Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
The Smarter Sentencing Act
Tuesday, April 8, 2014

Mr/Mm President, there are reports that after we return, either from this break or the next, the Senate may take up the so-called Smarter Sentencing Act.  I rise today to start discussing this bill with my colleagues, particularly those who do not serve with me on the Judiciary Committee.
Over the past 30 years, this nation has achieved tremendous success in cutting crime.  There are fewer victims who suffer fewer physical and financial injuries.  Neighborhood safety has improved, reducing fear and helping economic growth.
These gains were hard won.  Congress played a major role, enacting mandatory sentencing guidelines, mandatory minimum sentences, providing assistance to law enforcement, and building more prisons.  The mandatory guidelines, combined with abolishing parole, led to lengthier sentences and fewer disparities.  No longer would the sentence depend on whether the criminal faced a tough or lenient judge, and factors such as the defendant’s race and income could not be taken into account.
Unfortunately, the Supreme Court, applying novel readings of the Constitution, struck down mandatory sentencing guidelines.  As a result, federal judges are departing downward from the guidelines, issuing shorter sentences, and injecting more disparity into the system.  States are reducing their incarceration rates.  And while there are probably multiple contributing factors, crime rates recently have been rising.  The only means left for Congress to ensure that criminals are sentenced to appropriate sentences is mandatory minimums.
The Smarter Sentencing Act cuts a wide range of mandatory minimum sentences.  Those convicted of the manufacture, sale, possession with intent to distribute, and importation of a wide range of drugs, including heroin, cocaine, PCP, LSD, ecstasy, and methamphetamine, may have their sentences cut in half or more from the current mandatory minimums.  
Supporters of the bill say it allows for shorter sentences only for “nonviolent offenders.”   That term “nonviolent offenders” is highly misleading.
First, that phrase conjures up people in jail for simple possession.  But this bill does not apply to simple possession at all, for any drug.
Second, the types of offenses the bill applies to are violent.  Importing cocaine is violent.  The whole operation turns on violence.  Dealing heroin also involves violence or the threat of violence.
Third, the crime for which the defendant is being sentenced might have been violent.  The mandatory minimum sentence would be cut even if the criminal’s co-defendant used a gun.
Fourth, the criminal himself could have a violent history.  Although the bill does not apply to a drug crime for which the defendant used violence, it does apply to criminals with a history of violence.  That is, the bill would permit a shorter mandatory minimum where the defendant was not violent on this occasion but was in the past.  Supporters of the bill never acknowledge that it would apply to drug dealers with a history of violent crime.  

Other provisions of the bill expand the safety valve that allows judges not to impose mandatory minimum sentences on offenders with minimal criminal history.  The bill’s proponents never identify which violent offenders who fail to qualify for even the bill’s expanded safety valve should be able to receive the bill’s shorter mandatory minimum sentences.  
And don’t pay attention to the smokescreen that the bill leaves the maximum sentence alone.  Judges are not sentencing anywhere near the maximum today.  The whole point of the bill is to allow judges to ignore current mandatory minimums for serious offenses like heroin importation and cocaine dealing, and sentence defendants to half the minimum they are now receiving.  

We know from the experience of the states that when mandatory minimum sentences are reduced, judges use their greater discretion only to sentence the same or more leniently, even when the drug offender has a history of violence.  For instance, New York changed its drug sentencing laws to give judges more discretion.  Judges began in the overwhelming majority of cases to sentence offenders to the now-lower minimum sentences.  New York judges have sentenced drug offenders, even offenders with prior felony convictions, to the lower minimums.   Do we really want offenders like these out on the streets earlier than is the case now, to prey on our citizens?
And that is what they will do.  Although supporters of the bill claim it will reduce costs, what it will really do is shift costs from prison budgets to crime victims.  As Prof. Matt DeLisi of Iowa State University testified before the Judiciary Committee, juvenile drug use is the best predictor of chronic offending, and that “drug users offend at levels 3-4 times greater than persons not convicted of drug crimes.”  He stated that criminal justice research shows that “releasing 1 percent of the current BOP population would result in approximately 32,850 additional murders, rapes, robberies, aggravated assaults, burglaries, auto thefts, and incidents of arson.”  The empirical data are clear.  Lower mandatory minimum sentences mean increased crime and increased victims.  Why would we vote to increase crime and create more crime victims?  

This is why police organizations are coming out against this bill.  The National Narcotic Officers’ Association has written, “As the men and women in law enforcement who confront considerable risk daily to stand between poison sellers and their victims, we cannot find a single good reason to weaken federal consequences for the worst offenders who are directly responsible for an egregious amount of personal despair, community decay, family destruction, and the expenditure of vast amounts of taxpayer dollars to clean up the messes they create.”  

The Federal Law Enforcement Officers Association has also come out against the bill.  They have stated, “It is with great concern that FLEOA views any action or attempt … that would alter or eliminate the current federal sentencing policy regarding mandatory minimum sentencing.  The mandatory minimum sentencing standard currently in place is essential to public safety and that of our membership.”

Law enforcement is telling us that this bill would be bad policy and create more crime victims.  But it is also saying that were this ill-considered legislation to pass, the safety of the police officers who safeguard us would be jeopardized.  How can we possibly do that to those who bravely protect us?

The bill is particularly misguided in light of current conditions concerning drug use.  We’re in the midst of a heroin epidemic right now.  Deaths from heroin overdoses in Pennsylvania are way up.  The governor of Vermont devoted this year’s entire State of the State address to the heroin problem.  Cutting sentences for heroin importation and dealing makes no sense at all.

Then there is the Obama Administration.  Typical of its pattern of disregarding the law across a range of areas, it refuses to charge some defendants for the crimes they actually committed if doing so would subject them to mandatory minimum sentences.  Typical with its pattern of disregarding the law, it is not taking action in most situations where states have enacted laws decriminalizing marijuana, even though that is contrary to federal law.  Do you think the Obama Administration would stand silently by if a state enacted laws that allowed guns, rather than drugs, to be sold inconsistently with federal law?

According to a story this week in the Washington Post, one of the reasons for the heroin epidemic is that marijuana decriminalization is leading growers to produce more heroin for importation into this country.  The availability of marijuana is rising and the price is falling.  So many who used to grow marijuana now can make much more money cultivating opium poppies for heroin export to this country.  But the Administration supports this bill, which allows judges to lower the mandatory minimum sentence for heroin importation.  This boggles the mind.

My conservative colleagues who rightly oppose the Administration’s lawlessness in so many areas should think twice before supporting the Administration here. They should oppose a bill that gives judges additional authority only for lower sentencing for dealing, manufacturing and importing LSD, heroin, cocaine, ecstasy, and methamphetamine.  The National Association of Assistant United States Attorneys has courageously disagreed with the public opinion of their employer, the Department of Justice and Attorney General Holder.  They have written in opposition to the bill, “Mandatory minimums deter crime and help gain the cooperation of defendants in lower-level roles in criminal organizations to pursue higher-level targets.  They have been demonstrably helpful in reducing crime.”    Why on earth, then, would we cut sentences for sellers and importers of the worst drugs now plaguing our cities, suburbs, and rural areas?

Not every mandatory minimum sentence may be set at the perfect level.  We can have a discussion concerning lowering some sentences and raising others that should be raised, such as for child pornography, terrorism, sexual assault, domestic violence, and various fraud offenses.  We can reduce jail time, but not sentences.  Many states have done this for inmates whose risk assessments and behavior in jail, including successful completion of programs proven to reduce recidivism, earn our confidence that they are less likely to reoffend.  But we should not cut sentences upfront for serious offenders like heroin dealers.  We should not do so where these offenders have a history of violence.  We should not drastically cut the only tool we have to reduce sentencing disparities among judges. The mislabeled Smarter Sentencing Act is the wrong answer to the problems we face.  I hope the Senate will not take up this bill.  But if it does, my colleagues should take a clear-eyed look at this very dangerous bill and oppose it, as I will.