Prepared Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Federal Drug Prosecutions
Thursday, February 12, 2015

Mr. President, as Chairman of the Judiciary Committee, I’ve mentioned publicly that I’m open to certain federal sentencing, or prison reforms.  But I’ve tried to make it clear that I’m very opposed to others.  

So, today I want to address the realities of drug sentencing in the federal criminal justice system.  I do so because of the myths that surround this topic.  

The myth is that there are thousands of low level drug offenders, like people smoking marijuana, in federal prison for long terms.  This is supposed to mean a waste of federal tax dollars, overcrowding, and unfairness to people who should not be in prison.  These myths are often used to justify lenient and, frankly, dangerous sentencing proposals in this body.  One of those proposals is the so-called Smarter Sentencing Act.
It’s time to set the record straight.  

It’s important to know how many people are in federal prison for drug possession, who they are, and why they are there.  Then it will be clear why it is unwise to make wholesale, one-way lenient changes in drug sentencing.
In fiscal 2013, the most recent year on which statistics are available, according to the United States Sentencing Commission, there were 2,332 mere drug possession cases in the federal system.  Almost 94 percent involved marijuana.  More than 86 percent were against non-citizens.  Eighty-eight percent of the cases arose along the Southwest Border, so it is clear why so many non-citizens were charged.  And federal drug possessors were rarely prosecuted for small quantities.  

The median amount of drug possession in these Southwest border cases, which are 88 percent of federal drug possession cases, was about 48 pounds.  Can you imagine being in possession of 48 pounds of an illegal drug?  These are not low-level, casual offenders by any stretch of the imagination.  
Moreover, well over 90 percent of the drug possession cases along the Southwest border, so more than 80 percent of all federal drug possession cases, were brought in Arizona.  In that district, the United States Attorney will agree to charge a drug trafficker with only drug possession if the offender is a first time offender who acted only as a courier.  

Again, the median quantity of the amount in possession is 48 pounds, and many who actually committed trafficking there are charged only with mere drug possession.  Since 88 percent of all federal drug possession cases derive from the Southwest Border, only 270 simple drug possession cases arose anywhere else in the United States.  
The odds of an American being subject to a federal prosecution for drug possession in any given year are less than one in a million.
It is also imperative to remember that mandatory minimum sentences are not an issue in these cases.  The average federal sentence for drug possession is 5 months.  That’s only 5 months!  Not the years some of the proponents of lenient sentencing would have you believe.  And the brevity of federal drug possession sentences is emphasized by how in the vast majority of these cases, the median amount of drugs at issue is 48 pounds.  

In the 270 cases not along the border, the median amount of drugs the offender possessed was only 4 grams, the average sentence was 1.3 months, and most of those convicted were sentenced to probation.  

So there is no basis to advocate change in federal mandatory minimum sentencing laws based on drug possession cases, since they are not subject to such mandatory minimums.  

Anyone who raises drug possession as an argument against federal mandatory minimum sentences is using a stalking horse to lower sentences for much more serious offenders.  There is no separate federal offense of possession with intent to distribute.  Those who possessed with that intent are treated the same as those who distribute.  

So we need to look at drug distribution sentences in the federal system as well.

Drug trafficking cases are sometimes subject to mandatory minimum sentences.  For instance, just under half of all drug courier offenders were subject to mandatory minimum sentences, but under 10 percent were subject to mandatory minimum sentences at the time of their sentencing.  

There are two main reasons why so few of these offenders are actually sentenced to a mandatory minimum.  First, they may fall within the safety valve that Congress has enacted to prevent mandatory minimum sentences from applying to low-level, first-time drug offenders.    Or, second, they may have provided substantial assistance to prosecutors in fingering higher-level offenders in the drug conspiracy.  

That is an intended goal of current federal sentencing policy: to put pressure on defendants to cooperate in exchange for a lower sentence so that evidence against more responsible criminals is obtained.  As a result, even for drug couriers, the average sentence is 39 months.  That seems to be an appropriate level.
We are not sending huge numbers of nonviolent drug offenders to federal prison under lengthy mandatory minimum sentences.

That is the biggest sentencing myth of them all.      

When federal drug sentencing is discussed, we need to keep in mind the facts.  
There are hardly any non-violent drug offending Americans in federal prison for drug possession.  The quantities of drugs underlying the vast majority of federal possession cases are high and sentences are fair.  For drug courier distribution cases, only 10 percent of offenders are subject to mandatory minimum sentences at the time of sentencing.
So be on notice and be on guard.  Don’t let anyone tell you that federal mandatory minimum sentences are putting large numbers of nonviolent offenders in jail for long periods of time at great taxpayer expense.  Or that such offenders are the reason for the increase in federal drug prisoners over the years.  Or that harsh mandatory sentences for low level non-violent offenders are decimating various communities.
Apart from the clear evidence from the Sentencing Commission regarding federal drug offenders, I want to draw attention to the responses to questions from a witness before the Judiciary Committee just this month.  

Testifying before the Committee, Milwaukee County Sheriff David A. Clarke, Jr. stated, “Federal Mandatory minimum sentences have struck terror into the hearts of career criminals… and have provided longer periods of respite for the impoverished and crime riddled communities that can least afford their return.”  

He said that he feared the effect in his inner city community of changing federal drug mandatory minimum sentences.
I have told my colleagues that I am open to lowering some federal mandatory minimum sentences, where specific situations may warrant that, if we can add or raise new ones, for such offense as arms export control violations, financial crimes, and child pornography possession.  Those do not have to be extremely long sentences.  But too many judges are systematically sentencing these offenders to probation.  

And when the Supreme Court has taken away any other means of making sure judges do not let these offenders walk, mandatory minimum sentences are the only way that Congress can require that these offenders serve any time at all.
If we are informed by facts, we will not make unwise and dangerous changes to our federal sentencing laws.  So let’s stick to the facts and avoid repeating myths.
It is a myth to say that sentences for drug possession and nonviolent offenders justify the Smarter Sentencing Act.  That bill does not apply to possession at all.  

Many drug offenses necessarily involve violence.  Drug conspiracies operate with the threat or use of violence.  And whatever the offense charged, if the offender has a history of violent crime, he is a violent offender, and the sentence will and should reflect that.
It is a myth to say that the Smarter Sentencing Act would save money.  All it would do is shift costs from incarceration to victims who would bear the costs of the crimes that earlier released offenders would commit.  
That is one of the reasons the bill is so dangerous.  

The Congressional Budget Office also says that it will add a billion dollars in mandatory spending, regardless of what up-front discretionary savings there may be.
It is a fact that the Smarter Sentencing Act would cut sentences for a range of heroin offenses, including importation and dealing, while the entire nation is in the midst of a heroin epidemic and a rising number of deaths from heroin overdoses.
It is a fact, from the heads of the FBI and the Drug Enforcement Administration and federal police organizations that mandatory minimum sentences spur cooperation from defendants and enable the successful prosecution of high-level drug criminals who cause such tremendous harm.  And that includes cooperation from defendants charged with narcoterrorism.
It is a fact that the so-called Smarter Sentencing Act would cut in half the mandatory minimum sentences that Congress put in place for distributing drugs to benefit terrorists or terrorist organizations.  

It would cut in half the mandatory minimum sentences for members of the Taliban, al-Qaeda, ISIS, or Hezbollah who deal drugs to fund acts of terror.  That would mean less cooperation to bring charges of narcoterrorism, get terrorists off the streets, and obtain intelligence to help prevent attacks.
As President Obama’s own United States Attorney for the Southern District of New York has remarked, “[T]here is a growing nexus between drug trafficking and terrorism, a threat that increasingly poses a clear and present danger to our national security.”
It is a fact that the co-called Smarter Sentencing Act is dangerous not only because of its effects on increased crime and victimization, but on national security as well.