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MANDATORY MINIMUMS AND 

UNINTENDED CONSEQUENCES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 2934, H.R. 834 and H.R. 1466 

JULY 14, 2009 

Serial No. 111–48 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

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

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

JULY 14, 2009 

Page 

THE BILLS 

H.R. 2934, the ‘‘Common Sense in Sentencing Act of 2009’’ ................................ 4 

H.R. 834, the ‘‘Ramos and Compean Justice Act of 2009’’ ................................... 6 

H.R. 1466, the ‘‘Major Drug Trafficking Prosecution Act of 2009’’ ...................... 8 

OPENING STATEMENTS 

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

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

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

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

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

Homeland Security ............................................................................................... 19 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 20 

The Honorable Maxine Waters, a Representative in Congress from the State 

of California, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ........................................................................................................ 22 

The Honorable Ted Poe, a Representative in Congress from the State of 

Texas, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 31 

WITNESSES 

The Honorable Julie E. Carnes, Chair, Criminal Law Committee of the Judicial Conference of the United States, Washington, DC 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Mr. Grover G. Norquist, President, Americans for Tax Reform, Washington, 

DC 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 68 

Mr. Michael J. Sullivan, Partner, Ashcroft Sullivan, LLC, Boston, MA 

Oral Testimony ..................................................................................................... 71 

Prepared Statement ............................................................................................. 73 

Mr. T.J. Bonner, President, National Border Patrol Council, Campo, CA 

Oral Testimony ..................................................................................................... 79 

Prepared Statement ............................................................................................. 81 

Ms. Julie Stewart, President and Founder, Families Against Mandatory Minimums Foundation, Washington, DC 

Oral Testimony ..................................................................................................... 87 

Prepared Statement ............................................................................................. 90 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Maxine Waters, a Representative in 

Congress from the State of California, and Member, Subcommittee on 

Crime, Terrorism, and Homeland Security ........................................................ 23 

Page

IV 

Material submitted by the Honorable Ted Poe, a Representative in Congress 

from the State of Texas, and Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 32 

Prepared Statement of Eric E. Sterling, President, The Criminal Justice 

Policy Foundation, Adjunct Lecturer in Sociology, The George Washington 

University ............................................................................................................. 114 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 117 

(1) 

MANDATORY MINIMUMS AND 

UNINTENDED CONSEQUENCES 

TUESDAY, JULY 14, 2009 

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

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:34 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Robert 

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

Present: Representatives Scott, Lofgren, Waters, Wasserman 

Schultz, Quigley, Gohmert, and Poe. 

Also present: Representative Smith. 

Staff present: (Majority) Bobby Vassar, Chief Counsel; Jesselyn 

McCurdy, Counsel; Karen Wilkinson, (Fellow) Federal Public Defender Office Detailee; Ron LeGrand, Counsel; Joe Graupensperger, 

Counsel; Veronica Eligan, Professional Staff Member; (Minority) 

Caroline Lynch, Counsel; Robert Woldt, FBI Detailee; and Kelsey 

Whitlock, Staff Assistant. 

Mr. SCOTT. The Subcommittee will now come to order. I am 

pleased to welcome you today to the hearing before the Subcommittee on crime, terrorism, and homeland security on mandatory minimums and unintended consequences. 

We have over 170 mandatory minimum penalties in the Federal 

Criminal Code. In fiscal year 2008, over 28 percent of Federal defendants were convicted of crimes carrying a mandatory minimum 

penalty. These mandatory minimum sentences are a misnomer because they are typical, not minimal sentences, but involve sentences exceeding 5, 10, even 25 years. 

These mandatory sentences are part of a larger trend of increasingly long sentences. The result is that the United States now incarcerates more people than any country in the world, both in absolute numbers and on a per capita basis with an incarceration rate 

of over 700 inmates per 100,000 population. 

Among industrialized nations to which we are most similar, the 

United States locks up people at a rate 5 to 12 times that of others. 

When we look at the racial impact of incarceration in the United 

States, we find that while African Americans make up about 13 

percent of the general population, they make up about 50 percent 

of the prison population. 

According to a recent sentencing project study the Blacks in this 

country are incarcerated at an average rate of 2,290 per 100,000 

2 

compared to 412 for Whites, 747 for Hispanics. In some communities the rate for incarceration for Blacks exceeds 4,000. 

In fact, 10 States have rates approaching 4,000 per 100,000. The 

Federal prison population has quadrupled since the Sentencing Reform Act of 1984. At the end of last year, the Bureau of Prisons 

was 36 percent over capacity. Federal corrections costs have soared 

in the last 25 years, increasing 925 percent between 1982 and 2007 

to over $5.4 billion. That is just Federal alone. 

Federal mandatory minimum sentence laws also unfairly impact 

minorities. Studies over the last 25 years by groups such as the 

U.S. Sentencing Commission and the Federal Judicial Center repeatedly have shown that these mandatory minimum penalties disproportionately affect minorities. 

For example, just last year, Black defendants in 2008 comprised 

24 percent of the total Federal offenders, yet they comprised almost 

36 percent of offenders convicted under mandatory minimum sentences. 

Not only are the mandatory minimum penalty schemes costly 

and discriminatory, they make no sense. A defendant’s sentence 

should reflect the seriousness of the crime, the defendant’s role in 

the crime, his history and any future danger to society. 

The best point in time to make this determination is when someone is deciding whether it is appropriate at that time to release the 

offender, historically a decision made by a parole officer or a parole 

board. 

At that point the decision maker has the most information about 

both the crime and the defendant. Unfortunately, we abolished parole decades ago and we no longer have this option. 

The next most logical place for the decision to be made is by the 

judge at the time of sentencing. At that time, the judge can consider the seriousness of the offense, the role of the defendant in the 

offense and the defendant’s history and can make an assessment 

as to when the defendant will be less likely to pose a further threat 

to the community if released. 

His sentence and reasoning is placed on the record, open for public scrutiny. Unfortunately, by passing mandatory minimums we 

place ourselves at the least logical place to make a decision and 

that is when Congress passes a statute. 

Congress knows nothing about the specific offense or the defendant and sets a sentence based solely on the name of the crime, 

which seldom tells you much about the facts or seriousness of the 

particular offense, and nothing about the role or the background of 

the offender. 

And yet this is a system we end up with, with mandatory minimum sentences based solely on the name of the code. Determining 

a sentence based only on code section often results in irrational and 

even cruel sentences. 

We get girlfriend cases like Kemba Smith where a young woman 

with no criminal history is sentenced to spend over 25 years in 

prison because as a 19-year-old college student she fell in love with 

someone who turned out to be an abusive drug dealing boyfriend. 

Although the evidence shows she never handled or used drugs 

and was not directly involved in any drug dealing, she ended up 

getting a totally irrational sentence. Even worse, there are cases 

3 

where such minor role defendants actually get higher sentences 

than the principals because unlike the drug dealer they have no information to trade for below mandatory minimum sentences. 

Another example of the ridiculous sentences result from the mandatory minimums that Marion Hungerford, a mentally ill 52-yearold woman with no prior criminal history, ended up with a 159- 

year sentence. 

After 26 years of marriage her husband left her, because of her 

mental illness, with no job or money. She began living with another 

man who began to rob stores with a gun. Mrs. Hungerford never 

touched the gun, was never present at any of the robberies, but she 

did know about them and benefited from the proceeds. 

Because of this association she was at the mercy, first, of the 

prosecutor’s charging decision made behind closed doors, then, of 

mandatory sentencing laws, which precluded the sentencing judge 

from considering her mental illness, or any other mitigating factors 

at the time of her sentencing. She got the sentence of 159 years. 

The boyfriend, who actually committed the robberies, cooperated 

with the government and got 32 years. 

Finally, you will hear about the Ramos and Compean cases, 

where two Border Patrol agents were convicted of shooting a suspected drug dealer during their work. Again, because of a prosecutor’s charging decision made behind closed doors and mandatory 

sentencing laws, the judge’s hands were tied and could not even 

consider anything about the agents’ years of service as law enforcement officers, particular circumstances of the shooting or any other 

mitigating factors. 

The judge had no choice but to sentence each man to 10 years 

on their gun convictions. And this is not a partisan issue, and this 

is not a liberal or conservative issue. It is a common sense issue, 

and I hope that we can work together to begin to address some of 

the unjust and unintended consequences of mandatory minimum 

sentences. 

There are many approaches to this problem. The bill that I have 

introduced, the Common Sense in Sentencing Act of 2009, is one 

approach that is simple and seeks to address the most egregious 

and unfair consequences of mandatory minimum sentences. 

I believe that we should eliminate all mandatory minimum sentences, but the bill does not do that. Rather, in cases where mandatory minimum sentences result in clearly unintended or absurd 

consequences it allows the judge to impose a below mandatory minimum sentence. 

You will hear about two other bills that address the same problem. You take different approaches and carving out exceptions to 

eliminating mandatory minimum sentencing laws. We have known 

for years that our costly experiment in mandatory minimums do 

not work. 

It has not resulted in predictable or fair sentences. It has not reduced disparity in sentencing. It has not reduced crime. States are 

starting to realize this and are changing the sentencing laws and 

practices, and it is time for Congress to do the same. 

I look forward to hearing from this panel about the unintended 

consequences of mandatory minimum sentences and how Congress 

can address the problem. 

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[The bills follow:] 


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HR1466-11.eps
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Mr. SCOTT. It is my pleasure now to recognize the esteemed 

Ranking Member of the Subcommittee, the gentlemen from Texas, 

Judge Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman, and I do appreciate 

your comments and your opinion, and I do thank the witnesses for 

all being here. 

Crime has gone down overall the last 20 years. When you look 

at areas like Texas where sentences have gotten tougher, bad people have been locked up for longer periods of time and fewer people 

have been killed by recidivist defendants. 

But since the start of the 111th Congress, there has been a concerted effort to eliminate or severely weaken certain mandatory 

minimum penalties. Both H.R. 2934 and H.R. 1466 seek to do so 

by either allowing Federal judges to sentence without regard to the 

mandatory minimum applicable to any crime or by eliminating 

drug related mandatory minimums altogether. 

As a former judge I support the need and the importance of judicial discretion. I always had a problem with the Federal sentencing 

guidelines being mandatory, but the discretion should not be completely unfettered. 

Judges should not be free to sentence felonies as misdemeanors, 

particularly when such a sentence directly contradicts the legislature’s prerogative. 

In Texas, for felonies, we have a range. A minimum of 2 years, 

a maximum of 10 years for third degree felonies, minimum of 2 

years, maximum to 20 years for second degree felonies, minimum 

of 5 years, maximum of life for first degree felonies. 

I would hate to ever see the minimum withdrawn. A mandatory 

minimum is the bottom of the range. There are some mandatory 

minimums or bottoms of the range that should be readdressed and 

discussed and legislatively changed, but I would hate to see no bottom restraints on judges. 

In light of the Supreme Court’s 2005 Booker decision, which 

made the Federal sentencing guidelines advisory, the role of mandatory minimums has become even more important in ensuring 

that appropriate penalties are prescribed. 

The evisceration of all mandatory penalties from our current advisory sentencing structure will undoubtedly return us to where we 

were 25 years ago; a system of indeterminate and unequal penalties across the Federal circuits. 

In December 2007, the Congressional Research Service conducted 

a study that documented 239 mandatory minimums applicable to 

some of the most far-reaching and acute crime problems we have 

in this country, including drug trafficking, crimes against children, 

recidivist offenders and use of weapons in crimes of violence. 

When Congress are cognizant that mandatory minimums are not, 

and should not be a one-size-fits-all approach to sentencing, there 

should be wide discretion, but not misdemeanor discretion for felonies. 

On the contrary, there are any number of Federal statutes that 

do not contain mandated minimum criminal sentences. Anecdotal 

cases of light sentences that allowed a defendant out only to kill 

innocent people are abundant. 

20 

If there is no bottom to the range, then there will be more innocents who will be killed or harmed because of light sentences. As 

a judge I saw it repeatedly, and some judges do not have the heart 

to make tough sentences in appropriate cases. 

By contrast, 1466 would remove the mandatory minimums from 

drug-related crimes altogether and return to drug sentencing 

where judges are free to sentence without regard to any floor, regardless of the nature of the crimes committed, the quantity of 

drugs involved, or the role the offender played in trafficking them. 

Mandatory minimums are one end of the range. The range gives 

the judge discretion within the range to sentence. Setting the discretionary range is a legislative job. It would be hard to imagine 

any judge in Texas campaigning for judge or being appointed to 

judge while advocating there be no bottom limit to the range of 

punishment. 

While there is definitely legitimate job for judges in fashioning 

sentences appropriate to the particular defendant in the courtroom, 

there is also a legitimate role for Congress to play in deciding the 

appropriate range of the sentence for the most egregious crimes 

and those that do the most harm to individuals and society. 

H.R. 1466 doesn’t seem to me to provide the amount of balance 

between those two roles that is needed. It eliminates the bottom 

end of the range of punishment. If a minimum is too high, it should 

be lowered. 

Normally in striving for protection in laws, we should continue 

to tweak those laws to their greatest propriety. Swinging the laws 

wildly from extreme to another in each direction is not healthy legislative discretion. 

We are better served with moderation. This course of action contemplated will beg for a wild political swing back to even higher 

mandatory minimums when the political winds reverse. We should 

be loathe to invite such dramatic changes in either direction. When 

the thermostat is swung from one extreme temperature to another, 

people in that environment get sick. 

We just came out from sentencing guidelines that severely limited judicial discretion. Now this contemplated action will remove 

the bottom restraint. There are top restraints. There should be bottom restraints on sentencing depending on the seriousness of the 

crime, because some judges do not have the good discretion of 

someone like Judge Poe for example who is known for good sentences in Houston. 

And since the Federal judges are not ever voted out, those judges 

in the Federal system are there for life with no mandatory maximum on their service. Maybe we need one of those mandatory 

maximums on Federal judicial service, but with that I yield back. 

Mr. SCOTT. Thank you, Mr. Gohmert. 

We have the Ranking Member of the full Committee with us 

today, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. The lessons of the greatly 

reduced crime rates of the last 15 years apparently have been forgotten. Putting criminals in jail works. It keeps them off the streets 

and out of our homes. The Democratic Party continues to treat 

criminals as victims and then ignores the real victims. 

21 

Let me mention a few bills that reduced penalties on criminals 

while endangering innocent Americans. Earlier this year, this Subcommittee held a hearing on legislation that would require States 

to give parole hearings to juveniles sentenced to life without parole, 

regardless of the fact that most of the offenders are serving time 

for violent, dangerous offenses. 

Today this Subcommittee was scheduled to mark up H.R. 1064, 

a bill that removes crack cocaine from our Federal drug laws and 

eliminates mandatory minimums for cocaine trafficking. And then 

there are literally dozens of other bills in Congress this year to release felons from prison and weaken our criminal justice system. 

For example, this hearing considers H.R. 1466, a bill that eliminates all Federal mandatory penalties for drug trafficking. I have 

news. The drug trafficking problem in America has not disappeared. We still need tough criminal penalties to fight Mexican 

drug cartels and dangerous drug organizations. 

Also alarming is H.R. 2934, legislation to allow Federal judges to 

ignore all mandatory penalties in the Federal system including 

penalties for crimes against children and illegal firearms trafficking. 

Twenty-five years ago Congress rightly responded to the huge 

disparities in sentences and passed bipartisan legislation to address runaway judicial discretion in Federal courtrooms. Republicans and Democrats alike supported the Sentencing Reform Act, 

which created the U.S. Sentencing Commission and provided consistency and fairness in Federal sentencing. 

Congress also imposed mandatory minimum penalties to ensure 

that similar sentences were given for similar offenses. This is common sense fairness. Most of these penalties apply to crimes that 

represent the greatest threats to those who live in a civilized society. 

The proponents of H.R. 2934, the so-called Common Sense in 

Sentencing Act of 2009, would return to a system in which Federal 

judges once again would be free to disregard the laws enacted by 

Congress, and ignore the statutory mandatory minimum sentences. 

Such a system will result in different sentences for similar 

crimes and the manifest unfairness that brings. It also will cause 

a rise in overall crime rates because penalties will be weakened 

and more criminals will do less time. 

Another bill we consider today, H.R. 1466, does away with drugrelated mandatory minimums that impose tough sentences on drug 

traffickers. In the past, critics have complained that sentences were 

too long for low level drug offenders and those with no criminal history. 

In response to such criticisms Congress passed a safety valve exemption to drug trafficking mandatory minimums in 1994. The 

safety valve provides an opportunity for non-violent offenders with 

little or no criminal history to be sentenced without regard to mandatory minimums as long as they are not the leader of the criminal 

enterprise. 

So Congress has already created a way for non-violent, first time 

offenders to be exempted from drug related mandatory minimums. 

H.R. 1466’s attempt to eliminate them altogether is both extreme 

and dangerous. 

22 

No Congress or Administration has ever advocated mandatory 

minimums as a blanket proposal for all crimes. Every Congress 

and every Administration for the last 25 years has supported mandatory minimum sentences for the most serious offenses as a way 

to create uniform, consistent sentences and reduce crime. 

As a result the violent crime rate is down. While there are many 

reasons for this, surely the incarceration of the worst offenders because of mandatory minimums, is one of them. If there are occasional problems with mandatory minimums, we should look to deal 

with them in a targeted fashion as we did in enacting the safety 

valve. 

But empowering judges to ignore minimum penalties means 

fewer criminals in jail, and more crimes on the streets. Thank you, 

Mr. Chairman, for your indulgence and I will yield back. 

Mr. SCOTT. Thank you. And without objection, we will have comments from the gentlelady from Texas and the gentleman from 

Texas—excuse me—the gentlelady from California and gentleman 

from Texas. I was looking over here, and I didn’t see anything but 

Texas. [Laughter.] 

I am sorry. The gentlelady from California is the sponsor of one 

of the bills we are considering today. 

Ms. Waters? 

Ms. WATERS. Thank you very much, Chairman Scott, and Ranking Member Gohmert. I thank both of you for your work, holding 

today’s hearing on mandatory minimum sentences, and legislative 

proposals from both sides of the aisle that will address this issue. 

I very much appreciate that my bill, H.R. 1466, the Major Drug 

Traffic and Prosecution Act, is one of the bills being considered 

today. The Major Drug Traffic and Prosecution Act would eliminate 

mandatory minimum sentences for drug offenses and redirect Federal prosecutorial resources toward major drug traffickers. 

I first introduced this proposal 10 years ago in the 106th Congress and since that time I have held town hall meetings ever year 

at the Congressional Black Caucus legislative weekend, and traveled throughout this country listening to the stories of families who 

had relatives who were first time offenders convicted under mandatory minimum sentencing laws, some of whom were college students who got caught at the wrong place at the wrong time and basically convicted under conspiracy laws. 

I sincerely hope that today’s hearing will help us pass the legislation that will end sentencing disparities so that we can begin to 

refocus Federal resources to lock up the major drug traffickers. 

Today’s hearing is so important because the evidence is growing 

irrefutable. The current sentencing requirements have failed to accomplish the legislative intent of the 1986 Anti-Drug Abuse Act. 

We are wasting precious government resources on low level drug 

offenders. 

Moreover the act has had a disparate impact on the African 

American community, resulting in the incarceration of a disproportionate number of African Americans often for many, many years. 

Mr. Chairman, I have a longer statement on the history of mandatory minimum sentences, that in the interest of time, that I 

would like to enter into the record today with unanimous consent. 

[The prepared statement of Ms. Waters follows:] 

23 

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, SUBCOMMITTEE ON

CRIME, TERRORISM, AND HOMELAND SECURITY


MW-1.eps
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MW-2.eps
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MW-3.eps
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MW-4.eps
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MW-5.eps
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MW-6.eps
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Ms. WATERS. I am still awaiting statistics requested from the Department of Justice, but from data published for funding year 2008, 

there were 16,932 individuals. Of the 25,000, 337 sentenced for 

drugs who received mandatory minimum drug sentences in funding 

year 2008. 


MW-7.eps
30 

That is about 6.8 percent of all individuals sentenced for drug 

crimes that year. I have also seen figures showing Federal prosecution against approximately 19,000 drug defendants that were not 

described as major or organized crime drug enforcement cases. 

That is why on March 12, 2009, I reintroduced the Major Drug 

Trafficking Prosecution Act, H.R. 1466, to end mandatory minimum sentences for drug offenses, and refocus scarce Federal 

sources to prosecute major drug kingpins. 

This bill will eliminate all mandatory minimum sentences for 

drug offenses, curb Federal prosecutions of low level drug offenders, and give courts and judges greater discretion to place drug 

users on probation or, when appropriate, to suspend the sentence 

entirely. 

This bill restores discretion to judges and allows them to make 

individualized determinations that take into account a defendant’s 

individual and unique circumstances instead of being forced to 

apply stringent sentencing requirements that don’t necessary fit 

the crime. 

The Major Drug Trafficking Prosecution Act of 2009 goes to the 

root of the problem by creating a more just system that will apply 

penalties actually warranted by the crime instead of mandating 

sentences, regardless of individual circumstances, as required 

under current mandatory minimum laws. 

It does so by eliminating the mandatory minimum sentences for 

simple possession including the notorious 5-year mandatory for 

possession of five grams of crack cocaine, distribution, manufacturing, importation and other drug related offenses, and allows the 

United States Sentencing Commission to set appropriate proportionate sentences with respect to the nature and the seriousness of 

the offense and the role and background of the offender. 

My bill also addresses other problems relating to the use of mandatory minimum sentences by curbing prosecutions of low level 

drug offenders in Federal court and by allowing Federal prosecutors to focus on the major drug pins and other high level offenders. 

Additionally, my bill would strip current statutory language that 

limits the courts’ ability to place a person on probation or suspend 

the sentence, thus allowing for discretion as appropriate under certain circumstances. 

Twenty years later the so-called war on drugs has not been won, 

and mandatory drug sentences have utterly failed to achieve these 

congressional objectives. Mandatory minimum sentences are not 

stopping major drug traffickers. 

There are, however, resulting in the incarceration of thousands 

of low level sellers and addicts. Moreover, these lengthened drug 

sentences have increased the need for more taxpayer dollars to 

build more prisons. 

Finally, these sentences are disproportionately impacting African 

Americans. While African Americans compromise only 12 percent 

of the U.S. population and 14 percent of drug users, they are 20 

percent more likely to be sentenced to prison than White defendants. 

Much of this disparity is due to the severe penalties for crack cocaine. The Federal judiciary, along with experts in criminal justice, 

has long argued against mandatory minimums, especially those for 

31 

crack cocaine. They point out that the current system requires the 

courts to sentence defendants with differing levels of culpability to 

identical prison terms. 

I am very pleased that we will hear testimony today from Judge 

Carnes, representing the Judicial Conference of the United States, 

and from Julie Stewart, the founder and president of Families 

Against Mandatory Minimum Sentences. 

Julie, I must say to you publicly what I have said privately. The 

long, hard work you and FAMM have done over the years has been 

invaluable and I thank you so much for your hard work. 

And although Nkechi Taifa is not testifying today, she is the 

leader of the Open Society Institute. She is here, and I have to 

thank her again for her tireless efforts to help make today’s hearing a reality. 

Mr. Chairman, again, I thank you for today’s hearing on our legislation to address mandatory amendment sentences, and I am 

looking forward to working with my colleagues, especially those on 

the Crime Subcommittee and with the Obama administration to 

pass legislation that finally ends mandatory amendment sentences 

and rightfully restores discretion to judges. 

I thank you, and I yield back. 

Mr. SCOTT. Thank you, very much. 

Gentleman from Texas, Judge Poe. 

Mr. POE. Thank you, Mr. Chairman. Everybody has heard of two 

people by the name of Ramos and Compean, two Border Patrol 

agents who were doing their job on the Texas border, and they 

were prosecuted for doing that. 

They were sent to prison for 11 and 12 years. Part of the reason 

was a mandatory requirement that, because they had a gun and 

discharged it, they got an extra 10 years, even though peace officers, by law, must carry guns. 

The prosecution in that case, in my opinion, was vindictive and 

prosecuted them for various reasons other than seeking justice because they even admitted that their own witness lied on the witness stand, a drug dealer who was given a deal, a back room deal. 

Be that as it may, after all the smoke cleared, even the prosecution said the sentence was over the top. And the reason, of course, 

they had to get a mandatory extra 10 years for carrying a weapon. 

The United States House of Representatives, by voice vote last 

year, or in the last Congress, passed legislation that would prohibit 

any Federal funding going to incarcerate those two Border Patrol 

agents. The Senate never took the case up, or the bill up, so it died. 

But this is a case of injustice and it cannot be remedied. The only 

thing that happened was the last President commuted the sentence 

of these two individuals, even though they spent 2 years of their 

lives in prison, most of that time in solitary confinement. 

I do believe in judicial discretion. I was on the bench 22 years 

and I tried only felonies. I heard over 25,000 felony cases, and I 

have been accused of a lot of things, but being soft on crime was 

not one of them. I even thought that the maximum sometimes was 

not near high enough in the cases that I heard. 

But even Texas, with its hard-nosed reputation across the country, does have a remedy that allows for judges in felony cases to 

32 

allow the person to be sentenced as a misdemeanor offender even 

though he is convicted of a felony. 

And for the record, Mr. Chairman, I would like to submit section 

12.44 A and B of the Texas penal code into the record—— 

Mr. SCOTT. Without objection that will be introduced, and I believe the gentlelady from California had also made a unanimous 

consent and without objection the material she wanted in the 

record will also be introduced. 

[The information referred to follows:] 

MATERIAL SUBMITTED BY THE HONORABLE TED POE, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

Mr. POE [continuing]. Which allows the judge, in his or her discretion, a person convicted of what is called a State jail felony to 

sentence the person as a misdemeanor offender. I did that as a 

judge because justice demanded that that occur in cases because 

the system that we have, although it is not perfect, it allows for 

some discretion needs to be imposed by the sentencing judge. 


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And in those cases where justice demands that a person be sentenced to something less than the statutory minimum, I think 

judges should have the discretion, when they can justify it under 

Federal rules of why they would reduce the sentence to a lesser 

sentence, and of course allow the prosecution in appropriate cases 

to appeal that sentence. 

So for the reasons of Ramos and Compean, and many other cases 

down the road, judicial discretion is something that we should be 

interested in. Congress cannot, even in its great wisdom, pass appropriate legislation to cover every type of criminal case that there 

is because there are no two cases alike. 

And the facts must be weighed and justice must be imposed in 

every case, not just in most of the cases, and one remedy to do that 

is to allow, in certain rare cases, for the sentencing judge in Federal court to sentence something less than the statutory minimum 

if that can be justified. 

And I would hope that, in the future, that border agents and all 

peace officers in the country who are doing their job would not be 

subject to arbitrary decisions based on legislation that Congress 

has passed because it does prevent or does provide, unfortunately, 

unintended consequences and forces individuals who, as Ramos 

and Compean were doing what I thought was a noble job on the 

Texas border in arresting a drug smuggler, and they go to jail for 

just doing what they were sworn to do. 

I will reserve the rest of my comments to the questions I have 

of the witness, and I yield back my time. 

Mr. SCOTT. Thank you. We have a distinguished panel of witnesses here today to help us consider the important issues. We currently have before us, and ask each of the witnesses to complete 

his or her statement within 5 minutes as the timing device in front 

you at the table. It will start green and turn to yellow when 1 

minute is left. The light will turn red when your 5 minutes has expired. 

All of the witnesses’ statements will be entered into the record 

in its entirety. Our first panelist is Chief Judge Julie Carnes. She 

is testifying on behalf of the Judicial Conference of The United 

States, the policymaking body for the Federal judicial branch. 

She has served on the Conference’s committee on criminal law 

since 2005, and was selected by Chief Justice Roberts to chair the 

committee in 2007. Chief Judge Carnes was appointed to the district court bench for the Northern District of Georgia in 1992 and 

became Chief Judge of that district in January 2009. 

She is also a member of the U. S. Sentencing Commission. She 

was also a member of the U.S. Sentencing Commission from 1990 

to 1996, and prior to serving on the bench she was an Assistant 

U.S. Attorney, an Appellate Chief in the Northern District of Georgia for 12 years. 

Our next panelist will be Grover Norquist. He is the president 

of Americans for Tax Reform, a coalition of taxpayer groups, individuals and businesses opposed to higher taxes at the Federal, 

State and local levels. 

He serves on the board of directors for the National Rifle Association of America and the American Conservative Union. He has 

34 

authored the book, ‘‘Leave Us Alone: Getting the Government’s 

Hand Off Our Money, Our Guns, Our Lives.’’ 

He has worked with the U. S. Chamber of Commerce, served as 

a campaign staff for various Republican platform committees and 

served as executive director for both the National Taxpayers Union 

and the College Republicans. He holds a Master’s of business administration and Bachelor of Arts degree in economics, both from 

Harvard University. 

Our next panelist is Michael Sullivan, currently practices with 

the Ashcroft Law Group, specializing in health care, government 

fraud, corporate compliance and ethics, corruption and corporate 

security. 

In 2001, he was appointed U.S. Attorney for the district of Massachusetts. While there, he served on the attorney general’s advisory committee and was chair of the Health Care Fraud Working 

Group, as well as serving on other crime subcommittees including 

Sentencing, Violent Crime and Drugs. 

In 2006, President Bush also appointed him as acting director of 

the Bureau of Alcohol, Tobacco and Firearms. He was nominated 

director in 2007 and served until January 2009. He was Plymouth 

County District Attorney between 1995 and 2001 and prior to that 

served in the Massachusetts House of Representatives. 

Our next panelist will be T.J. Bonner, who is testifying on behalf 

of the National Border Control Council of the American Federal 

Government Employees Union, the labor organization that represents approximately 17,000 non-supervisory Border Patrol employees. 

He is president of the council, and has held that position since 

1989. He has been a Border Patrol agent in San Diego since 1978. 

He has testified before Congress on numerous occasions concerning 

a variety of related issues. He has made numerous appearances on 

various network and cable news programs, and is an expert on immigration, border and homeland security issues. 

And our final panelist will be Julie Stewart, who is the president 

of Families Against Mandatory Minimums, known as FAMM. She 

started FAMM in 1991 after her brother was sentenced to 5 years 

in Federal prison for growing marijuana. 

FAMM now has over 20,000 individual and organizational members. Ms. Stewart has testified before Congress and the U.S. Sentencing Commission about mandatory minimum sentences and has 

discussed these issues on countless television and radio shows. 

She is a graduate from Mills College with a B.A. in international 

relations and has worked at the Cato Institute for 3 years as director of public affairs. 

We will begin now with Judge Carnes. 

TESTIMONY OF THE HONORABLE JULIE E. CARNES, CHAIR, 

CRIMINAL LAW COMMITTEE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, WASHINGTON, DC 

Judge CARNES. Good morning. Mr. Chairman and distinguished 

Members of the Committee, I am pleased to testify on behalf of the 

Judicial Conference and the Criminal Law Committee and to offer 

you a judicial perspective on mandatory minimum laws and the 

harm that we judges firsthand have seen them bring to our system. 

35 

I begin by attributing no bad purpose to any congressional member who may have supported these kinds of statutes in the past. 

To the contrary, many of them were enacted out of a sincere effort 

to effectively combat serious crimes that undermine a safe society. 

Yet as well-intentioned as the proponents of this legislation may 

have been, these kinds of statutes have created what the late Chief 

Justice Rehnquist aptly termed ‘‘unintended consequences.’’ Specifically, these mandatory provisions typically focus on one factor only, 

to the exclusion of other potentially relevant factors. 

And because of this, they sweep broadly, sweeping in both the 

egregious offender as well as other less culpable offenders who may 

have violated the statute. Necessarily, the sentence that may be 

appropriate for the most egregious offender will often be excessive 

for this less culpable person. 

Now the Conference has opposed mandatory sentencing for the 

last 50 years. Nevertheless, we know that with over 170 such statutes on the books, a repeal of all of them may not be the first step 

some in Congress would wish to take. 

For that reason, while we applaud a comprehensive assessment 

of these statutes, we note that there are some mandatory statutes 

that are indefensibly harsh, and we hope Congress will act quickly 

to repeal them. 

One of these statutes, the enhanced penalty section of section 

924(c), is so draconian that the Conference has taken a specific position against it. Section 924(c) prohibits the possession of a firearm during a drug crime or a crime of violence, and it calls for a 

mandatory 5-year sentence for the first such occurrence. 

But it also states that a second or subsequent such event receive 

a 25-year mandatory consecutive sentence for each subsequent occurrence. My predecessor chair of this committee, Judge Paul 

Cassell, testified about this and he testified about a real case that 

he had had. 

In his case, a defendant named Weldon Angelos was a 24-yearold first offender who was involved in three undercover sales of 

marijuana to undercover agents. That would have called for a 6-to 

8-year sentence under the guidelines. 

But because Mr. Angelos also possessed a firearm during two of 

the sales and because the agents found some guns in his home during a subsequent search, he was subject to a 5-year consecutive 

sentence on the first gun count, a 25-year consecutive sentence on 

the second gun count and another 25-year consecutive on the third. 

Mr. Angelos, a 24-year-old first offender who never fired his gun 

received a 55-year sentence. Now that sentence was greater by 

many years than the guideline sentence for an airline hijacker, a 

terrorist who detonates a bomb in a public place, or a hate crime 

in which the victim receives permanent injury. 

There can be no persuasive justification for this sentence. Congress could easily make this statute a true recidivist statute, if not 

rescinding it all together. Yet as it now stands, a young man has 

effectively had his life taken away for an offense that did not merit 

this punishment. 

We hope that Congress will act expeditiously to correct this and 

other similarly unsupportable statutes. We greatly appreciate your 

efforts and thank you. 

36 

[The prepared statement of Judge Carnes follows:] 

PREPARED STATEMENT OF THE HONORABLE JULIE E. CARNES


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Mr. SCOTT. Thank you. 

Mr. Norquist? 

TESTIMONY OF GROVER G. NORQUIST, PRESIDENT, 

AMERICANS FOR TAX REFORM, WASHINGTON, DC 

Mr. NORQUIST. Okay. Thank you. My written testimony was 

skillfully written by my wonderful staff. It is worth reading repeatVerDate Aug 31 2005 16:13 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071409\51013.000 HJUD1 PsN: 51013

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edly, and I commend it to everyone as holiday gifts for loved ones. 

I would like to make three observations today. 

The first is that all government costs money. Nothing is for free. 

Those of us who try and limit the cost and destructiveness of government sometimes divide government between the things that are 

vaguely mentioned in the Constitution, and we don’t focus on those, 

and those things that are silly and destructive and we focus only 

on the cost there. 

But even the worthwhile, important parts of government, national defense and the judicial system, cost money. And if we are 

going to focus on the cost of government, that means we should 

also keep an eye on cost of the legitimate functions of government. 

Those people who defended the Bush spending legacy, both of 

them, would sometimes say well, if you don’t count Iraq he didn’t 

spend all that much. But Iraq wasn’t free. However useful you 

thought it was, it wasn’t for free. It cost money. The French 

weren’t paying for it. 

And the same thing is true for our prison system. It costs money 

and we need to look at how to keep these costs down. I have two 

suggestions, and I think mandatory minimums sometimes run up 

the costs of incarceration. 

And my two suggestions are one, sunsetting those laws that force 

government spending and mandatory minimums that force other 

parts of the government to spend a lot of money. If we would revisit these every 4 years, say they lapse, and unless we look at 

them it would at least mean that they don’t continue year after 

year without being looked at, debated and refocused. 

After September 11, I testified on the Senate side, the Judiciary 

Committee on the PATRIOT Act, and they had this 300-page Patriot Act they were going to pass, and I said, ‘‘I am not a lawyer, 

but my suggestion is that you all read this first before voting on 

it,’’ which the Senators all politely laughed. They had no intention 

of reading it and every intention of passing it. I said, ‘‘I understand 

that. Then sunset it at 4 years.’’ 

So we are passing it now as a political statement. Let us look in 

4 years and see which were the useful bits and which were not useful and which were dangerous. And the same thing I think should 

be done with mandatory minimums. 

When heads are cool, when we are not in front of TV cameras 

saying that we are against a particular crime and proving it by 

putting a mandatory minimum in, let us take a look at it in 4 years 

again and again and again. Some of them you may want to keep, 

but some may want to reduce, some may want to eliminate. 

And the last thought is that one of the questions to ask is not 

whether there should be a mandatory minimum for certain Federal 

crimes, but whether certain crimes should be dealt with by the 

Federal Government. Should they perhaps be State crimes? 

There is always the temptation for elected officials to go in front 

of the cameras and make something that the States are handling 

perfectly well a Federal crime for political reasons, and I would 

argue for sunsetting Federal crimes in the first place, because a lot 

of what is listed in the mandatory minimums could perfectly well 

be handled at the State level if they wanted to have mandatory 

minimums. They could or they couldn’t. 

68 

So there is a separate question of which crimes actually need to 

be Federal crimes, national crimes, as opposed to local and State 

crimes. Thank you. 

[The prepared statement of Mr. Norquist follows:] 

PREPARED STATEMENT OF GROVER G. NORQUIST


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Mr. SCOTT. Thank you. 

Mr. Sullivan? 


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TESTIMONY OF MICHAEL J. SULLIVAN, PARTNER, 

ASHCROFT SULLIVAN, LLC, BOSTON, MA 

Mr. SULLIVAN. Good morning, Mr. Chairman. Thank you for giving me an opportunity, and honorable Members of the Committee, 

to share with you some of my professional experiences dealing with 

crime and punishment, and the role that minimum mandatory sentencing has played in our pursuit of justice in crime reduction efforts. 

Minimum mandatories have been around since the beginning of 

sentencing, with death and life sentences being imposed for the 

most serious offenses. Congress and State legislators have listened 

to the concerns of law abiding citizens about escalating violence, a 

perceived lenient judiciary and a perceived revolving door of the 

criminal justice system. 

The response, both in our Nation’s capital and throughout our 

State capitals have been to impose greater certainty and uniformity 

in punishment, with minimum mandatory sentencing playing a 

greater role and a more important role in addressing recidivism 

through longer incarcerations, especially for those crimes that pose 

the greatest risk to society and thus to your constituents. 

With the rising tide of violent crime, Congress passed major initiatives, including sentencing reform and the establishment of the 

United States Sentencing Commission. With that as a backdrop, 

since the passage, prison population has increased and crime rates 

have dropped. 

There should be no doubt there is a correlation between prison 

population and crime rates. Criminals oftentimes commit multiple 

offenses, most of which they are never caught for or charged with. 

By convicting them of a particular crime and incapacitating them 

for the offense, scores of people avoid being victimized and crime 

rates are affected. 

So instead of asking the question if crime rates are down, why 

are prisons overcrowded, one could simply State crime rates are 

down because prisons are overcrowded. While the early goals of the 

passage of minimum mandatory offenses dealt with uniformity, 

just punishment and deterrents, collateral benefits have emerged 

over the last 20 years in the use of cooperators to achieve even 

greater results for the government and, thus, for the American people. 

Lower level drug dealing offenders faced with serious prison 

time, seek cooperation with the government as an opportunity to 

shave time off of their sentences, and the government is able to use 

lower level drug dealers to open up much larger investigations, targeting the organization in its highest Ranking Members. 

Without minimum mandatories, especially in our post-Booker 

world, there would be little or no incentive for these defendants to 

cooperate with the government. Without their cooperation, the government would be at a distinct disadvantage in developing investigations against these regional, national and international organizations. 

The critics of mandatory minimums, especially for drug crimes, 

argue that users, low level and first time offenders are filling up 

our prisons at a great cost and with little benefit. While that 

72 

sounds compelling, and has been repeated so many times, many 

take it as a fact, the numbers just don’t bear it out. 

A review of the Massachusetts State prison population a few 

years ago yielded some contrary data when it showed that the profile of the drug dealer sentenced to the State prison had a long 

criminal history. 

Over 20 adult arraignments, over 20 juvenile arraignments and 

multiple convictions, including, oftentimes, multiple drug-related 

charges. In most instances, they will be viewed, if not by a strict 

reading of the statutes, certainly by the public as career offenders 

who have spent the better part of their adult life committing 

crimes and victimizing people in the greater community. 

Recently, I heard that a district attorney in Massachusetts was 

quoted as saying, ‘‘fewer than 3 percent of the Massachusetts State 

prison population was there only due to a drug dealing conviction.’’ 

A closer examination of the Federal prison population yields similar results and allows the informed to reach the conclusion, ‘‘You 

have to earn your way into Federal prison.’’ 

As you look at ways to strengthen the criminal justice system 

and reduce recidivism, I would encourage you to avoid the rhetoric 

from both sides. Review the history of the Federal prison population. 

Begin looking at and collecting sentencing trends in this postBooker environment, examine crime statistics and the impact that 

crime reduction has on victimization, and when you do, I am confident you will come to a conclusion that mandatory minimum sentencing has a role to play in Congress’ sentencing scheme. 

I know that members of law enforcement and prosecutor’s offices 

see it as a very valuable tool. As long as recidivism continues to 

pose such an insurmountable challenge within our criminal justice 

system, longer prison sentences for violent offenders provide the 

best tool to protect our law abiding citizens. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Sullivan follows:] 

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PREPARED STATEMENT OF MICHAEL J. SULLIVAN


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Mr. SCOTT. Thank you. 

Mr. Bonner? 


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TESTIMONY OF T.J. BONNER, PRESIDENT, 

NATIONAL BORDER PATROL COUNCIL, CAMPO, CA 

Mr. BONNER. Chairman Scott, Ranking Member Gohmert, other 

distinguished Members of the Subcommittee, thank you for the opportunity to present the views of the 17,000 Border Patrol agents, 

frontline agents. 

I want to focus today on one aspect of mandatory minimum sentencing, its application to law enforcement officers who are acting 

in good faith in the scope of their authority. Everyone is familiar 

with the case of Border Patrol agents Ignacio Ramos and Jose 

Compean and the unfortunate fallout of that prosecution, which resulted in the incarceration of two innocent men for lengthy periods, 

11 and 12 years in Federal prison. 

Although their sentences were ultimately commuted after they 

served 25 months in prison, the adverse effects continue to this 

day. They are convicted felons. Their hopes of gaining any type of 

employment that pays more than minimum wage are minimal. The 

damage done to those families can never be repaired. 

But more importantly, I want to focus on what it has done to the 

law enforcement community in general, not just the Border Patrol, 

but other law enforcement agencies. A number of people have confided in me and other members of my organization, that they did 

not join the Border Patrol, and bear in mind the Border Patrol is 

engaged in the most aggressive recruiting campaign of its history, 

these people have confided that they ultimately turned down the 

job because of what happened to those two agents. 

Others who did join have confided to us that it was a very difficult decision because of that prosecution. Some of these young 

men and women, while being trained at the Border Patrol Academy 

have pulled their instructors aside and said, ‘‘What exactly are the 

rules of engagement?’’ 

And the instructor says, ‘‘Well you are entitled to defend yourself 

if somebody threatens your life.’’ They say, ‘‘That is all good and 

fine on paper, but I look at the facts of the case involving agents 

Ramos and Compean, and that is exactly what they did, and they 

ended up being prosecuted.’’ 

And there is no good answer to tell those young men and women. 

Perhaps even more disturbing is the fact that you have a number 

of experienced officers out there who have quietly confided that 

they are not going to chase that person. 

They will seize that load of narcotics, but they are not going to 

put their livelihood, their freedom on the line by chasing that person and engaging in a fire fight, because they fear the consequences of using justifiable deadly force, fearing that the provisions of 18 U.S.C. 924(c) are going to be turned against them. 

And I realize that in a perfect world, that prosecution never 

would have happened. But obviously we do not live in a perfect 

world. The prosecution decided that they were going to levy this 

charge and the prosecutors have great discretion as to whether or 

not they are going to levy those charges. 

In this case, it was a serious mistake to use that charge against 

those two agents. It happened. It tied the hands of the judge. This 

is a problem that needs to be addressed. As I said from the outset, 

80 

I am focusing on the effect on law enforcement. I realize that there 

are injustices that occur at both ends of the spectrum. 

I am not an expert in criminal law. I am not an attorney, and 

I don’t feel qualified to address all of the ramifications, but as a 

law enforcement officer who represents thousands of other law enforcement officers, I can certainly see the effects of having these 

mandatory minimum sentences apply to law enforcement officers 

who are presumed to be acting in good faith, and the overwhelming 

majority of them act in good faith. 

Allowing judges to downwardly depart would not result in rogue 

officers being given a pass because judges could still throw the 

book at them, and I would strongly encourage judges to throw the 

book at law enforcement officers who abuse their authority. 

If someone wakes up in the morning and decides that they are 

going to rob a 7-11 while in uniform using their service weapon, 

I have absolutely no sympathy for that individual. 

But someone who goes out there and makes a split second decision, which is later Monday-morning quarterbacked, and the U.S. 

attorney decides that they are going to stack on a charge against 

them, that, to me, is unconscionable. 

And it has affected not just the morale, but it has affected the 

ability of our law enforcement officers across the country to do 

their jobs effectively and safely, and it needs to be corrected. Thank 

you. 

[The prepared statement of Mr. Bonner follows:] 

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PREPARED STATEMENT OF T.J. BONNER


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Mr. SCOTT. Thank you. 

Ms. Stewart? 


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TESTIMONY OF JULIE STEWART, PRESIDENT AND FOUNDER, 

FAMILIES AGAINST MANDATORY MINIMUMS FOUNDATION, 

WASHINGTON, DC 

Ms. STEWART. Good morning, Chairman Scott and distinguished 

Members of the Committee. Thank you for inviting me to be here 

today, and thank you for your commitment to sentencing reform. 

As stated, I am here representing the 20,000 of FAMM. We are 

a national nonprofit organization, whose mission is to promote fair 

and proportionate sentencing policies. We don’t oppose prisons, but 

we do want the punishment to fit the crime. 

I did start FAMM 18 years ago after my brother was arrested for 

growing marijuana in his garage. He was guilty. He deserved to be 

punished, and I don’t even mind that he was sentenced to some 

prison time, but 5 years seemed excessive to me then, and it seems 

excessive to me today. 

It is a long time, a lot of missed birthdays and family holidays 

and, unfortunately, my dad died while he was in prison, while Jeff 

was in prison, and it is hard to grieve for someone, while you are 

behind bars. 

But what motivated me to start an organization to repeal mandatory minimum sentences was not the length of Jeff’s sentence, but 

the fact that his judge was unable to give him the sentence that 

he wanted to. His hands were tied. 

And when I learned this, it seemed so counter-intuitive to me 

that the person who had all the information about his case, and 

knew all the facts, could not deliver the sentence that was appropriate. 

I thought in this country that we sentence individuals, not 

crimes. I thought courts imposed the sentences, not lawmakers 

miles away in Washington who have never laid eyes on my brother 

or any other defendant. It seemed utterly un-American to me then 

and it still does today. 

This is not the first time I have testified before this Committee 

or this Subcommittee. Sixteen years ago there was a hearing on 

mandatory minimums chaired by Charles Schumer, and I was sitting here testifying pretty much the same as I am today. 

And beside me was a young woman who was in a prison jump 

suit. They had brought her from prison. Her name was Nicole Richardson. She was serving a 10-year prison sentence. She was there 

because her boyfriend was an LSD dealer, and she had taken a 

phone call for him, to tell this undercover agent—she didn’t realize 

that, of course—where they could find her boyfriend to pay him for 

some LSD. 

That linked her into the conspiracy. She was charged as a conspirator and sentenced to 10 years in prison. Her boyfriend, who 

had information to give the prosecution, got a 5-year sentence. She, 

of course, didn’t have anything of value, so hers was a classic 

‘‘girlfriend case,’’ and her judge at the time did not want to sentence her to that much time in prison, but he had no choice. 

At that same 1993 Subcommittee hearing, Judge Carnes’ predecessor, Judge Vincent Broderick testified—he was the chair of the 

Criminal Law Committee at that time—and he said that Nicole’s 

case was not an isolated horror story. Rather, Judge Broderick 

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said, ‘‘I respectfully submit that the mandatory minimum system 

in place is itself the horror story.’’ 

Thankfully, the upshot of that hearing was the passage of the 

safety valve the following year. The safety valve does allow the 

courts to sentence below the mandatory minimum, for a narrow 

band of drug defendants only. 

It was a great first step, but it does not go far enough. Since its 

passage, over 210,000 people have been sentenced federally to 5- or 

10-year mandatory prison sentences. That is an enormous number 

of families devastated by one-size-fits-all sentences. 

Now, it is time to take the next step, and today’s hearing sets 

us on that path toward passing a bill that will, in fact, allow judges 

to sentence individually. 

We are here today in part because of the border agents’ cases, 

Ramos and Compean. Their sentence angered many Americans, as 

we have just heard, in addition to the border agents, who saw them 

as heroes and feared that the decision and the sentence would have 

a chilling effect on those who work on the border, and it sounds 

like it has. 

Whatever your thoughts about the border agents’ case, those of 

us who have been fighting against mandatory minimum sentences 

for years, almost decades, would caution Members of this Committee and Congress against seeing their case as an anomaly. In 

reality, it is one more of the all too common features of one-sizefits-all sentencing. 

First, to briefly say why that is true, that you had a prosecutor 

who was following instructions of his supervisors. In this case, it 

was Attorney General Ashcroft’s memo from 2003 that said to prosecute. The prosecutors ‘‘must bring the most serious, readily provable chargeable offense and to oppose downward departures at sentencing.’’ 

Second, a jury of peers found them guilty, and finally, you had 

a judge whose discretion was extinguished by mandatory sentencing laws passed by Congress. 

Mr. Chairman, this happens everyday in Federal courtrooms all 

across the country. FAMM’s files are filled with cases that reflect 

the same rigid process and result in sentences that over-punish. 

As Mr. Poe has already said, it would be impossible for this Committee to draft a bill listing all of the defendants deserving to have 

a carve-out from the mandatory minimum sentence, the single 

mothers, the Vietnam vets, the drug addicts. 

You would probably capture some of the right people, but you 

could never capture all of them because every case is different, 

every defendant is different, and the judge should have the ability 

to sentence differently for each one under the circumstances for 

each defendant, and that would be subject, of course, to appellate 

review. Judges would not have unfettered discretion. 

In the interest of time, I am not going to give you the 25 cases 

I brought that show you how this is always working badly—just 

kidding—but I will say just one quick case. I know my time is up, 

but I do want to point out that the safety value was a wonderful 

thing that passed in 1994, but it did not go far enough. 

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ty valve, and so for instance Jesus Esparza, who was sentenced in 

2007 for driving with a friend of his to Seattle where the friend 

picked up a kilo of cocaine, driving back through Wyoming they are 

stopped by State troopers. 

The troopers find the cocaine. They find a loaded pistol under the 

friend’s seat. So they are both charged, they both are convicted. 

Jesus pleads guilty. He accepts his responsibility for the role in his 

offense. 

His guideline sentence would have been between 4 and 5 years, 

but the judge must give him 5 years for the cocaine, 5 years for 

the gun, even though it was his friend’s gun. He got 10 years in 

prison. He was not able to benefit from the safety valve. 

So I will close by just saying I believe as fervently today as I did 

16 years ago, that the time is ready right now to repeal mandatory 

minimums. It has been done before, as we have pointed out in our 

‘‘Correcting Course’’ report, which is available on the table. 

A bipartisan Congress in 1970 repealed mandatory minimums 

for drug offenses. The sky didn’t fall, drug and crime rates didn’t 

soar, judges didn’t turn squishy and let everybody go. So please, I 

hope that this hearing will lead up to the next step of repealing 

mandatory minimum sentences again. Thank you. 

[The prepared statement of Ms. Stewart follows:] 

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PREPARED STATEMENT OF JULIE STEWART


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Mr. SCOTT. Thank you. 

Ms. STEWART. Also, may I say that I would like my written statement to be included in the record. 

Mr. SCOTT. Yes. It will. Thank you. Thank you. We will now recognize Members under the 5 minute rule, and I recognize myself 

first. 


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Judge Carnes, there is a code section about adults having sex 

with minors that has a 40-year-old having sex with a 13-year-old. 

It is also covered a 19-year-old having consensual sex with a 15- 

year-old. What is wrong with applying the same mandatory minimum to both of those cases? 

Judge CARNES. I think your question suggests the answer. What 

it indicates is that there are certain kind of crimes that sound— 

both of those are bad situations, but we tend to envision the worst 

case scenario when we hear a description of a crime, and your scenario indicates that there also are less culpable iterations. 

For example, a teenager having sex with someone that he may 

have dated in a high school setting or whatever, and clearly, I don’t 

think anyone could reasonably disagree that in your second example, there is a much more culpable situation in the first instance. 

As Ms. Stewart said, the one-size-fits-all creates these problems. 

Mr. SCOTT. Now, what discretion would a judge have, with the 

person—both were found guilty, what discretion would a judge 

have under the mandatory minimum sentencing scheme to apply 

an appropriate sentence for both cases? 

Judge CARNES. Well, assuming, as you stated it, that the mandatory applies regardless of the age or the circumstances of the offense, you would have no discretion. 

Mr. SCOTT. There has to be a 4-year difference in age, the—— 

Judge CARNES. Right. 

Mr. SCOTT.—19 and 15. 

Judge CARNES. Right. There would be—as long as the age disparity was reached it could be 5 years of disparity. Then the judge 

would have no discretion at that point. The judge would be stuck. 

Mr. SCOTT. Now, Mr. Norquist, you indicated that there is a false 

choice between mandatory minimums and public safety. Can you 

tell us what you meant by that? 

Mr. NORQUIST. Well, I think my argument was that you ought 

to look at them periodically to see whether they are necessary and 

how expensive they are, and to keep in mind that these mandatory 

minimums force government spending, and it is not free. It is not 

something that just happens. 

The other question is whether Federal mandatory minimums are 

necessary, if the law shouldn’t be a Federal law in the first place. 

If you reduced the Federal mandatory minimum for any of these 

crimes that are mentioned, there is nothing that prevents the State 

from having a State rule that says, ‘‘No, no, no. In our State we 

really think this is serious, and we want to make it a more serious 

crime in terms of time spent.’’ 

However, I would argue that if we don’t examine these every 

once in a while, when the mandatory is passed because the TV 

cameras are there and every elected official wants to say, ‘‘I am 

really, really against this.’’ 

It is just an expensive way to get a photo op if the taxpayers are 

paying for it forever and ever and ever. Let us look at it every few 

years and see whether some of those ought to come down, or 

whether they should be Federal crimes in the first place. 

Mr. SCOTT. Thank you. 

Mr. Sullivan, you indicated that a profile of most people in jail 

under mandatory minimums are appropriately there. Are you sugVerDate Aug 31 2005 16:13 Jan 25, 2010 Jkt 000000 PO 00000 Frm 00101 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071409\51013.000 HJUD1 PsN: 51013
98 

gesting that there are no people serving bizarre sentences because 

of mandatory minimums? 

Mr. SULLIVAN. No, I am not suggesting that at all, Mr. Chairman. I suspect that we would be able to identify some anecdotal 

examples where you would wonder whether or not the sentence 

was necessary in order to accomplish the goals of sentencing. 

But my suggestion is when you look at the larger profile of the 

prison population at the Federal and at the State level—— 

Mr. SCOTT. Well—— 

Mr. SULLIVAN [continuing]. You will find that the vast majority 

of people are there because they—— 

Mr. SCOTT [continuing]. How does it reduce recidivism to have 

people serving that you would admit are bizarre under the individual circumstances? 

Mr. SULLIVAN. Well, I am suggesting that most of them, the vast 

majority of them have sentences that are appropriate under the 

present sentencing scheme. 

Mr. SCOTT. And for the—— 

Mr. SULLIVAN. We have—I am sorry. 

Mr. SCOTT. And for the others? 

Mr. SULLIVAN. Well, again, I am not sure how many of that population is for the others, but we do know that criminals commit 

crimes, and while they are incarcerated, their opportunities to commit additional crimes are substantially reduced. They don’t stop 

committing crimes; they even commit crimes in prison. So there is 

a constant recidivism—— 

Mr. SCOTT. Well, if you locked up people randomly, you would 

have the same result. 

Ms. Stewart, are you familiar with the RAND study that concluded that mandatory minimums was the least cost effective way 

of reducing recidivism? 

Ms. STEWART. Yes, for drug crimes, that it is something like 

eight or nine times more effective to use treatment. 

Mr. SCOTT. And even more effective to use traditional sentencing 

rather than mandatory minimums? 

Ms. STEWART. Yes. I would also point out, just because it has 

come up a couple of times here, that crime rates that have been 

mentioned—crime rates in this country do not include drug crimes. 

When they are calculating crime rates they do not include drug 

crimes, and certainly in the Federal system, the majority of people 

in prison there are serving drug offenses. 

Mr. SCOTT. Thank you. 

Judge Carnes, much has been said about the safety valve. How 

often is it used, and how effective is it? 

Judge CARNES. Well, the incidents that it is used in depends on 

exercise of the prosecutorial discretion, the kinds of people that are 

being prosecuted. In Atlanta, it is used a decent amount of time. 

As Ms. Stewart says, it has helped a great deal, and it was something Congress did and we appreciate it. 

But it does still cover the person that has the gun, and it also 

still covers the person that has more than one criminal history 

point and who might have one misdemeanor or two. So it still has 

offered some help, but a lot of people still get covered under the 

mandatory law. 

99 

Mr. SCOTT. Now, how does the safety valve work? Does the prosecution have to agree to it? 

Judge CARNES. Not technically. It should be self-executing. If you 

have only one criminal history point, you don’t have a gun, you are 

not a leader, essentially you are a first offender, the only interaction of the prosecution is that the defendant has to tell the prosecutor everything about his offense, and that is where you get some 

problems. 

Sometimes the prosecutor will indicate, ‘‘Well, judge, I don’t 

think he told everything.’’ But at that point, I am the judge, and 

I have discretion, and if I say, ‘‘It sounds to me like he told you 

everything,’’ I still have discretion to accept the vow. 

Mr. SCOTT. And does it apply to things other than drug offenses? 

Judge CARNES. I am not aware that it applies to anything but 

drug offenses, sir. 

Mr. SCOTT. So if you are stuck with a mandatory minimum on 

some other basis you are just stuck, whether it is bizarre or not? 

Judge CARNES. Correct. 

Mr. SCOTT. Thank you. 

Okay, Judge Poe. 

Mr. POE. Thank you, Mr. Chairman. Thank you once again for 

all of you being here. 

Mr. Norquist, do you have any idea how many Federal laws 

there are? 

Mr. NORQUIST. Yes, I actually was working with some think 

tanks on that, and we came up with estimates of about 2,000 that 

you could get in trouble for. I would be very interested in a list of 

the Federal laws, and would actually recommend a base-closing 

commission approach to try to cull them out because nobody is 

going to want to legalize carjacking, but I do think at some point 

that is something that most of the 50 States are perfectly capable 

of handling without Federal supervision. 

So I don’t know. I have asked around, and I am told 2,000 but 

I am also told nobody knows. So if that is not right and there is 

list, I would love to see it. 

Mr. POE. I think it is at least 2,000, maybe closer to 3,000 or 

4,000. And used to be, under our system in this country, criminal 

law was punished by the States and the rarer cases were prosecuted under Federal law, but we have moved a long way from 

that. 

Mr. Bonner, I want to ask you a couple of questions about your 

comments. I agree with everything you said. The case of, you know, 

Ramos and Compean had not just unintended consequences for 

their families, but other border agents. 

But would you agree, also, that it has consequences for, for example, the sheriffs that work on the border when they hesitate to 

pull a firearm because they are afraid they are going to be prosecuted by the feds, local police, and not just on the border but just 

throughout the country? 

Mr. BONNER. Well, absolutely. You had the case of Gilmer Hernandez down in Rocksprings, Texas, which is a classic example of 

a deputy sheriff being prosecuted by the Federal Government, but 

I have heard from a number of other law enforcement officers 

100 

throughout the country, not isolated to the border, expressing the 

same fears. 

Mr. POE. Gilmer Hernandez’s case, was it not that he was—the 

first time he ever used his weapon a van is coming at him. He 

turned to fire at the van, shot out the tire, like they do in the movies, and then he was prosecuted for firing his gun and went to jail 

for that, sent there by the Federal Government. Is that basically 

the facts of his case? 

Mr. BONNER. That is basically the facts. I would only add that 

that case was investigated by the Texas Rangers, and they found 

no basis for prosecution. So the State of Texas declined to prosecute, and the U.S. Attorneys Office jumped in. 

Mr. POE. Luis Aguilar, are you familiar with that name? 

Mr. BONNER. Yes. 

Mr. POE. Was he not a Border Patrol agent who was assigned to 

the Tucson sector, two vehicles come into the United States, a 

Humvee and a pickup truck. The Border Patrol gives chase. They 

then head back to Mexico with their load of drugs. He, rather than 

pull his firearm, throws spikes in the road, gets off the road, and 

the Humvee goes off the road and runs over and kills him. Was 

that the facts of his case? 

Mr. BONNER. That is correct. He was actually assigned to the 

Yuma, Arizona sector, and the incident happened right across in 

the California side of their area of responsibility. 

But again, it highlights how violent some of these drug offenders 

are, that they have absolutely no regard for human life, and in that 

drug smuggler’s quest to get back into Mexico without being 

caught, he was willing to take another human life. 

Mr. POE. And he did get back to Mexico, and the Mexican government arrested him, and our U.S. Attorneys Office never requested extradition, and they let him go after 6 months incarceration in Mexico. Isn’t that the rest of the story? 

Mr. BONNER. He was finally recaptured, and I believe that they 

are still trying to work out the details for extradition, so that story 

is far from over. 

Mr. POE. Well, I am just—the point being that Luis Aguilar, 

since we don’t know his state of mind, maybe hesitated, threw out 

the spikes rather than defend himself with his weapon, all because 

of this problem of mandatory sentencing of additional time for 

using a firearm or possession of firearms, at the time of the offense. 

Is that correct? 

Mr. BONNER. That is a distinct possibility. I mean, as you said, 

we will never know what went through his mind in those last few 

seconds of his life. 

Mr. POE. Last question, Judge Carnes, thank you for being here. 

If judges, under the Federal system, could have the discretion to 

go below the minimum and use the same guidelines and justify it, 

allow the appeal by the State or the Federal Government rather, 

in appropriate cases, do you think that that would be an abuse of 

power of judges? 

Judge CARNES. Abuse of power for—I am sorry, I don’t understand 

Mr. POE. For judges to do that? 

101 

Judge CARNES. If that was the system under which we were operating? 

Mr. POE. Yes. Do you think judges would abuse that authority? 

Judge CARNES. Oh, would judges abuse the power? We have hundred of judges in the country, and they will exercise discretion in 

different ways. That is obvious. But we are accustomed, at this 

point, from many years of having judges’ departures examined by 

courts of appeals, we have now had variances examined since Booker, and it is something we are familiar with, and it is something 

the courts of appeal are familiar with, and I think it is a system 

that we could all adjust to quite readily. 

Mr. POE. All right. Thank you, Mr. Chairman. I am out of time, 

but not out of questions. 

Mr. SCOTT. Thank you. 

Ms. Waters? 

Ms. WATERS. Thank you very much, Mr. Chairman. I would like, 

Judge Carnes, to understand, if there is such a thing, the profile 

of these low level offenders who have five grams of crack cocaine 

and end up with 5 years mandatory minimums. 

And despite the safety valve, we still appear to have the sentencing of what appears to be young, first time offenders, oftentimes silly enough to believe that maybe they can get away with 

selling crack cocaine or they are users of crack. Could you discuss 

what this profile is of the minimum possession person, who ends 

up getting 5 years mandatory sentence? 

Judge CARNES. Well, I think, again, it is if one size doesn’t fit 

all, that is because there are a myriad of circumstances, so there 

are all sorts of low level offenders. I couldn’t list all of them for you 

today. 

There is the young person who is dealing small quantities. There 

is my example, in the written testimony, the off-loader, who is offloading a big boat full of drugs, and the quantity is going to kick 

him up high, in my example because he had a small marijuana 

prior conviction, he is looking at 20 years in prison. That is an example. 

But I think your example with crack and—the crack penalties 

are so askew and so out of whack I think with what is appropriate 

that you almost have to set that aside from everything, and as you 

know, the Conference has for a long time indicated our belief that 

the disproportion between powder cocaine and crack is not supportable. And before we deal with anything else, I think that one is one 

we have to attack. 

Ms. WATERS. The other question that I have is this business of 

the so-called distrust of judges to make good decisions, judges who 

have been elected, appointed and whose discretion, obviously, is 

taken away with mandatory minimums. Do you have any suggestions about what we should be doing about that? 

I mean—and I think it was alluded to here today, that perhaps 

this is political posturing, taking away the discretion of judges, saying that judges are too lenient. There needs to be, in my estimation, some kind of movement to deal with that issue. Have you 

thought about that? 

Judge CARNES. Well, again, there are hundreds of judges in the 

country. There are some judges whose decisions I don’t agree with, 

102 

and they don’t agree with mine. When you have discretion, you are 

going to have difference of opinion. 

But the question is because you may have a handful of outlier 

judges who sentence in a way that creates an uproar now and then, 

do you create this whole unwieldy system, this wooden, inflexible 

system that we have seen now for many years which create such 

harsh and sometimes irrational consequences, and my answer is 

no, you don’t. 

Ms. WATERS. And judges on the Federal bench are all determined 

to be competent or incompetent, what have you—— 

Judge CARNES. We hope competent most of the time. [Laughter.] 

Ms. WATERS. We hope competent. But in the assessment of 

judges prior to appointment is this ever discussed, whether or not 

they can be trusted to use discretion on the bench once they are 

appointed to the bench? 

Judge CARNES. Well, I think you know each appointment is different, and I can’t say what has been discussed with every judge 

who has been appointed. I don’t believe it was discussed with me, 

but many people knew that I had a background in sentencing, so 

I don’t know that I can really answer that question. 

Ms. WATERS. Thank you very much. I yield back. 

Mr. SCOTT. Do you yield back? 

Ms. WATERS. Yes. 

Mr. SCOTT. Thank you. 

Mr. Gohmert? 

Mr. GOHMERT. Thank you, Mr. Chairman, and sorry I had to step 

out for a moment, but I really appreciate the input everyone has 

had here and had a chance to review statements before the hearing 

today as well. 

The comment ‘‘mandatory minimums are the least effective way 

to reduce drug crimes,’’ it doesn’t mean you will necessarily eliminate a bottom threshold for what drugs are. I appreciate what Mr. 

Norquist said, when he said, ‘‘Let us look at some of these sentence 

ranges, and see if they should come down.’’ He said, ‘‘Let us look 

at some of them and see if they should come down.’’ 

And that is my thought. Let us look at ones that are too high 

and bring them down. You all—I don’t know if it was mentioned 

but you may be pleased to learn that there is one effort where Mr. 

Scott, Chairman Scott, and I are working together, the Heritage 

Foundation and ACLU is working together, and it is on this issue 

of over-criminalization and Federal laws. 

I would—and I have talked to Chairman Scott about it—I would 

love to bring all the criminal laws into one code where we can start 

cleaning the mess up, but apparently there is no political appetite 

for doing something that big. 

But it has been a matter—and I hope the gentlelady from California was not referring down this way on political posturing to 

take away discretion of judging. To me, it is not an issue of political 

posturing. I have seen sentences that I just thought were outrageous. 

And judges should have discretion and just as the Congress 

should never say, ‘‘Oh, here, Mr. Secretary of the Treasury, here 

is $700 billion, do what you want with it.’’ We should also not say, 

‘‘Oh, here, Mr. or Ms. Judge, here is the, you know, keys to the 

103 

prison, just do or not do.’’ There ought to be a range. That is a legislative function, and that is my point. Have a range. Adjust them 

if necessary, but don’t throw the whole system out. 

Mr. Sullivan, in your experience, what extent did mandatory 

minimums help prosecutors in securing cooperation of lower level 

criminals though? 

Mr. SULLIVAN. They are used on a regular basis, especially at the 

Federal level, for some of the low level drug dealers that Ms. Waters was talking about, to try to go up the organization. So not only 

are they safety valve eligible, but then they would also be eligible 

for their cooperation and get a substantial reduction. 

And without the minimum mandatory, a lot of the regional, national, international drug investigations would stall as you are trying to develop evidence against the organization itself. 

Mr. GOHMERT. You get the little guys, but you could never get 

up and get the big guys. 

Mr. SULLIVAN. The little guys are the easiest ones to get, quite 

candidly. I think everybody recognizes that. 

Mr. GOHMERT. Right. 

Mr. SULLIVAN. They are the ones that are most visible. they are 

the ones that typically are caught with the drugs and the guns, 

and they are looking at some very substantial sentences. 

Congress has built in a real incentive for those folks to cooperate 

with the government to take a look at a much bigger organization, 

so many Federal investigations have been launched as a result of 

cooperation at the lowest level. 

Mr. GOHMERT. Oh, and I appreciate Mr. Bonner’s point about the 

abuses previously in previous testimony about the major problem 

is the misapplication by law enforcement personnel using the mandatory minimums within the scope of their duties. That appears exactly what happened with Ramos and Compean. 

You had somebody that I think used the law that was never ever 

intended to be used against law enforcement to raise the bottom 

floor there for their sentence. It just seemed outrageous. 

And I did want to make one note for the record. My friend from 

Texas had pointed out that there are felonies that could be reduced 

to misdemeanors, and for those of you that don’t he mentioned 

there are State jail felonies. 

It is a hybrid between felony and misdemeanors created, I think, 

in 1992, and so it is basically misdemeanors but they can be treated as misdemeanor or as State jail, but it doesn’t allow you to go 

to prison. There is no way to bring down in the State system of 

Texas a true felony down to a misdemeanor, and that was my point 

there. 

But anyway, we do need to do something about over-criminalization. It does get handled better most often at the State level, and 

that is what the tenth amendment and ninth amendment were 

talking about. 

And I did want to make the point, there is so much discussion 

about the disparity between the sentencing ranges of crack and 

powder. And our friend Dan Lungren was here when that sentencing range came into being and the disparity was created, and 

I have gone back and looked at the testimony of Congressman now 

Chairman Rangel. 

104 

He was the one pushing it and he said if you care—basically I 

am paraphrasing—if you care about at all the African American 

community, you will help us end this blight, this crack cocaine. 

And I can understand why he would feel that way and that 

maybe the harsher sentences, dramatically harsher sentences, 

might help clean up the drugs in the African American community. 

It didn’t work. 

We do need to take a new look at it, but it certainly wasn’t done 

for racial reasons but because of proponents trying to clean up the 

African American community. Otherwise I can’t imagine Congress 

ever having that big a disparity. 

So anyway, let me ask one other thing. Judge Carnes, wouldn’t 

the safety valve provision, the minimal participant provision, the 

substantial assistant provision, be an appropriate solution rather 

than completely eliminating the floor of a range? 

Judge CARNES. Are you talking just about drug cases? 

Mr. GOHMERT. Well, actually it could be applied to lots of cases 

but particularly drug; that is the focus more today. 

Judge CARNES. Well, as we indicated, the safety valve still covers 

some people that perhaps shouldn’t be covered. The example Ms. 

Stewart gave about the fellow that had the gun in the car, more 

than one criminal history point, and so you still get some injustice. 

To do that you would have to expand the safety valve, and then 

I would have to hear how the legislation would be written. How 

would you do a safety valve, for example? some of the other offenses that have nothing to do with drugs, what would your standards be. 

If it is an offense that is committed by only one person how 

would calling them a minor person really be applicable, but I understand what—— 

Mr. GOHMERT. Well, you can imagine scenarios whether it is the 

guy that is with the robbers and things like that, and the Chairman had pointed out some anecdotal situations. 

Judge CARNES. Right. 

Mr. GOHMERT. But there again, before we pass laws, though, we 

are supposed to listen to people like you with the experience before 

we tailor that legislation. So I would hope that we would have your 

help in doing that. 

Judge CARNES. Well, certainly and, you know, we call for the repeal of these laws. We understand, again, there are 170, and that 

might not be something that happens immediately. 

We hope that whatever ameliorating effect you can give to them 

is something that Congress will consider, and it sounds as if you 

all are thinking about that, and we appreciate it. 

Mr. GOHMERT. Thanks. Thank you, Judge. 

Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Gentlelady from California. 

Ms. LOFGREN. Thank you, Mr. Chairman, and thanks for this 

hearing, which I think is timely and important. Now, I was struck 

by your testimony, Judge Carnes, and the young man, the 24-yearold first time offender, who ended up with a 611⁄2-year sentence for 

marijuana trafficking. 

105 

And I am equally attentive, Mr. Sullivan, to your testimony that 

the role in your view of mandatory sentencing. Do you think, just 

based on what you heard the judge say that that was a just sentence for that 24-year-old kid? 

Mr. SULLIVAN. Well, just based on the facts as relayed by the 

judge, it seems extremely excessive even to me as a proponent in 

support of mandatory minimum sentencing. I don’t know what the 

underlying facts are that would warrant the prosecutor to charge 

multiple offenses relating to a firearm, what appears to be almost 

a single incident. 

So it does seem awfully extreme, but I think that there is enough 

flexibility and discretion in the system to avoid those outliers with 

folks making reasonable determinations at the beginning. 

Ms. LOFGREN. Let me just try out something because I think that 

we have ended up in the situation we are in—I wasn’t in the Congress when most of the mandatory sentencing acts were initiated. 

Certainly, I have been here to observe their expansions at times, 

and you end up with a situation. 

Here we are and you have got crime victims who did nothing 

wrong and there is nothing more appealing to, you know, legislators than a citizen who was so treated so unfairly and to be a crime 

victim, and our heart goes out to that person. 

And we want to do something about it, and I think that has led 

to these statutes that end up with unjust results, and I also think 

it has led up to an intrusion of the Federal Government in two 

areas of the law that have always been the sole purview of State 

law. And it is not bad motives. It is good motives, but it ends up 

in a place where we are today that is dysfunctional in many ways. 

And I think it is very difficult to change because this is an area 

where if anything is done to allow judges to judge, somebody will 

say it is soft on crime. Soft on crime and that is something that 

nobody in the legislative body wants to be accused of. 

So Mr. Norquist, this question I guess is directly to you. To step 

forward in this political environment we are going to need a broad 

bipartisan effort willing to take the heat to say no, it is not soft 

on crime to allow judges to judge and legislators to legislate. Are 

you willing to be part of that? 

Mr. NORQUIST. Yes, I think it is an important step forward and, 

again, I had suggested the base closing commission concept as a 

way to take a look at letting you do the same thing with mandatory 

minimums, but also with Federal crimes in general, what needs to 

be a Federal crime, and to cease having something be a Federal 

crime is not an endorsement of the activity. It may very well deserve to be a very serious State crime, but it doesn’t have to be a 

Federal crime. 

Ms. LOFGREN. Let me ask you this, and maybe it is an unfair 

question and if it is you, obviously, won’t answer it. But if the papers are correct, you lead a group of thought leaders on the conservative side of the political spectrum on a regular basis to come 

forward on various issues. Would you be willing to take that position in the leadership group that you have? 

Mr. NORQUIST. Well, these issues have come up in Center-Right 

Coalition meetings and there is a working group of conservatives 

that are concerned about judicial issues, which is something that, 

106 

frankly, some of the folks on the center-right have not focused on. 

My opening comments were we tend to focus on those parts of government that we think shouldn’t be there at all because you want 

to focus on tamping down the damage done. 

But there is a whole bunch of government that is necessary and 

useful and is actually mentioned from time to time in the Constitution that we need to focus on more and make sure that that is done 

competently and less expensively and less intrusively. 

So I think it is my hope that you see a number of different 

groups that are more interested and looking at criminal justice reform and how conservatives can play a role in that, and it provides 

cover from the argument that its all just a bunch of softies being 

soft on crime. 

That is not the case, but I think this is one of those things that 

in a nonpartisan bipartisan way we can actually make some 

progress if we don’t try and do everything at once and take some 

bites of the apple. 

And again, I like the base closing commission because that was 

one where we closed down some military bases, which saved money 

and nobody got accused of being anti-defense and yet real resources 

were saved and the government became more effective and less expensive. 

Ms. LOFGREN. Let me ask the judge this. One of the things, you 

know, we are the legislative body and we are going to pass statutes 

from time to time and with sentences attached. 

I have never really thought—the guidelines should do it in most 

cases, but let us say we do what Mr. Gohmert has suggested and 

we have, you know, your 5-to 10-year sentence like you have. And 

yet in a case that the judge is seeing that a downward departure 

seems warranted. 

Wouldn’t it be a real deterrent for a judge to have to articulate 

in writing in the sentence why that departure downward was required? Wouldn’t that be a sufficient protection for the public 

against wild and crazy Federal judges doing sentencing? 

Judge CARNES. Well, I will leave it to others to decide about the 

protection against we wild and crazy judges. 

Ms. LOFGREN. Most of mine, though, are pretty conservative and 

pretty staid. 

Judge CARNES. But what you suggest is something that is actually we have been doing for a long time with the guidelines system. 

When we departed downward or upward we were expected to articulate a reason. Now, since Booker with variances, or even with 

no variances, we are expected to articulate a reason. It is what we 

do. We know how to do that, and I think we would be very comfortable with that process. 

Ms. LOFGREN. I know my time is up. I was just struck thinking 

about this 24-year-old still in prison for marijuana at a time when 

the governor of California is now asking the State to consider legalizing and taxing that very same product. It is kind of ironic. 

So I yield back, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Mr. NORQUIST. I would just speak on the record against the idea 

of taxing marijuana. [Laughter.] 

Mr. SCOTT. Gentlelady from Florida, Ms. Wasserman Schultz? 

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Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. Mr. Chairman, I am going to be brief, but I do want to commend you for convening this hearing. I know this is an issue about which you have 

been passionate for a very long time, as has my colleague, Ms. Waters, and I want to thank all the witnesses for sharing their point 

of view today. 

My point of view is that I believe and always have, in judicial 

discretion, and our Committee and this Subcommittee in particular 

is fortunate to have the experience of a number of judges. 

One of our Members who is not here with us in the meeting any 

longer, but my good friend from Texas, Judge Poe, was—how do I 

put this, renowned for his creativity in sentencing. 

And I have heard him speak about some of his more unorthodox 

sentences, particularly in domestic violence cases, and it impressed 

upon me just how important it is to give trial judges the latitude 

that they believe they need to make an impact on criminal defendants. 

And I also want to note that his bill, the Ramos and Compean 

Justice Act, recognizes that there are indeed some cases in which 

he believes tying judges’ hands at sentencing is inappropriate. 

And I think that provides us with a foundation to continue to 

build common ground, and I want to thank him for his leadership 

and my colleague, Ms. Waters from California’s leadership on this 

as well. 

Regardless of how mandatory minimums first started in the past, 

mandatory minimums basically whether they made sense or not 

have now, as Mr. Norquist said, become politically popular and 

they are the hot button on whether you are too soft or going to be 

hard on crime. 

And this whole idea came out of the fact that there was a belief, 

I think a misguided one, that we had judges that were too soft on 

crime. We should note that at this point after a Republican president about 60 percent of district court judges have now been appointed by a Republican president and are presumably tough on 

crime as the definition is written. 

So I would hope that we would let these judges be judges. If we 

look up the word judge in the dictionary, discretion is in there in 

that definition somewhere. And having said all that, Mr. Norquist, 

I do have to tell you that it was surprising to see your name on 

the witness list today and, obviously, you are not someone that I 

would normally agree with, nor you with me. 

But I am pleased to see that you have stepped up on this issue. 

We agree on this one. My State of Florida, like many, is really in 

the throws of a desperate budgetary situation. We have had decades of tough on crime legislation, some of which in the legislature 

I voted for, and I consider myself not someone on the left on these 

issues. 

But mandatory minimums have basically left the taxpayers holding the bag, and I think we have to move away from whether we 

are tough on crime or soft on crime and focus on whether we are 

smart on crime. But a one-size-fits-all approach is not working and 

it is breaking the bank. 

And so I think I would like to hear a little bit more from you on 

your perspective—from your fiscally conservative perspective on 

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how you reached this conclusion, because normally your organization I don’t think would take a position on this, and so I was glad 

to see you did. And you know, just as an aside if you could also 

make sure you score this one that would be great, too. 

Mr. NORQUIST. I wouldn’t overstate my position. I think I am 

calling for and my recommendation was sunsetting each of the 

mandatory minimums so that they would be revisited every 4 

years. 

It is not necessary to say that every 4 years you decide to toss 

them all out, but you may want to look at whether they are too 

high or whether they need to exist, but I feel the same way about 

Federal laws that have criminal implications period. 

I mean, I think they ought to be sunsetted as a way to thin out 

the over federalization of law. A lot of things can be perfectly well 

handled by local governments. This idea that we passed laws in the 

1930’s because States weren’t able to deal with bank robbers, you 

know, we have gone past that. 

A lot of States are very capable of handling these issues and a 

lot of the crimes that are Federal crimes are not more competently 

handled by the Federal Government, and it would be fine to have 

them handled at the State level. 

And we ought to be looking, as I said in my opening comment, 

all government has costs including the good bits, including the let 

us lock up bad people. It is not free. You may want to do it, but 

every time you decide to do it there are costs imposed on taxpayers 

who are kind of by definition victims, you know, they didn’t do anything. They are going to be paying for it. 

So how much cost do you impose on them? And are there other 

ways to reduce crime that are less expensive? And there is a whole 

bunch of stuff done with bracelets and other ideas that people have 

put forward or different States are trying, I guess. I like 50 States 

because that is 50 experiments in what works. Really silly ideas 

can only be imposed at the national level. 

Ms. WASSERMAN SCHULTZ. So would you agree with President 

Obama then on focusing on being smart on crime as opposed to 

being soft or tough? 

Mr. NORQUIST. I don’t know what he said on that. I would be 

stepping into perhaps endorsing something I wasn’t aware of. I assume Obama has good intentions and will help us work on reducing both crime and the costs of keeping crime down. But I think 

the legislature here is the starting point and, again, starting to 

thin out the number of Federal crimes we have. 

It is easier to manage a smaller number of crimes. We are talking 2,000, 3,000 Federal crimes. You know, we make fun of legislatures for voting for legislation they haven’t read, but we put people 

in prison for series of 3,000 laws they can’t possibly be aware of. 

Perhaps we should thin those down. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman, just as a historical 

note my State in the 1990’s had, under Democratic leadership in 

the legislature, had a specific category of legislation that allowed 

us to file bills but we had a bill limit in our legislature in the 

House side. 

But what didn’t count against our limit is when we filed legislation that repealed silly laws. So perhaps we could speak to the 

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speaker and the Republican leadership as well about we don’t have 

bill limits, but perhaps as a way of reviewing some of those laws 

that we all know are antiquated and don’t belong there and 

shouldn’t be law at the Federal level. Again, allowing States to utilize their discretion. Maybe we could make that suggestion. 

I yield back the balance of my time. 

Mr. SCOTT. Thank you. The gentleman from Texas and I were 

just discussing a mechanism, trying to figure out a mechanism for 

going through what is under our jurisdiction the criminal code, and 

we will be continuing those discussions. We are going to have a 

very brief second round, but I just wanted to comment on Mr. 

Norquist’s comment about over-federalization. 

If you are a victim of a carjacking, you don’t call the FBI. You 

call the local police, and so some of these things I think would be 

appropriate for letting the locals deal with it. And one of the problems with mandatory minimums is the sentence is essentially imposed by the prosecutor without any checks and balances. 

When a judge imposes a sentence, it is reviewable by appellate 

courts, and I would like Judge Carnes to briefly comment on the 

legislation that I have introduced, which is a fairly straightforward 

statement. It says, ‘‘The authority to impose a sentence below a 

statutory minimum to prevent an unjust sentence.’’ 

And says, ‘‘notwithstanding any other provisional law, the court 

may impose a sentence below a statutory minimum if the court 

finds it necessary to do so in order to avoid violating the requirements of subsection A of 53—excuse me 3553(a), which goes into 

deterrents, protecting the public, seriousness of the offense, role of 

the defendant and whatnot. 

If this does not repeal a mandatory minimum, and I am going 

to ask you to kind of comment. If you would rather reflect and comment in writing I can understand that, but if this were to pass, we 

do not remove any mandatory minimums, would the mandatory 

minimum be presumed under those circumstances? 

Judge CARNES. Well, it is an interesting question. Let me start 

by saying as you well know from having had Conference witnesses 

before, I have a client and I am not free to take a position on something that the Conference has not taken. The Conference opposes 

mandatory minimums. It hasn’t taken a position on any of these 

particular bills so it wouldn’t be appropriate for me sitting here to 

take that position. 

But the notion behind the opposition of mandatory minimums is 

that it is a straightjacket, and that more discretion is called for. So 

obviously, as Judge Gohmert was saying, as you were saying, anything that helps give us more discretion is something that I sense 

the Conference would not be adverse to. 

Now, as to whether there would be problems with that standard, 

that presumption, the only thing I could articulate from a legal 

point of view would be that right now post-Booker, post-Gall and 

Kimbrough, the case law indicated that the guidelines are not presumptively correct. In other words you have to calculate them. You 

have to calculate them correctly but when you sentence, they are 

not the presumption. You are going now to 3553 and what is reasonable. 

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If you have a statute that says this is the mandatory minimum, 

unless you think 3553 would call for a lower sentence, you could 

go through that same sort of analysis, but I am not sure right now 

that you would. 

I am not sure that some courts would say well, maybe there is 

more of a presumption to the mandatory minimum, which may be 

something I guess that might argue in its favor and that it has got 

a little more heft to it than a guideline. But it is something that 

the courts would work through or either you all can make our lives 

easier by saying very clearly in the legislation what your intent 

was. 

Mr. SCOTT. And if you sentenced under the mandatory minimum 

that would be reviewable as reversible error by an appellate court? 

Judge CARNES. It would be under whatever standards there are 

now and we are still developing. We are now developing these 

standards to review 3553 that is evolving now and I would imagine 

the same standards would control for this. 

Mr. SCOTT. Thank you. 

Judge Gohmert? 

Mr. GOHMERT. Just briefly along those lines, that is my concern. 

If you completely wipe out the mandatory minimum then you don’t 

have the enforcement or as much power on review to knock out 

really inappropriate downward departures, than if it is just a 

guideline that is now, as we know from Booker, really just a guideline. 

So that is my concern about knocking it out completely. Maybe 

if the adequate, and my friend, Ms. Lofgren is gone, but if you can 

have adequate justification then do it. But if the mandatory minimum is there, which, you know, I just always called it the bottom 

of the range before I got here to Congress, but that is my concern. 

Judges, you would most of the time use very good discretion, but 

there are some that don’t, and we just went through the process 

of impeaching one here whose judgment was not so good. 

And I love the comment, ‘‘Really silly ideas can only be done effectively at the Federal level,’’ and we have. But as Chairman Scott 

was indicating I had leaned over to him and I said, ‘‘You know, 

what do you think? Could we work on something like that?’’ And 

he is open to the idea because we really do need to do some cleaning up and there are some archaic clause, and I think we could do 

the whole country a favor in cleaning that up. 

One of the things—and Attorney General Ed Meese was really 

kind of a driving force behind this over-criminalization idea. We 

have got all these different Federal agencies now who want to have 

their own arresting authority, their own SWAT team because it is 

deemed fun to turn on your siren and go slam somebody to the 

ground and arrest them, and we really need to isolate that to just 

the law enforcement personnel. 

We don’t need every Federal agency out there arresting, which 

is one of the impetus for wanting to combine them in a criminal 

code, but it would probably take a base closing type commission to 

get that done. So thank you, and I appreciate the ideas. 

And Ms. Stewart, I haven’t really talked to you in this hearing 

but I know the wonderful efforts you have made and what the impetus was, and I appreciate your efforts. Thank you, ma’am. 

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Ms. STEWART. Thank you. 

Mr. SCOTT. Gentlelady from California. 

Ms. WATERS. Thank you very much. I would like to ask Ms. 

Stewart about what she, what she has seen happen over the past, 

you know, 10, 15 years you have worked on this issue. Do you 

sense that there is a growing consensus of folks who now understand what they are, what mandatory minimums are and what 

they are not, and want to get rid of them? What have you learned 

about all of this? 

Ms. STEWART. Yes, I do think that there is a much better understanding nationally of what sentencing is, how it applies, and that 

something needs to be done about it. 

Certainly, when my brother was arrested no one had ever heard 

of mandatory minimums. It took me a long time to get information 

about it. Of course, that was 20 years ago and technology today 

makes it so much easier to get that kind of information. So yes, I 

think that the public is ready for this. 

We actually petitioned a poll a couple of years ago to ask last 

summer, to ask whether or not the public supported the idea of the 

courts sentencing or legislators sentencing. And overwhelmingly 

something like, now I have forgotten the numbers, 70 percent or 

something said that the courts should sentence people not legislatures. 

I also wanted to just make a couple of comments to some of the 

things I have heard here today. One, I like the idea of sunsets, although I will say we have had mandatory minimums for 20 years 

so I don’t want to wait another 4 years for another sunset review. 

Could we start that review right now? 

And also, the base closing idea is a good one, but also many of 

those bases, as you may know, were turned into prisons. So let us 

be careful what we wish for here. [Laughter.] 

And thirdly, just one thing we often hear usually from U.S. attorneys and prosecutors that they need mandatory minimums because 

they are a tool to get people to cooperate. I would simply say that 

there are a lot of very complicated white-collar cases that are not 

subject to mandatory minimums. 

And most other cases in the Federal system that judges somehow 

manage to get—prosecutors get convictions and the sentences are 

very stiff, and so there are ways to bring convictions without mandatory minimum sentences. The guidelines have been proving that 

for nearly two decades. And that is it. Thank you so much. 

Ms. WATERS. Well, let me just thank you very much, again. And 

I would like to just speak a little bit to Mr. Gohmert’s reference 

to Congressman Rangel and his involvement in helping to give support to mandatory minimums. Let me just say all of that has 

changed. 

Mr. GOHMERT. Will the gentlelady yield? 

Ms. WATERS. Yes, I will yield. 

Mr. GOHMERT. I wasn’t saying that he supported mandatory 

minimums necessarily, just the harsher sentencing range for crack 

cocaine. 

Ms. WATERS. Well, yes, I guess I can speak to that too. I think 

that for those people who want to help the African American community, I don’t think it is done with unconstitutional measures 

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where those who are considered committing crimes that would fall 

into mandatory minimums somehow should be sought out, prosecuted and jailed disproportionately. 

Julie Stewart alluded to the white-collar type crimes that are involved with cocaine, crack cocaine, et cetera that are treated differently or may not even be, you know, considered because they are 

not apprehended, et cetera. But the African American community 

has been so devastated by college students—in one case that I met 

with Julie Stewart we have twins who are still serving time. 

Ms. STEWART. One of them. 

Ms. WATERS. One of them is still—what were they sentenced to, 

if I may ask? 

Ms. STEWART. I think one was 15, and one was 19 years. 

Ms. WATERS. And the mother is a big volunteer with FAMM. And 

she has worked hard for years because, again, it was a case of what 

appeared to be young folks who were not drug dealers at all just 

stupid, but not drug dealers who got caught up in the system and 

ended up with these extraordinary number of years that were 

given to them. 

So I don’t want anybody to think that they help the African 

American community by being tougher somehow. We don’t need to 

have the discretion taken away from judges to be able to determine 

who this individual is. 

Is this a person with a first time offense? Is this a person who, 

you know, comes from a family that, you know, has contributed 

mightily to our society who, you know, should be given consideration for the kind of leadership that they could provide once they 

discover that maybe their child made a mistake, et cetera. 

I just want to dispel the notion that any community is being 

helped by being treated differently. 

Mr. SCOTT. Thank you. Let me ask one final question for any of 

the witnesses that might want to respond. What does it do to public respect for the law if people look up and see someone given 

what everybody knows is a bizarre sentence under the circumstances? 

Mr. NORQUIST. Doesn’t help. 

Judge CARNES. My answer is the same. Obviously, it does not 

help. 

Mr. SCOTT. Thank you. Gentleman from Texas. 

Mr. GOHMERT. Just in response to make sure that my friend 

from California understands I wasn’t attempting to indicate that 

the tougher sentences had assisted the African American community because I certainly was not indicating that. 

I hope my friend agrees because I have gone back and looked at 

who the proponents were of the tougher sentencing. I agree it does 

not appear to have helped the African American community. 

But those who are in Congress having talked to them, having 

looked at who the proponents were and who President Reagan 

thanked for their work and really being the driving force, it was 

African American Members of Congress that pushed the disparate 

sentencing for crack versus powder cocaine. 

And so the law clearly was not passed with the disparate treatment as a result of any type of racist notion. It was done believing 

those who said this will help the community, but I agree with my 

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friend. It does not appear to have helped the African American 

community at all. 

Ms. WATERS. Well, if the gentleman will yield. 

Mr. GOHMERT. Certainly. 

Ms. WATERS. Let me just say this. I love the idea that the Congress of the United States and even the President at that time 

would take leadership from the African American community, if 

that was the case. Now, we want them to take leadership again 

from the African American community. 

We are saying that it has been destructive. It has not helped and 

now listen to us, and listen to what we are saying. We want discretion given back to the judges and mandatory minimums destroyed. 

Thank you. 

Mr. GOHMERT. I yield back. 

Mr. SCOTT. Thank you and I would point out that whatever the 

rationale was when it passed, we have more information now, and 

we should legislate on what we know now. I would like to thank 

all of our witnesses for their testimony. 

Members may have additional written questions for the witnesses, which we would ask that you respond to as promptly as 

possible so that the responses could be made part of the record. 

Without objection, the record will include an updated report on 

mandatory minimums that we received from the U.S. Sentencing 

Commission on July 10 in a statement from Eric Sterling on behalf 

of the Criminal Justice Policy Foundation. 

[The prepared statement of Mr. Sterling follows:] 

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PREPARED STATEMENT OF ERIC E. STERLING, PRESIDENT, THE CRIMINAL JUSTICE

POLICY FOUNDATION, ADJUNCT LECTURER IN SOCIOLOGY, THE GEORGE WASHINGTON UNIVERSITY


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Mr. SCOTT. Without objection, the hearing record will remain 

open for 1 week for the submission of additional materials, and 

without objection the Subcommittee stands adjourned. 

[Whereupon, at 12:30 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF DAVID A. KEENE, CHAIRMAN, AMERICAN CONSERVATIVE UNION

Thank you Chairman Scott and Ranking Member Gohmert for inviting me to submit this statement for the record of your July 14 hearing, ‘‘Mandatory Minimums: 

Unintended Consequences.’’ This is an important issue to me and not solely because 

mandatory sentencing offends my notion of sound criminal justice policy. 

I am the chairman of The American Conservative Union, the nation’s oldest and 

largest grassroots conservative lobbying organization. I have served as chairman for 

the past 25 years. ACU is a multi-issue umbrella organization devoted to communicating and advancing the goals and principles of conservatism. 

As grateful as I am to serve as head of the ACU and as passionate as I am about 

promoting the conservative cause in Washington, DC, that is not why I am here 

today. Rather, I am here today as a father; the father of a young man serving too 

much time in a federal prison because of a mandatory minimum. 

My son was arrested and pled guilty to a federal offense carrying a ten year mandatory minimum sentence nearly eight years ago. The line prosecutors handling the 

case wanted to charge him under a different statute that would have carried a five 

year mandatory sentence, but their superior rejected this and demanded that he 

plead to the offense carrying the heavier penalty. 

He had no choice but to accept the ‘‘deal’’ because he had, in fact, violated the 

law. Neither he nor his mother and I could afford the expense of a trial that would 

probably result in a conviction despite the fact that various medical experts were 

convinced and were willing to testify that they believed the loss of control resulting 

in his offense was the result of a chemical imbalance that could be corrected medically. 

It turns out that they were right. The court had no choice as to his sentence, but 

ordered that he have access to the medication needed to alleviate the problem. It’s 

worked, but he’s still in prison. 

Before this happened to my family, I was aware of the debate over mandatory 

minimums but was not a participant. My instinct then as always was that one-sizefits-all policies rarely work, and so I was inclined to believe the adoption of mandatory sentencing laws was well-intentioned but ultimately unwise. 

Since all this happened, I have taken the time to study the issue more closely and 

concluded that my instinct was correct: mandatory minimum sentences are unwise. 

And, Mr. Chairman, though I am not speaking on behalf of the ACU, my opposition to mandatory minimums, while informed by my family’s loss, is rooted in conservative principles; namely, reverence for the Constitution and contempt for government action that ignores the differences among individuals. 

Mandatory minimums won support for the best of reasons. Sentences of different 

lawbreakers for the same offense differed widely not just on a state by state basis 

which is acceptable on federalist principles, but within the same state and across 

the country in the case of federal crimes. 

There was a popular belief in the seventies, eighties and nineties that some 

judges were simply too lenient and that disparate sentencing policies from jurisdiction to jurisdiction did an injustice to many. In some cases this was true, but, as 

is often the case, the attempt to solve one problem created new problems. 

I believe the United States Constitution is the greatest charter for self-government ever devised. Committed to protecting individual freedom, the Founders ingeniously designed a government of co-equal branches with separate powers. 

James Madison, for one, believed that a clear separation of powers was more vital 

to protecting freedom than the Bill of Rights. Yet mandatory minimums undermine 

this important protector of liberty by allowing the legislature to steal jurisdiction 

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over sentencing, which has historically been a judicial function. The attempt by legislatures and the Congress to address perceived problems in the justice system by 

transferring power from judges to prosecutors and the executive branch violate 

these principles and have, in the process, given prosecutors unreviewable authority 

to influence sentences through their charging decisions and plea bargaining power. 

Admittedly, the letter of the Constitution does not prohibit the legislative branch 

from usurping sentencing authority, but its spirit and common sense should. My 

conservative brethren and I have long argued that responsibilities should be shouldered by the branch of government, and the level of government, that is closest to 

the problem. 

Former Senator Phil Gramm (R-TX) used to tell a story about an argument he 

had with a bureaucrat from the Department of Education in Washington, DC. The 

senator told the women from the agency that her office was imposing too many federal rules on local schools. He said that teachers in his local schools and the children’s parents knew better what their children needed than some bureaucrat in 

Washington. 

The bureaucrat wouldn’t budge. She argued that the government just wanted to 

do what was best for all children. Exasperated, the senator said, ‘‘I know what my 

kids need more than you do because I love them more than you do.’’ In an apparent 

attempt to show her dedication, the official replied, ‘‘No, you don’t, Senator, I care 

about your children as much as you do.’’ The Senator stood upright, cocked his head, 

and said, ‘‘Oh yeah? Then tell me their names.’’ 

It was an effective story because the American public seems to agree that many 

problems are best addressed by the people on the ground closest to the source. 

What’s true for many issues is certainly true for sentencing, and the American people get it. A poll taken last year revealed that nearly 80 percent of Americans believe that courts and judges—not politicians in Washington, DC (or in state capitals)—should determine sentences in individual cases. 

This reflects common sense. Because of the cases and defendants that come before 

them, local judges (including nearby federal judges) are the first to know when a 

new crime wave is forming or a new drug has gained favor. These judges see first 

the arrival of new gangs and usually know who controls them. And, after presiding 

over trials and pleas, local judges know better than anyone the motivations of the 

defendants who commit certain crimes and of the prosecutors who charge them. 

Those of us on the right have been most skeptical of wasteful government spending and inefficient regulation. Perhaps the most successful weapon in the budget 

hawk’s arsenal is cost-benefit analysis. We might agree with our friends on the left 

that we could have cleaner air if we impose massive regulations on emissions but 

we have always insisted that government must consider the economic and social 

costs of such regulations. Oddly, we have not always insisted on such analysis in 

criminal justice matters, including sentencing. 

We need to start. It’s time to realize that we could lock up everyone and throw 

away the key—and, according to a recent Pew Foundation finding that one out of 

every hundred Americans is in jail, it seems we are well on our way to doing just 

that—but who is measuring the social and economic costs of this policy? We know 

something of the economic cost; from 1982 to 2008, federal corrections spending rose 

from $641 million to $5.4 billion, and state spending rose from $6 billion to $50 billion. Spending on corrections is rising faster across the states than spending on education, transportation and every other budget category except Medicaid. These are 

just the direct economic costs. There are high social costs, as well. I know the anguish and hardship of living without a son nearby. I can’t fathom the effects on society of the more than 1.5 million children being raised without mothers or fathers. 

And what do we get for it? Research has shown no direct correlation between incarceration rates and crime rates. We know, for example, that while our prison and 

jail populations are five times what they were in the 1960s, crime rates today, averaged across major crime categories, are about 250 percent of 1962 rates. Indeed, between 1985 and 1993, when harsh mandatory minimums were reinstated, that murder and robbery rates increased by 25 percent. Mandatory minimums do not make 

us safer. 

There are some criminals any sane American would classify as habitually dangerous. Such individuals, depending on the crimes they commit, deserve the 

harshest of sentences if only to protect the rest of us from them, but not everyone 

who breaks even our criminal laws falls into this category. Judges should make distinctions based on individual circumstances and those who officials believe have 

been truly rehabilitated prior to the expiration of a sentence should be eligible for 

early release. 

There is an old Tom T. Hall song in which the singer urges the townspeople to 

‘‘hang ’em all’’ because that way they’ll be sure to get the guilty, but the song made 

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it clear that doing so would be neither fair to the town nor those who were innocent 

and didn’t deserve hanging. 

The idea of the mandatory minimum while originally adopted for the best of reasons is the non lethal equivalent of hanging ’em all. 

Put simply, Mr. Chairman, there is nothing conservative about mandatory minimum sentences. They represent a radical departure from the traditional conservative approach to criminal justice—an approach that said if you commit the crime, 

you will do the time. 

The argument that mandatory minimums have solved the problem they were 

meant to address is laughable. To be sure, many Americans were frightened about 

escalating drug use and drug-induced violence in the mid-1980s. But the last-minute 

addition of mandatory minimums to the legislative response was anything but considered. There was not a single hearing on mandatory sentences in either chamber. 

No expert testimony was sought, no debates were held. 

Years later, the late Chief Justice William Rehnquist commented on the lack of 

legislative forethought. In the same speech in which he famously described mandatory minimums as ‘‘a good example of the law of unintended consequences,’’ 

Rehnquist noted the following: ‘‘Mandatory minimums . . . are frequently the result 

of floor amendments to demonstrate emphatically that legislators want to ‘get tough 

on crime.’ Just as frequently they do not involve any careful consideration of the 

effect they might have on the sentencing guidelines as a whole.’’ 

As I mentioned, I have taken more time since my son’s sentencing to better understand the evidence regarding mandatory minimums. During this period, I have 

also come to realize that my skepticism is shared by like-minded friends. Indeed, 

it seems that opposition to mandatory minimums among conservatives is growing. 

The committee heard directly from my friend and fellow conservative Grover 

Norquist about his concerns with mandatory sentences. 

There are other voices on the right speaking out. The ACU hosts the premier annual gathering of conservative leaders in Washington, the Conservative Political Action Conference (CPAC). This year’s CPAC included a panel discussion entitled 

‘‘How Many Crimes Did You Commit Today?’’ The impetus for the panel was the 

growing concern among many conservatives about mass federalization of crime. Two 

of the speakers, constitutional scholar Tim Lynch of the Cato Institute and Pat 

Nolan of Prison Fellowship Ministries, strongly oppose mandatory minimums. 

On July 22nd, this subcommittee will examine the same issue ‘‘Over-Criminalization of Conduct/Over-Federalization of Criminal Law’’ and hear testimony from experts on the right and left. Clearly, there is growing consensus that we are federalizing too many crimes easily handled by the states, including small-time drug and 

gun cases subject to stiff federal mandatory minimum sentences. 

Lawmakers in Washington, like the education department bureaucrat who Senator Gramm confronted, did not know my son’s name. But they presumed nonetheless to sentence him. I believe in punishment. I believe that there should be consequences when someone breaks the law. But depriving an individual of his freedom 

is the ultimate power of the state and it must be done judiciously. The punishment 

must be meted, based on all the factors of the crime, the defendant’s role in it, and 

the unique circumstances of the individual. 

Above all, punishment should be imposed, not by Washington lawmakers, but by 

judges doing the job we gave them in the constitution. 

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C-3.eps
127 


C-4.eps
128 


C-5.eps
129 


C-6.eps
130 


C-7.eps
131 


C-8.eps
132 


C-9.eps
133 


C-10.eps
134 


C-11.eps
135 


C-12.eps
136 


C-13.eps
137 


C-14.eps
138 


C-15.eps
139 


C-16.eps
140 

APPENDIX A 


C-18.eps
141 


C-19.eps
142 


C-20.eps
143 


C-21.eps
144 


C-22.eps
145 


C-23.eps
146 


C-24.eps
147 


C-25.eps
148 


C-26.eps
149 


C-27.eps
150 


C-28.eps
151 


C-29.eps
152 

APPENDIX B 


C-31.eps
153 


C-32.eps
154 


C-33.eps
155 

f 


C-34.eps
156 

Æ 


D.eps