chain 

in a sophisticated drug cartel case or to get somebody to roll on a 
15 

homicide where a 3-year-old has been shot in the head and you 

have a recalcitrant witness who happens to be charged with a 

State crime, possession of cocaine or methamphetamine, think 

about this: ‘‘What if I call the U.S. Attorney and now you are looking at a much more serious crime. It would be helpful now if you 

tell me what you know about this 3-year-old getting shot in the 

head.’’ It has been highly successful and used to leverage cases on 

the State and local level. 

I guess the final question prosecutors would ask is, Why now? 

With crime at record lows, why are we looking at sweeping 

changes? Why now? We are getting even smarter on crime. With 

programs like Drug Courts and 24/7 and Project Hope as carrots, 

why would we take away one of our most effective sticks? 

Again, I appreciate the opportunity to testify and look forward to 

answering any questions you may have. 

[The prepared statement of Mr. Burns appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you very much. 

I will lead off with a question for Mr. Tolman. Some of the critics 

of sentencing reform have said that low-level drug offenders normally do not face prison time. The Sentencing Commission looked 

at the data and came to a different conclusion. 

In your experience as a federal prosecutor, did offenders at the 

lowest levels of drug organizations, such as mules or street-level 

dealers, face mandatory minimum sentences? Or were these reserved just for the kingpins? 

Mr. TOLMAN. The reality is too many people confuse a large 

amount of drugs found in an investigation as a high-level drug 

prosecution. The drug cartels, those running those trafficking operations, understand our criminal laws as well as we do, if not better. 

They send their low-level people with their large quantities knowing that the large quantities, once found, are going to result in extremely large sentences. 

I recently asked the former head of the Drug Division in my 

former office, who has over 25 years of prosecuting federal drug 

cases, ‘‘How many times did you get a kingpin?’’ He said, ‘‘Almost 

got one once.’’ Almost once. 

The reality is the individuals with the large quantity of drugs do 

not have the knowledge or the insight into the operation to actually 

go up the chain in the usual case, and that is getting worse, because they know it is much easier to send someone with a lack of 

knowledge with a high quantity amount of drugs than it is to put 

someone that knows the inner workings of their operation. 

Chairman LEAHY. While it has been years since I was involved 

in prosecutions, what you say is very similar to what I recall. But 

let me ask you this: You prosecuted many serious crimes, first as 

a line prosecutor and then as U.S. Attorney. Were mandatory minimums necessary to do your job effectively, or to ensure public safety? 

Mr. TOLMAN. They are not necessary. I will say there may be the 

occasional mandatory minimum that can be applied. In the child 

predator arena, there appears to have been different data than in 

the drug or the violent crime area. However, the mandatory minimum—and I think the Senator is right on the money when asking 
16 

the question, ‘‘Is it necessary? ’’ Because Section 3553 tells us that 

we should be sentencing individuals only the minimum amount 

necessary to achieve punishment and deterrence. What we are seeing, however, is all too often—and you highlighted the Weldon 

Angelos case. What is not talked about in the Weldon Angelos case 

is the fact that the agents could have arrested him after the first 

undercover buy. But why did they wait for three? That is because 

924(c) allows you to stack 25-year mandatory minimums on each 

subsequent offense. So they waited and then stacked them, and 

then pulled the trigger on arresting. 

Chairman LEAHY. Thank you. 

Mr. Levin, I look at Texas, and we have two Texas Senators on 

this Committee, so I also get the anecdotal aspect, but I think it 

is a fact that they dramatically reduced the prison population in 

Texas but have not increased crime rates. At least that is what I 

am told. 

You noted in your testimony that Texas had few mandatory 

minimums to begin with, so the reforms were based on alternatives 

to incarceration on the front end of sentencing and shorter sentences on the back end. Would back-end sentencing reforms like 

earned time credits have been as successful in reducing the prison 

population in Texas if a large number of them had been on mandatory minimums where you could not have used that? 

Mr. LEVIN. That is a great question, Chairman. Definitely there 

is a big difference between Texas and the federal system in this 

area in that in Texas we have very few mandatory minimums. The 

only one that we really have is in our habitual offender statute, 

which deals with murders and rapists, the most heinous crimes. 

So as you said, in Texas, the success of our reforms has really 

been based on prosecutors and judges responsibly exercising their 

discretion. And what we did is we greatly expanded the availability 

of Drug Courts and mental health treatment, of alternative sanctions, and our judges and prosecutors have taken advantage of 

those for appropriate nonviolent offenders, and that has enabled 

us, as you said, to see our crime drop to its lowest level since 1968. 

Now, with the federal system, with the mandatory minimums 

covering the drug offenses and other nonviolent offenses, that really eliminates the discretion or severely reduces that of the judges. 

And so you are not able to get the benefits of these alternatives in 

the same way we have in Texas. And so I think it is very important 

at the federal level to not only implement, as you said, earned 

time, risk and needs assessments, evidence-based practices, 

strengthening reentry, but also at the same time we must address 

these mandatory minimums through some of the legislation that 

has been discussed today. 

Chairman LEAHY. Thank you. My time is up. I do have further 

questions, but go ahead, Senator Grassley. 

Senator GRASSLEY. Mr. Burns, one of the bills before the Committee would cut in half the mandatory minimum sentences that 

are now in place for drug offenses, such as manufacture, distribution, importation of a variety of serious drugs, some of which would 

be cocaine, PCP, LSD, and methamphetamine. 
17 

When the sponsor of this bill introduced it, he said that mandatory minimum sentences for nonviolent drug offenses are ‘‘a threat 

to public safety’’ and ‘‘have been proven not to work.’’ 

Mr. Burns, do you think that mandatory minimum sentences are 

these offenses—or do you think that mandatory minimum sentences for these offenses are a threat to public safety and have 

been proven not to work? 

Mr. BURNS. Clearly, the drug trade and the insidious nature of 

all of addiction is a threat to public safety, and I think, Senator, 

minimum mandatories are appropriate in the right cases under the 

discretion of the prosecutor. And I do not think we even say anymore, anybody that has looked at the drug issue, that it is a nonviolent offense. I do not have to go into a 5-minute soliloquy about 

people that are murdered and children that are killed, you know, 

‘‘lead or silver’’ in Mexico. 

I got a call yesterday from Jan Scully, our former president. In 

Sacramento, 82 percent of all the people that are checked into her 

jail, 82 percent are under the influence of one or another illegal 

substance, and many of those are violent offenses. 

So I think we all understand that now, that possession, selling, 

slinging meth and heroin and cocaine, is not a nonviolent offense. 

Senator GRASSLEY. Mr. Levin, based upon your opposition to 

mandatory minimums for low-level possession, one of the bills the 

Committee is discussing today would allow federal judges to disregard mandatory minimum sentences that now apply to serious 

drug offenses such as manufacture, distribution, importation, and 

export of drugs such as heroin, LSD, PCP, and methamphetamine. 

More so, this bill would eliminate the mandatory minimum sentences when the drug offense results in death. Were the bills to 

pass, judges could impose no jail time at all for these crimes. The 

second bill would cut in half current mandatory minimum sentences for these crimes. 

Does your opposition to mandatory minimum sentences for lowlevel, nonviolent drug offenses extend to changes in sentencing for 

the other crimes that these bills would create? 

Mr. LEVIN. Well, thank you, Ranking Member Grassley, for that 

question. We actually do not endorse or oppose specific legislation, 

so I would not be able to address that. But I certainly can tell you, 

as I said at the outset, we think long prison sentences are appropriate for violent and dangerous criminals as well as international 

drug kingpins, those who are really at the center of leading large 

criminal enterprises. 

I think that when you look at it, as far as the current safety 

valve was concerned, only 24 percent of drug offenders benefit from 

that, and, furthermore, that only 7 percent of those sentenced 

under mandatory minimums for drug offenses are supervisors, ring 

leaders, kingpins, et cetera. 

So I do think it is important to make the distinctions that have 

been referenced by you and others and to make sure that we narrowly tailor sentences to fit the particular offense as well as the 

risk level that the offender presents. 

Senator GRASSLEY. Mr. Tolman, in your statement you referenced your work with the Public Safety Enhancement Act. That 

bill would give prisoners rewards for ‘‘successfully participating’’ in 
18 

various programs designed to reduce the likelihood that they would 

commit future crimes after release. I am concerned that the bill 

would release prisoners simply for showing up at a program. 

For instance, drug treatment is unlikely to work if the individual 

being treated is not interested in breaking his habit. 

Question: Why should we release prisoners early just for participating in a program? Setting aside whether cutting sentences is a 

good idea, shouldn’t we at least make sure that the prisoner completes the program and has obtained some measurable benefits 

that might prevent his returning to a life of crime after release? 

Mr. TOLMAN. The short answer is we should not. However, I am 

encouraged by the work of Senator Cornyn and Senator Lee and 

Senator Hatch—I apologize. The short answer is that we should 

not simply release for mere participation. 

The encouraging thing is that this is a factor that Senator 

Cornyn, Senator Hatch, and Senator Lee have been very focused 

on. So the bill that is being proposed actually takes the leading and 

cutting edge reassessment tools and requires an initial assessment 

and a reassessment throughout their incarceration before they receive rewards. 

And if I might correct one mis-notion about this, it is not a release in the traditional sense that we think an individual is released. We still have the Truth in Sentencing Act which requires 

that they serve 85 percent of their time. 

In law currently, you are allowed, a judge is allowed, prosecutors 

are allowed, defendants are able to take advantage of pre-release 

custody. This bill would expand and incentivize those willing to 

take advantage of those programs and jobs, be assessed and reassessed throughout their time, and allow them to enter into pre-release custody, which is still custody, but it is home confinement, 

monitoring, ankle monitoring, and supervision, which will have a 

great impact on the budgetary problems, but at the same time do 

what Texas did, which is to identify—and might I add, the States 

are our pilot programs. The federal system is very juvenile in its 

administration of criminal justice and should be learning from the 

States. And States like Texas, South Carolina, Ohio, and many others have learned that assessing recidivism and the risk of recidivism in your prison population and then training, educating, employing those individuals and reassessing that recidivism and rewarding them has lowered their crime statistics at a greater rate 

than we have seen nationally. 

Chairman LEAHY. Thank you. 

Senator GRASSLEY. Thank you. I have further questions, but I 

am going to have to submit them in writing because I have to go 

to a Finance Committee hearing. 

Chairman LEAHY. Thank you. 

I would note that I have been told that Judge Benson, a federal 

district judge for the District of Utah, is here, well known both to 

Senator Lee and to Mr. Tolman, who both clerked for him. Judge, 

happy to have you here, sir. 

I have to take one phone call. I am going to turn the gavel over 

to Senator Durbin, who is next anyway, and I will be back in a couple of minutes. Senator Durbin. 
19 

Senator DURBIN. Thank you, Mr. Chairman. And, without objection, I will enter into the record a letter which we received supporting the bill which I worked on with Senator Lee. The support 

is from the bipartisan U.S. Sentencing Commission and more than 

50 former federal judges and prosecutors. If there is no objection, 

I would like to enter it into the record at this moment. 

Chairman LEAHY. Without objection. 

Senator DURBIN. Thank you. 

[The letter appears as a submission for the record.] 

Senator DURBIN [presiding]. Mr. Burns, we have worked together 

on a few issues. 

Mr. BURNS. Yes, Senator. 

Senator DURBIN. The John R. Justice Act, which provides student loan forgiveness for prosecutors and defense attorneys, and allows more to become professionals who might otherwise make a different career decision. 

We have also worked on the Fair Sentencing Act dealing with 

the issue of crack cocaine and powder cocaine sentencing. 

Mr. BURNS. That is right. 

Senator DURBIN. Which had a huge disparity at one point in time 

not that long ago of 100 to 1. We brought it down to 18 to 1. Senator Sessions and I cosponsored the bill, it went through this Committee, and was signed into law. I thank you for that cooperation. 

Mr. BURNS. Thank you, Senator. 

Senator DURBIN. Mr. Burns, you are an important part of this 

conversation because the prosecutors play the critical gatekeeper 

role in determining who goes into the federal system of criminal 

justice. And despite what the Attorney General may have said or 

not said, I do not believe our system is in crisis, but I do believe 

we face a pretty serious challenge. 

The rate of incarceration, the cost of incarceration, is forcing us 

to make some hard choices. If we are going to continue to push 

money into the correctional field, it is at the expense of money that 

would otherwise be spent for law enforcement or perhaps for some 

of the things Mr. Levin has noted: the Drug Courts, for example, 

the mental health diversion, in my State veterans courts, which 

have really turned out to be fairly successful. 

An interesting note. When we worked together on reducing the 

crack cocaine sentencing disparity from 100 to 1 over 18 to 1 over 

powder, there was a reduction in the sentencing of some who were 

already in prison, and we received a report. We asked what happened when we let these people out, and it is interesting. They 

were let out earlier than they might have been because of the action that we took, and we found the following: Of the 848 offenders 

studied who were released in 2008 pursuant to the retroactive application of the sentencing amendment, 30.4 percent recidivated 

within 2 years. Of the 484 offenders studied who were released the 

year before the new amendment took effect, 32.6 recidivated. So 

there was a slight decrease in recidivism for those who were released early, which seems counterintuitive. But I think it is what 

we are driving at here. 

Senator Lee and I are not trying to eliminate mandatory minimums but, rather, in some cases to be able to lower those mini-
20 

mums so that there are not these gross disparities which Mr. 

Tolman and others have described. 

Do you think we can still meet the goal, a worthy goal, of reducing drug crime in America and do it without wasting resources on 

incarceration and make certain that judges and prosecutors have 

the right tools to do the job? 

Mr. BURNS. Well, first of all, Senator, on behalf of 40,000 prosecutors and probably that many defense attorneys, thank you for 

all of your work on the John R. Justice Act and providing student 

loan assistance to thousands that otherwise would have gone into 

the public sector, good, bright young men and women who are in 

courtrooms today doing public service, and that is because of you. 

And it is much appreciated. 

We did work with you on the Fair Sentencing Act, and I think 

people forget that Ronald Reagan proposed a 50 to 1 crack-powder 

disparity. It was a Congressman named Charles Rangel and the 

Black Caucus that insisted that it be 100 to 1, and a lot of us shook 

our heads and said, wow, that is some disparity. But it worked. 

The consequences were great. A lot of young people, young African 

American males primarily, went to prison, and they went to prison 

for a long time. But people could then walk the streets of Washington, D.C., and Philadelphia and New York. 

So we did what the Congress asked, and in States across the 

country where they have minimum mandatories, we follow what 

the legislature says, and crime has been reduced. 

We are always willing to work with you, Senator Durbin. You 

have always been reasonable and you are great and you have a 

great staff, and we are here. 

Senator DURBIN. Good. Mr. Levin, you make a point of what is 

happening in Texas. It is happening in Illinois, too, where we have 

some special courts. And just to put it in the vernacular, we are 

finding ways to take potential criminal defendants and better ways 

to rescue them from addictions, mental illness, lives of crime, and 

costly incarceration. Our communities are safer. Rather than putting a mentally ill person in a prison where they are not likely to 

receive the kind of professional care they need, they are redirected 

to a different place. 

Has that been the part of the experience in Texas which has 

brought down the crime rate? 

Mr. LEVIN. Absolutely, and I would also add the kind of law enforcement strategies, when we talk about walking the streets of 

New York, a lot of that is data-driven policing, ComStat, things 

that occurred under Mayor Giuliani, and similar efforts with William Bratton and now in other jurisdictions. So I think we ought 

to really emphasize it is also the percentage of people we catch, it 

is the swiftness of the sanction, when we look at the Hawaii HOPE 

Court, the swiftness and sureness of a sanction, not the length of 

time. 

And with regard to mental illness, it is an enormous problem, 

but we are seeing things like mental health courts, veterans courts 

have tremendous impact in reducing recidivism. We are also seeing 

programs like in Harris County, which is in Houston, Texas, where 

you have got a mentally ill person, who are called ‘‘frequent flyers.’’ 

They go in and out of jail dozens of times a year for things like 
21 

criminal trespassing. They are now driving by those people’s homes 

a few times a week with a probation officer and a mental health 

worker, making sure that person is taking their prescription medications and complying with treatment. And the visits are going 

way down, and you are taking someone you might have been 

spending half a million dollars on a year with these frequent jail 

visits and keeping the public safe and making sure that person is 

staying healthy. 

So I think there is a tremendous amount we can do when it 

comes to mental illness and criminal justice. 

Senator DURBIN. The only problem I have with this hearing is 

that all the time we are speaking of Texas, and so now I want to 

recognize Senator John Cornyn of Texas. 

[Laughter.] 

Senator DURBIN. Maybe you could say something about Illinois. 

Senator CORNYN. I was going to say it is music to my ears, Mr. 

Chairman, Senator Durbin. Thank you. 

I just want to acknowledge at the beginning, in large part thanks 

to the pioneering work of the Texas Public Policy Foundation and 

Mr. Levin, Texas is no longer known—well, we are still known for 

swift and sure justice and for punishing people who need punishment. But I think we are also becoming known for something else, 

which is more enlightened treatment of people who commit offenses, and certainly I just want to acknowledge the great work 

that is being done by Mr. Levin and the Public Policy Foundation. 

But we have had the pleasure of working with all three of these 

witnesses—Mr. Burns and Mr. Tolman—on legislation, and thank 

you for your contribution today and always. 

I just want to also say that Senator Paul, I think, and Senator 

Leahy have touched on something very important we need to address when it comes to arbitrariness in the sentencing of people 

who commit offenses, and really if I think about that slogan or that 

motto above the Supreme Court of the United States just across 

the street here, it says, ‘‘Equal Justice Under Law,’’ and that, of 

course, is the aspiration of our entire justice system. 

But just as minimum mandatory sentences can result sometimes 

in arbitrariness, I think we also have to recognize that it was actually supposed to be the antidote to what was viewed as arbitrariness, where people committing similar offenses were treated dissimilarly, depending on the court and the circumstances under 

which they were prosecuted. So it reminds me of one of the quotes 

from H.L. Mencken, which says, ‘‘To every complex problem, there 

is a simple, neat answer that is wrong.’’ 

And so this is more complicated, I think, as you all appreciate 

and as we all need to continue to keep in mind as we fight arbitrariness in our justice system no matter where it appears. And I 

think it is also important to make the point that we have to be 

careful not to legislate by anecdote, because we all have heard horror stories—and Senator Durbin certainly has recounted one 

today—where the criminal justice system has gone completely 

awry, and that ought to be something we continue to try to root 

out. But we need to be careful, at least in my view, to legislate by 

anecdote because, just for example, if you look at the number of 

people in federal prison, at the end of 2010, we had 96,000 people 
22 

in federal prison for drug trafficking, 156 for drug possession. And 

I think, Mr. Burns, your point is well taken. People get involved 

with drugs. Even though they might be classified as nonviolent, it 

does not mean there is no harm, either to society or to those persons or the people they love and live with. 

So I am actually very encouraged by where we have come due 

to pioneering efforts at the State level. I wish we would do this 

more and look at the States as laboratories of democracy. The tendency is for Washington to think we know better than anybody else 

and impose the one size fits all, which does not work. I think experience would show us that. 

But particularly what I hope as a result of this series of pieces 

of legislation that are going to be introduced here now and in the 

near future—I was just looking at a study from the RAND Corporation. That is not the Rand Paul Corporation. That is the RAND 

Corporation. 

[Laughter.] 

Senator CORNYN. But they point out that after examining the 

higher-quality research studies that, ‘‘We found on average inmates 

who participated in correctional education programs had 43 percent 

lower odds of recidivating than inmates who did not.’’ 

So I was struck, Mr. Tolman, when you talked about the goals 

of our criminal justice system to punish and deter. There is a third 

leg to that stool that I learned in law school and as a former judge, 

and that is to rehabilitate. 

Mr. TOLMAN. Yes. 

Senator CORNYN. But we have almost forgotten that part of it. 

Mr. TOLMAN. True. 

Senator CORNYN. And to me I think we just need to remind ourselves that that is one of the goals of our criminal justice system. 

So I wonder, Mr. Levin and Mr. Tolman and Mr. Burns, if you 

just might comment on the role of rehabilitation and how do we restore it to its rightful place as part of the goals of our criminal justice system. 

Mr. LEVIN. Well, I will start, I guess. Thank you. Those are terrific points, Senator Cornyn. I think that what we really need to 

realize is we need to create the right incentives both for offenders 

and the system. And as was referenced earlier, Texas did adopt 

earned time policies both for inmates in State jails, which are basically less than a gram of drugs, prostitution offenders, et cetera, 

our lowest-level felonies, as well as earned time for probationers, 

so that you could actually earn a bit of time off your sentence by 

successfully completing programs—not just showing up, as was referenced, but actually successfully completing programs as well as 

paying all your restitution, meeting all your obligations, basically 

exemplary performance. 

And so that provides an incentive for offenders, but we also need 

to look at incentives for the system. A number of States, including 

Texas, Ohio, for example, have adopted, particularly in the juvenile 

system, incentives for counties that have made those local juvenile 

probation departments reduce their commitments to the State lockups and they reduced recidivism, and that is very important. They 

can get some additional funding from the States, some of the sav-
23 

ings that the State achieves by those reductions. And so that is 

very important. 

And we need to have rigorous performance measures to know 

whether programs are working, and we need to utilize nonprofits 

and faith-based programs. We should not think government has all 

the answers. In particular as we are looking at the federal system, 

rather than reinvent the wheel, one thing we suggested in our 

paper is that the Federal Government could contract with States, 

local, and nonprofit agencies that run reentry programs, for example, and that way we do not have to build a new federal building 

to do it. We can utilize what is already effective. 

Chairman LEAHY [presiding]. Thank you. And as you said earlier, 

Mr. Tolman, too, it would not hurt for the Federal Government to 

learn from the States. They are usually much closer to this. 

Senator Hirono. 

Senator HIRONO. Thank you, Mr. Chairman. 

We have seen throughout the country the impact of mandatory 

minimums, and I think it is very appropriate for this Committee 

to assess the impact of these kinds of mandatory sentencing laws. 

So I am glad—and thank you all for being here, and I note that 

two of you have mentioned the HOPE program, which began in Hawaii, and it was created by former U.S. Attorney and now Judge 

Steve Alm, and I am glad that this program is being recognized 

more and more as one of the ways and one of the tools in fighting 

crime. And, yes, we have the three-pronged goals of our criminal 

justice system, which is to punish, to deter, and to rehabilitate. 

And sometimes we spend a lot more resources on one aspect of 

these goals, particularly punishment. 

I do have a concern about the disparate impact that mandatory 

minimums have on minority communities, and this was certainly 

pointed out by Senator Paul in his testimony, including the impact 

on women. And there have been articles written about mandatory 

minimums and their unfair impact on women, especially black 

women. These women of circumstances are often minimally involved in the crime of drug trafficking, and their crime truly being 

that of a relationship of some kind with a male drug trafficker. 

Are women still being unfairly impacted by mandatory minimums? And if so, how can we prevent this from occurring? And I 

would ask any of the members of the panel to give brief responses. 

Mr. TOLMAN. I will go ahead and address that, Senator. I appreciate the question. I would indicate that one of the misnomers is 

that when we cite a very large number for drug-trafficking offenses 

is to not fully understand or appreciate in the federal system how 

easy it is to get a trafficking offense. Oftentimes it can be simply 

based on the quantity, what they refer to as a ‘‘distributable 

amount.’’ And there may be no other indicia of trafficking but for 

the fact that it is a distributable amount. 

I remember many cases which would have an impact, a disparate 

impact, in some of our inner cities among our minorities, even 

women, and that is oftentimes individual users will purchase larger 

quantities because they come into some money or it is an opportunity for them. And they may be purchasing for themselves and 

perhaps someone else in their family. We all agree that punishment is appropriate, but rehabilitation is a concern. 
24 

However, a prosecutor can get a trafficking offense, which can 

bring in mandatory minimums, at very low levels. We often refer 

to it as the ‘‘Snickers bar case’’ because if you have a Snickers bar 

size of methamphetamine, for example, you are invoking a mandatory minimum. 

And so I do not think there is an appreciation for some of the 

unintended consequences of being very reliant on quantity. 

Mr. LEVIN. Could I add to that? Thank you for that question. 

One of the things that—for some of the mandatory minimums, 

the only way out is a substantial assistance, for lowering the 

amount for the prosecutor to say that person provided substantial 

assistance. The problem is in some of these examples of cases I 

have in front of me, typically you have a girlfriend and she has a 

lot less information than her boyfriend, who in some cases was actually the primary person. And so because she has less information, she is less able to qualify for the substantial assistance. 

There was one case, Stephanie George, in Florida, a young mother of three, had a minor role in a boyfriend’s crack dealing. She 

ended up sentenced to mandatory life in prison. And, of course, the 

boyfriend actually got off much lighter because he had more information, and the judge said, ‘‘Your role as a girlfriend and bag holder and money holder does not warrant a life sentence,’’ but the 

judge had no choice. 

And so that illustrates, I think, what you are talking about, that 

we may think we are promoting uniformity with these mandatory 

minimums, but on things like substantial assistance, it actually is 

not at all uniform who may qualify for that and who may be in, 

frankly, a position, it is the person that was more culpable is in 

a position to provide the information. 

Senator HIRONO. I am interested in how these laws actually result in disparate treatment, whether they be of African Americans 

or women. 

Mr. Burns, you mentioned the HOPE Program. I am wondering 

if, in your opinion, the HOPE Program is a workable solution for 

federal offenders, and if so, how? 

Mr. BURNS. Yes, I applaud Judge Alm, and I met with him several times as you were launching that in the great State of Hawaii. 

But what works, I think, depends upon the personalities and the 

State that you are in. 24/7 works great in South Dakota and some 

rural States, Red Hook in New York, and Drug Courts, I think we 

would all agree, mental health courts, DUI courts, veterans courts 

have been a godsend to this country and to prosecutors. 

But I am also interested in your question about women, and our 

job as prosecutors, as you know, is to not prosecute the innocent 

and hold the guilty accountable. And we take our victims as we get 

them. And, unfortunately, a large number of victims are women, 

and I have heard stories around the courtroom, around the chambers—I try not to, as Senator Cornyn stated, talk anecdotally, but 

we can talk about a man who was sentenced to 30 days in jail for 

rape of a prepubescent teen in Montana last week. That is horrific. 

That deals with women across the country. 

We can talk about my friend Don Klein in Omaha who just this 

last week had an offender who was serving a 21-year sentence released after 101⁄2 because he supposedly met the guidelines even 
25 

though he had violated every rule they had, tried to escape twice, 

and assaulted prison guards, and he murdered four people within 

2 weeks of being released from prison—women. So our job, when 

we talk about women primarily, we talk about as victims. 

Senator HIRONO. Thank you. 

Thank you, Mr. Chair. 

Chairman LEAHY. Senator Lee. 

Senator LEE. Thank you, Mr. Chairman. And thanks to our distinguished panel for being here today. It is a real pleasure to have 

you here, all three of you. It is a pleasure to have two Utahns on 

the panel. I was pleased a minute ago when Mr. Cornyn was referring to what Texas has become known for. I was hoping he was 

going to say Texas’ recent loss to BYU, but, alas, that was not what 

he had in mind. 

[Laughter.] 

Chairman LEAHY. We are having a special hearing on that. 

Senator LEE. Exactly. I look forward to that, sir. But having Mr. 

Burns and Mr. Tolman here from Utah is a pleasure. I have known 

Mr. Tolman ever since law school. I am not sure he was shaving 

back then, but apparently he got into the habit of not shaving, and 

I might say, sir, that is a beautiful beard. 

[Laughter.] 

Senator LEE. We worked together on two subsequent occasions. 

We clerked together while clerking for U.S. District Court Judge 

Dee Benson, one of the great minds ever to serve in the federal judiciary, who we are honored to have here in the audience with us 

today. 

The Federal Government is, in my opinion, enacting and enforcing far too much substantive criminal law, and, consequently, our 

federal criminal system is far too large and it is far too expensive. 

To put this in perspective, we need to remember that in 1980, 

the size of the federal prison population was about 25,000. Today 

it stands at about 200,000. To my knowledge, the U.S. population 

has not increased eight-fold since 1980, nor to my knowledge have 

the number of crimes engaged in by Americans increased eight-fold 

since 1980. I, therefore, reach the conclusion that what has 

changed, at least the biggest single factor that has changed, is the 

fact that we have, in my opinion, over-federalized the criminal justice system. 

In recent years one of the things that has been pushing that, one 

of the factors that has strongly influenced this very significant increase in the federal prison population has been the increased use 

of minimum mandatory penalties within that system. Almost half 

of all federal inmates are serving sentences for drug-related offenses. Even if long mandatory minimums for drug offenses that do 

not directly involve violence as an element of the offense, even if 

those were a good idea, it is not clear that our country can afford 

to continue waging this war on drugs through a system that so directly and so inevitably involves these kinds of minimum mandatory sentences. 

As evidenced by our witnesses today and the two distinguished 

panels that we have had today, there is, I think, an increasing consensus developing, a consensus that is developing on the right and 
26 

on the left, that significant reforms to minimum mandatory penalties are in order, that this is where we need to go. 

I really appreciated the opportunity to work with Senator Durbin 

on this issue, and with the help of Chairman Leahy as well, to introduce some modest and incremental measures that, if enacted, 

will result in significant savings and enhance public safety by better focusing scarce federal resources on serious crimes. 

Our bill, importantly, does not eliminate any mandatory minimums but, rather, reduces some of the more egregious mandatory 

minimums for drug offenses that do not directly involve violence as 

an element of the offense. And this bill also would return discretion 

to judges in a narrow set of circumstances here. 

So, Mr. Tolman, in the time I have got left, I would like to get 

your perspective as a former Assistant U.S. Attorney and then as 

a former U.S. Attorney. I would like to just ask you about something that I do not think we have covered yet today, which is what 

mandatory minimum penalties do to the discretion of a prosecutor 

and specifically what they do to a prosecutor’s ability to manage 

that prosecutor’s caseload. How does that affect your interaction 

with defendants and defense counsel? 

Mr. TOLMAN. It is a great question we have not focused on. The 

mandatory minimum sentences have become larger and larger in 

the eyes of the prosecutor, sometimes based on the pressure they 

receive within the Department of Justice, in particular the agencies 

that know that in some ways they receive pats on the back for the 

lengths of sentences. It is not something anyone really is proud of, 

I would think, but it is a culture, it is the underlying culture that 

you measure yourself with the length of sentences that you receive. 

So I am very concerned about the driving force that motivates a 

prosecutor. 

When it comes to what does that do to the discretion, mandatory 

minimums have started to replace the discretion of the prosecutor. 

It has become a foundation which they are trying to build on rather 

than address case by case and individually what are the merits. 

I am reminded of—I had a personal meeting with Ed Meese not 

long ago in which he reminded me that he would on occasion call 

Assistant U.S. Attorneys and U.S. Attorneys when he would learn 

that they would defer a prosecution or they would decline a prosecution, and he would congratulate them on exercising their discretion. That culture is not really there. I think the States have done 

a better job of recognizing rehabilitation is part of their mandate. 

The Federal Government has not done that, and I think the mandatory minimums are a large part of that. 

Your wanting to review both the front end and the back end of 

the criminal justice system really is identifying both sides of a very 

similar problem, which is discretion is being set aside, and often 

what is replacing it is the very draconian sentences. And I would 

articulate that while I agree we are all encouraged by the decrease 

in the crime rate, as Mr. Burns points out, you know, that is something we do not want to lose. But we can focus on rehabilitation 

and we can move away from some of these anecdotal problems and 

still maintain the reduction in that crime rate. 

Chairman LEAHY. You know, it is interesting. If you listen to 

this, like many others on this Committee, I have fought for grants 
27 

to local prosecutors and various law enforcement agencies and the 

Department of Justice, for everything from specialized enforcement 

for a particular problem in the area or rehabilitation programs or 

other programs that work. We now find there is less and less and 

less money available for these programs because the Department 

must spend more and more and more of their budget on the Bureau of Prisons. 

I am not suggesting it is all dollars or cents, but I would note 

that local prosecutors and those who work on diversionary programs and everything else are finding a lot less money as it goes 

into the Bureau of Prisons. It is just an interesting thought to 

have. 

Senator Lee, were you finished? I did not mean to interrupt. 

Senator LEE. I just wanted to ask one more followup on that 

point. 

With regard to getting to a plea agreement, does this influence 

your ability as a prosecutor, or did it when you were a prosecutor, 

to get to a plea agreement? Are cases that involve significant mandatory minimum penalties less amenable to being resolved through 

a plea? And if they are, explain to us how that might be detrimental to a prosecutor’s office. 

Mr. TOLMAN. It is absolutely true. If you look at some of the high 

mandatory minimums, 20-, 30-, 40-year mandatory minimums that 

are in the code, a prosecutor is now faced with the problem that 

anytime you charge that particular crime, you are going to go to 

trial. And as one prosecutor indicated to me, when several—and I 

was here in the Senate when some of these mandatory minimums 

were elevated. The problem—and she was asking, was anyone a 

prosecutor back there that was looking at this when Congress 

passed these elevated mandatory minimums? Because she now 

was—previous to these mandatory minimums, she could prosecute 

dozens and dozens of cases. She was in the child predator area. 

Now every one wants to go to trial because the risk is so great, she 

is now doing six, seven, eight cases a year because she has to go 

to trial. There is no longer an ability to—and they should be punished and they should have severe punishments. But when those 

mandatory minimums are so high, you have now eliminated any 

ability to enter into appropriate plea negotiations. 

Mr. BURNS. Could I just say, Senator, if that is happening in the 

federal system, that is a shame. I have not heard that, that there 

is a culture that you get a pat on the back if you rack up a long 

prison sentence, because I can tell you—and I think Senator Leahy 

would agree—the days of putting a notch in your belt for how 

many convictions you get are long gone. And with respect to the 

plea negotiation, Mr. Tolman stated earlier, right now the prosecutor has all the power. You get to assess the case, you get to decide who is charged, and you can decide what the penalty is. And 

from General Holder’s announcement, I think U.S. Attorneys will 

be getting calls every week congratulating them for not charging 

crimes that supposedly he does not want them to charge. 

We never do that. We are just as proud when we acquit the innocent, when we do not charge, or when we go to trial and hold the 

guilty accountable for victims. 
28 

Senator LEE. All the more reason why I am very comfortable 

with the bulk of the criminal law enforcement being done at the 

State level. 

Mr. TOLMAN. Correct. And if I could just add, the problem is— 

and Mr. Burns has pointed it out—the States are using—they are 

using the federal system to say if you do not reach a certain agreement, we are going to send you over to the Feds. Why do they say 

that? And why do they want to? 

Mr. LEVIN. We really like it. 

Mr. TOLMAN. They do. They can still do it under the Sentencing 

Guidelines, but the reason they are doing it, you cannot simultaneously indicate that federal prosecutions are only 5 percent of the 

Nation’s criminal justice prosecutions and laud the mandatory 

minimums and argue that our decreasing crime is a result of those 

types of policies, when it is only based on 5 percent of the population. 

Chairman LEAHY. Let me conclude on this. I think we applaud, 

and should, the discretion, as Mr. Burns has noted, that prosecutors have to decline a case. I always felt as a prosecutor that was 

probably the most important job I had, to determine when to decline. But we also know prosecutors who love to, especially at election time, tout the number of convictions they had. It is just like 

I remember when I was a young lawyer watching J. Edgar Hoover 

testify, I believe before the Judiciary Committee—he had contrasted the amount of budget that he had, but he said, ‘‘We have 

recovered for the American people two times that—or three times 

that.’’ Well, when I became a prosecutor, I found out how that 

worked. The local sheriff would recover the stolen car, which might 

have been $10,000 new, it was probably worth $500 now, and within 2 minutes the local FBI agent was there and said, ‘‘We will take 

it and rack it up—we have recovered $10,000.’’ I mean, statistics 

can be statistics, and we do not want to get ourselves into a case 

in which we just deal with statistics when we are dealing with 

human beings. 

To end on that, there are a large number of family members here 

today with photos of their loved ones who are serving mandatory 

minimums. As this Committee knows, during the time of testimony, whether people agree or disagree with me, I do not allow 

people to stand and show things, but we are finished the testimony 

now. You have traveled from as far as Montana, Texas, Utah, Illinois, Connecticut, Maryland, Virginia, and D.C. I wonder if the 

family members would mind standing up so we can see them. 

I think all of you should know that we all come from different 

backgrounds. I have always felt that much of what I do in public 

office was shaped by my experience as a prosecutor. And I did appreciate the fact that the NDAA picked me 1 year as one of the 

three Outstanding Prosecutors in the country. I took that very seriously. And I come to this seriously. That is one of the reasons why 

I stayed as Chairman of this Committee instead of taking a different Committee when I had the opportunity. Let us work together. There are Senators, Republicans and Democrats, conservatives and liberals, who want to find out the best way, and your 

testimonies helped. 
29 

Mr. Tolman, it is nice to have you back here in the Committee. 

I do not know why we ever let you leave. 

[Laughter.] 

Chairman LEAHY. Thank you all very, very much. We stand in 

recess. 

[Whereupon, at 11:40 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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A P P E N D I X 

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PREPARED STATEMENT OF HON. PATRICK LEAHY
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PREPARED STATEMENT OF HON. CHUCK GRASSLEY
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PREPARED STATEMENT OF HON. RAND PAUL
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QUESTIONS SUBMITTED BY SENATOR FRANKEN FOR MARC LEVIN
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Æ