Opening Statement

Statement of Ranking Member John Conyers, Jr.
Hearing on:  Penalties
Over-Criminalization Task Force

Friday, May 30, 2014 at 9:00 A.M.
2237 Rayburn Building

     The Over-Criminalization Task Force finally focuses today on what is the most critical failing of our nation’s criminal justice system:  the continuing prevalence of racism as evidenced by a federal charging and sentencing regime that clearly discriminates against people of color. Racism has permeated our nation’s history since the beginning. The Constitution referred to slaves as three-fifths of a man. The Civil War was fought to abolish slavery, and then Jim Crow raised his ugly head. We are fast approaching the sixtieth anniversary of Brown v. Board of Education, which struck down ‘separate but equal’ as the law of the land. And just last year, we celebrated the fiftieth anniversary of the March on Washington, and the passage of the Civil Rights Act.

     As a nation, we have come so far.  We like to now think that justice is colorblind; that the system is race neutral.  But, whether overt or subconscious, the vestiges of racism are still reflected in our federal criminal justice system, and it is all the more insidious for it.  That is because criminal justice is meted out by human beings with real human failings, including bias. No longer does Jim Crow and overt racism rule the day, but rather coded phrases such as ‘policing high crime areas’ and ‘stop and frisk’ policies are the norm.  And combined with mandatory minimums, stacking and enhancement penalties, and so-called ‘three strikes’ statutes, it is these concepts that disproportionately affect communities of color, drawing more and more people into an antagonistic and unforgiving criminal justice system.

     To provide some perspective regarding this problem, let’s begin with a few facts:In the last 40 years, the U.S. prison population has grown by 700%, and now accounts for 25% of the world’s prisoners.  The number of federal prisoners alone grew by nearly 50% from 2001 to 2010.

     While only 4% of federal crimes carry mandatory minimum sentences, 34% of those in federal prison are serving mandatory sentences. Moreover, the racial impact of the federal penalty system is wildly disproportionate:

• 1-in-9 black men between ages 20 and 34 are incarcerated.
• 1-in-3 black men, and 1-in-6 Latinos will spend some part of their lives in prison, compared to 1-in-23 white men.
• Blacks represent 12% of total drug users in the country, but account for nearly 40% of drug related arrests.

     These numbers are far worse in segregated and impoverished communities. In addition to the devastating societal cost of mass incarceration, it also results in a massive economic cost.  The so-called ‘war on drugs’ has cost $1 trillion since its beginning, and the cost to run our federal prisons cost $6.9 billion in FY 2014.

     Before we identify solutions, we must recognize how we institutionalize and normalize racism today. First, I want to focus on how racism, unconscious or not, has a disproportionate impact on criminal penalties on minority communities.  Bias can begin with the decision of where and what offenses are investigated.  With enough time and officers in a certain location, it is only a matter of time before they find ‘reasonable suspicion’ to stop, detain, and arrest someone.

     At the prosecutorial phase, this bias can be magnified through decisions about what charges to bring, what plea deal to offer, and whether mandatory minimums and enhancements apply.  People from poor communities of color are more likely to receive harsher charges and mandatory penalties.

     The mandatory minimums and statutory enhancements so ingrained in the Code that were intended to target so-called ‘kingpins’ and violent criminals do no such thing.  Their use is now propagated against low-level, non-violent offenders who are disproportionately poor people of color. The threat of these staggering mandatory de facto life sentences coerces defendants into pleading guilty.  They impose a trial penalty on those who their constitutional right to a jury trial.

     Finally, at sentencing, people of color receive harsher sentences than would whites for the same conduct through mandatory minimums and other sentencing enhancements. Racism in American has, for the most part, ceased to be overt, but the prevalence of institutionalizing discrimination by writing it into law is just as present today as it was 100 years ago.

     The question that stands is: What can we, as a Congress, do about these pressing issues? Finding solutions to unconsciously institutionalized racism in the criminal justice system, and writ large on society, is not an easy task.  But there are steps we can take. We can begin by rolling back mandatory minimums and stacking and enhancement sentencing penalties that result in cruel and unusual punishment for what are too often low-level offenses. We can revest the federal judiciary with discretion in sentencing.  Not all judges are immune to bias, but in doing so we allow for the possibility of proportional sentencing, and the ability to overturn unduly harsh sentences due to abuse of discretion. We can recognize that Congress can and should defer to states in matters that the states can – and already do – investigate, prosecute and sentence, rather than engage in wasteful duplicative federal prosecutions allowing United States attorneys to focus on uniquely federal concerns.

     Criminal justice is just one symptom of the underlying problem, and I hope to work with my colleagues in the future to hold a more in-depth forum to explore the issues of systemic racism and its impacts on society at large that will include a look at education, public services, voting rights, drug and mental health treatment, and employment. For today, I am hopeful that our witnesses today can shed light on the issues of the disparate racial impact of the criminal justice system, the economic and societal impact of these policies, and propose potential solutions and I look forward to their testimony.