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Mr. Chairman, members of the Committee, thank you for the opportunity to testify before you regarding bill 12-12. My name is Eric E. Sterling. I am the President of the Criminal Justice Policy Foundation, which has been located in the District since it was founded in 1989. Since 1979, I have lived, owned property, and worked in the District of Columbia for many years.

Mandatory minimum sentences are deja vu

Today the Committee is considering a bill to re-establish mandatory minimum sentences for various drug offenses that violate the District of Columbia Code. I feel a little bit of deja vu. In 1986 I was counsel to the House Subcommittee on Crime. For the previous six years my responsibilities had been to oversee Federal drug enforcement for the House Judiciary Committee. In the summer of 1986 the Congress hastily adopted mandatory minimum sentences that I helped write, and those laws have become among the most reviled Acts of Congress in recent years. In 1995 the Council repealed the mandatory minimum sentences that had been the law. I urge the Committee to reject most of the bill before it today.

The "message" of mandatory sentences to judges and prosecutors
You have heard many times today statements about sending the right message and sending the wrong message, especially sending a message to our youth. Consider for a moment the message that enactment of mandatory minimum sentences sends to judges of the Superior Court. A mandatory minimum sentence enacted by a legislative body is a vote of "no confidence" in the intelligence and responsibility of the judges.

The enactment of mandatory minimum sentences says, "D.C. Judges, we don't trust you to impose an appropriate sentence upon the criminal who stands convicted before you. D.C. Judges, we don't trust you to weigh adequately the evidence of the seriousness of the crime, and the record of recidivism and impose punishment that is adequate. D.C. Judges, we don't trust you to adequately find the facts of the case and to apply them." That, I submit, is a very damning message for this Council and the people of the District of Columbia to send to the Judges of the Superior Court.

Some of you have heard it said that constitutional restrictions upon police practices, such as the Miranda warnings that must be given to suspects before they are interrogated, have had the effect of "handcuffing" the police. Do you think that mandatory sentencing laws are any less a "handcuffing" of Judges, appointed by the President of the United States from among the finest lawyers in the District of Columbia, and approved by the United States Senate. For you to pass a mandatory minimum sentence is a statement of contempt to the District's Judges.

What is the message to the community, to our youth, as well as the bench and bar to say, by a law such as this, "Our judges are too stupid to trust with the discretion to impose a just and appropriate sentence?" That is a terrible message to send.

The message to the U.S. Attorney's Office
There is another message that you are sending. You are telling the U.S. Attorney's office that Council of the District of Columbia doesn't trust you to exercise your prosecutorial discretion appropriately.

Unlike every other local prosecutor in the nation, the local prosecutor here, the U.S. Attorney, can bring any serious drug case into U.S. District Court. Congress in the Narcotics Penalties and Enforcement Act of 1986, which I helped write, provides for very long sentences and long minimum sentences for not very serious drug traffickers.

The DC Code provides for long maximum sentences right now. A seller of cocaine, heroin, PCP, methamphetamine or other narcotic or abusive drug -- the most serious and dangerous drugs of abuse -- can be sentenced for a term of imprisonment of up to 30 years and a fine of up to a half million dollars (sec. 33-541(a)(2)(A)). These penalties apply to all participants in conspiracies or attempts to sell such drugs (DC Code section 33-549). Under the Federal law, if the sale involves as little as a detectable amount of such drugs, the sentence is up to 20 years imprisonment and a fine of up to $1 million for a first offense -- and for any prior Federal, state, or local drug offense, up to 30 years and a $2 million fine (21 USC 841(b) (1)(C)).

In addition, under Federal law, for any kind of drug trafficker who is more serious than a common retailer -- who is only a first offender, there is a mandatory prison term of 5 years, with a potential sentence of up to 40 years imprisonment and a $2 million fine. This mandatory sentence is for sales for drugs (and is also triggered by participating in a conspiracy or attempted sales of drugs (21 USC 846)) of any level of purity or impurity with an accumulated weight of as little as 1 gram of LSD; 5 grams of crack cocaine; 10 grams of methamphetamine; 10 grams of fentanyl analogue; 40 grams of fentanyl; 100 grams of a mixture of PCP (or 10 grams of pure PCP); 100 grams of heroin; or 500 grams of cocaine. A second offender faces a doubled mandatory minimum (ten years), a $4 million fine, and up to life imprisonment. (21 USC 841(b)(1)(B)).

The mandatory minimum prison terms provided for in this bill are unnecessary if we give any credit to the Office of the U.S. Attorney to make proper choices about how to prosecute major level offenders by using the laws available to it.

In addition, the proposed amendment does not provide for a reduction of sentence to defendants who provide "substantial assistance" to the Government, as does the Federal law. The lack of such a provision would, in a sense, "handcuff" the U.S. Attorney with mandatory sentences under either body of law. This would potentially limit that office's ability to induce defendants to cooperate in the investigation and prosecution of more serious offenders.

Mandatory minimum sentences send the wrong message.

Mandatory Minimum Sentences Are Bad Policy

Injustice

Because mandatory minimum sentences forbid judges from considering the facts of the case and imposing the appropriate sentences for minor offenders, they lead to injustice.

What do the Judges with the most experience with mandatory minimum sentences -- the nation's Federal Judges -- think about them? Let me quote the resolution of the United States District Judges of the Fifth Circuit (Texas, Louisiana and Mississippi) at their judicial conference on May 6, 1991, "The proliferation of mandatory sentences distorts the rationality [of the sentencing system] because such sentences apply regardless of the defendant's role in the offense and of other factors historically found relevant to sentencings. As a result, they also often require the imposition of sentences which are manifestly unjust." (emphasis added)

The U.S. Judges of the Seventh Circuit Judicial Council found that, "mandatory minimum sentences, however framed, do not result in advancing the cause of justice and fairness." The judges voted unanimously to urge Congress to "repeal all statutes that require the trial judge to impose a mandatory minimum sentence." (Quoted in Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, August 1991, U.S. Sentencing Commission, p. G-19).

The Ninth Circuit District Judges and the Tenth Circuit District Judges found that mandatory minimum sentences are manifestly unjust and harsh.

Here in the District of Columbia, in March 1990, the Judicial Council of the D.C. Circuit, after finding that sentences imposed under mandatory minimum sentences are often "manifestly unjust," adopted a resolution urging Congress in their polite words "to reconsider the wisdom of all mandatory minimum sentencing statutes."

The fact is that every Federal Judicial Council has adopted a resolution calling upon Congress to reconsider the mandatory minimum sentences that they adopted.

Cost

In 1991, The U.S. Sentencing Commission estimated that mandatory minimum sentencing generated between $79 million and $125 million in additional costs for incarcerating prisoners (in FY 1990). (Special Report to Congress, Aug. 1991, p. 117). Mandatory minimum sentences are designed to impose longer sentences than are currently imposed. I suggest that it would be irresponsible to pass this bill without a careful estimate of what the bill's real costs are going to be.

Ineffective

In 1973 New York State adopted mandatory minimum sentences for drug offenses. The Association of the Bar of the City of New York and the Drug Abuse Council, Inc. established a joint committee to evaluate the mandatory minimum sentences. They found that the 1973 law did not significantly deter prior felony offenders from committing additional crimes. (THE NATION'S TOUGHEST DRUG LAW: EVALUATING THE NEW YORK EXPERIENCE, Final Report of The Joint Committee on New York Drug Law Evaluation, 1977, p. 9).

Counterproductive

Some observers have suggested that the mandatory minimum sentences adopted by the Congress in 1986 resulted in an increase in the use of youth in the sale of illegal drugs. Laws which have the effect of creating incentives for young people to enter into a life of crime will have a terrible effect on the District of Columbia.

The details of the bill

This bill is called the Distribution of Marijuana Amendment Act of 1997, but this is a misleading title because the bill creates mandatory minimum sentences for all drug offenses.

Cannabis Scheduling

Turning our attention first to the cannabis scheduling provisions. The bill would transfer cannabis from Schedule V to Schedule III of the five schedules of controlled substances. The placement of a drug in a schedule is a comparative matter based upon relative potential for abuse. The statute does not define the term "potential for abuse," or the term "abuse."

What schedule for cannabis?

In considering where cannabis belongs, consider that cocaine and most of the opiates that are similar to heroin, such as morphine, are in schedule II. Barbiturates in schedule III and tranquilizers in schedule IV are major factors in drug overdose deaths and hospital emergency room mentions. Consider that in 1995 there were 531,827 drug-related hospital emergency room episodes (this means person going to an emergency room and mentioning a drug as a factor in why they were present). Each drug that is mentioned is a drug mention. In 1995, there were 931,550 drug mentions. Of the drugs mentioned, cocaine was mentioned 142,494 times, heroin 76,023 times, cannabis only 47,069 times. The balance of the mentions were drugs overwhelmingly drugs in schedules II, III, and IV. Cannabis, responsible for only 5% of the mentions, simply is not a big factor. Cannabis is not a factor in drug overdose deaths, a significant proportion of which are legal schedule II, III and IV drugs, as well as cocaine and heroin.

On the basis of potential for abuse, morbidity or mortality, cannabis is one of the least dangerous of drugs. Schedule V is a much more reasonable place for cannabis than schedule III with lethal and addictive compounds.

Penalties

The bill would establish mandatory minimum penalties for cannabis trafficking offenses as well as other for trafficking in other drugs. For the reasons cited above, this would be a mistake.

Definition of conviction

An important corrective amendment in this bill is the proposed amendment to DC Code section 33-541(g) to define the term "offense" so that all convictions are considered offenses. This is the only useful provision of the bill. I encourage the committee to report this single provision.

What is the real message of mandatory minimum sentences?

While public officials voting for mandatory minimum sentences claim they are variously sending messages to the youth or to the drug traffickers, this is not true. The message that is really important to legislators is a message to the voters: "I'm doing something about your fear of crime." There is nothing intrinsically wrong with telling the voters that you are attempting to address their concerns -- unless the measure is expensive, unjust, and counter-productive.

Of course, the public is afraid of crime. D.C.'s violent crime rate leads the nation, although it no longer has the highest murder rate of a city in the nation. D.C.'s 1994 murder rate of 70 per 100,000 was only exceeded by New Orleans' rate of 85.8 per 100,000. The national average murder rate was 9.0 per 100,000 in 1994. While national murder rates have been declining, in the first half of 1996, the murder rate increased in Washington. In the first half of 1996 there were 199 homicides compared with 158 homicides in 1995. ("Violent Crime Continues to Decline, FBI Reports," Washington Post, January 6, 1997, p. A7)

Fear of crime measurements

Nationally, fear of crime has drifted down from the record levels of 1994. The Gallup Poll has asked the nation for many years what the most important problem is facing the country. In October 1982, 61% said unemployment and 3% said crime and violence. In January 1985, 27% said fear of war and 4% said crime and violence. In November 1989, 38% said drugs and drug abuse and 3% said crime and violence. In March 1992, 42% said the economy and 5% said crime and violence. But in August 1994, 52% said crime and violence, 17% said the economy, 6% said unemployment, and 9% said drugs. By May 1996, crime and violence was down to 25%, drugs were 10%, the Federal budget deficit was 15%, the quality of education was 13% (the highest it had ever been) and moral decline in society was at a record high at 14% as the most important problem facing the country. (Sourcebook of Criminal Justice Statistics, 1995, table 2.1, p. 128).

Fear of crime has grown for two reasons. First, even though crime rates have been going down nationally for the past five years, the volume of crime news has increased. The Center on Media and Public Affairs, in tracking the coverage of violent crime on television, found that the volume of violent crime stories had increased by 300% in the early 1990s. The first rule of television news directors is, "If it bleeds, it leads." The public, which does not study crime statistics from the U.S. Department of Justice, judges crime rates, that is, the prevalence of crime by assessing the volume of crime news that they receive.

Crime sells. Violent crime is the basis of dozens of hours of prime-time television entertainment. The advertising on television news is a major revenue source for local television stations. Crime news draws viewers. Consider how often during the evening a 15-second spot advises about the latest horrifying crime story, with "details at eleven." The decision by advertising directors and programming managers of television stations to highlight news of crime is the leading factor in creating the false impression that America is getting more violent and that the crime rate is increasing.

The second factor in the increased prominence of crime as the nation's leading problem is that the cold war has ended, international tensions are reduced, and the economy is very strong. Unemployment is low, interest rates are low, and Wall Street is reaching historic highs. Crime is relatively a more serious problem.