Prepared Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Floor Remarks: Mandatory Minimum Sentencing
March 10, 2015

Mr. President, on a number of occasions I have had to take to the Senate floor to note my opposition to the so-called Smarter Sentencing Act.  It has been necessary because there are so many misconceptions about that legislation and federal drug sentences and prisoners.  

Before addressing them, I want to let my colleagues know that I do believe that there are some inequities in the criminal justice system.  The Judiciary Committee will be looking at ways to address them.  I will set out that part of the Committee’s agenda after discussing sentencing.

The Smarter Sentencing Act would arbitrarily cut in half the mandatory minimum sentences that are imposed on a host of serious drug offenses.  They include importation, manufacture, and distribution of serious drugs like heroin, PCP, LSD, and meth.

The governor of Vermont devoted an entire State of the State address to the heroin epidemic.  The governor of Maryland just launched an anti-heroin initiative following the near doubling of heroin overdose deaths in that state between 2011 and 2013.  But the Smarter Sentencing Act would cut in half mandatory sentences for importing, distributing, and manufacturing heroin.

It would cut the sentences for the same activities with respect to LSD, a drug that causes psychosis and suicide.  It would reduce sentences for the drug trade that two of President Obama’s appointees in the DEA and in the Justice Department have warned that the world’s most dangerous terrorist organizations are engaged in to fund their operations.  It would harm the ability of prosecutors to obtain cooperation from lower level offenders to obtain intelligence regarding terrorists’ planned attacks.  

As President Obama’s own United States Attorney for the Southern District of New York has warned, “[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.”  The threat should determine the response.  It would be foolhardy to meet the threat of narcoterrorism by cutting drug sentences.

Under federal sentencing law, those who are low level offenders avoid mandatory minimum offenses.  Just under half of all drug courier offenders were subject to mandatory minimum sentences, but fewer than 10% received mandatory minimum sentences.  One reason for the difference is that offenders who cooperate in prosecuting high level drug conspirators avoid the mandatory minimum sentences.

As the Federal Law Enforcement Officers Association wrote, “[A]ny change in the mandatory minimum sentencing standard does a disservice to the brave men and women who are asked to put their lives on the line to protect us from terrorists and criminals.  

“Currently, the system in place allows federal law enforcement agents to infiltrate and dismantle large-scale drug trafficking organizations and to take violent armed career criminals off of the street.  In turn, this allows progression up the scale of criminal organizations from low-level subject to higher ranking members through the effect of the mandatory minimum sentencing act.”

A second reason why mandatory minimum sentences are not imposed on many eligible drug couriers is the “safety valve.”  Defendants can qualify if they have no or a very light criminal history.  That means that those who are convicted but aren’t violent do not serve mandatory minimum sentences.   The average sentence for a federal drug courier offender is only 39 months.  The offenders who qualify for the safety valve are drug couriers and drug dealers.  They are not people who are in prison for possession of drugs.  That is because drug possession does not trigger federal mandatory minimum sentences.  And it is because, according to the Sentencing Commission, almost no citizen is in federal prison for mere drug possession.  

Eighty-eight percent of drug possession prisoners were apprehended along the Southwest Border.  And the median amount of drugs in their possession was 48 pounds.  That is correct, 48 pounds.  These are not low level, casual offenders.  Only 270 mere federal drug possession cases were brought anywhere else in the country in the most recent year for which the Sentencing Commission has statistics.  And the average sentence for drug possession for citizens is 1.3 months.  

Months, not years.  

Most citizens convicted of federal drug possession charges received probation.  The proponents of the bill say that there are too many people in prison and that the bill would save taxpayers money.  This is untrue.  

The Congressional Budget Office estimated that the bill, even while releasing hundreds of thousands of prisoners earlier than under current law, would increase direct spending by about $1 billion and would reduce revenues by $42 million over ten years.  

The supporters of the so-called Smarter Sentencing Act do not even attempt to contest my points in opposition.  They do not say there is not a heroin epidemic.  They cannot say that citizens are serving federal mandatory minimum sentences for possession.  But they do say this – their major ploy is to paint a picture that poor innocent mere drug possessors are crowding our prisons.  

They do not argue that Obama Administration officials did not warn of the link of drug crimes to terrorism and national security threats.  They don’t challenge the statistics from the Sentencing Commission or the existence of the safety valve or the effect of mandatory minimum sentences in enhancing prosecution of serious drug offenders.  They won’t take on the CBO’s cost estimates.   They do cite CBO’s discretionary cost savings of $3 billion, but in the long run, entitlement spending can be more costly because entitlement spending must be paid.  They don’t do any of these because they can’t.

They are committed to the bill as a matter of ideology.  The facts simply do not matter to them.  They try change the subject.  All they can do is resort to rhetoric.  In fact, the supporters of that legislation are Orwellian in their rhetoric. 

I mean that literally.  George Orwell wrote a famous essay called “Politics and the English Language.”  He said: “In our time, political speech and writing are largely the defense of the indefensible.”

The arguments for the Smarter Sentencing Act are merely a weak attempt to defend the indefensible.  What I have called the leniency industrial complex refers to the people who are sentenced to drug mandatory minimum sentences as “nonviolent.”  They use that term even though any truly nonviolent offenders would qualify for the safety valve.  They gloss over the fact that even if an offender was not violent in a particular case, he may have committed a prior violent offense that would make him in fact violent.  And, of course, many drug related crimes occur through force or the threat of force or are conducted by people in a criminal enterprise that relies on violence.  

The bill’s supporters even refer to some drug offenders as “nonviolent” who are serving mandatory minimum sentences for carrying a firearm in the commission of their crime.  Few Americans would call someone who carries a gun while committing a drug crime “nonviolent.”  

And the leniency industrial complex wants people to think that people who are sentenced to mandatory minimum sentences are “low level offenders.”  They neglect to mention that true low level offenders receive the safety valve and avoid mandatory minimum sentences and that many others avoid them by providing substantial assistance.  

Many of the cases they cite involve repeat offenders.  Repeat offenders are not low level.  
Lenient sentences did not stop them from dealing dangerous drugs and another lenient sentence won’t stop their next drug deal.  

When it comes to terms like “low level” and “non-violent,” again quoting Orwell, the bill’s supporters have their “own private definition, but allow[] the hearer to think [they] mean[] something quite different.”  

Their “political language has to consist largely of euphemism, question-begging, and sheer cloudy vagueness.”

I regret to say that elements in the media have uncritically accepted the Orwellian rhetoric surrounding this bill.  

A recent New York Times editorial swallowed the “low level” rhetoric whole.  It challenged my well-supported conclusion that high level offenders would benefit from enactment of the Smarter Sentencing Act, without even mentioning the serious crimes and drugs the bill applies to.  It editorialized that my opposition to the bill “defies … empirical data,” even though my sources are the Sentencing Commission and Obama Administration appointees.

When the Times attempted to back up its support for the bill, it linked not to any authoritative evidence, but to the report of an ideological advocacy group.  This is the so-called “empirical data” the Times finds worthy.  Why should taxpayers fund the Sentencing Commission if the self-proclaimed “paper of record” shuns its statistics in favor of those offered by lobbying groups?  

The Times said that federal policymakers should rely on state experience in reforming sentences.  So let’s do that.  Only 270 citizens are prosecuted for drug possession in the federal system each year, and most receive probation.  The states have many drug possession offenders in prison, so the actions they take for that class of offender do not bear on federal prison populations.  Nor do the states prosecute anyone for importation of heroin or LSD or meth or cocaine.  But the federal government does.  So state drug sentencing changes are not relevant to those prisoners as well.  And it is the federal government, much more than the states, that uses lower level offenders to take down the most serious drug offenders.  

Meanwhile, I have offered to consider legislation that would lower some mandatory minimum sentences if others could be imposed or raised.  For instance, the Sentencing Commission has identified child pornography and financial crimes such as insider trading as areas where federal judges are particularly lenient and where no mandatory minimum sentences exist.  But it is the proponents of Smarter Sentencing who refuse to take me up on that good faith offer.  Their ideology does not include compromise.  

The White House says they want to work with this senator on these issues, but then invites other members of Congress but not the Chairman of the Senate Judiciary Committee to a meeting to discuss the subject.  But in the New York Times’ Orwellian world, this senator is the roadblock to sentencing reform.  That is upside down and backward.

Problems do exist in the criminal justice system.  I plan to use the Judiciary Committee to address some important ones.  But rather than marking up ill-considered and dangerous legislation like the so-called Smarter Sentencing Act, we will take up bills that can achieve a large measure of consensus.  

I would like to take this opportunity to address some of the Committee’s criminal justice agenda, which will show my commitment to real problem solving through consensus.

The first area we will address is reform of asset forfeiture. Asset forfeiture can serve a valuable purpose for law enforcement and society by helping to deprive criminals and criminal organizations of their money; money from the proceeds of their crimes or the instrumentalities of their crime.  It also helps to compensate victims who are injured or suffer as a result of criminals’ wrongdoing.  It can also return that money to law enforcement, who can use it continue to combat serious crime and put more bad guys behind bars.  But current law provides perverse incentives that have led to abuses.  

Law enforcement can sometimes directly benefit from property that they seize, sometimes contrary to state law.  Those whose property is taken often do not have access to fair procedures or lawyers to help them get that property back.  These processes and procedures need real structural reform.  Innocent property owners must be able to challenge seizures and protect their property from government abuses.

I am also looking into reversing a Supreme Court decision that denies property owners the opportunity to use their own money to hire a lawyer to help defend them against the government.  Even though the Administration has made some administrative changes to these practices and policies in response to widespread criticism, I believe real legislative reform is needed.  I look forward to working with my colleagues in a bipartisan way to make the necessary reforms.

Second, I am very concerned that for too many times in America, equality under the law is not a reality.  We are committed to equal justice under law.  But the poor do not receive the same justice in many instances.  

For more than 50 years, the Supreme Court has ruled that indigent people accused of felonies must be afforded counsel.  And for more than 40 years, starting with a decision called Argersinger v. Hamlin, the Supreme Court has found that the Sixth Amendment of the Constitution requires that federal, state, and local governments provide counsel to indigents who are accused of misdemeanors if their conviction could potentially lead to imprisonment.

I regret to say that although I am aware of instances where the federal government is responsible, it is particularly at the state level where the Sixth Amendment is violated numerous times on a daily basis.  I cannot think of any Supreme Court decision that has ever faced such resistance in magnitude and time as Argersinger v. Hamlin.  Indigent misdemeanants are being pressured to waive counsel.  Sometimes they are threatened with imprisonment if they seek to have counsel appointed.  There are other ways that the decision is violated.  

Then there is the question of the competence of the counsel appointed, given how many cases are assigned to an individual lawyer and how quickly judges resolve them.  I fear that some innocent people are being sentenced to prison.  

And there are other consequences as well.  We should make sure that there are collateral consequences imposed on people who are guilty of domestic violence misdemeanors, for instance.  But we do not want collateral consequences imposed on people who did not actually commit misdemeanors.  If people later get in trouble with the law, we don’t want them not to qualify for the “safety valve” because some of their previous convictions were for misdemeanors in which they did not receive the right to counsel.  

We don’t want people to have criminal records when they seek employment when they did not receive counsel who could have prevented a conviction.  In some situations, a misdemeanor will automatically become a felony if the accused has committed it repeatedly.  We don’t want a misdemeanor conviction to render a later crime a felony if questions of innocence surround the earlier crime.    

Third, I want to address databases of criminal records.  Those databases can serve useful purposes, such as enabling background checks on people who are being considered for a job or for volunteering to work with children.  And there are proposals to expand the purposes for which the databases can be used.  But I am concerned about the quality and completeness of the records in the database.  

If the database contains erroneous or outdated records, then the people being checked may unfairly lose out on jobs or the ability to help children. There are procedures at the federal level to challenge the information in the database if the person knows that their records are inaccurate.  But it is a steep climb.  And states have their own procedures for people to challenge the accuracy of criminal records.  But success there may be even harder, and may cost more than people can afford.  

Records are also sometimes not expunged even when the law says they should be.  I do not want to see an arrest record turn up in a background check and deny someone the ability to work, deny the economy the benefit of that work, and deprive the government of tax revenue from that work, because a background check turned up a record of an arrest from long ago that never resulted in a conviction.  This is a widespread problem.  

According to press reports, when arrests are included, 32% of adults in this country have criminal records that are contained in databases.  I am sure we can reach bipartisan agreement on legislation to address this problem in some form.

Mr. President, there are dangerous and poorly considered proposals to change the criminal justice system that are divisive, are not based on reality, and will never become law.  There are also problems in the criminal justice system that are clear, widely recognized, have serious consequences, and can be the subject of effective bipartisan legislative efforts.  I will do what I can to make sure the Senate Judiciary Committee devotes its energies to the second category.