Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President and Members of the Senate, as chairman of
the Committee on the Judiciary, I have mentioned publicly that I am
open to certain Federal sentencing, or prison, reforms, and I have
tried to make it very clear that I am very opposed to others.

Today I wish to address the realities of drug sentencing in the
Federal criminal justice system. I do so because there are many myths
that surround this topic.

The myth is that there are thousands of low-level drug offenders,
such as people smoking marijuana, in Federal prison for very 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 the U.S. Senate. One of those proposals is the
so-called Smarter Sentencing Act.

It is time to set the record straight, and that is why I am here. It
is important to know how many people are in Federal prison for drug
possession, who they are, and why they are in prison. Then it will be
clear why it is unwise to make wholesale, one-way lenient changes in
drug sentencing. In fiscal year 2013, the most recent year we have
statistics, according to the U.S. Sentencing Commission there were
2,332 drug possession cases in the Federal prison. Almost 94 percent
involved marijuana, more than 86 percent were against noncitizens, and
88 percent of the cases arose along the southwest border, so it is
clear why so many noncitizens were charged. 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 the Federal drug possession cases, was about 48
pounds. Understand, we are not talking about a few ounces of possession
of marijuana. The average is 48 pounds. Can you imagine being in
possession of 48 pounds of illegal drugs? These are not low-level,
casual offenders by any stretch of the imagination. Moreover, well over
90 percent of the drug possession cases are along the southwest border.
So more than 80 percent of all Federal drug possession cases were
brought in the State of Arizona.

In that district, the U.S. 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 of 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. Get this, please. The odds of an American
being subject to a Federal prosecution for drug possession in any given
year are less than 1 in 1 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 is, only
5 months--I say that for emphasis--not the years of imprisonment some
of the proponents of lenient sentencing would have us believe.

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
was 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. Most of those convicted were sentenced to probation.

There is no basis whatsoever 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 for what is called possession
with intent to distribute. Those who possessed with that intent are
treated the same as those who distribute. 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 so few of these offenders are actually
sentenced to a mandatory minimum. The first is they may fall within the
safety valve 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 high-level offenders in a 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
evidence against more responsible criminals can be attained. 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. I want to
make it very clear, this is the biggest sentencing myth of them all.
When Federal drug sentencing is discussed, we need then to keep in mind
the facts. There are hardly any nonviolent drug-offending Americans in
Federal prison for mere 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.

I hope you will be on notice and be on guard. Don't let anyone tell
you Federal mandatory minimum sentences are putting large numbers of
nonviolent offenders in jail for long periods of time at great taxpayer
expense. Don't let anyone tell you such offenders are the reason for
the increase in Federal drug prisoners over the years. Don't let anyone
tell you harsh mandatory sentences for low-level nonviolent 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 witnesses before our 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 from the impoverished and
crime-riddled communities that can least afford their return.''

The sheriff said he feared the effect in his inner-city community of
changing Federal drug mandatory minimum sentences. I have told my
colleagues I am going to be open to lowering some Federal mandatory
minimum sentences but only where specific situations may warrant that
and if we can add or raise new ones for such offenses as arms export
control violations, financial crimes, and child pornography
possessions. Those three categories do not have to be extremely long
sentences under present law, but too many judges are systematically
sentencing these offenders to probation. Especially 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
Congress can require these offenders serve any time at all.

I am trying to inform my Senate colleagues through the use of facts.
In doing that, by looking at the facts, we will not make unwise and
dangerous changes to our Federal sentencing laws. I ask my colleagues
to stick to the facts and avoid repeating myths. I pointed out those
myths. It is a myth to say 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 the use of force.

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 fact. It is a myth to say the Smarter Sentencing
Act would save money. All it would do is shift costs from incarceration
to the victims who bear the cost of the crimes that earlier released
offenders would commit. That is one of the reasons the bill is
dangerous.

The Congressional Budget Office also says it would add billions of
dollars in mandatory spending, regardless of what upfront discretionary
savings there may be. I would ask my colleagues to get this: It is a
fact 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.

I would ask my colleagues to get this: It is a fact from the heads of
the FBI and the Drug Enforcement Agency and Federal police
organizations that mandatory minimum sentences spur cooperation from
defendants and enable the successful prosecution of high-level drug
criminals who cause most of the tremendous harm. That includes
cooperation from defendants charged with narcoterrorism.

I would ask my colleagues to get this: It is a fact the so-called
Smarter Sentencing Act would cut in half the mandatory minimum
sentences 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 Taliban, Al Qaeda, ISIS or
Hezbollah who deal drugs that fund terrorism. That would mean less
cooperation to bring charges of narcoterrorism, get terrorists off the
streets, and obtain intelligence to help prevent future attacks.

As President Obama's U.S. 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.

So I ask my colleagues to get this: It is a fact that the so-called
Smarter Sentencing Act is dangerous not only because of its effect on
increased crime and victimization but on national security as well.

I yield the floor.

I suggest the absence of a quorum.

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