Americans for Tax Reform President Grover Norquist submitted testimony to the Senate Judiciary Committee for a hearing being held in support of the EQUAL Act. This act would eliminate a sentencing disparity that currently exists between crack and powdered cocaine. This disparity has needlessly given individuals possessing crack cocaine jail sentences 100 times longer than its powdered counterpart.
You can read the testimony below or in a pdf by clicking HERE
Dear Chairman Durbin, Ranking Member Grassley, and Members of the Committee on the Judiciary:
Thank you for the opportunity to submit written testimony in support of S. 79, the EQUAL Act during this hearing entitled: Examining Federal Sentencing for Crack and Powder Cocaine.
Americans for Tax Reform is dedicated to reducing the influence of government in our lives. The first and most obvious way that ATR works toward this end is by reducing the burden of taxation on all taxpayers, but for years ATR has also fought the creeping federal regulatory burden and otherwise sought to promote individuals’ control of their own lives.
To this affect, ATR has taken a strong interest in reforms to the criminal justice system. In 2009 I testified before the House Judiciary’s Subcommittee on Crime, Terrorism, and Homeland Security that mandatory minimum sentencing polices, relating to drug offenses, do not enhance public safety and are not worth the high cost to justice involved individuals and America’s taxpayers. Since my 2009 testimony suggesting a review of federal crimes and sunsets on any law including a mandatory minimum is still relevant today, I have included it as part of this submission.
While we haven’t yet set up a sunset policy on federal mandatory minimums, the EQUAL Act sets us on the right path by equalizing the mandatory minimums for crack cocaine and powder cocaine. It seems that from 1986 to 2010 to 2018 to now 2021 we are reviewing this particular mandatory minimum on somewhat of a sunset schedule. A sunset clause on any mandatory minimum requiring Congress to review, say every four or five years, as I suggested in my 2009 testimony, might get us to this place of reassessment of punishments and costs sooner.
The 1986 Anti-Drug Abuse Act set up the initial disparity we seek to right today: the 100-to-1 rule required a five-year mandatory minimum sentence for trafficking in 500 grams of powder cocaine or five grams of crack.
The enhanced punishments for crack cocaine were designed to target “kingpins” and “middle level dealers,” however research conducted by the U.S. Sentencing Commission found that it primarily impacted low level dealers. Additionally, research has shown that these different mandatory minimums for crack cocaine resulted in significantly higher sentences for African Americans and Hispanic Americans.
In 2010, the Fair Sentencing Act changed the crack-to-powder-cocaine ratio regarding the amount required to impose an equal sentence from 100-to-1 to 18-to-1, thereby increasing the amount of crack necessary to result in the minimum sentence and eliminated the five-year mandatory minimum sentence for simple possession of crack. As of now, it takes 18 times as much powder cocaine as crack to trigger the same mandatory minimum sentences for trafficking with the sentences involved being five and 10 years.
We were strong supporters of the First Step Act, which overwhelmingly passed with an 87-12 favorable vote in the Senate, a 358-36 favorable vote in the House, and was signed into law by President Trump in December 2018. The law included retroactive application of the Fair Sentencing Act of 2010 and the many other reforms included were the product of nearly a decade of justice reform advocacy efforts resulting in the most sweeping set of reforms since 2010.
Excessively long sentences are not only unjust but extremely expensive and wasteful. The federal government simply cannot afford to continue to house so many nonviolent prisoners for such lengthy sentences. In FY 2015, the average cost of incarceration of a federal prisoner was just under $32,000. That cost is steadily rising. In FY 2017 it was $34,704.12 per year or $94.82 per day , and in FY 2018 data from the Bureau of Prisons estimated that it cost $37,449.00 per year per inmate which comes to $102.60 per day. Fortunately, thanks in part to the bipartisan First Step Act, the number of federal inmates is decreasing. As of June 10th, 2021, there are 153,047 total federal inmates, with 129,219 of which in BOP custody (facilities), whereas in FY2012 the number of inmates under BOP jurisdiction had ballooned to 219,000. The economic cost of the prison population remains staggering. Since FY 2000 the federal prison budget of about $3.5 billion continues to rise, to about $5 billion in 2006 up to about $7 billion in 2017.
Even without a sunset clause on mandatory minimums, the EQUAL Act continues the trajectory to lower the total number of nonviolent incarcerated individuals by finally equalizing the treatment of crack cocaine and powdered cocaine offenses. Importantly, the bill also makes this relief retroactive following individualized case review by federal courts in order to address in some degree the unjust punishments of the past.
On an entirely separate note, I would also like to express our support for S.998, the Driving for Opportunity Act. This legislation would improve public safety by reducing the amount of time police have to spend acting as tax collectors, thousands of hours can go towards a better use of time than enforcing these unnecessary suspensions. Further, the legislation does not prevent the suspension of an individual’s license on the basis of road safety – such as accumulating too many strikes or driving while under the influence. The legislation does not require state to make this change, but simply encourages them to pursue a better policy. Because, put simply, withholding an American’s driver’s license to force payment of fines and fees is combination of debtor’s prison and house arrest.
Thank you again for the opportunity to submit testimony in support of S. 79, the EQUAL Act. Should you have any questions or comments on this matter, please reach out to me, or our Director of Federal Policy, Katie McAuliffe, [email protected].
Onward,
Enclosure:
Statement of Grover G. Norquist
President, Americans for Tax Reform Subcommittee on Crime, Terrorism, and Homeland Security House Committee on the Judiciary
July 14, 2009
Mr. Chairman, my name is Grover Norquist, and I am the President of Americans for Tax Reform. Thank you for inviting me to testify today on the subject of mandatory minimum sentences.
Americans for Tax Reform is dedicated to reducing the influence of government in our lives. The first and most important way that ATR works toward this end is by reducing the burden of taxation on all taxpayers, but for years ATR has also fought the creeping federal regulatory burden and otherwise sought to promote individuals’ control of their own lives rather than government.
We tend to view each and every federal program skeptically. We want to know if its benefits are worth the cost both in terms of money – that is, the taxes that are necessary to subsidize the program – and in terms of freedom – that is, is this an activity that free people should be doing for themselves or is this something only the government can do?
Taking the second consideration first, I think maintaining public safety and order is a legitimate function of government. But while fighting crime might be a responsibility of the state, my skepticism about government action extends even to popular-sounding anti- crime initiatives. I think it goes without saying that the Justice Department is no less interested in accumulating power than are the IRS, EPA or FDA. As a result, I don’t think every law purportedly designed to protect us from terrorists or homegrown criminals is justifiable. Indeed, I have spoken out in the past against major provisions of the Patriot Act and against the use of secret evidence.
Against this backdrop, I would like to share my thoughts on mandatory minimum sentencing laws. I recognize that these laws might not constitute a government program per se, but their use certainly constitutes government policy.
To begin with, their pedigree makes them highly suspect. As with so many other federal programs, mandatory minimums were hatched by the Left, later embraced by the Right, and have been maintained by a bipartisan majority.
The Left’s support for mandatory minimums was well-intentioned if ill-conceived. Their goal was to eliminate disparities in sentencing and thereby make the criminal justice system fairer. The idea that one judge might give two drug traffickers completely different sentences was questionable on its face. But what made it intolerable was that the disparity too often seemed to be a product of the color of the defendant’s face. The Left’s answer was to eliminate judicial discretion and force all judges to give the same sentence.
Conservatives later saw virtue in mandatory minimums not only as a tool for stopping a few errant liberal judges from handing down light sentences, but as a means to increase sentences across the board. Thus, the minimums established by Congress- especially in the 1980s during the height of the crack cocaine scare – were not really minimums at all, but rather uniformly tough sentences.
We should know by now to beware of easy solutions. As H.L. Mencken said, “There is always an easy solution to every human problem – neat, plausible, and wrong.” Today, a generation later, it is increasingly clear that adoption of mandatory minimums, while a neat and plausible response to sentencing disparities, was the wrong solution.
First, the discretion exercised by judges was not extinguished but simply transferred to prosecutors. Prosecutors now have control over sentencing through their charging decisions. Unsurprisingly, politically-appointed and elected prosecutors are no less foolproof than judges. Both sides of the political aisle can point to examples of abuse in prosecutorial discretion, including, most recently, the decision to seek lengthy prison sentences for the Texas border agents. President Bush fixed that error before he left office by granting commutations to both men, but it would be preferable to have judges with the authority to review and check prosecutorial decisions.
The jump in corrections costs at the state level has been equally dramatic. State corrections spending has ballooned from $6 billion in 1982 to over $50 billion in 2008. These skyrocketing costs are hitting states at a time when they are already being forced to cut back due to the bad economy.
The benefits, if any, of mandatory minimum sentences do not justify this burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking. It appears that mandatory minimums have become a sort of poor man’s Prohibition: a grossly simplistic and ineffectual government response to a problem that has been around longer than our government itself.
Yet all is not lost. Center-right governors like Rick Perry of Texas are trying new approaches. A couple of years ago, Texas started sending low-level, first-time felony drug users to mandatory drug treatment rather than prison. Before Governor Perry, it was Republican Governor – John Engler of Michigan – who signed into law the first major repeal of state mandatory minimum sentences. Engler’s action saved Michigan taxpayers $40 million in prison costs without jeopardizing public safety.
In closing, I want to note that questioning the wisdom of mandatory minimums has nothing to do with being soft on crime. I believe in strong and swift punishment when appropriate. I support the death penalty for murderers. But the government has a responsibility to use taxpayer money wisely. Viewed through the skeptical eye I train on all other government programs, I have concluded that mandatory minimum sentencing policies are not worth the high cost to America’s taxpayers.