10/06/13 Patrick Leahy

Century of Lies

US Senate hearing on mandatory minimums and the drug war, with Sen Leahy, Sen Grassley, Sen Paul & more

Audio file


Century of Lies October 6, 2013


DEAN BECKER: The failure of Drug War is glaringly obvious to judges, cops, wardens, prosecutors and millions more. Now calling for decriminalization, legalization, the end of prohibition. Let us investigate the Century of Lies.


DEAN BECKER: Hello my friends. This is Dean Becker. Thank you for joining us on this special edition of Century of Lies. Today we celebrate 12 years on the air wave for the Drug Truth Network.

No special bells or whistles for this program. I want to share with you a big chunk of a recent hearing held in the U.S. Senate put together by U.S. Senator Leahy. It’s rather astounding how many of these politicians are beginning to quote stats and figures, starting to sound a bit like they’re with the Drug Policy Alliance or LEAP.

The first voice we hear is that of Senator Patrick Leahy.


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

Racial bias – conscious or unconscious – also was addressed through the guidelines.

Lengthier sentences protected victims and reduced the chances that other innocent people would become victims. All this had wide, bipartisan majorities.

Congress also increased the number of mandatory minimum sentences although they have existed since 1790. Since them due, in part, to tougher federal criminal penalties, the elimination of parole, increased number of inmates, better police practices and other factors, crime rates have dropped.

The Supreme Court undermined the excellent sentencing legislation. First the court created in Hoth a novel interpretation of the 6th amendment. Second, the court in Booker unnecessarily extended that line of cases to mandatory sentencing guidelines and held them beyond constitutional. Third, rather than them strike down the guidelines the courts rewrote them.

A particular egregious example of judicial activism they overwrote congressional intent and made the guidelines advisory. It was only because the guidelines were clearly intended to be mandatory that congress ever passed them in the first place.

Following Booker congress has only one tool to make sure that sentences are not dooming it and do not reflect unwarranted disparity. That, of course, is mandatory minimums. Under the current state of the law if congress, reflecting the will of the American people, is to have any effect on sentences imposed protecting victims, deterring crime, punishing appropriately mandatory minimums are our only option. Otherwise judges will be able to exercise effectively unbridled discretion that existed before 1984.

Some people think that the cost is a reason to do away with mandatories so we have this oddity – for the first time in 5 years this administration finally found one area of federal spending that it wants to cut and that’s prison expense.

Perhaps in an era of voluntary guidelines the first place to think about cutting expenses on sentencing would be abolishing the Sentencing Commission. Private parties can analyze this data and issue reports just as well and taxpayers won’t have to fund an entity that favors retroactive leniency at various opportunities.

The sentencing disparities that exist today are not due to mandatory minimum sentences which existed both before Booker and after. In fact congress has reduced mandatory minimum sentences since Booker. Rather the disparities are due primarily to the Supreme Court’s Booker decision that made the sentencing guidelines advisory.

Sentences imposed now turn on which judge the offender appears before, the quality of the lawyer and other factors that produce disparity before the Sentencing Reform Act are now creeping back into sentencing.

The Sentencing Commission in December issued a report that compared sentences of African Americans and white males at a time the guidelines were still mandatory until now where they are advisory only. For cases overall when the guidelines were mandatory African American males served 11.5% longer sentences than white males. Now that the guidelines are advisory African American males serve 19.5% longer sentences than white males.

In firearm cases African American men receive sentences that were 6% longer than white men when guidelines were mandatory. Today African American men receive sentences 10% longer than whites for these crimes.

For drug trafficking African American men receive sentences that were 9% longer than white men in 2005 but since the guidelines were made advisory they now receive sentences that are 13% longer.

As the Sentencing Commission concluded, “Although sentence length for both black males and female offenders and white male and female offenders have decreased over time white offenders’ sentence length has decreased more than black offenders’ sentence length.”

We should certainly continue to examine federal sentencing policies. We may decide that the length of some mandatory minimum sentences should be adjusted up or down but there are two areas in which we ought to consider adding new mandatory minimum sentences because federal judges are departing downward from guidelines excessively. These are financial crimes and child pornography possession. We should consider imposing mandatory minimum sentences for these offenses.

Mandatory minimum sentences are not as inflexible as they are often characterized. According to the Sentencing Commission almost one-half of the offenders convicted of an offense carrying a mandatory minimum sentence are not given such sentences.

We hear over and over again that mandatory minimum sentences are not “one size fits all” or that they are unfair. We hear that low-level and first offenders always receive harsh sentences and that’s not so.

The Safety Valve provision requires judges not to impose mandatory minimum sentences for first time, low-level, non-violent drug offenders who have cooperated with authorities. The combination of mandatory minimum sentences and the reduction for substantial assistance provides investigative leads against bigger fish is a benefit of mandatory minimum sentences that is not always appreciated.

I’ll put the rest of my statement on the record.

SENATOR: Thank you. I mention Senator Durbin chairs on of the major subcommittees here has legislation. He wanted to say a couple of words and then we’ll go to Paul.

DICK DURBIN: Mr. Chairman thank you for this hearing. Senator Paul thank you for being part of a bipartisan effort. Senator Lee is also working with me on companion legislation, parallel legislation and I hope that you’ll look at it. It’s very, very similar to what you have but takes a slightly different approach.

I just want to tell a story. It is a story of a young black woman named Eugenia Jennings. Eugenia Jennings from Alton, Illinois was a single mom with 3 children. She became addicted to crack. There was a time when she was desperate, without money and she sold a small quantity of crack to a man in exchange for clothing and she ended up being arrested.

At the age of 23 she was arrested, convicted and sentenced to 22 years in prison for the sale of a handful of crack-cocaine. She left behind three small children. Her brother, Cedrick Parker, a true hero, stepped in to raise those kids while the sister went off to prison for 22 years. He did a great job and he came and testified and told us her story.

I decided to look at it more closely and get to know Eugenia Jennings. I met her in a federal prison in Greenville, Illinois and found out that she had been a model prisoner for 10 years. She’d done everything right. There nothing to say negatively about her. I met with her in a room and she looked up to me and said, “Senator, get me back with my kids and I promise you I will never ever commit another crime in my life.”

I told that story to former Senator from Illinois Barack Obama and he commuted her sentence. She’s been home now for a year and one-half. She is struggling with cancer but she is back with her children. They are reunited as a family again.

Was America safer if she spent another 10 years in prison at 29 or 30,000 dollars a year? Was her family better if she was separated from them for another 10 years? Is 22 years a just sentence for what I just described to you?- even if it was one of multiple offenses (I’ll be honest with you it was). In fact the President saw it differently and he did what I think was the right thing.

What we’re talking about here is doing everything that we can do sensibly to reduce the level of incarceration. Our bill focuses on drug cases and those represent about 50% of the increase in prison incarceration.

I’ve talked to judges, prosecutors all across the board and they begged for the opportunity to be able to reduce these mandatory minimums in cases just like Eugenia’s. Before the President commuted her sentence he went back to the sentencing judge, went back to the U.S. Attorney’s office and all of them said, “Turn her loose.”

They knew that there was a miscarriage of justice in her case. Let’s be smart about reducing crime in America. Let’s not be punitive in the belief that somehow that makes us a safer nation.

Mr. Chairman, this is the right time for this hearing and this is the right time for the Judiciary Committee and congress to address this issue.


DEAN BECKER: Please be aware I used most of Senator Rand Paul’s segment on the most recent Cultural Baggage with Grover Norquist. Please check it out.


RAND PAUL: Each case should be judged on its own merits. Mandatory minimums prevent this from happening. Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives.

I’m here today to ask you to let judges start doing their jobs. I’m here to ask that we repeal mandatory minimum sentencing. I’m here to ask that we begin today the end of mandatory minimum sentencing. Thank you Mr. Chairman.

PATRICK LEAHY: Thank you Senator Paul. This is a public statement that you are making here but you’ve talked to me many, many times about this. I don’t question your sincerity.

I know the Sentencing Commission found that African-American and Hispanic offenders constitute the large majority of offenders subject to mandatory minimums. As a result African-American offenders make up 26% of drug offenders convicted drug crimes but they account for 35% of mandatory minimum sentencing. Those statistics are very clear on this.

They are also very clear that this hasn’t really done anything to protect us or make us safer.

RAND PAUL: Can I make one final point? It’s not just the unfairness of the sentencing this is a life-long problem with employment. People talk about it. You have to check the box that you are a convicted felon. It makes it very difficult.

I think for a non-violent felony we need to get away from a life-long punishment where you really have difficulty getting employment after this.

PATRICK LEAHY: It’s interesting on the voting. In our state being convicted of a felony you do not lose your right to vote. In fact when I first ran for the senate I was very interested that the votes that were coming out of our state prisons and about one-third of the people in there had been convicted by me but I have always supported allowing people to vote.

Our first witness is Marc Levin. He is the Director of the Center for Effective Justice at the Texas Public Policy Foundation, Policy Director of its Right on Crime Initiative.

Since he started running Crime with Colors in 2010 he has become a national leader in criminal justice reform. Marc played a key role in Texas criminal justice reforms and saved 2 billion dollars in avoided incarceration costs and also maintained low crime rates.

MARC LEVIN: Thank you Chairman and it’s a real privilege to be here with our very distinguished, outstanding U.S. Senator John Cornyn. We’ve done a great deal to advance public safety over the years as well.

We launched Right on Crime in 2010 following our successful work since 2005 to strengthen the criminal justice system in Texas. I’m pleased to tell you we now have our lowest crime rate since 1968 even as our incarceration rate has fallen by more than 10%.

Back in 1999 Ed Meese (who was one of the one of the signatories to our Right on Crime Statement of Principle) said, ““I think mandatory minimum sentences for drug offenders ought to be reviewed. We have to see who has been incarcerated and what has come from it.” More than two decades later since Ed said that we now have a chance to review these mandatory minimums and I thank the committee and the Chairman for that.

I am very pleased this Committee and distinguished Senators of both parties have come together to identify ways we can improve the federal criminal justice system and learn from our laboratories of innovation – the states around this country including Texas.

As a great believer in the Tenth Amendment it’s a great opportunity for the federal prison system to see some of the evidence-based practices in community-based supervision, strengthening re-entry and other solutions that have proven to be successful in many states.

Keeping Americans safe, whether accomplished through our military or justice system, is one of the few functions government should perform and perform well. As crime began increasing in the 1970’s, Americans and particularly conservatives were correct to react against the attitudes and policies that stemmed from the 1960’s, which included an “if it feels good, do it” mentality and a tendency to emphasize purported societal causes of crime while disregarding the fundamental individual responsibility for crime. In the ensuing couple of decades we’ve seen a six-fold increase in incarceration and we want to emphasize some of that particularly as it relates to ensuring violent and dangerous offenders are kept off the streets for a long time.

However, the pendulum shift while necessary went a bit too far, sweeping too many nonviolent, low-risk offenders into our prison systems. Thankfully we’ve seen advances both in techniques and research since that time whether it’s risk and needs assessment, electronic monitoring, drug courts, the Hawaii HOPE court which has reduced recidivism in substance abuse by two-thirds. We are seeing many states around the country achieve great success with strengthening alternatives to incarceration for non-violent offenders.

In Texas, as the chairman observed, we were able to do that back in 2007 with a justice reinvestment package that since that time we’ve seen double digit drops both in our crime rate and our incarceration rate including saving more than 2 billion on building prisons that we didn’t have to do.

Building on the Texas success, we launched Right on Crime in 2010. Our Statement of Principles signed by conservative leaders such as Jeb Bush, Newt Gingrich, Bill Bennett, Grover Norquist, and J.C. Watts, as well as leading experts in the field such as John DiLulio and George Kelling.

Our focus here in this Statement of Principles is on personal responsibility for offenders, accountability for the system, restitution for crime victims and ensuring we combat over-criminalization by reducing the growth in non-traditional laws and ensuring there’s an appropriate mens rea or intent requirement in criminal justice.

I want to talk about the states where we’ve seen tremendous success in addition to Texas - Georgia, South Carolina, Ohio, and Pennsylvania. In each of these states we’ve seen conservative governors taking the lead in enacting far-reaching reform packages that have included drug courts. In some cases increasing penalties on certain violent crimes such as in South Carolina while lowering penalties for drug possession.

Implementing earned time policies for offenders, risk and needs assessments. In Georgia we also saw the enactment of a minimum mandatory safety valve for drug cases that is very similar to the legislation by Chairman Leahy and Senator Paul.

While in the last two years, state incarceration rates have been declining, the federal prison system continues to grow.

Let me conclude by just touching on some of the issues with mandatory minimums.

We believe that they do result in excessive prison terms in many instances. For example under 21 U.S.C. section 851(a), if a federal defendant is convicted of as little as 10 grams of certain drugs and has one or more prior convictions for a “felony drug offense,” the mandatory minimum is 20 years with a maximum of life in prison. One of the issues that we’ve seen is judges and juries have much more information as to the specific facts of the case yet are prevented from looking, for example, at the risk level of the defendant.

The other thing that I want to emphasize is that mandatory minimums do not take into account the wishes of the victim in the case. They also have not succeeded in frankly creating uniformity.

For example a defendant in the northern district in Iowa who was eligible for a section 851 enhancement is 2532% more likely to receive it than a similarly eligible defendant in the bordering district of Nebraska. It’s just really random in some instances whether this enhancement ends up being administered.

It’s important to remember that if we did not apply mandatory minimums to certain drug cases as proposed these offenders would still be going to federal prison. Recent experience shows they would still be going for a long time. Since the crack/powder disparity was narrowed in 2010 those convicted subsequently in crack cases have received an average federal prison term of 97 months.

To wrap up we really applaud the work that this group is doing. We refer you to our paper on prison reform that you’ve been given and we stand ready to work with each of you to improve the federal criminal justice system and learn from the successful models in states across the country.

PATRICK LEAHY: Thank you very much.

Brett Tolman is a shareholder at the law firm of Ray Quinney & Nebeker. He had been U.S. District Attorney for the District of Utah from 2006 to 2009. He worked in the same office as an Assistant United States Attorney from 2004. He served as Chief Counsel for Crime and Terrorism for the United States Senate Judiciary Committee under Chairman Specter and before him Chairman Hatch where we first met.

Welcome back to the committee. You are as familiar with this room as anybody in it.

BRETT TOLMAN: Thank you Chairman Leahy and member Grassley and the many senators especially the good senator from Utah and long-time friend Senator Leahy.

Prior to my service in the United States Senate, I was an Assistant United States Attorney for the District of Utah. As a line prosecutor in the federal system I personally prosecuted hundreds of felonies. While I prosecuted mostly violent crime felonies, I also participated in the prosecution of white-collar criminals, drug traffickers, child predators, violent illegal immigrants, and others. Indeed, in my nearly a decade with the Department of Justice I was responsible for the prosecution of individuals who are currently serving long prison sentences – some longer than 30 years in federal prison.

I am here today because my experience, while at times rewarding, revealed the need for federal criminal justice reforms that are not only meaningful, but the result of thoughtful analysis of deficiencies in the administration of justice in the federal system. I am not alone in this position. Several of my former colleagues have joined me in signing a “Policy Statement of Former Federal Prosecutors and Other Government Officials,” which I have brought with me and ask that it be submitted into the record of this hearing.

The signers of this statement are a diverse group of former federal prosecutors, judges, Department of Justice and other government officials who deeply believe in notions of fairness in the administration of justice.

Rather than focusing valuable resources on the highest levels of criminal conduct, the reality is that today’s federal system is all too often mired in the pursuit of low-level offenders who are too often over-punished by the federal government and who, a growing number believe, should otherwise be prosecuted by the states. More and more individuals, on both sides of the political aisle, are recognizing that many of these low-level offenders are being given extremely long sentences in federal prisons – sentences that too often do not match the gravity of the crimes committed.

The result, ironically, is a burgeoning prison population that, with its rising costs, is becoming a real and immediate threat to public safety. Department heads and congressional leaders have become painfully aware that the growing prison budget is consuming an ever-increasing percentage of the Department of Justice’s budget.

It is with these concerns in mind that I appear before this Committee. It is my hope and intention to highlight areas of concern and to engage at all levels necessary to assist in achieving meaningful and thoughtful reforms. Specifically, this Committee should focus its attention on several unfortunate consequences of our current front-end policies and practices, including the use and abuse of certain mandatory minimum statutes.

Under current laws, federal prosecutors exercise virtually complete control over the entire criminal justice process. Federal prosecutors decide who to charge, what to charge, how many counts to charge, the terms of any plea agreement, and all too often what the range of sentence will be.

Unfortunately the substantial majority of federal drug prosecutions are utilizing mandatory minimums statutes based solely on quantity rather than the position of the individual in the trafficking organization.

Adding to the problem is the use of section 851, which is effectively a way in which drug sentences are doubled if the target has a prior drug felony. 851 continues to be a problem that prosecutors have highlighted for years but have fallen on deaf ears.

It is of particular concern that mandatory minimum sentences have become the sought-after result by which many in the criminal justice system measure success. The practical implications are such that the federal criminal justice system has become overly-reliant on the use of mandatory minimum statutes in making its charging decisions. All too often, prosecutors and investigators associate the success of their investigations and prosecutions with the amount of time a particular defendant receives in sentencing.

And, in fact, agents and prosecutors will attempt to utilize the facts in a way that add to the sentence even above and beyond the existing or underlying mandatory minimum that was charged.

I had a conversation with a judge last night who informed me of a case that I was unaware. Patrick Washington, convicted in Kansas of distribution of crack-cocaine, under his conviction was to be sentenced around a decade of prison time based on the charging decisions of the prosecutor. However, because Patrick was so forthright in his interview after conviction, the probation officer learned that he had distributed crack-cocaine on previous occasions and as a result applied 4 30-year mandatory minimums to achieve a sentence of over 120 years.

In the end Mr. Washington served over 20 years was saved through a habeas corpus petition in which the prosecutor testified on Mr. Washington’s behalf. That extreme effort by a prosecutor in order to save or enable the fairness in the administration of justice is something we should not always be dependent on or hope for when these sentences are distributed.

I look forward for the opportunity to work with this committee. I applaud the dedication and determination to do front and back end changes. I’ve been honored to work with Senators Cornyn, Hatch and Lee on fashioning a bill but look forward to working with Senators Leahy and those on the Democratic side and the Republican side who have joined hands in addressing the mandatory minimums. Thank you.

PATRICK LEAHY: Thank you Mr. Tolman and, again, welcome back to the committee room.

Our next one is Scott Burns who is Executive Director of the National District Attorneys Association – one of the largest professional organizations representing district attorneys, state’s attorneys, attorneys general, county and city prosecutors.

Previous Mr. Burns served as Deputy Director at the White House Office of National Drug Control Policy. He was also elected as County Chief Prosecutor in Iron County, Utah.

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

SCOTT BURNS: Chairman Leahy, Ranking Member Grassley, members of the Committee, thank you for inviting me to testify today on behalf of the National District Attorneys Association (NDAA) which has been around for some 60 years. It is the voice of America’s 40,000 prosecutors.

To begin I would like to acknowledge and thank Ranking Member Grassley for your statement on the Senate floor this week regarding the importance of federal mandatory minimum sentences. Like you, Senator Grassley, NDAA listened carefully to recent policy announcements made by Attorney General Eric Holder and likewise agree with.


DEAN BECKER: We have to cut it off there but Scott Burns heads up the DA Association thinks at least a little bit of it is right.

I urge you to just listen to what’s going on around you. The drug war is ending – slow and ugly – but it is ending. It’s waiting on you to stand up, speak up and do your part.


[electric can opener sound]

Opening up a can of worms...

[fishing pole casting sound]

And going fishing for truth – this is the Drug Truth Network...http://drugtruth.net


DEAN BECKER: Thank you so much for being with us on this edition of Century of Lies. We’re thrilled - 12 years of Drug Truth Network.

As always I remind you there is no justification for this drug war.

Prohibido istac evilesco!


For the Drug Truth Network, this is Dean Becker asking you to examine our policy of Drug Prohibition.

The Century of Lies.

This show produced at the Pacifica Studios of KPFT, Houston.

Transcript provided by: Jo-D Harrison of www.DrugSense.org