eral court are drug-related, drugs and firearms cases. Then the rest of them are usually

Chairman THOMPSON. Do you know how many assistants they have in the Middle District?

Judge MERRITT. They have got about 20 now. When I was U.S. Attorney, I had four.

Chairman THOMPSON. I was there right after you, I think, and we had five, I think, the early 1970's.

Judge MERRITT. But there has been a big increase in Detroit, for example, which is part of the Sixth Circuit, from the time I was U.S. Attorney. I think it has gone from about 25 to 150 or perhaps more now, and a corresponding increase in the size of the staff. And most of that has been the result not of prosecuting core crimes against the United States itself or against officials of the United States or some kind of crime that addresses itself directly to the United States as an entity. It is mainly because of the prosecution of duplicative State crimes.

I am not arguing that there should be no Federal laws that are in the area where the States have plenary jurisdiction, but they should be much more limited than they are.

Chairman THOMPSON. But isn't the basic problem that there is really no way, philosophically or practically, to increase the number of courts and the number of Federal judges to keep up with this? I mean, you have got to either start dealing with them faster, which, of course, the quality is going to go down

Judge MERRITT. Well, what has happened in our court I think is a good example. It has happened to other Federal courts. About half of the orally argued cases in our court are criminal cases. That used to be 15 percent. The reason is we have maintained the attitude that before you go to the penitentiary, you at least ought to get a opportunity to have a oral argument, have your lawyerChairman THOMPSON. A disturbing presumption.

Judge MERRITT. Yes, a lot of courts of appeal-some courts of appeal have just forgotten about or done away with oral argument in many criminal cases. We still try to maintain oral argument in criminal cases, and that has eaten up our oral argument docket so that now we are having telephone oral arguments, for example, in the court of appeals in order to keep up with the criminal docket. Next week, two judges and I, a panel of three, will hear seven cases next Wednesday on the telephone in an effort to

Chairman THOMPSON. How do you know if the lawyers are standing or not? [Laughter.]

Judge MERRITT. We know they are sitting.

Chairman THOMPSON. I was not aware of that. Is that a recentare other courts doing that, telephone oral arguments? I have never heard of that.

Judge MERRITT. There may be one or two, and there is more of this videoconferencing that is going on where the lawyers stay at home and sometimes the judges stay at home with a video monitor and you try to overcome the expense and the inefficiency of travel as a result of that.

Chairman THOMPSON. Let me get in one more question before my time runs out here. General Meese, you referred to this, our tend

They come all too often. All of us have a natural response to want to do something, ask questions and so forth, and we in Congress are no different, and probably more so than most. We have seen the discussion, heard the discussion that has come about from the recent tragedy out in Colorado. People are searching for reasons. People are trying to come up with solutions and things of that nature. Some of them have to do with potential legislation. Some of them to do with cultural issues which present different kinds of constitutional questions and problems. Others have to do with preventive legislation. Another one has to do with punishment. Others have to do with gun control.

From your experience and your observation, relate what we are talking about today, that is, the federalization of basically things that are already State criminal laws, preempting-or duplicating, I guess I should say, the State criminal justice system. What are your thoughts about what we should or should not do in response to that?

Mr. MEESE. Well, Mr. Chairman, I don't believe that there is any need whatsoever for any new Federal laws that would arise out of the tragic circumstances in Littleton, Colorado. Indeed, one of the persons who has done research on this has found that it was not a problem of inadequate laws. It was the fact that people broke laws. And they pointed out the fact that some 19 different laws were on the books that pertained to the violations that occurred as a part of that tragic circumstance out there. So it is a matter of enforcing the laws we have on the books, not trying to make a lot of new ones.

And certainly the points you make, dealing with cultural problems, dealing with new preventive techniques, it seems to me that the Founders in the Constitution were quite right in saying the States should be the ones where they have the ability to experiment with different things, and if they don't work, then they can change them at the State level rather than having a sweeping generalized Federal law which would apply to all 50 States in trying to deal with very intricate moral and cultural matters which are best addressed at that level of government closest to the people.

Chairman THOMPSON. It seems to me that there is a general proposition that we are searching for questions right now is a point in favor of federalism and different approaches and different venues to these problems to see what does work. Senator Durbin.

OPENING STATEMENT OF SENATOR DURBIN

Senator DURBIN. Thank you, Mr. Chairman.

General Meese and Judge Merritt, thank you for joining us. I am not going to rise to the occasion of the last question because I have different views than the Chairman on such things as whether States can adequately regulate the sale of guns over the Internet or whether the Brady laws should be extended to gun shows, all of which I think may have some bearing on what is happening, not only gun violence in Littleton, Colorado, but across the country. But I really want to focus on a much different question.

I agree, incidentally, with the findings of this report and with the Chairman's conclusion that we should encourage all of our col

leagues to read it closely because it really puts an amazing perspective on what the Congress views as its role in the results of our legislation. But I would like to really look at this issue from a different angle than the commission and, frankly, from the testimony here, focusing less on what goes into the system and more on what comes out of the system. And let me tell you exactly where I am headed.

General McCaffrey, our drug czar, testified last year before the Senate Judiciary Committee, and I asked him point-blank whether the statistics that I had read were accurate, and they were as follows: African Americans comprise 12 percent of the population of America; they comprise 13 percent of people committing drug-related crimes; they comprise 33 percent of all arrests for drug crimes, 50 percent of all convictions for drug crimes, and 67 percent of all incarcerations for drug crimes in our country.

I also note here that the sentencing under Federal law and Federal Sentencing Guidelines for drug-related crimes, as noted on page 30 of the report, is dramatically higher in the Federal courts than it is in the State courts.

There was a survey done by The Tennessean newspaper back in 1995 which took a look at sentencing across the Federal courts of the Nation and came to the conclusion that African Americans were more likely to be sentenced to 10 percent longer sentences for Federal crimes than whites.

Now, let me hasten to add that this was not a Tennessee or a Southern phenomenon. In fact, the opposite is true. The disparity was highest in the Western part of the United States in Federal courts. It was next in my area, the Midwest, 12 percent; the Northeast, 10 percent; and the South, 3 percent. So this is not a Southern Federal court phenomenon. It appears to be a national problem, much worse in the West and Midwest than in the South or the Northeast.

The point I am getting to is this: If we are to create more drug crimes, as we have, if we are to create sentencing guidelines, and if the net result of that is to incarcerate more African Americans, disparately larger numbers of African Americans, and to sentence them to longer sentences in the Federal court system, what is coming out of this system is exceptionally perverse. And I would like your thoughts on that.

It is my estimate, at least in 1995-and I am sure the figures have changed somewhat-that about 6 percent of the Federal judiciary were African American, and we find a system now that is unfortunately producing results that are prejudicing at least one group in terms of incarceration and sentencing. So as we federalize, as we impose more sentencing guidelines, are we going to exacerbate this problem, General Meese?

Mr. MEESE. Well, I would be interested in the source of the statistics because most of the surveys I have seen do not show that kind of a dichotomy on a racial basis in sentencing generally.

Now, it may well be--and particularly in the Federal systemthat the sentencing guidelines, it must be that there is some-if those statistics were correct, that there would be some unusual perversion of the sentencing guidelines. Perhaps Judge Merritt has

but it seems hard for me because the sentencing guidelines were designed to regularize sentences without regard to external, nonrelevant factors, and to concentrate on specific criteria relating to the crime rather than to the criminal, particularly the irrelevant characteristics that you mentioned.

So I also would be interested in the source of the statistics in the sense that I don't know how they can find that 13 percent of—that African Americans compose 13 percent of those who commit drug crimes but 33 percent are arrested, since how do you know who is committing drug crimes other than by arrests. So the statistics intrinsically have some question as to their validity as to that factor. In terms of the convictions and the incarceration rate, you would have to look in much more detail as to the particular offenses charged and so on.

In the Federal system, most of the drug crimes relate to the distribution of drugs, the transportation, illegal importation and that sort of thing, the more serious drug crimes. Often possession may be the actual charge, but that is not what the person has done. It is what they are able to prove in a particular instance. But obviously any racial basis, as I say, based on irrelevant characteristics should not be a factor in either arrests or convictions or punishment. And so it would be interesting to delve behind those statistics if they are, in fact, true.

Senator DURBIN. Thank you. Judge Merritt.

Judge MERRITT. Well, let me say about the sentencing guidelines and this is, I am sure, a voice in the wilderness. I have said many times the worst thing that ever happened to the Federal courts was the sentencing guidelines. And the result of the sentencing guidelines has been sentences which are much harsher now than ever. And the drug war has been a part of that situation, and the theory of the sentencing guidelines no longer has anything to do with rehabilitation. It is altogether-the theory of it is deterrence, mainly, and to some extent vindictiveness or retribution.

So the sentencing guidelines themselves are extremely harsh. The Federal judges have supposedly considerably reduced discretion in sentencing than previously.

Now, on the question of disparate treatment of African Americans, I read the series in The Tennessean, because that is the newspaper that I read, and discussed the problem with some of the people over there, and in my view, it could be true but the statistical basis for it was somewhat flawed. For example, it didn't take into account the criminal history situation entirely of the people being sentenced.

At the same time, however, I am not sure that it is wrong. It is just that you can't tell whether it is right or wrong. And they did a conscientious job, and it is worth raising the issue, certainly.

But the sentencing guidelines themselves are a major problem for the Federal courts. One of the reasons they are such a problem for our court is the number of appeals has grown tremendously. Everybody appeals the sentence, and this is a major problem for us. Our resources are we are struggling to keep up. One reason is the sentencing guidelines.

Senator DURBIN. I will make just two observations, Mr. Chairman, before ending my questioning, and that is, Congress is at

fault here as well, and I would confess to be part of that problem as part of Congress. For example, the disparity between sentences for crack cocaine as opposed to pot or cocaine is going to have an impact more on certain groups in our society, namely, African Americans.

The last point I will make is that I have a genuine concern about the integrity of our judicial system and the respect which we have to have for it if it is to succeed and if that respect is not-if we do not strive to make that respect universal, I am afraid that it will be very difficult for those who are charged with enforcing the law to do their job.

Thank you, Mr. Chairman.

Chairman THOMPSON. Thank you very much. Senator Voinovich.

OPENING STATEMENT OF SENATOR VOINOVICH

Senator VOINOVICH. Well, first of all, I would like to congratulate the Chairman for following up our hearings on federalism with this particular subject of federalizing crime. I have been concerned a long time about Federal preemption of State law and local law, and I am hoping that perhaps with some legislation here we can cause our staff to look at whether or not various laws that Congress is considering preempt State and local laws and perhaps have a presumption that says that they don't.

But I hadn't thought about the federalization of crime until you raised it at this hearing, and it gets back to a pet peeve I have had for years, and that is that all the polls always show crime is an issue, and a dime will get you a dollar that most of the laws on the Federal books today are a result of those polls that said somebody has got to have something on their record to show they have cracked down on crime and they can go back and campaign on it or do a 30-second commercial.

I think, Mr. Chairman, that these five recommendations of Judge Merritt are very good and that perhaps we ought to have these as guidelines before we pass any more Federal legislation in the area of crime, and that we should highlight that of all this legislation that is passed, very little is enforced. It is all form and no substance that has led to public cynicism and we ought to do more about that. And I think most people also, Mr. Chairman, look at dealing with crime and that their logic tells them it is a State and local matter.

The other thing that it is a commentary on is the fact that today in our society, instead of really looking at the problem with the right perspective, we are all interested in the silver bullet. It's the easiest thing. That's the problem. We had the Littleton thing; let's pass a couple laws and everything is going to be fine, and then we go off and do something else, instead of taking the time to look at what the real problem is.

I will give you an example of it. Two years ago, or 3 years ago, Professor John Dilulio over at Princeton was talking about the upcoming predator generation, that our demographics show that we are going to have a lot more younger people in this country, and as that goes up we are going to have some real problems in the year 2010, 2015. So I had called a juvenile crime summit in Ohio