[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
CRIMINAL JUSTICE REFORM, PART II
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JULY 15, 2015
__________
Serial No. 114-59
__________
Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
____________
U.S. GOVERNMENT PUBLISHING OFFICE
99-634 PDF WASHINGTON : 2016
_______________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Sean McLaughlin, Staff Director
David Rapallo, Minority Staff Director
Sean Brebbia, Senior Counsel
Jack Thorlin, Counsel
Sharon Casey, Deputy Chief Clerk
C O N T E N T S
----------
Page
Hearing held on July 15, 2015.................................... 1
WITNESSES
Mr. Kevin Ring, Director of Strategic Initiatives, Families
Against Mandatory Minimums
Oral Statement............................................... 5
Written Statement............................................ 9
Mr. Marc A. Levin Director, Right on Crime and Center for
Effective Justice, Texas Public Policy Foundation
Oral Statement............................................... 21
Written Statement............................................ 24
Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal &
Judicial Studies, Heritage Foundation
Oral Statement............................................... 39
Written Statement............................................ 41
Ms. Liz Ryan, President and CEO, Youth First! Initiative
Oral Statement............................................... 55
Written Statement............................................ 57
Mr. Brett L. Tolman, Co-Chair, White Collar Criminal Defense and
Corporate Compliance Practice Group, Ray Quinney & Nebeker
Oral Statement............................................... 69
Written Statement............................................ 71
APPENDIX
The Sentencing Project: ``Black Lives Matter: Eliminating Racial
Inequality in the Criminal Justice System''.................... 110
Human Rights Watch Hearing Statement, Submitted by Ms. Duckworth. 111
ACLU Hearing Statement........................................... 118
CRIMINAL JUSTICE REFORM, PART II
----------
Wednesday, July 15, 2015
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:04 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Mica, Jordan, Walberg,
Gosar, Meadows, DeSantis, Buck, Hice, Russell, Carter,
Grothman, Hurd, Cummings, Norton, Connolly, Cartwright,
Duckworth, Kelly, Lawrence, Lieu, Plaskett, DeSaulnier, and
Lujan Grisham.
Chairman Chaffetz. The committee on Oversight and
Government Reform will come to order. Without objection, the
chair is authorized to declare a recess at any time.
We thank the panel and those in the audience for joining
us. This is day two of a criminal justice reform oversight
hearing. We have had two panels yesterday and a distinguished
panel today, and we appreciate the time and attention. This is
ripe for oversight, but it is even more ripe in time to do
something about it. This committee is the Oversight and
Government Reform Committee. There are a number of things we
can do on a bipartisan basis to make this part of our society
and this part of government working better.
Today, we continue our discussion on criminal justice
reform, and the committee is devoting, as I said, 2 days on
this topic for a very important reason: The time to enact
meaningful criminal justice reform is now. At a time when
gridlock has become the norm, something important happened
yesterday. We saw two Senators, two House Members, and two
Governors, both sides of the aisle in a bipartisan, bicameral
way, express the need and desire to actually move meaningful
criminal justice reform. While the details of their proposals
varied, the unifying theme we heard was that reform is needed
and there is no time to waste.
States are leading the way in innovative reforms in which
the Federal Government can learn. We were fortunate yesterday
to hear from Governors Bentley and Markell about the reform
efforts underway in Alabama and Delaware, and they are not the
only States. States like Texas and Georgia and others are
making meaningful reforms, and have led the way and shown that
it can be done, and reduce the rate of recidivism.
As we continue our discussion today, it is time to continue
to roll up our sleeves. We have the chance to hear from a panel
of experts who can answer our questions about effective
criminal justice reform, and we are looking forward to hearing
about specific topics: The use of evidence-based risk
assessment tools to identify lower risk inmates; identifying
programs that have demonstrated record of reducing recidivism
rates for youths inside of prison facilities, keeping more
juveniles out of prison, and what is going to happen to these
people when they come out of prison?
Remember, the vastly expanded number of Federal criminal
laws and the use of Federal criminal courts in enforcing
economic and other regulations is something that needs to be
addressed.
We also need to address the ever-increasing Federal prison
population and the Bureau of Prisons' budget. It is 140 percent
of capacity. It is consuming nearly one-third of the Department
of Justice budget. You can't continue to sustain those numbers.
We need to also examine reforms that are smart on crime but
also protect public safety. There are people that have
committed heinous crimes. That need to pay a punishment, they
need to pay back a debt to society, but let's also remember
that more than 95 percent of the people who go to prison, they
are coming back out. Are they going to be better criminals? Or
we actually going to engage in the reform necessary to be the
Department of Corrections? In fact, a bill that Hakeem Jeffries
and I sponsored would rename the Federal Bureau of Prisons to
the Department of Corrections. That is the way it is in all 50
States. In all 50 States, it is the Department of Corrections,
but the government, the Federal Government attitude and
approach to this is it calls it the Bureau of Prisons. It is
time to change the name, change the attitude and the approach,
and recognize that we need to engage in reform.
The prisoners are reentering the community, and too many
are returning to a life of crime. When we look at a smarter,
fairer, and more cost-effective way for our criminal justice
system to work, we must also ensure that our efforts do not
jeopardize public safety. Indeed, some of the proposals
discussed yesterday strike this proper balance. For example, we
heard ideas from Senator Cornyn, Governor Markell and others
about using risk assessments to identify low-risk prisoners.
Those prisoners can then be subject to community-based
supervision instead of the expensive and counterproductive
imprisonment, or maybe it is some combination in between.
The panel today has this type of expertise and they have
seen this up close and personal, and that is why this is an
important hearing today. We look forward to exploring those
ideas so we can continue to find areas of reform that we agree
on while standing firm on the policies and strategies that are
essential to success.
We, again, thank the panel. I will now recognize the
ranking member, the gentleman from Maryland, Mr. Cummings, for
5 minutes.
Mr. Cummings. Chairman Chaffetz, I want to thank you again,
as well as all the other members of our committee, for the very
productive discussion we are having on how to make significant
bipartisan, bicameral lasting improvements to our criminal
justice system. I also thank my esteemed colleagues who
testified with us yesterday with such great passion and
eloquence.
Criminal justice is personal to me. I have seen the
problems that plague the system through many lenses. As a young
boy growing up in a poor section of Baltimore, watching my
classmates go and be carted away to juvenile detention centers,
I have seen it through that lens. I have seen it during my days
as a young lawyer representing criminal defendants, who so
often simply were minding their business when a police officer
came upon them, said something, or in some instances told them
to drop their pants in front of their girlfriends. It then
escalated, and the next thing you know, he is charged with
resisting arrest, assault on a police officer, disorderly
conduct, and then he has a record.
I have seen them as a State representative, who has deep
respect for the dedicated police officers that serve our
community. I have seen them as a Congressman representing a
district where finding balance between law and order and crime
and punishment is a profound concern to my constituents. And
this year, I have seen them as a citizen of my community,
Baltimore, a city where I was born, a city where I raised my
family, a city where I have lived my whole life, and I watched
it erupt after the tragic death of Freddie Gray.
Unfortunately, one lens that has not changed enough is the
lens of color. I can see things, continue to see African-
Americans in this country facing daunting economic challenges,
disproportionately high rates of poverty, and severe
unemployment. There are too many communities of color that are
missing family members, especially fathers, sons, and brothers
who are in jail.
African Americans are incarcerated nearly six times the
rate of whites. When these men leave prison, they come home to
the same communities where they struggled to begin with, and so
often, there is nothing there for them. You see, they have been
saddled with a record, which bar them from getting grants to go
to school, bar them from getting certain jobs. In some States,
you can't even become a barber once you get a record. At the
same time, we tell them, go out there and do well, support your
family, and there is nowhere to go.
It is not unusual when I go back to my district, which is
located not too far from the stadiums, for me to hear young
men, I hear this almost every week, somebody comes up to me and
says, Mr. Cummings, can you help me find a job? I don't want to
do a crime, I just want to do a job. And then they tell me they
can't get a job, because no one will employ them. And so when
they come back from prison or they have a record, they have a
big mark on their back.
It is very easy for us to say it doesn't matter. It does
matter, because there are thousands upon thousands upon
thousands of them, and the number grows every single day. In
some cases, they lose their driver's licenses, they are
ineligible for occupational licenses, and they have great
difficulty finding any kind of employment.
When they can't find a job, many return to what they know:
They commit more crimes, and the cycle starts over and over
again.
A lot of people don't understand the criminal situation,
and I kind of got a good view of it one time not long ago when
a young man was talking about how he had--in my neighborhood,
had now turned his life around and that he was now on the
straight and narrow, and he said, I used to have to rob folk.
And as I began to talk to him more and more, I realized that
robbery was the way he earned his money. And it is not just one
robbery; that is how he had to go out day after day after day,
just like we go to work. That means that there are more victims
and more problems.
Yesterday Senator Booker spoke about the 2.7 million
children who have incarcerated parents, and the one in nine
African American children who have parents behind bars. These
kids are more likely to be suspended from school and go to
prison themselves. This is how the cycle continues to the next
generation. As I mentioned yesterday, my oldest brother has
been a public defender for 40 years, and he has now seen
families with three generations in the criminal justice system,
grandfathers, sons, and grandsons all together.
Ladies and gentlemen, this is the United States of America.
We must do better, and we can. We cannot stand by while these
alarming disparities and destructive cycles persist generation
after generation. We owe it to generations yet unborn to make
lasting changes that provide opportunities and hope. We should
invest in reform now so the next generation can escape this
cycle of despair.
As I said yesterday, these hearings are a landmark moment
for this committee. And Mr. Chairman, I do, I applaud you for
what you have done, and I applaud your staff for what they have
done in working with mine. I really appreciate it.
We have heard about groundbreaking legislative proposals
like the evidence-based bipartisan State Justice Act, we have
learned how States are, ``banning the box,'' and how private
sector companies like Wal-Mart and Koch Industries are changing
their approaches so those with criminal records are not
automatically disqualified from all employment.
And that leads me to another point. It is not just
government that has to try to make some changes. Corporations
can play a major, major role, and we can help them and
encourage them to do so. Governor Bentley talked yesterday
about the importance of providing topnotch free kindergarten
education for all children in Alabama. Governor Markell talked
about a women's prison in Delaware that hosts a culinary
festival featuring the work of inmates alongside established
professional chefs.
These advancements are happening because we are coming to
understand that we cannot look at our criminal justice system
in a vacuum. We need to take a comprehensive approach to
criminal justice reform.
As I close, we have a unique moment, a bipartisan momentum
for true, I mean, true reform, and it is ours to seize. But
momentum is nothing without action. I hope that the hearings
inspire strong action. My Republican colleagues and I disagree
about many things, but on this issue, on this issue, we have an
opportunity to reach not only common ground, but higher ground.
I want to thank the chairman again for holding these
hearings, and I look forward to hearing from all of our
esteemed witnesses, and I thank the witnesses for being here.
And with that, Mr. Chairman, I yield back and I thank you.
Chairman Chaffetz. I thank the gentleman. The passion and
the belief in his heart on this topic is exuded every time, and
I do appreciate working with you on this.
I also--I don't normally do this, but I do appreciate the
audience being here. This is a demonstrably younger demographic
than we normally have in our hearings, and it's good to see. We
don't have nearly enough young people involved and engaged in
civics and in their government, and on this topic, we need your
help, and so we appreciate your joining us here today as well.
I will hold the record open for 5 legislative days for any
member who would like to submit a written statement, but we'd
now like to recognize our panel of witnesses.
I am pleased to welcome Mr. Kevin Ring, Director of
Strategic Initiatives with Families Against Mandatory Minimums;
we have Mr. Marc Levin, Director of the Right on Crime and
Center for Effective Justice at the Texas Public Policy
Foundation; Mr. John Malcolm, Director of the Edwin Meese, III,
Center for Legal and Judicial Studies at the Heritage
Foundation; Ms. Liz Ryan, President and CEO of the Youth First!
Initiative; and Mr. Brett Tolman, cochair of the White Color
Criminal Defense and Corporate Compliance Practice Group at Ray
Quinney & Nebeker. I would also note that Mr. Tolman is from
Utah, served as the U.S. Attorney in Utah, was deeply involved
with Senator Hatch in the Senate Judiciary Committee, and I
have leaned on him heavily for perspective and insight on this
topic, and we appreciate his presence and expertise here as
well.
Pursuant to committee rules, witnesses are to be sworn
before they testify. So if you will please each rise and raise
your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Thank you. Please be seated.
And let the record reflect that all the witnesses answered
in the affirmative.
In order to allow time for discussion, you are going to see
that members are coming in and out, we have several hearings
going on simultaneously, we would appreciate it if you would
limit your verbal comments to 5 minutes. You will see a red
light appear. That's your cue that you have gone overtime. As
my colleague, Trey Gowdy, likes to say, when you see the yellow
light, that means speed up, as it does at every stoplight we
see in this country. And by the time you get to red, you better
be stopped, so--but your entire written record will be
submitted into the record.
We'll now recognize Mr. Ring. You're now recognized for 5
minutes. Push that button and make sure that microphone's
close, and the time is yours.
WITNESS STATEMENTS
STATEMENT OF KEVIN RING
Mr. Ring. Can you hear me?
Chairman Chaffetz. Yes.
Mr. Ring. Chairman Chaffetz, Ranking Member Cummings,
members of the committee, my name is Kevin Ring. I serve as
Director of Strategic Initiatives for Families Against
Mandatory Minimums. Thank you for the opportunity to testify.
I should mention, you said there was a young crowd here.
The youngest is my daughter, who joins us today. My older
daughter is sleeping off the Taylor Swift concert from last
night, so she couldn't make it.
Chairman Chaffetz. Your testimony thus far is entirely
truthful, I can tell you that.
Mr. Ring. Given some unique experiences, I have had a lot
of time over the past 20 years to think about the Federal
criminal justice system, and I've been able to examine it from
wildly different perspectives.
In the 1990s, I worked on Capitol Hill as a staffer, both
in the House and the Senate. I was a counsel on the Senate
Judiciary Committee and helped draft some anti-crime
legislation, really bad anti-crime legislation, I see now.
I then observed the legislative process from a different
perspective as a lobbyist. Ultimately, my work as a lobbyist
brought me under Federal scrutiny. After two trials and
appeals, I was sentenced to serve 20 months in Federal prison.
I spent 15-1/2 months at the Federal camp in Cumberland,
Maryland. I then served 2 months of home confinement, wearing a
GPS monitor, which ended just a few weeks ago.
I began working for FAMM before I was indicted. I continued
to work there during my trials, and returned as soon as I got
home from prison.
I hope to talk about FAMM's strong support for sentencing
reform, especially the Sensenbrenner-Scott Safe Justice Act.
But first, I wanted to share a few observations from my time in
prison. I begin with the necessary caveat that I served in only
one of the BOP's 122 institutions, but I think my observations
go beyond there.
First, I saw little to no rehabilitation in prison. There
were few useful programs. The institution was either
understaffed or uninterested in providing worthwhile
programming. Drug treatment, trade apprenticeships, GED
classes, I was a dog handler, there were a few exceptions. Most
people worked menial jobs and collected their $0.12 to $0.15
per hour wages.
If you were not in the Residential Drug Abuse Program,
called RDAP, you were mostly limited to what were called ACE
classes, adult continuing education. These were taught by other
inmates. Offerings at Cumberland included such life-enhancing
classes as Movie Review, Jeopardy, and Current Events. Most
inmates skipped these classes but would sign the attendance
sheets so the administration thought they went. The classes
were 1 hour each week for 10 weeks, and then when you completed
the 10-week session, you got a certificate. Prison officials
seemed to know that these classes were worthless, but I think
it was thought that if we went to them, we'd look busy and
they'd look better for keeping us busy.
The most glaring deficiency in the area of programming was
the lack of any cognitive behavioral therapy or anger
management counseling. I know some people still hold on to myth
that criminals, drug and white collar, are rational actors who
review the U.S. Code and weigh the costs and benefits before
breaking the law. The fact, however, is that the overwhelming
majority of the inmates are not just poorly educated, but also
have terrible social skills and very little impulse control,
ability to delay gratification, or risk awareness. The result
is bad decision-making.
These, it seemed to me, were the shortcomings that needed
to be addressed. At Cumberland, however, we had 250 inmates and
one psychologist. And despite studies from the National
Institute of Justice showing the effectiveness of cognitive
therapy, BOP's main program for this is offered in just two of
its 122 institutions.
There are few other things that are worth mentioning from
my time, in no particular order. The health care is miserable.
The waiting list to have a cavity filled is 2 years. If you
experience intense enough pain, they'll pull your tooth. One of
my bunkmates, a successful businessman, had eight teeth pulled
during his 10-year sentence. Another fellow inmate was given
the wrong blood pressure medicine and spent the night on the
floor of the TV room after fainting.
I spent 40 consecutive hours in solitary confinement
because the administration decided to quarantine us when a
scabies outbreak occurred. Without a book or a piece of paper
or pencil to write anything, I thought I was going to lose my
mind. I understand now why so many people believe that
isolation is a dangerous and overused tool.
I saw over and over how difficult it is for a family to
survive the incarceration of one of its members.
Finally, I witnessed how flagrantly the BOP is disregarding
the Second Chance Act, which was passed by Congress in 2007.
Low risk, nonviolent inmates are supposed to be able to get up
to 12 months of halfway house time. This provision was designed
to save taxpayers money and incentivize good behavior. It's not
happening. The BOP says the problem is a lack of halfway house
beds around the country. The GAO looked at the issue and
agreed, concluding that Congress would need to spend more than
half a billion dollars more every year just to implement the
Second Chance Act's halfway house provisions. Given this
reality, I think members should rethink the value of
legislative proposals to make inmates eligible for more of
something they already can't get.
My time in prison reaffirmed my belief that the only way
Congress can improve public safety while reducing costs is to
reform Federal sentencing laws, especially mandatory minimum
sentences. Mind you, I did not get a mandatory minimum
sentence. You can't simply try to unclog the drain by giving
some people a few days off here and there for good behavior and
rehabilitation. You need to adjust the spigot and manage the
inflow.
The State Justice Act just introduced by Representatives
Sensenbrenner and Bobby Scott is a good example of legislation
that would reduce the flow of inmates in a responsible way.
I served with some prisoners who received mandatory minimum
sentences that did not seem disproportionate. I met several
others, however, who were serving mandatories that far exceeded
any notion of a fair sentence. That is the problem with one-
size-fits-all sentences. Not everyone is the same, and not
every crime is the same.
Mr. Chairman, one reason I think that lengthy sentences can
be so counterproductive is because prison infantalizes people.
You often hear that it hardens people, but I saw it infantalize
people. I rarely hear people talk about this. Everything we do
and everything we need as prisoners is on campus. Inmates have
very few responsibilities. Within a couple of years, people
start to become institutionalized. They know what it takes to
get by day to day in prison, but lose touch with what it takes
to live outside.
So while some people absolutely deserve prison time, our
goal should be to give them as little as necessary to
accomplish the purposes of sentencing. If society can get its
pound of flesh with a 3- or 5-year sentence, go with that
instead of 10 years. It's incredibly important to keep in mind
that while people are in prison, the world does not stop.
Technology advances, job markets change, children age and stop
seeing their incarcerated loved ones as an authority figure,
and spouses and partners bear burdens alone and often move on.
And while all this is happening, whatever skills a prisoner
brought to prison start to atrophy, and they don't gain any new
skills. So we must be mindful that more than 90 percent of
prisoners are coming home someday, and we want them to be
successful, if not for their sake, for the sake of those who
want to live in safe communities with less crime.
In conclusion, we at FAMM appreciate the leadership that
you, Mr. Chairman and Ranking Member Cummings, have
demonstrated in calling for these 2 days of hearings. We will
continue to help in any way we can to make sure that all this
momentum does not go to waste, and that we end this process
with a meaningful reform bill that takes effect as soon as
possible. Thank you.
[Prepared statement of Mr. Ring follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Mr. Levin, you're now recognized for 5 minutes. Did I
pronounce it properly?
Mr. Levin. Yes.
Chairman Chaffetz. Is it Levin?
Mr. Levin. Yes, Chairman. Thank you very much. It's a
pleasure to be----
Chairman Chaffetz. Is your microphone--make sure that
button is pushed.
Mr. Levin. Oh.
Chairman Chaffetz. There you go. Thanks.
STATEMENT OF MARC A. LEVIN
Mr. Levin. It's a pleasure to be here. I started working on
criminal justice reform with the Texas Public Policy Foundation
in 2005, and then we launched Right on Crime in 2010, our
national initiative with signatories to our statement of
principles, like Newt Gingrich, J.C. Watts, Grover Norquist,
and, of course, our governor, Rick Perry, former governor. And
we have a phrase in Texas, ``It ain't bragging if it's true,''
and since we began our efforts in 2005, our crime rate is down
24 percent, and our incarceration rate is down 12 percent. But
I'll tell you even more than that, we are seeing that across
the country. Over the last several years, according to the Pew
Center, States that have reduced incarceration have actually
had a larger crime rate decline than the rest of the country.
And we have seen major reforms in States such as Utah this
year, congratulations, Chairman, but also South Carolina, North
Carolina, Georgia, Mississippi, Kansas, Connecticut, the list
goes on.
And so this provides a lot of momentum, I think, for
Federal action as well. And we've seen reform in a host of
areas in States, from mandatory minimums, to earned time, to
addressing the growth of regulatory crimes. In Texas, we
adopted the rule of lenity this year, which says that if an
offense is ambiguous, the benefit of the doubt goes to the
defendant. We've also seen States like Mississippi, Maine, and
Colorado safely reduce solitary confinement by more than two-
thirds.
So let me talk a little bit about what Federal reforms can
take place. And we very much urge Congress to take action this
year on comprehensive reforms, including both front-end and
back-end change. And the Safe Act is excellent. There's also
many other bills, your bill, Chairman Chaffetz, as well as some
legislation that a working group in the Senate is putting
together that will also contain front- and back-end reforms. So
one of the places to start, of course, is sentencing, as Mr.
Ring mentioned, and looking at the Federal mandatory minimums.
And once again, particularly as we look at nonviolent
offenses, some of these mandatory minimums result in excessive
prison terms that go beyond the nature of the offense, and so
drugs is one of those examples.
And so, for example, the problem with many of these
mandatory minimums is rather than just focusing on kingpins,
and we wish one more of those was in prison today in Mexico,
but they focus on small-level drug dealers, low level drug--and
even drug users. And so, for example, one of the problems is 21
U.S.C. 851, and what that says is if a Federal defendant is
convicted of as little as 10 grams of certain drugs and has one
or more prior convictions for drug offenses, the mandatory
minimum is 20 years with a maximum of life in prison; and if
there were two prior felony drug offenses that the prosecutor
files notice of, life without parole, life in Federal prison is
mandatory. And these prior offenses could even be State
offenses that resulted in diversion, a possession of very small
amounts of drugs. So this is a major problem.
And so to illustrate my point, we do have a safety valve
now, but currently, that applies to only 24 percent of all drug
Federal mandatory minimum cases, and it applies to only 24
percent of cases, even though only 7 percent who are charged
with these Federal drug mandatory minimums are considered
leaders, supervisors, or managers.
Now, in addition to drug cases, there are other problems
with mandatory minimums. One of those deals with people with a
felony record who have a gun or even ammunition, and these can
result in mandatory minimums of 10 to 40 years. There was one
particular case of an elderly gentleman in Tennessee who was
hunting turkey with a rifle, and he wound up getting a 15-year
mandatory minimum that a Federal judge said was way too harsh.
Now, turning to the back end, we also see a need for earned
time provisions. Wisconsin implemented earned time several
years ago, and they found that those inmates who took advantage
of that and completed programs had a 17 percent recidivism rate
compared to 28 percent of those who didn't of similar inmates.
We need to reduce the more than 12,000 in Federal solitary
confinement through disciplinary alternatives, such as
withholding privileges, a gradual process for earning your way
out of solitary, and, of course, Stop It, releasing inmates
directly from solitary confinement.
Also, looking at a bill we passed just this year in Texas,
nondisclosure, where you can have your record sealed after a
number of years of living safely in the community crime-free,
and be able to move on in your life.
And then, also, we need to address the problem of over-
criminalization and over-federalization, and this includes
reducing the over 4,500 Federal statutory offenses, which could
be done through a military-base style closure commission,
consolidating all remaining offenses in a unified criminal
code.
We also need to remove authority from Federal agencies to
impose criminal penalties by rule that are not directly
authorized by Congress. We need to adopt a default mens rea
provision as Ohio did last year, so conduct must be knowing or
intentional, if not otherwise specified. And we need the
Department of Justice to adopt guidelines to focus on Federal
prosecutions on those areas where the Federal Government has a
clear advantage, such as those implicating homeland security,
international relations, and crossing State lines.
Finally, let me urge you to address the civil asset
forfeiture problem. This has resulted in confiscation of money
and property from many innocent Americans. And the Fair Act is
a great way to start. That takes a number of reforms, including
making sure there is clear and convincing evidence, not just
preponderance of the evidence, getting rid of equitable
sharing, which States have used to circumvent some of their own
restrictions on asset forfeiture. And also, making sure the
property is automatically returned to people if they're not
convicted, rather than putting the burden on them to hire a
lawyer and file a lawsuit.
So I'll conclude by just saying we are so grateful to the
bipartisan leadership that we are seeing on this committee and
across Congress, and we're very encouraged that major reform
can happen this year. Thank you.
Chairman Chaffetz. Thank you.
[Prepared statement of Mr. Levin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Malcolm, you're now recognized for 5 minutes.
STATEMENT OF JOHN G. MALCOLM
Mr. Malcolm. Chairman Chaffetz, Ranking Member Cummings,
distinguished Members of Congress. As you heard, I am the
Directed of the Meese Center for Legal and Judicial Studies at
the Heritage Foundation, although my remarks today, the views
that I express, are my own. I also spent a good deal of my
career as a Federal prosecutor and a criminal defense attorney.
Sentencing reform, which will be the focus of my remarks
today, is a very difficult issue. Some believe that too much
discretion has been removed from judges, and that increased
incarceration has led to inequities in our society. Others
believe that harsh sentences have taken some very dangerous
people off of the streets, and that if such sentences are cut,
crime rates may well increase. I understand why people of
goodwill disagree passionately about this issue. When crime
rates soared in the 1960s or 1970s, the idea of putting more
people in prison for longer periods of time made a lot of
sense, and to some extent it worked. Crime rates leveled off,
and since the 1990s, have dropped precipitously. While there
are places in this country where crimes rates remain
staggeringly and persistently high, we are, for the most part,
much safer.
Increased incarceration, especially of violent offenders,
certainly deserves some of the credit, but how much credit is a
matter of debate. While some experts estimate that increased
incarceration may be responsible for as much as 35 percent of
the reduction in violent crime, this means that other factors
would be responsible for the remaining 65 percent or more of
that reduction.
Moreover, incarceration, while necessary, is a very
expensive option. Indeed, the costs of incarceration have risen
steadily over the past 15 years, but perhaps of even greater
importance, increased incarceration also comes with a human
cost. There are now over 2 million adults behind bars in this
country, which impacts not only the offender's prospects, but
also that of their family members. Parents who commit crimes
may not be the best role models, but they are breadwinners and
are usually better than having no role model at all. Many
studies indicate that children with incarcerated parents
struggle and often end up turning to crime themselves.
Today, the Bureau of Prisons constitutes 26 percent of
DOJ's budget, and it is projected to grow. That is up from 18
percent in 2000. This means less money for investigators,
prosecutors, victims' services, grants to State and local law
enforcement authorities, and other priorities. Given this
reality, I see each prison cell as very valuable real estate
that ought to be occupied by those who pose the greatest threat
to public safety.
Now, nobody disputes that there are some people who should
go to prison and never return to society. Most inmates,
however, do not fall into that category, and approximately 95
percent of them will, in fact, eventually return to our
communities.
Congress is currently considering a number of front-end
proposals which would reduce the amount of time that certain
offenders are sentenced to. Most of these proposals focus on
drug offenders and involve reducing mandatory minimum
sentences.
Now, let me be clear, that I believe drug dealing poses a
threat to public safety. The potential for violence, gang
involvement, and lethal overdose is inherent in most drug
transactions. Nonetheless, while drug dealers ought to be
punished, I believe the pendulum has swung too far. Too many
low-level offenders are being locked up for 5, 10 and 20 years,
when lesser sentences would suffice.
Front-end reforms could involve reducing the length of
mandatory minimum sentences for most drug offenders, expanding
the number of low-level offenders who qualify for the safety
valve, or some combination thereof.
Congress is also considering back-end reform proposals,
which would enable an offender either to get time off of his or
her sentence, or a change in his or her conditions of
confinement. I support these efforts too.
Such proposals involve three things: First, expanding
prison programs likely to reduce the risk of recidivism, such
as educational job skills, mental health and substance abuse
program; second, encouraging inmates to avail themselves of
such programs; and third, along with using needs and risk
assessment tools, matching inmates with programs based on their
needs and providing incentives for inmates to complete such
programs. This type of reform is important, because huge
numbers of inmates have mental health problems, substance abuse
issues, or both. Both conditions are associated with
staggeringly high rates of recidivism, and prison programs
addressing these conditions are sparse. Until that changes,
prisons are likely to remain a revolving door.
Many offenders, particularly those with only modest records
who take advantage of such programs, could end up becoming
productive, law-abiding members of society. So long as we are
realistic and methodical in our approach, we should not give up
on those whose lives can be salvaged.
Now, in addition to sentencing proposals, Congress is
considering important proposals related to over-
criminalization, mens rea reform, civil asset forfeiture,
collateral consequences, and juvenile justice, among others.
These are all serious issues worthy of serious consideration,
and I look forward to working with each of you on these and
other proposals to reform our criminal justice system.
I thank you for inviting me here today and I look forward
to answering any questions you might have.
[Prepared statement of Mr. Malcolm follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Ms. Ryan, you're now recognized for 5 minutes.
STATEMENT OF LIZ RYAN
Ms. Ryan. Thank you, Chairman Chaffetz and Ranking Member
Cummings. My name is Liz Ryan and I'm President and CEO of the
Youth First Initiative.
I'd like to start with a story. Kalief Browder, a 16-year-
old boy, was arrested in 2010 and accused of stealing a
backpack. He was automatically charged as an adult. He could
not afford to pay the $3,000 bail, so he was held at the jail
at Rikers Island. He was assigned a public defender, and
because of backlogged courts, he was at Rikers for 3 years
awaiting trial. He was beaten and starved by guards. For a year
at Rikers, he was placed in solitary confinement. In 2013, the
charges were dismissed. After he was released, he struggled to
go to school. He took his life on June 6, 2015.
Kalief Browder's tragic death underscores three of the most
pressing issues we're facing in juvenile justice: First, the
overuse of incarceration of youth. In the United States on any
given day, there are 80,000 youth in a detention or
correctional facility. Like Kalief, most of these youth do not
pose a serious threat to public safety, yet they are exposed to
harm while incarcerated, such as physical abuse, sexual abuse,
restraints, isolation, and solitary confinement. Kalief
Browder's case underscores the youth in adult jails in prisons
are especially at risk.
Research shows that placing youth in correctional settings
increases the likelihood that youth will reoffend. Yet States
and localities spend $6 billion a year to detain and
incarcerate youth. By contrast, community-based alternatives to
incarceration could more effectively serve youth and at
substantially less cost.
A second pressing issue is the prosecution of youth in
adult criminal court. Kalief Browder was one of the estimated
250,000 young people who are processed in adult courts every
year. Contrary to popular perception, the overwhelming majority
of youth who enter adult criminal court and even those who are
ultimately convicted are not there for serious violent crimes.
For example, a Baltimore study showed that nearly three-
quarters of the youth charged as adults were either transferred
back to the juvenile system or had their cases dismissed. The
research demonstrates unequivocally that trying and sentencing
children in adult court decreases public safety; that is why
the overwhelming consensus of justice systems stakeholder
organizations, as well as the U.S. Attorney General's Task
Force on Children Exposed to Violence, recommend against
prosecuting kids in adult court and against placing kids in
adult jails and prisons.
A third issue underscored in Kalief Browder's case is the
pervasive unfairness, inequities, and racial and ethnic
disparities in the juvenile justice system. Youth of color are
treated much more harshly than white youth in the justice
system, even when charged with similar offenses. Youth of color
are much more likely to be arrested, formally processed,
detained in juvenile detention centers, incarcerated in youth
prisons, and transferred to adult court than white youth. And
it's not because youth of color commit more crime than white
youth. Results from self-report surveys indicates otherwise.
And new research now shows that while youth incarceration rates
are decreasing, racial and ethnic disparities are on the rise.
Today, we have a unique opportunity to reform the juvenile
justice system, because there's now a rich body of research on
adolescent development and on what works to reduce juvenile
delinquency. Public opinion polling shows that the public
strongly supports juvenile justice reforms, and in the last
decade, States have undertaken reforms. Nearly half the States
have enacted reforms to reduce the automatic prosecution of
youth in adult court, increase the age of criminal
responsibility, and remove youth from adult jails and prisons.
Utah and Maryland are among these States.
Another group of States have enacted reforms to close youth
prisons and reallocate resources to community-based
alternatives to incarceration. These States include Texas,
Ohio, California, New York, Alabama, and the District of
Columbia.
To build on these State reforms and prevent tragedies such
as Kalief Browder's death, Congress could take action. First,
accelerate State reforms by supporting States and shifting
their resources from incarceration to community-based
alternatives; second, reauthorize and strengthen the juvenile
justice and Delinquency Prevention Act; third, support States
in increasing the age of criminal court responsibility to age
18; fourth, provide adequate resources for States to enact
these reforms; and finally, engage directly impacted youth and
their families in these discussions and in reforms.
Thank you for your time and consideration.
[Prepared statement of Ms. Ryan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Mr. Tolman, you're now recognized for 5 minutes.
STATEMENT OF BRETT TOLMAN
Mr. Tolman. Thank you, Chairman Chaffetz, Ranking Member
Cummings, and members of the committee. I am the former United
States Attorney for the District of Utah, a position I held for
nearly 4 years. As U.S. Attorney, I made it a priority to
protect children, aggressively prosecute fraud, to preserve
American Indian heritage, and to stem the abuse of illicit and
prescription drugs. Prior to my service as U.S. attorney, I was
an assistant U.S. attorney. A line prosecutor in the Federal
system, I personally prosecuted hundreds of felonies. While I
prosecuted mostly violent felonies, I also participated in
prosecution of white color criminals, drug traffickers, illegal
immigrants, and others. Indeed, in nearly a decade with the
Department of Justice, I was responsible for the prosecution of
individuals currently serving long prison sentences, some as
long as 35 years in Federal prison.
I am here today because my experience reveals the need for
Federal criminal justice reforms that are not only meaningful,
but that are based on proven reforms carried out in States
across this country. These reforms are the result of thoughtful
analysis of deficiencies in the administration of justice in
the Federal system.
I am not alone in my support of these reforms. Former
Federal prosecutors and other government officials have signed
policy statements, including former U.S. attorneys, judges, and
former government law enforcement officials that support H.R.
759, the Recidivism Risk Reduction Act, which is before the
House Judiciary Committee, and the Corrections Act in the
Senate. Many of us who signed this statement are noted
conservatives who were some of the most aggressive appointees
in pursuing crime. Because of our backgrounds as former
prosecutors, judges, and other law enforcement officials whose
service for this country is focused on law and order, we have
come to realize the criminal justice system must be reformed.
There are two meaningful ways the justice systems needs to
be reformed to begin addressing the issues facing us today:
First, to address a back-end fix that efficiently uses
incarceration resources. Accordingly, I speak in favor,
strongly in favor of H.R. 759 and S. 467, the Corrections Act.
Both bills enjoy broad bipartisan support. Though some of the
bills differ, the broad prescriptions found in both parallel
and would begin addressing the issues of overcrowding in our
Federal prison systems immediately. These bills would better
prepare low-risk-of-recidivism inmates back into society. It
would help ensure that first-time offenders do not been come
repeat offenders. It is my opinion these bills are the most
likely of any proposal to date to not only have such an impact,
but to have an immediate impact.
Recidivism in our criminal system is endemic. Most of the
low level, nonviolent offenders in our prisons are not
rehabilitated during their incarceration, and too often return
to prison.
Another result is a prison budget that is consuming an
ever-increasing percentage of the DOJ's budget. The overall
cost of detaining Federal offenders consumes nearly 30 percent
of the DOJ budget.
During my tenure as U.S. attorney, many U.S. attorneys'
offices I observed were unable to hire additional prosecutors
and were forced to abandon law enforcement obligations and
long-time partnerships. The number one complaint I heard from
chiefs of police and sheriffs across my State was the absence
and loss of Federal partnerships on important programs they
were working.
In 2009, California using a three-judge panel, issued
rulings that required tens of thousands of inmates to be
released, with no thought to rehabilitation or reduction of
recidivism. Rather than addressing its prison issues through
careful and deliberate means, California spent years in court
battling to reduce its prison population. Time, effort, money
spent on these court battles would have undoubtedly been better
spent reducing its prison population in a safe, deliberate
manner, as other States have done.
In contrast, several dates, many of which are among the
most conservative in the Nation, have moved in recent years to
implement similar legislation found in H.R. 759 and S. 467,
States including Texas, Rhode Island, Ohio, Georgia, North and
South Carolina, and Utah.
In Texas, similar legislation led to the closure of three
prisons and a savings of nearly $3 billion, all while reducing
the risk of recidivism from 26 percent to 4 percent in one case
study.
Finally, the other change that is much-needed reform is
addressing the expansion of the Federal criminal code and
Federal regulations and the associated disappearance of mens
rea. Some estimates put the number of Federal regulations
carrying criminal penalties over 300,000. It is simply beyond
the capacity of any person, or even any organization to keep
abreast of the number of regulations.
With the explosion of the regulatory state, the mens rea
requirement is all the more important. Throwing people in
prison who not only lack the intent traditionally required for
incarceration, but who often pose very little risk to society,
and have a similarly low risk of recidivism, only serves to
exacerbate the challenges of an already expensive and crowded
system.
As a former law enforcement official, I know firsthand that
our current system is far too costly. It does not focus limited
resources on the most crucial areas of enforcement and does not
prepare inmates, especially low level offenders, to return to
life outside the prison. These problems can be addressed by
legislation currently in Congress.
I urge Members of Congress to act quickly before the
problem becomes an emergency that must be addressed by drastic,
reactionary, emergency measures instead of deliberate, careful
measures designed to protect the public. Thank you.
[Prepared statement of Mr. Tolman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you all for your testimonies.
We'll now transition to the point where we ask some questions.
And we're going to first recognize the gentleman from Michigan,
Mr. Walberg, for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman. And thank you as well
for these hearings.
As former vice chair of the corrections committee in
Michigan's legislature, and during a time when I saw Michigan
go from, if I recollect, 17 prisons to 36 prisons, rapid
expansion, with no resultant success in dealing with crime in
the State of Michigan, and efforts, on my part at the time, to
speak to the need for alternatives to incarceration. And, in
fact, being a parent of a junior higher son, who was brutally
beaten along with his friend, by three teenagers on a bike
path, fortunately my son didn't lose his eye. But going to the
courtroom, and my wife and I offering to the judge an
alternative to incarceration, namely, working on our farm
scraping and painting a barn alongside of their victim, my son,
and myself, in July in Michigan, and subsequently experiencing
the reality of what it means to commit a crime and see the
victim as human, and to experience my wife's good home cooking
alongside, I believe would have had a better impact upon those
three young men.
Then ultimately the judge rejecting that and sentencing
them to incarceration in a juvenile facility. And if memory
serves me correct as well, two of those three offenders went on
to offend again.
Now, I don't know whether our alternative would have been--
it would have had a better impact, I bet it would have, but
I'll never know, because it wasn't allowed.
So I appreciate your testimony. We have to go to what
works, but also what's reasonable and what we should understand
that makes common sense.
I'd love to ask more questions along that line, but I do
want to go to Mr. Levin and also Mr. Malcolm, since, Mr. Levin,
you brought up the issue of the Fair Act earlier this year.
Senator Paul and I introduced H.R. 540, the Fair Act, to
address many of the abuses that occur within the Federal civil
asset forfeiture process, designed to be a good tool, we
understand that, but it hasn't worked the way it should. It's
become a tool for abuse as well, at least my contention. So I'd
like to ask you, Mr. Levin, to expand on what you started at
the final point of your testimony.
What do you believe needs to be done at the Federal level
to reform this process of civil asset forfeiture, and how does
forfeiture reform fit the larger criminal justice reform
effort? And, Mr. Malcolm, I'd like to you to respond as well.
Mr. Levin. Well, thank you. And thank you for your time
about----
Chairman Chaffetz. The mic, if you can hit the button.
Mr. Levin. Oh. Thank you very much, Congressman Walberg,
and thank you for bringing that story about what happened in
Michigan to the forefront here, and I really appreciate your
commitment to this issue.
The Fair Act is, I think, a great proposal to address some
of the abuses with civil asset forfeiture. And just so people
understand, there's criminal forfeiture, but civil asset
forfeiture is where people's money and property is taken before
they've been convicted of any offense, and in many instances,
they're never actually charged. And there have been a few cases
recently where Federal authorities, sometimes working with
State authorities, just found a guy on a train, an Amtrak train
going from Chicago to Los Angeles and took the thousands of
dollars he happened to have that he was going to use to make a
music video, and there's--he's never been charged with
anything, they didn't find any drugs, there was no--and he's
still waiting to get the money back many, many months later.
So the Fair Act would abolish equitable sharing, which is a
mechanism that States and the Federal Government collaborate.
And the way, unfortunately--the good news is a number of States
have put certain restrictions on civil asset forfeiture. New
Mexico actually got rid of it this year. But by using the
equitable sharing doctrine, the States are able to circumvent
their own restrictions and get a piece of whatever funds are
seized and then the Feds get part of it. So it's created kind
of a mechanism for abuse and getting around State law
restrictions.
The Fair Act would also raise the burden from preponderance
of the evidence to clear and convincing evidence before
property can be kept by the Feds, and then it also reforms the
structuring law, which has, in some instances, tripped up
innocent people who just made a series of deposits from their
business for legitimate reason.
It reinvigorates the innocent owner defense. We've seen
cases where a hotel owner faced losing their property because
there was prostitution, or there was drug activities there, but
they didn't know about it. So this would make sure that there
actually is a knowledge requirement.
And then also matching the severity of seizure with a
crime, which recognizes that just because you're smoking pot on
your front porch, you shouldn't lose your home; and making sure
people, indigent people who confront civil asset forfeiture can
have a lawyer provided if they can't afford an attorney. The
only circumstance where they're entitled to that now is if it's
their home that's being seized. And finally, the Fair Act also
has reporting so that we can know in how many cases there was
actually a conviction.
The bottom line is, as you said, Congressman Walberg, this
is a well-intentioned policy that was designed to take money
and assets from, like, drug cartels before they could hide them
and so forth, and so that is a legitimate goal, but it has gone
too far and we do need to have reasonable restrictions to
ensure that innocent people aren't tripped up.
And so, finally, I think it does relate to many of these
other issues in the sense that, first of all, like the growth
in regulatory crimes, it's part and parcel of the over-
federalism--over-federalization of crime, over-criminalization.
And just as we've seen the growth of the Federal Government in
so many areas, this is just another area, and it does, I think,
also implicate just our constitutional rights and the need to
protect those, so--thank you.
Chairman Chaffetz. I thank the gentleman. And I would ask
the panelists, members only have 5 minutes, so we've got to
be----
Mr. Levin. Oh, I'm sorry.
Chairman Chaffetz. --careful and a little tighter on those.
And----
Mr. Walberg. Mr. Chairman, I may have talked too long
myself.
Chairman Chaffetz. No. Go ahead. Go ahead.
Mr. Malcolm. I'll be brief, since Mr. Levin answered much
of them.
Civil asset forfeiture, of course, did have good intentions
to deprive bad guys of their ill-gotten gains in facilitating
property, and we have, at Heritage, commented on your proposal
and on the Fair Act.
I would also note that one of the things that's unfair
about the forfeiture process is a lot of it never takes place
in front of a judge, but is handled administratively with
rather Byzantine and harshly-enforced rules that often end up
hurting property owners. Raising the standards, reforming
innocent donor defense, I concur with what Mr. Levin has said.
Perhaps the biggest thing is that, look, law enforcement
agencies need to be adequately funded to do the vital work that
they do. However, civil asset forfeiture provides too great a
profit incentive, a direct profit incentive for them that can
end up warping priorities. It also allows them to basically
fund their own budgets without the oversight that comes from
transparency, that comes from the appropriations process. And
so while I fully believe that law enforcement ought to be
adequately, indeed generously funded, having that direct
incentive through civil asset forfeiture has had a warping
perspective.
Mr. Walberg. Thank you.
Chairman Chaffetz. Thank you. Thank the gentleman.
I now recognize the gentleman from Pennsylvania, Mr.
Cartwright, for 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman. Mr. Chairman, on
February 25, 2013, about a month and a half after I was first
sworn into this office, Correctional Officer Eric Williams of
Nanticoke, Pennsylvania, was working at the U.S. Penitentiary,
high risk penitentiary in Canaan, Pennsylvania. He was excited
about the job, a 34-year old young man, his mom and dad were
proud of him, he was devoted to his friends and his family.
That day at Canaan, he was working alone watching 130 angry and
dangerous prisoners, when Jesse Kanui attacked him savagely and
violently. I won't go into the details, because the Williams
family are listening to this. Eric Williams died 2 years after
starting at Canaan, and it was because of overcrowding and
understaffing.
Prisons across the United States are operating at levels
far beyond capacity, putting both guards and inmates in danger.
In a 2014 memorandum, the Department of Justice inspector
general found, ``Prison overcrowding presents the most
significant threat to the safety and security of BOP staff and
inmates.'' The same OIG report found that prisons remain
significantly overcrowded and face a number of safety and
security issues. While there is a downward trend in the Federal
prison population, as of June 2014, Federal prisons were
operating at a 33 percent overcapacity. This is dangerous. The
BOP's long-range capacity plan projects prison overcrowding to
be at 38 percent overcapacity by fiscal year 2018, higher than
it is today.
Now, Mr. Malcolm, what do we have to do to ensure that the
Federal prison population does not creep up to 38 percent
overcapacity?
Mr. Malcolm. Well, I would note, Congressman, that for the
first time this past year, there was a small downtick in the
Federal inmate population. Of course, overcapacity is not
unique to the Federal system; indeed, there are probably
greater overcapacity issues in the States.
I believe that some of the proposals that we've talked
about today, both front-end reform limiting the amount of time
that certain offenders are sentenced to and also spending some
money that we currently spend building new prisons and spend
money to house people would be better spent providing the kinds
of programs that would make it less likely that people would
recidivate once they are released, and that way you can help
reduce the overcrowding problem that exists and use those
prison cells for the people that pose the greatest threat to
public safety.
Mr. Cartwright. All right. Thank you.
And, Mr. Tolman, as a former U.S. attorney, you know, Eric
Williams died that night. You believe that one of the solutions
to the problem of overcrowding and understaffing is to take a
look at over-criminalization by examining the proliferation of
Federal criminal laws? Is that correct? Can you explain how it
would help?
Mr. Tolman. There are two things that would help
immediately. One, those 130 that were in that facility that he
was supervising, of those, there is a significant portion that
are at low risk of recidivism, that are there because of
expansion of the Federal criminal code, that could be in
prerelease custody--oh, sorry. Could be sentenced to
alternative, then released custody such as before home
confinement for $4,000 a year as opposed to $30,000. That would
make an immediate budget impact. And the proliferation of the
Federal code has put people in those beds that create the
inability of a single individual to observe 130, and that
tragedy occurred because of that.
Mr. Cartwright. I want to follow up with you, Mr. Tolman. I
come from northeastern Pennsylvania, the middle district of
Pennsylvania where a U.S. District Judge, Richard P. Conaboy,
still sits. In '1994 through '1998, he sat as the chair of the
U.S. Sentencing Commission. And he often talked to us, the
lawyers practicing before him, about the hamstringing nature of
the Federal sentencing guidelines and how it took discretion
away from Federal judges.
Do you agree that it makes sense to repose wide discretion
to the sentencing capabilities of Federal judges?
Mr. Tolman. I do agree. Federal judges should have
discretion. Not every case is the same. A one-size-fit-all is
not going to work when it comes to sentencing people to long
prison sentences.
Mr. Cartwright. Thank you. I yield back.
Chairman Chaffetz. The chair now recognizes the gentleman
from Wisconsin, Mr. Grothman, for 5 minutes.
Mr. Grothman. I'm very sympathetic to this topic, but I
think some of the testimony is a little bit, kind of you're all
on the same page. I want you to respond, as some people might
think the other thing.
Our homicide rate in this country has dropped, I believe,
by over half in the last 30 years. Arguably, one could say
that, you know, if the homicide rate had been what it was 30
years ago, another, maybe 8,000 or 9,000 people would be
murdered every year, which is not nothing.
Given that the homicide rate has dropped like a stone at
the same time the prison population is going up, I would have
thought the increase in the prison population ought to get at
least a little bit of credit for that.
I'll ask--don't want to pick out of the mix here. John
Malcolm, don't you think that the increase in raising the
penalties has a little bit to do with all the lives that have
been saved as the murder rate drops? Would you give it a little
bit credit?
Mr. Malcolm. Yes, absolutely. I said in both written and
oral testimony, Congressman, and in my written testimony, that,
for instance, well-respected criminologist like University of
Chicago Steven Levitt says that increasing incarceration
responsible for probably 25 percent of the reductions in
violent crime, University Texas at Austin's William Feldman
puts it at 35 percent. Those are not insignificant numbers.
However, that still leaves a very, very large percentage that--
where the reductions responsible for other factors.
I would also note, although times can change, Mr. Levin
noted that according to Pew Charitable Trusts, the 10 States
that reduce incarceration levels the most over the past 5 years
experienced larger drops in crime, 13 percent, compared to the
10 States that increased incarceration the most which was only
an 8 percent reduction in crime. There are anomalies of course.
All I'm saying is that while incarceration is indeed necessary
and indeed important, it may not be the only--it is certainly
not the only and may not even be the best way of reducing
violent crime.
Mr. Grothman. Okay. Cause and effect, except they are only
on the grounds that one would think if crime goes up here,
incarceration should go up, because as crime goes up, you would
be putting more people in prison. The next question I have for
Mr. Ring, who recently got out of prison. I'm not sure how much
it costs to house an individual prisoner in the Federal prison
system, but I know in the State of Wisconsin, it is over
$30,000 a year. Do you have any suggestions for waste or that
sort of thing or how we could cut the costs there, or maybe by
cutting the cost, free up money for more job-training programs
in this sort of thing. Were there any observations of waste
that you saw?
Mr. Ring. There were. And this is something that has really
struck me that in the prison system, most people who find
waste, fraud, and abuse in every area of government somehow
think the Bureau of Prisons is run so efficiently, and it's
not. There was a lot of waste and abuse, and there was some
outright fraud, some of which I know the inspector general is
looking at, and that should occur. Otherwise, I think the way
you can cut costs is for the lowest level of non violent
offenders--I was at the prison camp, so these were supposedly
the best of the best, and people who started at a medium or
secure facility moved their way to the camp. But there were
people at the camp who were 70 years old, or were disabled in
some way. You could have cut costs by letting some of these
people get to home confinement or to halfway houses.
But I agree with what everyone has said, that money has to
be put back into the prison to sort of treat the people who do
need help. But there's plenty of waste there and overspending.
And I think that has to be addressed. And I'm glad this
committee is looking at it.
Mr. Grothman. In general, I hate mandatory minimums.
Nevertheless in my district, I assume it is not unique around
the country, there's been a shocking increase in heroin deaths.
Number of deaths just beyond belief. And despite the huge
increase in deaths, the judges, some judges continue to treat
it as no big deal. I was thinking, I'm not sure how many of
these are Federal crimes, of introducing a bill making sale of
heroin a mandatory minimum. I was wondering if you have any
alternative as to how to deal with the explosion of heroin
overdoses we are seeing in this country.
Mr. Malcolm. Who do you want to answer that question?
Mr. Grothman. Well, it was kind of one of those game shows
you see on TV, whoever bangs the buzzer first.
Mr. Walberg. [presiding.] The gentleman's time is almost
expired, so answer as quickly as possible here.
Mr. Levin. Well, certainly for those who have an addiction,
the great news is there is more and more treatments that are
very effective, non-narcotic injections that people can take to
block the receptors in the brain. Obviously, people that are
dealing, especially large amounts of heroin are already subject
to lengthy Federal sentences.
I did want to ask, address your issue on the murder rate to
say, New York City, the role of policing is incredible, what
was done under Giuliani. The murder rate in New York City fell
by over 80 percent. It did not fall nearly as much in Chicago
and other large cities. So I think that shows you some
excellent policing practices such as broken windows policing,
data CompStat and having police at the right place at the right
time, you can actually prevent a lot of crimes.
Mr. Walberg. I thank the gentleman. The gentleman's time
has expired. I now recognize the gentlelady who represents my
hometown in Illinois, Ms. Kelly.
Ms. Kelly. Thank you, Mr. Chair, and thank you to the
witnesses.
Our criminal justice system has different effects on unique
populations as you have raised. The sentencing project
published a report this year examining the ways people of color
are disproportionately affected by the criminal justice system.
Mr. Chairman, I would like to enter this report into the
record.
Mr. Walberg. Without objection.
Ms. Kelly. That report explains, ``Once arrested, people of
color are also likely to be charged more harshly than Whites.
Once charged, they are more likely to be convicted, and once
convicted they are more likely to face stiff sentences, all
after accounting for relevant legal differences such as crime
severity and criminal history.''
Ms. Ryan, can you describe some of the racial disparities
you've seen in the juvenile justice system?
Ms. Ryan. Thank you, Congresswoman. There are disparities
at every step in the process, so young people of color are more
likely to be arrested, more likely to be formerly processed
instead of getting diversion, more likely to be prosecuted,
much more likely to be incarcerated, and much more likely to be
transferred to adult criminal court. And this is well-
documented, the Federal Juvenile Justice and Delinquency
Prevention Act has required all States to collect data on this,
so we see this in almost every single State.
Ms. Kelly. Also, if my son was here, he would say much more
likely to just be stopped in general.
Ms. Ryan. Absolutely.
Ms. Kelly. According to testimony, the American Civil
Liberties Union submitted to the Inter-American Commission on
Human Rights in 2014, sentences imposed on Black males in the
U.S. Federal system are 20 percent longer than those imposed on
White males convicted of similar crimes. That testimony also
highlighted that nationwide, about 77 percent of juvenile
offenders serving life without parole sentences are Black and
Latino.
Ms. Ryan, how are these disparities reflective of those we
see in systems overall?
Ms. Ryan. These disparities are very reflective of what we
see. I visit facilities all the time, and you see young people
of color in these facilities. And what we see in terms of the
disparities of kids being in adult criminal court, that's where
the highest level of disparities are. At the point at which
kids are transferred to adult court or prosecuted in adult
criminal court, and certainly they are subjected to life
without parole and other sanctions that adults face in those
circumstances.
Ms. Kelly. Mr. Levin, I see you shaking your head. Did you
want to add anything?
Mr. Levin. Oh, no, I certainly would agree that this the
data certainly shows that there are disparities. I think one of
the ways we often think about it is, particularly in the area
of drugs, and this goes back to what I was saying about
policing, I think it is very important to have the police in
the neighborhoods where the most crime is. But we need a
different type of policing. And so one of the challenges is, of
course, if a youth or other person has drugs on them, they are
more likely to get caught if they are in an area where there is
more police. Yet, we need the police in those areas that have
high violent crime, which are, in many cases, areas that have
large minority populations. So the challenge then is to change
the type of policing that we are doing.
We have people like David Kennedy with the National Network
for Safe Communities, we are doing call-ins, Operation
Ceasefire in Cincinnati, High Point North Carolina, these have
had great impact by working with ministers, grandmothers,
bringing the community together, getting people out of gangs,
giving them positive opportunities.
Once someone is, for example in New York City now, if they
do find marijuana on someone, they are typically given--they go
to a desk--they get a cita--they are brought to a police
office, it is a desk appearance. They don't go to jail. So
there are better ways to deal with it, and that can help reduce
some of the disparities handling things in a reasonable manner,
particularly when they are very low-level offenses.
Ms. Kelly. Mr. Ring, your organization, Families Against
Mandatory Minimums, has called for policymakers to further
reduce the disparities in sentencing between crack and powder
cocaine; it also calls for existing reductions to be made
retroactive. Why might it be important to further reduce the
disparity in sentencing and have that disparity reduction apply
retroactively to people who were incarcerated prior to the
change?
Mr. Ring. Quite simply, Congress, when it passed the First
Sentencing Act and made the change in the crack law to lower
the disparity between crack and powder cocaine, it admitted a
goof. You had Members who were around then saying we didn't
know what we were doing, we just pulled numbers out of the air,
and we passed this disparity. Mind you, the Reagan
administration asked for 20-to-1 disparity, and it was the
Congress that moved it to 100-to-1. So there was sort of a pox
on everybody's House there. So Congress passed the law, made
the change, but it didn't make it retroactive.
So now you have people serving decades for--decades-long
sentences that Congress admits were a mistake. So until you
make it retroactive--I know the President is trying to do some
of this piecemeal through commutations, but Congress really
should act and get all of those people fairer sentences,
because it is the height of injustice for them to serve those
when they know anybody sentenced today is going to get a much
lower sentence.
Ms. Kelly. My time is up. My colleague is running a tight
ship.
Mr. Walberg. I thank the gentlelady. And I recognize now
the gentleman from North Carolina, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman.
Ms. Ryan, you were indicating that people of color, I
guess, are incarcerated at a much higher rate, that's what your
study shows.
Ms. Ryan. There have been studies that have been done in
all of the States, showing that young people of color at every
stage in the process, so arrest, formally processing in the
system instead of being diverted out of the system, detention,
conviction, incarceration and transferred to adult court.
Mr. Meadows. So in your analysis, where would you say the
problem is? Is it at the law enforcement side, the prosecuting
side or judicial side? I mean, obviously, you're saying that
the problem is everywhere, so are you indicating that it's all
law enforcement prosecutors and the judges that are being
biased this way?
Ms. Ryan. Well, what we're seeing, the study showed that
there is bias in the system by all of these stakeholders. And
so law enforcement tend to over-police and process young people
of color formerly, whereas White youth are not processed in the
same way. They have a different justice system. Simply put, we
have two justice systems: We have one for White people who have
means and one for young people of color who do not.
Mr. Meadows. So your contention then is that from the
judicial side of things is that judges are making
disproportionate sentencing based on their purview. Would that
be your contention?
Ms. Ryan. Yes.
Mr. Meadows. All right. So Mr. Tolman, let me come to you
then, because what Ms. Ryan is saying is that judges have great
latitude, and according to what you just shared with Mr.
Cartwright is that you think that judges should have greater
latitude. Would that not exacerbate the problem that Ms. Ryan
has just----
Mr. Tolman. I appreciate the question. Congressman, I would
answer it a little bit differently than Ms. Ryan would.
Judges--I don't believe that judges, in this day and age, are
largely driven by a bias in their sentencing, but instead, you
see as a result of minorities achieving higher sentences most
often come as a result of they are arrested more often, their
records look worse. When they get before a judge, they have
usually gone through several proceedings that they may not
otherwise have gone through, and then judges feel that they are
tied. And in the Federal----
Mr. Meadows. But they are not tied. You were just saying
that they should have discretion. I guess what I'm saying is,
I'm here, I love my law enforcement officers, I love my U.S.
attorneys, and I'm perplexed because what some of them say is
that we need to prosecute more, and we need to arrest more, and
that they arrest people and they get out of jail free and they
go another way. So I'm very perplexed, Mr. Tolman, because if
we're going to give our judges more discretion, would that not
give the probability of sentencing that was not uniform or
fair?
Mr. Tolman. I don't believe so.
Mr. Meadows. Okay. So I assumed you would go that way. So
let me take you to a U.S. attorney situation in my district
where they were charged with felonies, they pleaded them down
to misdemeanors where they went before a magistrate judge, and
then ended up--I've got a constituent who is going to jail for
23 months for hunting with a spotlight of which nothing was
shot, and a hunting license that had expired for 24 hours. He's
going to jail for 23 months. That was the discretion of a
Federal judge. So how can we say that more latitude with our
judges would promote fairer sentences?
Mr. Tolman. First of all, I don't think judges feel they
have discretion now. The sentencing guidelines, while not
mandatory, are certainly still pervasively controlling what the
judges do. In those instances where an individual has an
offense, there are very distinct recommendations that come as a
result of the sentencing guidelines.
Mr. Meadows. Well, those were maximum--in this particular
case, a maximum of 6 months, but they stacked misdemeanors so
that he went to jail for a longer period than what you would
think a normal misdemeanor would have. Do you think that's
fair?
Mr. Tolman. I don't know the case.
Mr. Meadows. Well, do you----
Mr. Tolman. At first blush, I do not believe that that
would be a fair sentence.
Mr. Meadows. I agree.
Mr. Tolman. It is the point that we are trying to emphasize
that the Federal system is filled with more of those than there
are of Al Capones. And because of that, they are taking bed
space that is required for those that are more serious.
Now the mandatory minimums have added to that the emphasize
on guideline ranges that are out of sync with what should be
the punishment are creating that. And so, I guess I agree with
you and say that it will take a lot more time with true
discretion and statutes that don't promote over-punishment
before judges start to sentence more properly tied to what the
seriousness of the offense is.
Mr. Meadows. I thank the chairman. I yield back.
Chairman Chaffetz. [Presiding.] I thank the gentleman. I
now recognize the gentlewoman from Michigan, Ms. Lawrence, for
5 minutes.
Mrs. Lawrence. Thank you. This is a discussion that's near
and dear to my heart. I am a representative, I represent
Detroit, and also have some of the most wealthiest communities,
not only in Michigan, but in the country.
I just want to give some statistics. It is estimated that
2.7 million children under the age of 18 have a parent in
prison or jail. That means 1 in 28 children in the United
States has a mother, or father, or both in a lock-up. Recent
statistics shows that the United States holds 25 percent of the
world's prison population, while we're only 5 percent of the
world's population or people.
Most inmates are parents of children 18 years of age--of
children under 18 years of age. Two-thirds of incarcerated
parents, two-thirds, are nonviolent offenders, often locked up
for minor drug-related charges. They make up the majority of
the parents who are in prison, and they and their children are
the ones the criminal justice reform would most affect. The
lack of parental contact engagement during imprisonment hurts
those children, it has been proven psychologically and
socially.
So I have two questions, first to Ms. Ryan. What is the
impact, according to the studies that you've looked at, to the
educational social development of children growing up with a
parent in prison?
Ms. Ryan. I can't speak to all the studies, but a vast
majority of them have shown that those young people are further
behind in school than their classmates, and that there is an
increased likelihood that those young people who have a parent
in prison could end up in the criminal justice system as a
result.
Mrs. Lawrence. My ranking member yesterday, in his opening
comments, referred to three generations serving time in prison.
It's a statistic that I think our criminal justice system owns
some responsibility.
Mr. Ring, you personally experienced this as a parent. I
would like to hear your comments. And what could be done--if
you could speak in a positive way, what do you think we can do
to help the relationship between children and their parents
during incarceration, and what are we doing right and what
should we stop doing?
Mr. Ring. Well, there's a couple of things, it's the
hardest part of being in prison currently for everyone. I am
thankful that I had a shorter sentence relative to most. I saw
people in the visiting room after months past where you could
see the relationships were falling apart, the kids weren't
running to the parents anymore. And it's really hard when you
leave that visiting room to go back on to the compound, and
your kids are losing their relationship with you, so it is very
hard.
I think the prisons aren't as cognizant of that as they
should be. They pay lip service to it, but there are things
like the 500-mile rule, which is you're supposed to be placed
in a facility that's within 500 miles, but that's as the cock
crows rule. It doesn't mean driving miles. So we have people
from Rhode Island who are at Cumberland, Maryland. They almost
never got to see their kids. Other things, like when I got
there, I was devastated to not have my daughters with me, I
asked if we could sort of put together a fatherhood caucus,
because they had AA and NA. I said, could we get a fatherhood
support group so that the older guys could tell the newer guys
how to stay in touch, how to space out your phone minutes, that
sort of thing. We only had one therapist, and so she didn't
even respond to that inquiry..
So I think there are things that can be done. And I think
as part of the programming, that should be part of it, because
in some cases you have strong relationships that wither, other
cases you don't have strong relationships, but it is a great
time to reinforce the people who are there. This should be your
responsibility when you go out.
Mrs. Lawrence. I agree with you. There is a responsibility
in our criminal justice system to recognize the impact on those
who are not incarcerated, the families. If we truly want to
break the chain and reduce the amount of people that we
imprison, along with all the other reforms, this must be a
critical part of it. And I yield back my time. Thank you.
Chairman Chaffetz. I now recognize the gentleman from
Oklahoma, Mr. Russell, for 5 minutes.
Mr. Russell. Well, I appreciate not only all of the
fantastic information as put forth here, but the scope of the
problem and the fact that in a bipartisan nature we recognize
that this is a national problem, regardless of politics or
party.
I want to address an area that I have not heard addressed
much. Senator Booker, in his testimony yesterday, mentioned
upwards of 97 percent, I believe, of all adjudication of
justices done by plea. And I don't know the accuracy of this. I
don't have the data, but it brings out a major point. A person
receives a charge, and he gets publicity. Consequently, his
employer fires him over the publicity. Then they have an
inability to make bail because they don't have work, and then
they can't obtain the best counsel because they can't afford
it. The counsel that they do obtain then, in a deal with the
prosecutor, is suggested to make the plea, or roll the dice
with the jury on an exponentially higher outcome of sentence.
Faced with this duress, what we potentially see, and I would
argue actually see, is the locking up of innocent people.
How do we address that? Because we've not seen or heard
anything along that line, and I welcome input from anyone on
that issue?
Mr. Tolman. I'll volunteer very quickly that the
promulgation of disproportionate penalties and some mandatory
minimums that are so extreme that you have that very, very
scenario that you described is driving that. And yet, if you
were to make punishment more commensurate, and not punish an
individual for going to trial to test the evidence against
them, I think you would have a system that is intrinsically
more fair, and that's part of the reform that has to happen on
the front end, but for those that are in that system, that are
the 97 percent that did it, we better have immediate back-end
reform right now, or else they will continue to serve those
very long, disproportionate sentences.
Mr. Malcolm. Congressman, my colleague, Mr. Tolman during
his testimony, talked about mens rea reform and the importance
for adequate mens rea. I think that's also a part of this.
There are a fair number of crimes, particularly regulatory
crimes, but also statutory crimes, where in order to convict
somebody, you do not have to prove that there was any knowledge
or intent to violate the law or even as somebody engaged in
something that is intrinsically morally blameworthy, and the
fact that Federal prosecutors have the pressure and say, look,
I don't have to prove what you knew about the law, intended to
violate the law. I just have to prove that you did the act that
resulted in the crime, even if it was a mistake or a complete
accident. Therefore, you're facing a very heavy penalty, unless
you decide to plea bargain. That's also part of the answer to
this.
Mr. Levin. It is an excellent point that you make and that
you ask about and there is data showing people that day-in-jail
pretrial, before their trial, end up with longer sentences and
are more likely to go to prison. So some States, like Colorado
and New Jersey, have adopted bail reform measures to ensure
people who are low risk can get out pretrial, even if they
can't afford a bail bond through pretrial supervision and a
personal bond. It is kind of like being on probation, so they
are held accountable to make sure they appear, but just because
they don't have resources doesn't mean they are not able to get
out.
And then also, strengthening, of course, indigent counsel
and showing that there is quality representation. We have a
pilot program in Texas going on kind of like school choice
where clients can choose their counsel from a list of qualified
attorneys.
Mr. Ring. I would just say as somebody who was prosecuted,
the leader of this conspiracy that I was a part of what was
sentenced to 4 years, 4-1/2 years, and I came later and I had
been cooperating for a couple of years. When the government
came to me they basically said if you cooperate and implicate
these people, you'll see what you will get, which is no time.
If you don't, the range I was looking at was 19 to 25 years of
prison. And I had real law and order, salt of the Earth people,
friends who believed in my innocence as I did, which is why I
went to trial, so you just gotta take the deal, you have to
take it for your kids. I said, you don't think I'm guilty. They
said it doesn't matter, you can't do that. You see that a lot.
And I don't know how anyone who thinks that there aren't
innocent people in jail don't believe that people take those
deals. You see the statistics. When the Innocence Project
exonerates people with DNA in these rape cases, half of those
people pled guilty. So you know it happens, and it's a problem,
and it's a problem because there's not enough discretion for
judges to counterbalance. I was lucky that my offense did not
carry a mandatory minimum. That would be tougher. At least I
knew I can have a judge who was going to hear the evidence.
It's more proof to why you need to have more balance in the
system.
Mr. Russell. Thank you, Mr. Chairman. I yield back my time.
Chairman Chaffetz. Thank you. I now recognize the gentleman
from Virginia, Mr. Connolly.
Mr. Connolly. I want to thank you, Mr. Chairman, and
especially you, Mr. Cummings, for these remarkable hearings.
Yesterday and today, profoundly thought provoking, something
that hasn't had the kind of scrutiny it needs. The American
system of justice from soup to nuts is, in many places, broken.
And the word ``justice'' is in all lower cases. You just
mentioned one, Mr. Ring, and I know my friend from Oklahoma
brought it up yesterday with our two governors, plea bargaining
was supposed to be an efficiency. It has now become a tool that
incarcerates people who are innocent, not all, innocent and
guilt are irrelevant sometimes to the process. That isn't
justice, that's a perversion of justice. You're quite right,
people then have to weigh the gamble, take the lesser of two
evils, even though I'm innocent, because the risk of going to
trial and losing is too great. The fact that prosecutors who
may believe you're innocent, nonetheless pursue that is a
perversion of justice and shame on them.
Sometimes prosecutors get into the habit--I know, Mr.
Tolman, you might recognize this--where what's important is a
scalp on the wall, irrespective again of innocence or guilt.
I'm gambling I can win this one, that's all that matters,
that's the evidence. Not about whether--what about the
innocence of the person in front of me? Not everybody, of
course not, but it happens all too often, and there are so many
other things.
But I want to ask you about two in particular. One has to
do your story, Ms. Ryan, solitary confinement for a youth, it
seems to me that that would be ought to be a practice normally
that is very infrequent, and only with manifest behavior that
is otherwise completely uncontrollable, danger to himself,
herself or others, and for limited periods of time. You
described a tragic story of a young man who ultimately
committed suicide, presumably not unrelated to his very unjust
incarceration in terms of what he was being charged with, and
it was a failure of the criminal justice system to get around
to him because he had to languish in Rikers. How often out of
solitary confinement be a tool in the prison setting for young
people?
Ms. Ryan. That's a great question. In Kalief Browder's
case, he was charged with a crime, so he was pending trial, and
he was being abused by guards. They placed him in solitary
confinement, so this is pending trial. We know that it is used
often in the adult system for children in the form of
protecting these children, and it is profoundly harmful to
those young people to their development. It is also used
unfortunately in the judicial justice system, and there are all
kinds of euphemisms for solitary confinement.
I had an argument with a Department of Corrections head
here in the District one time because he called it a time out,
and I called it 5 days in the hole is solitary confinement.
Unfortunately, we don't know how often it is used, and that's
something that Congress could fix by requiring States to
provide data.
Mr. Connolly. The fact that we would subject a young person
to solitary confinement for his or her protection, of course,
tells us a lot about the personal environment that we would
need to do that, understanding that there are consequences that
flow from doing that, the isolation and so forth.
I'm running out of time, so I want to ask one more question
of you, Mr. Tolman. Washington Post just did an interesting
series on power parole boards, not trained, often political
appointees, capricious decisionmaking, God only knows whether--
there was nothing systematic and analytical about how we look
at your case and arrive at a just decision. Your experience,
and if you'd comment on that in the remaining 27 seconds.
Mr. Tolman. Thank you. There is no parole in the Federal
system, but there is a need for that role if it was
administered fairly, which is why the bill that has been
introduced, H.R. 759, would actually take that out of the
discretionary. What it would do is it would say we are going to
assess the risk of recidivism and reassess the inmate as they
go and let them earn time into home confinement. So you take
the parole board of out of that and some of those problems that
came from it.
Mr. Connolly. Thank you.
Chairman Chaffetz. I would note to the gentleman from
Virginia, Mr. Connolly, that please have a look at the--Cedric
Richmond has a piece of legislation that I cosponsored, we
introduced it, that deals with solitary confinement requires a
study in reporting so we have these types of statistics,
because you just worry, there are horror stories out there and
we never hear about them, and this piece of legislation is part
of a package that we are encouraging.
Mr. Connolly. I thank the chair, I most certainly will. I
also want to say one hopeful thing about this process you and
the ranking member have gotten underway here, but in terms of
the broader conversation, too, that's hopeful to me is actually
on the right, on the left, Republicans and Democrats, we're all
actually beginning to reexamine what we thought was taken care
of from top to bottom. And I think that's a really healthy
sign, so hopefully we will continue to look at issues like
solitary confinement, but also, the broader issues that
challenge American justice. Again, I thank you, Mr. Chaffetz,
and you, Mr. Cummings, for leading us down this path.
Chairman Chaffetz. Thank you. I now recognize the gentleman
from Georgia, Mr. Hice, for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman. I likewise want to give
a sincere thank you, Mr. Chairman to you and to our witnesses
for this tremendously important hearing. I typically don't do
this, but I do want to take just a moment and just share a
little of a personal experience with all of this, because it
really hits home just from the last couple of months with me.
I'm from Georgia, and, of course, Georgia has been known in the
past as being extremely tough on crime, and frankly, that
toughness over the years has not worked, it has cost the State
tons of money, and our jails have been filled to the brim. And
under the leadership of our current Governor, Governor Deal, he
has taken this issue on personally, actually campaigned on this
issue as well.
And as a result, Georgia has been, as you know, has been
mentioned here in the last couple of days, on the forefront of
implementing some critical, momentous, front-end and back-end
reforms to our criminal justice system and we are seeing
incredible results.
One of the programs, or at least part of it involve some of
these non violent offenders, particularly who have drug
problems, to be able to participate in court-supervised
rehabilitation programs that involve a great deal of
accountability. It is an 18 to 2-year--18-month to 2-year
program. There's, as I mention, a lot of accountability, these
people get jobs, they do do community service, they have
regular drug tests, they are involved in evidence, program
evidence-based treatment programs, that involve both the faith-
based community as well as others. And there's consequences if
any of this stuff lapses. The consequences are not just
designed for arbitrary punishment, but they are designed to get
people back on their feet so that they can live a drug-free
life.
And just last May, I had the distinct privilege of speaking
at one of the graduation ceremonies. I have heard of this
program in Georgia for several years, but I had the first
hands-on experience speaking at one of these graduation
ceremonies. And I tell you, I was moved to the core. In fact,
there was not a dry eye in the place as one of these
individuals after the other after the other gave testimony of
what their life was and what it has become, and what these
programs have meant. And then family members and friends also
testified as well. At the end of this program, these people had
literally 2 years under their belt drug free, as they've been
in the workforce, all these kind of things. It was incredibly
moving.
One of the statistics that came up, I believe it was
yesterday with the recidivism issue, as I think most of our
prisons see people, once they are released, back in prison
within 2 years. I mentioned results in Georgia, we are seeing
through many of these drug court-type things across the Nation.
For that matter, the recidivism rate is 25 percent; in Georgia,
it is even less; in Barrow County, where I spoke a couple of
months ago, it is significantly lower than even 25 percent.
So I guess all of this is just--I'm so grateful that we're
having this hearing, and again, just send sincere thanks to
each of you for being on the front line of what you're trying
to do, and for, chairman, your leadership in bringing this
forward.
Mr. Levin, let me just ask you, I am sure you have dealt
with this, I apologize for coming in late myself, but what
alternatives to prison do you see? I'm sure you're looking at
Georgia and Texas, some of these other places, but to reduce
recidivism, get these people's lives straightened out?
Mr. Levin. You hit the nail on the head, Congressman, drug
courts, the Hawaii Hope Court, which is a similar model but it
is more targeted just towards weekend jail for those who fail a
drug test. And then, even actually some of those who can't
acquit to that and ultimately go into the drug court where they
get more significant treatment.
Mental health courts, veterans courts. And other
alternatives, including electronic monitoring, various mental
health treatment programs, both inpatient and outpatient, for
people with that problem. So house arrest has been mentioned.
So there is a whole host of alternatives. And I think one of
the things we ought to look at is enabling the Federal system
through perhaps, you know, the Federal system could compensate
the State, but to be able to place individuals whether in a
halfway house or one of the other programs that is actually run
by a State or non profit, rather than--it is very hard from the
Federal Government, particularly in places where there may not
be that many Federal offenders, to try and reinvent the wheel
of everything States are doing, so why not have a way for the
Federal Government to partner with States and nonprofits and
use some of the same programs.
Mr. Hice. Excellent. I'm out of time, but again, I hope
this committee continues to look a cost effective ways of
turning lives around as opposed to just punishment, and I thank
you.
Chairman Chaffetz. Thank you. Georgia has done some very
significant things. We have tried very hard to get the Governor
of Georgia to come join us, but through scheduling on both
ends, that we were unable to do it. But Georgia has really
helped lead the way and they should be thanked for that.
I now recognize the gentlewoman from Illinois, Ms.
Duckworth, for 5 minutes.
Ms. Duckworth. Thank you, Mr. Chairman. I'm so glad that
we're having this much-needed debate in our country, and
especially in this committee, on need for reforming our
criminal justice system. I really want to go back to the
discussion on drug offenses and mandatory minimum sentencing.
Mr. Chairman, I have in front of me a statement offered to
this committee, to this hearing from Human Rights Watch that
echoes many of these concerns. I would like this entered into
the record.
Chairman Chaffetz. Without objection, so ordered.
Ms. Duckworth. Thank you. Regarding prosecution and
mandatory minimums, Human Rights Watch explains that,
``mandatory drug sentencing laws has given prosecutors too much
power. They are able to strong-arm drug defendants by offering
them a choice, significantly shorter prison terms if they plead
guilty, and excessively severe sentences if they go to trial.''
Coerced pleas and disproportionately harsh sentences should not
be part of the Federal criminal justice system. And my
colleague from Oklahoma began this discussion on that already.
I would like to further this sort of power relationship.
Mr. Ring, you said that prosecutors in your case initially
asked for a 20- to 27-year sentence, that seemed incredibly
excessive for a non violent offense. I have to wonder, you came
into the system as someone highly--fairly highly educated, a
lot of experience, not easily intimidated, I would think, and I
just wonder what your experience was in term of facing that
potential mandatory minimum, and then thinking about the folks
you saw when you were in prison. And if you think about someone
whose entire life experience begins with stop and frisk, and
unnecessary police stops, and a law enforcement system, while
we have great law enforcement officers, but a system that is
skewed, especially toward minorities, what that does to the
power relationship between the prosecutor and the defendant?
Mr. Ring. Thank you. Let me just say I try to always make
clear that my case is definitely unique. I'm a congressional
staffer, I'm a lawyer, I worked for sentencing reform. I knew a
lot of these issues, and so it was certainly a different
situation. The reason I usually raise it, it's just because I
want to show how much power the prosecutors have without
mandatory minimum. Because they were able to threaten that
sentence because the guidelines are still so high too, and the
guidelines are usually driven by the mandatories. So when you
lifted the drug mandatory minimum, the white collar folks on
the commission said we have to lift these up, too, to make them
have parity. So the guidelines are high too.
The people I saw in prison look nothing like me. I mean, I
hope it is clear, and I don't think everyone knows, there is no
Club Fed. I was definitely a minority in the prison, most
people are brown and Black. And that's another problem in terms
of getting programming to such a disparate group of people. But
these folks faced mandatory minimums, they didn't know
anything. They knew nothing about sentencing laws. It is such
a--the divorce between what members or politicians think is
going to deter a criminal as if they are listening--if you pass
a 5-year mandatory minimum, the next year, they are going to,
oh, I'm not going to do that anymore because they just
stiffened the penalties. There is no idea.
Most of these guys made stupid mistakes without any idea of
what the punishment was. They just didn't think they were going
to get caught. So you can make the severity off the charts. You
can do a life sentences for jaywalking. It is not going to stop
it. So it is a problem. These people don't know, there is a lot
of bad lawyering. Some of these people had really terrible
representation. And so the people who can't afford it--and I
don't know anybody who can afford to go to trial today--it is a
huge problem, and so I think that's why you see so many lower
level people who have no resources just cave to the system.
Ms. Duckworth. Thank you. Mr. Tolman, with your experience
as a defense attorney, have you seen defendants discouraged
from exercising their right to a trial? I want you to speak to
this power relationship, because it seems like the way this is
set up, it just gives excessive power to the prosecutors and
that you have a defendant from a community where they see all
their buddies or their friends who get stopped and frisked and
minor drug offenses end up in jail for long periods of time, I
would think that that power relationship is just excessive.
Mr. Tolman. It is extreme power, we could--as Federal
prosecutor, I could control what the sentence would ultimately
be because of our ability to wield the particular statutes we
wanted because of the guideline ranges, because of enhancements
we could apply, and we control the ability to also go down from
those guideline ranges. It influenced me as a defense attorney
so that my practice currently, I tell many of my clients, we
need to be successful prior to you being charged, or we need to
be cooperating in a way, or we need to show the government that
we are going to be very different than just an individual that
they prosecute and goes to trial. I cannot, in good conscience,
advise any of my clients at this point to go to trial, because
their resources and the evidence and the penalties present
incredible obstacles to exercising your constitutional rights.
Ms. Duckworth. Thank you. I'm out of time, Mr. Chairman.
Chairman Chaffetz. Thank you. I now recognize the gentleman
from California, Mr. Lieu, for 5 minutes.
Mr. Lieu. Thank you, Chairman Chaffetz and Ranking Member
Cummings, for these hearings on criminal justice reform. My
first question is to the entire panel. Do any of you believe
that it is wise to spend even $1 of precious taxpayer resources
to arrest, prosecute and lock people up for marijuana crimes,
especially when multiple States have legalized marijuana? Okay,
I take that as a no. Thank you.
I would like to focus on recidivism.
Mr. Levin. Yeah, obviously, there are people that--if
you're dealing in huge amounts of marijuana as part of a cartel
or something, but I think it has certainly been encouraging to
see, even in States, we can debate whether it should be
legalized or not, but certainly, even in States that haven't
legalized, they are diverting people. In Houston now, they are
bringing them to the police station, they can do 8 hours of
drug education or community service, so bringing small
marijuana offenders to jail is, I think, a wasteful use of
human resources.
Mr. Malcolm. If I could also quickly jump in. I think that
very, very few small marijuana possessors are prosecuted
Federally. I do think that there are Federal laws that are way
overreaching, perhaps in this area too, but I'm not a big fan
of unequal enforcement to Federal laws. If you're going to have
them, I believe that they should be equally enforced.
Mr. Lieu. I'd like to talk about recidivism. Mr. Tolman,
you had testified that within 3 years of release, nearly 67.8
percent of prisoners are rearrested, and then within 5 years,
76.6 percent are rearrested. I dealt with this when I was in
California State legislature, we had a massive prison
overcrowding problem. When you looked at the facts, it wasn't
that California had longer prison sentences, we are about the
middle in most States. But you get a massive recidivism rate,
and we are locking people up for nonviolent offenses in prison.
So I'd like to turn to Mr. Ring, and I listened and read
your testimony, and it is a stunning indictment for the lack of
rehabilitation program for the Bureau of Prisons. And I think
you testified that you saw little to no real rehabilitation in
prison, that most inmates get classes, will sign their names to
the attendance list during the week so the administration
thought they went, and that the most glaring deficiency was the
lack of any kind of cognitive therapy or anger management
counseling.
Then your conclusion seems to be sort of odd, because you
go from that and you conclude that, I think the only way
Congress can improve public safety while reducing cost is to
reform sentencing laws, especially mandatory minimum sentences.
I fully support you, but I would have thought you would have
said the important thing to do is reduce recidivism, and that
means increasing rehabilitation programs, making sure that
people don't recidivate. Because if you don't do that, what
will happen is, and you reduce sentencing laws, instead of
having a person serve two longer sentences, they'll serve four
shorter ones. I don't think you do very much to reduce prison
overcrowding and reduce incarceration. I'm just very curious
how you go from the first part of your testimony to that
conclusion, rather than saying we should focus on recidivism
reduction.
Mr. Ring. Okay, that's a fair question. I never--I'd always
hear the term ``warehouse,'' that prisoners were warehoused in
Federal prisons or in prison, and I didn't know what that meant
until I got there. You are just sitting there and there is
nothing happening, so you are just looking at the clock and you
are waiting to go home. There is no programming or anything
like that so you find ways to make yourself busy.
As I said, if you had any skills, they atrophy, and you
don't gain any new ones. So to me, being there itself is a
complete waste, and letting people get back into their lives
before they lose touch. People say what's an app? They are
going to come out and have no idea what the world is like when
they get out. So to me, the thing that you can do immediately
is right-size some of these sentences. But it would be a
mistake to think I don't think you have to do both. You
absolutely, while they are there, however long they are going
to be there, have programming. And one thing I think the
problem is that if we just said let's increase programming
across the board in Federal and State prison, that's a lot of
money. We are going to have to own up to the fact that they are
going to take a lot of resources to have the kind of
programming that you want, and I think you have got to couple
that by getting some savings from sentencing reform.
Mr. Lieu. Thank you. When I was in California State
legislature and touching your point about having programs that
deal with anger management and behavior therapy, I got an
increase in funding to arts and corrections programs. And arts
and corrections programs have been shown to reduce recidivism.
It actually, in fact, teaches anger management and behavior
therapy in a different sort of way. Nonprofit actors came, run
by Tim Robbins and others who were doing it for free for quite
a while and then scaled them up. It seems like we should do
this in our Federal prisons, in addition to getting rid of
mandatory sentences. It is my belief that we need to really
reduce the recidivism rate if we actually really want to reduce
the overall prison population.
With that, I yield back.
Chairman Chaffetz. I think the gentleman. I now recognize
the gentlewoman from the District of Columbia, Ms. Norton, for
5 minutes.
Ms. Norton. Thank you. I want to thank you and the ranking
member for focusing on what is a really a rising bipartisan
issue in Congress, I'm pleased to say. Mr. Lieu asked a
question I was obligated to ask. I take it none of you would
say it makes much sense and do not find prosecutors thinking it
makes much sense to prosecute people for lower amounts of--for
possession of lower amounts of marijuana. Is that the case?
Mr. Malcolm. I gave the answer that I gave before. I think
that it makes a very compelling argument, that there shouldn't
be a violation of Federal law. But as a general matter, I
believe the Federal laws, if they exist, should be enforced
evenly and that----
Ms. Norton. Well, so let me take you to the next answer,
the harm that is done is not that there is any prosecutor in
his right mind has so little crime that he goes after low level
marijuana possession. The harm that is done is the arrest
record. And what we find is throughout the United States,
overwhelmingly the only, virtually the only residents, here in
the District of Columbia, 90 percent, of those who get arrest
records for possession of small amounts of marijuana are people
of color.
For a young man, especially of color, this is a bar for the
rest of his life. Leave aside that it's marijuana, leave aside
that it's not a conviction. What would you do, up front, about
arrest records for low level offenders like this who are
possessing for their own habit. By the way, this is a college
town, half of those, the marijuana rate, smoking rate is the
same for people of color and White people. We've got five or
six universities in here. I don't remember seeing anybody get
arrested.
Mr. Levin. I think citation certainly is a way to give
someone--in Florida, they are doing juvenile and adult civil
citation, so giving someone a citation certainly can address it
rather than arrest them. And then the other issue----
Ms. Norton. That citation, I take it, wouldn't be on his
record, so the employer would say, well, you got a drug arrest,
that's enough for me.
Mr. Levin. Provided probably that they complete whatever,
they show up in court, they do whatever they are supposed to
address the citation. The other thing is enabling people to get
records sealed, if they do have a record, and we passed
legislation in Texas to allow nondisclosure, so that way you
can say on an employment application you haven't been convicted
because you obtained an order of nondisclosure.
Ms. Norton. Thank you. Senator Booker was here, and
testified about the REDEEM Act. Very important juvenile
expungement automatic. People, as it were, earned their way out
of jail, simply by paying their time. Then they faced the
problem of additional earnings. Have you thought about a way to
earn your way to expungement or sealing of your record. For all
we're doing, black boxes and the rest, when you see choices
between people who have no record and people who do--whatever
the merits of the people who have something of a record, that
is a black mark. Is there a way, have you thought about a way
for a person to actually earn expungement of that record?
Mr. Levin. Sure, and I wanted to distinguish in Texas,
expunction is reserved generally if you are innocent, if you
are acquitted, or the case is dismissed. But nondisclosure is a
bit different, because the records aren't destroyed but law
enforcement can still see them, prosecutors, certain licensing
agencies, things like doctors, things that are very sensitive.
But if you have a nondisclosure, which you can get, even if you
are guilty, that means you have your records sealed after a
certain number of years of living crime free, you can say, when
you apply for jobs, that you haven't been convicted. Likewise,
when you apply to rent an apartment. And we have also, by the
way, passed legislation in Texas to say employers and landlords
can't be sued for hiring and renting to ex offenders.
Ms. Norton. Doesn't something of that kind serve as a kind
of incentive not to commit more crimes? Has it been shown in
any way? Is there any evidence that could then be used in other
States?
Mr. Levin. Absolutely. Minnesota and Indiana passed good
ceiling laws in the last couple of years. And I will also tell
you the evidence shows if someone has been living crime free
for 5 or 6 years in the community, they are no more likely to
commit an offense than someone who never had a criminal record.
So there is no value to these old records being publicly
accessible.
Ms. Norton. I can't say enough about incentives for people
not to recidivate. Thank you very much, Mr. Chairman.
Chairman Chaffetz. I thank the gentlewoman.
We will now recognize the gentleman from Missouri, Mr.
Clay.
Mr. Clay. Thank you, Mr. Chairman. And let me thank the
witnesses for appearing today. The work that you do in the area
of criminal justice reform is of vital importance. I'm eager to
learn from your expertise.
On Friday, it was announced that President Obama as part of
his plan to reform the criminal justice system, will be the
first sitting President in history to visit a Federal prison,
which will take place tomorrow. This unprecedented action
prompted me to wonder whether those of us in Congress should
consider doing the same?
And as a bit of background in my days in the Missouri State
legislature, I was the chairman of our prison committee, so
I've visited numerous State prisons, I have not visited a
Federal prison. I would like to throw that question out to
anyone on the panel on what you think the redeeming benefit
would be of a Member of Congress going to visit Federal prison,
let's start with Ms. Ryan.
Ms. Ryan. I think that would be great, because I think that
you would be highlighting some of these issues in a very
personal way. I would encourage you to go to the BOP facility
in Lewisburg, Pennsylvania. That is one of the most abusive and
heinous places in the Bureau of Prisons. Young people who are
incarcerated there in their late teens and early 20s are
subjected to very harsh and punitive actions by guards and
placed in solitary confinement. So if you're going to pick one
place, I hope you'll start there.
Mr. Clay. How about the family members that go to visit?
How are they treated?
Ms. Ryan. I'm not as familiar with how the family members
are treated, but the stories that we get through letters and
calls usually come from the family members. They often will
share information, but what they tell us is that if they show
up and they're wearing the wrong thing or they've got--they
came at, you know, a couple minutes late, they're not allowed
in, and that's really difficult.
And I think the point that Kevin made about families being
very, very far from where inmates are held is also another huge
issue.
Mr. Levin. Can I add?
Mr. Clay. Yes.
Mr. Levin. I just got from back from touring prisons in
Germany, and one of the interesting things we saw is probation
officers come into the prison a month or two in advance to help
that inmate start looking for a job and identify housing even
before they start supervising them after they're released,
which they actually do supervise them. And I'll also tell you
our chair of the Senate Criminal Justice Committee in Texas,
John Whitmire, he not only visits prisons, but he shows up
unannounced.
Mr. Clay. Mr. Ring.
Mr. Ring. Please go and please show up unannounced. If you
say you're coming, the whole dog-and-pony show will get put on
for you. When we're on the inside, all of a sudden we get new
shower curtains that the mold is gone, and everybody's working
real hard and looking busy, and it's really--it's Potemkin
Village. There's no reason to go if you're going to go that
way, but I urge you to go.
Mr. Clay. What----
Mr. Tolman. Let me--if I might----
Mr. Clay. Yeah. Go ahead.
Mr. Tolman. If I might add, when I was congressional
staffer, I accompanied Senators to Guantanamo Bay, in which
they were going to reveal to us their methods of interrogation.
It was far different than we would later learn occurred in
those interrogations. And so I echo the unannounced visits, but
I would say, more importantly, require reporting. Get into the
actual data that shows you what is going on and dig through the
data that's going on in those prisons.
Mr. Clay. And what do you think would surprise a Member of
Congress most if we made an unannounced visit to a prison? Mr.
Ring?
Mr. Ring. I would just say the lack of the sort of concern.
I think that people are pretty much--and, again, I was in a
camp, but we only had a couple guards. I mean, we could walk
out the fence if we wanted to. I mean, there was a level of
trust because we were considered the least risk, but just how
little there is going on in terms of programming, activity,
like sort of, I don't know, beneficial activity, anything along
those lines, just--I think people say, well, it's good, it's
boring. That doesn't sound bad. I'd like to be bored. But it's
sort of a mind-wasting boredom. And if there's nothing
productive to do with your time, I think people turn even more
antisocial than they were when they get there, which is part of
the problem.
Mr. Clay. So there's no real effort toward rehabilitation,
then, in our Federal system?
Mr. Ring. That was my experience, and I think it's a
product not only of--part of it is a product of budget. I mean,
I don't think--I don't know if they know the programs. I don't
see a lot of evaluation of the effectiveness of the programs
they are running. As Mr. Tolman said, get reporting on this
stuff. If we're going to fund more programs, see what works and
doesn't work, and be willing to go a different direction.
Mr. Clay. I think my time is up.
Chairman Chaffetz. I thank the gentleman.
People on my Facebook page think I should probably--think I
should be there a little more often for a longer period of
time, yeah. So, yeah, maybe we should just announce that we're
coming and we don't need to actually show up, and get some new
curtains, so--that was a good line of questioning.
All right. We'll go to the gentlewoman from New Mexico, Ms.
Lujan Grisham, for 5 minutes.
Ms. Lujan Grisham. Thank you, Mr. Chairman, for this
important hearing. And I want to thank the panel. And I really
want to, again, as we're focusing on recidivism so that we are
looking at what populations ought to be incarcerated and for
what reasons, and what we do about that in this country as we
look at broad-based criminal justice reform, I hope this is a
stepping off place to do that. I think it's really important to
recognize that our criminal justice system is a place where, in
my opinion, we are warehousing a mental health population.
Given today in this country, we've got almost 8-1/2 million
Americans who have both a mental health-diagnosed disorder and
a substance abuse issue; these co-occurring issues we know
unfortunately go hand in hand, given the lack of resources for
this population.
And we also know that as a result of that substance abuse
issue, that we are not only holding and then treating those
behavior health issues, the fact that we don't deal with them
on the front end, we're dealing with them in jails, we don't
deal with them on the back end either, so once you serve your
time and you're out, we aren't doing anything to resolve those
drug addiction and the issues associated with having a mental
illness. And until this country does something about behavioral
health issues, I fear that we can make lots of adjustments to
the criminal justice system, but we are still going to have it
as a de facto environment for institutional care for this
population.
Given that, and given that we know that the resources we
could make lots of discussions--we should have lots of
discussions, but in New Mexico, we pay higher than the national
average, I think it's $30,000 a year for an inmate, we pay
$34,000, and yet we pay $7,300 annually on public education for
a student. So I think about my State where we're having so many
issues, if we were reversing those investments. And when I was
a Bernalillo County commissioner, we would have loved to
reinvest those resources, because we just don't have them in
the criminal justice system.
You started to explore in looking at incentives in the
conversation earlier in the hearing. What else are States doing
to try to address the behavioral health issues? For example,
New Mexico is just now working on Medicaid enrollment while you
are serving time, so as you come out, we've got an insurance
program to make sure that you're getting access. That's not, in
and of itself, garnering productive access, but it's a step in
the right direction. Are there other measures that we can look
at that would be best practices to begin to deal with, on the
front end and the back end, behavioral health issues for this
population?
Mr. Malcolm. Congresswoman, it's a very important point. I
mean, ever since we had the deinstitutionalization movement in
the '1960s and '1970s, a lot of people who used to be treated
involuntarily are now in the streets, in our communities, and
there are inadequate amounts of money that are spent on
outpatient, you know, behavioral and mental health services for
those people, and a number of them, of course, end up
committing crimes, and that poses a real problem for the safety
and security of those who are in prisons, since dealing with
people who have mental and behavioral issues is a very
different type of problem than the--your standard inmate that
doesn't have these problems.
States can address these with things like mental health
courts, veterans courts, since our returning veterans suffer
from emotional disorders that are unique to the experiences
that they have had, that try to get them the help on the front
end.
Ms. Lujan Grisham. And I don't mean to interrupt you.
You're on the right track, I totally agree, but these are also
States, particularly with the mental health courts that have a
behavioral health system, including mandated outpatient
treatment programs which New York launched early and other
States have struggled to get the sort of civil rights aspect of
that correct, but if you have also best practices that marry
those behavior--whole services with those systems, I'd be
really interested in the States that are doing the best at
that, since 80 percent of this population gets back in the
criminal justice system, and clear that they're not getting
what they need once they've been released.
Mr. Malcolm. Well, you know, my colleague, Mr. Levin, could
better address what each State is doing. I would say that
States are not uniform and that there are--you know, different
States have different environments, and perhaps should adapt
the solutions that work best for them. So for instance, there's
been a reference made to the Hawaii Hope Program, which is tied
to methamphetamine, while other similar programs in the
Dakotas, for instance, the 24/7 Program, address alcohol
problems, which are the large problems in those States. Each
State has to adapt their programs to their conditions, and they
should study those results rigorously and share them with other
States, who may be able to replicate those results.
Ms. Lujan Grisham. Thank you. My time has expired, but Mr.
Chairman, perhaps we could get a list of those and think about
whether there's a Federal, so you can create some uniformity
and really create the right kind of environment for reform.
Chairman Chaffetz. I thank the gentlewoman.
I now recognize the gentleman from California, Mr.
DeSaulnier, for 5 minutes.
Mr. DeSaulnier. Thank you, Mr. Chairman. I first want to
thank you and the ranking member. I frequently say that as a
freshman, we have a lot of surreal moments. This is one of
those surreal moments in this committee that I, having served a
lot of time in politics in California and been in the State
legislature and having chaired the Budget Subcommittee when we
were told by the Federal courts that we needed to remove 45,000
of our inmates in the California Department of Corrections, and
I was given the assignment only because no one else in the
legislature was dumb enough to do it.
So I remember, during that period, visiting State prisons
and I remember standing outside of San Quentin, which was next
to my congressional district, and the warden is now retired
that was there then, but he was a tough old ranger, had been
the warden at San Quentin twice, and a long time at Pelican
Bay, and we were standing outside on the San Francisco Bay and
he said, You know, if you told most of your constituents that
what we're doing is making them less safe by doing what we do
when we incarcerate these individuals, it would change the
political dynamic quite a bit. And he said this in the tone of
somebody who had spent 35 years at the Department of
Corrections starting as a line officer.
So my question, maybe Mr. Levin first and Mr. Malcolm, is,
we spent a lot of time in those hearings with Washington State,
who had the Institute for Public Policy, which was an MOU
between their legislature and the administration, and Cleveland
State University, and they started on evidence-based practices
20 years ago in Washington State about, we're going to
depoliticize a lot of this. The legislature's still going to
make the decisions, so they're not off the hook, but we're
going to give them enough evidence-based research that gives
the public the confidence that these are the right investments
to make so that you're not driven by being afraid of being
Willie Horton'd in a primary or general election.
So how do we do that at the Federal level, or maybe we're
right on the cusp of doing that, that we rely enough on
evidence-based research that we do what's the best investment
from a policy standpoint to make sure that the public is, in
fact, safe at the lowest possible cast? Mr. Levin?
Mr. Levin. Well, that's a great question. And we've used
the work of the Washington State Institute for Public Policy,
their cost-benefit analysis and matrix of programs that reduce
recidivism, and you can kind of look at the other step in that
is to match the right program with the right offender with a
risk-and-needs assessment.
And obviously at the Federal level, you have things like
the General Accounting Office that provide objective
information. Maybe there's a way to expand their role in
evaluating. I think having an independent outside the Federal
Bureau of Prisons to evaluate whether programs are effective or
not in reducing recidivism, which programs we may need more of.
And you have to do it in an objective manner, because you have
to look at who's going into the program, what is their risk
level. You don't want to just have an incentive to put the
lowest risk people in a program to show results. You actually
want programs to really intervene with those who would
otherwise be at the highest risk of recidivism.
And I just--your anecdote about the San Quentin warden
really rang a bell with me, and as well as the things that you
said, Kevin, because, you know, I was talking to some people
with the Prison Entrepreneurship Program, where they go in with
executives and help inmates develop business plans. But they
said, when some of these inmates come out, they first go to--
their first meal in a restaurant, they just stare at the menu,
because they can't figure out what to order, because they
haven't had to make any choices this whole time they were in
prison. And as I was in Germany, I saw, for example, they had
communal kitchens. They would pick out ingredients and make
some of their own meals. That's just one can example of many
where they did take on more responsibility. And they have in
statute there that the prison should be as much as possible
like general society so these people are prepared to live when
they return.
Mr. Malcolm. I would say, Congressman, that States and the
Federal Government should obviously do everything they can to
avoid what happened in California, being forced to release
large numbers of prisoners through the Plata decision. And,
look, with respect to avoiding Willie Hortons, there are a lot
of very brave governors in red States, blue States, and purple
States that have touched the third rail of running the risk of
being soft on crime. Governor Deal was referred to, but you
could also refer to former Governor Perry and Governor Haley
and, you know, the Governors who appeared here yesterday to
testify before you. And they are, you know, taking a methodical
approach.
I would say that bringing in best practices, that whatever
it is you do, it has to be measured, it has to be constantly
reevaluated, and it must be statistically valid and
scientifically sound, or else you are just putting a Band-Aid
and making it seem as if you are doing something that will
ultimately not result in reductions of recidivism and will not
enhance public safety.
Mr. DeSaulnier. And I will just say we have a very visible
case right now, an unfortunate murder on the waterfront in San
Francisco, and it's become so politicized. It would be nice to
be able to have an organization, and this involves--because it
involves immigration and Federal authorities, that could go in
and do a forensic, sort of like the chemical industry does,
just do a forensic root cause of what--why did this happen and
what do we do to fix it? And I'm unaware of something in this
field that would be able to do, for instance, in the case of
Catherine Steinle, who was a 32-year-old, unfortunately
murdered by someone who was here illegally, and now it's--it's
cut off this storm of politics unfortunately around this great
tragedy as opposed to what did the--what did the immigration
folks do that they should have done correctly, what did the
Federal Bureau of Prisons do that they should have done
correctly, and what do sanctuary cities have to do with this,
and a less dispassionate, more forensic evidence-based research
so we could fix it, because you have to wonder how many of
those situations--how many people have been deported five
times, got back in the country, and there but for the grace of
God we would have had another tragedy like that.
With that, I would yield back.
Chairman Chaffetz. Thank the gentleman.
Mr. Cummings and I have a few more questions, and then
we'll be at the halfway point. We're getting near the end here.
I now recognize Mr. Cummings, the ranking member, for 5
minutes.
Mr. Cummings. Thank you very much.
Your testimony has been extremely helpful. I think one of
the things that I'm most concerned about, and I just want to
get your opinions on this. I've often said that there are
transformative moments in our lives when you know that all the
stars are aligned, you see the problem clearly, and you know
that if you don't correct it at that moment, it only gets
worse. What do you all see? I mean, you see the Congress and
the Senate seem to be coming together, and you see--I mean,
would you agree with me that if we can't get it done now, it's
going to be kind of hard to get it done? Mr. Tolman?
Mr. Tolman. I wholeheartedly agree. I'm worried about that,
because there are a lot of dynamics and politics does get in
the way, but you're correct. I believe that we're now seeing
the problem. We're looking back and we're seeing a culture of
punishment that we had hoped would root out criminal trends,
but instead, what that culture of punishment has resulted in is
problems that are far more difficult to take care of, and now
is the time, or else we will be, similar to California, having
missed our legislative opportunities to fix it.
Mr. Cummings. Anybody else?
Mr. Levin. Well, I mean, I think you're absolutely right.
We've seen kind of--you know, you described, and we've
described all these different States where legislators have
come together. Some of these States have passed reforms
unanimously, in other States it's been a few votes short of
unanimous, and so it is fairly rare. And obviously, we've seen
so many bills in Congress with kind of unlikely cosponsors. So
I believe that people who say that nothing can get done in
Washington, I think we have a great chance to prove them wrong
this year.
Mr. Cummings. Ms. Ryan, you know, you talked about
Lewisburg. I remember visiting Lewisburg to see an inmate years
ago, many years ago. It's interesting that that prison could
earn such a reputation, but apparently a lot has changed. You
know, it seems to me if I were running an institution and it
had--and I know--and I'm sure the Bureau of Prisons is looking
in on this now, I hope so anyway, you know, and I had a prison
like that that has that kind of rep, I mean, what does it take
to reverse that other than, I mean, the spot visits or--and
what are the questions that one asks? I mean, what can we do to
correct that kind of situation? We are--we are elected by the
people to make--and this committee is to make sure that
government operates properly. And it would be, I think,
legislative malpractice if we did not do what was appropriate,
assuming that we know what to do. And so, what advice would you
give us?
Ms. Ryan. I think there's a number of things that you can
do. And I think it's great that this is an oversight committee,
because that's really what's needed for the Federal Bureau of
Prisons, is much more vociferous oversight. And the point of
having surprise inspections is really true. I think if they
know you're coming, they're going to put on a show.
And the other piece that you have to be concerned about is
retaliation against anyone who's incarcerated there. So you
can't just talk to a couple people here and there and you can't
do it in the presence of guards. You have to talk to everybody,
you have to stay for a couple days. And doing that takes a lot
of time and energy. I would encourage you to establish an
independent oversight board of the Bureau of Prisons that has
this kind of function. And that I would encourage you to have
directly-affected family members as members of that board,
because you will learn a lot more from the families who have
loved ones in these institutions. And then I think, ultimately,
we have to stop investing in things that don't work. I mean,
all of this talk about investment in what works is great, but
we continue to invest in things that don't work, like trying
kids in adult court, putting people in institutions where
they're subjected to inhumane confinement. We know solitary
confinement is harsh and punitive. We should stop doing that.
So those would be the things I would start with.
Mr. Levin. Can I also just add, one thing that came up
earlier, with regard to people pleading to things that they
didn't actually do, I think the open vial policy, which we've
adopted in Texas, it's also in the Safe Act, is very important.
That allows the defense to see exculpatory evidence, to have
transparency. And obviously, there's things that need to be
redacted dealing with victims and homeland security, but in
general, there ought to be--and the reason this came about in
Texas, it's called the Michael Morton Act, because this man
served 26 years in prison, he didn't kill his wife, he never
committed any crime, and he helped then pass this legislation.
Mr. Cummings. You know, Mr. Ring, I can't help but think
about what you said about family. As a father of two beautiful
daughters myself, I know it has to be difficult. And you admit
that you had it easier than most people. People in my
neighborhood, they go to hard time, they have hard time. You
know, it's painful.
I was sitting here and I was thinking about marijuana. I've
got people in my neighborhood serving 2, 3, 4 years for
marijuana, then they turn on the television and they're buying
it in Colorado. What kind of justice system is that? You know,
and going back to, I think you said it, folks aren't--you know,
they're not looking at the penalties and all that, but they do
know one thing, when they turn on the television, they see
people sitting in a bar with dollar bills buying marijuana, and
they've got cousins sitting in jail. They don't understand
that.
And I'm just wondering, how do--how do we deal with the
family thing? I mean--because we heard a lot of testimony about
people who have--adults who have children, there's millions of
them, that are finding it very difficult. So what--I mean, what
do you have to say about that? And what's your organization
doing to deal with that? I mean, you know, I've often said
that, Mr. Ring, out of our pain quite often comes our passion
to do our purpose: pain, passion, purpose. And, you know, I'm
sure that you saw a lot--you felt a lot of pain. You just got a
sample of the pain that a lot of other people are going
through. And I'm not trying to minimize it, don't get me wrong,
but can you give me some--help me with that?
Mr. Ring. Yeah. I was always cognizant of how good I had
it. I had a shorter sentence. You learn not to talk about your
sentence if you had a shorter one. I lived with bunkmates who
had 15 years, 10 years. I remember one time a guy saying to
me--you know, it was getting short and he started--he started
losing his mind a little bit because he was getting nervous,
and we had a talk one time. Actually, I was going through a bad
time and he was counseling me, and he said, you don't know my
life. He said, you're just dying to get back to your
neighborhood and to your kids and your house and your job.
They're all waiting for you. He goes, I'm going to go back
to my neighborhood, and all my old friends are going to want to
get me back in the game, because they drug runners, and he was
deathly afraid of that. He was one of those people you meet
that was so institutionalized, I do think there was a big chunk
of him that thought he was better off there, because he had
been there for 8 years, his wife was taking care of the kids,
they were there without him. He almost knew that that status
quo worked, and he could live in prison. He was so scared about
going out. That's a terrible situation if we come to that point
where he thinks he's better off in jail.
In terms--there's no policy, I think, that fixes that. I
think you can do a better job of keeping people closer together
and programs that work on parenting, and--but I think it's a
cultural thing. I think we're very vengeful people. I think
that even people who have, you know, minor convictions, when
they go for a job application, people look at you funny. I know
a lot of people who--you know, again, it wasn't my experience,
but didn't get jobs. If it's down to you and somebody else,
you're tossed out.
So I think it's bigger, broader, cultural. I think in the
same way you've seen other movements, normalized different sort
of things in our country, what we did with smoking, what we did
with gay rights, other things. With prisoners, there has to be
a sense that you're coming back, we want you back, and we're
going to welcome you in society in a way that makes you
productive, because it's in our interest too, but that is not
something you can legislate, I don't think.
Mr. Cummings. You know, one of the things I--you know, it's
amazing how as you're on earth for a while you do so many
things, and one of the things that I--you know, had different
jobs, and one of the things--two things I did, was when I first
came out of law school, I taught in a prison, in the Maryland
Penitentiary for 2 years, as a matter of fact. Just an ad hoc,
you know, just a little course on, of all things, criminal
justice. And it's interesting that later on, I hired some folk
who had gotten out of prison who I had taught.
And I noticed something very interesting, that I think
prison does something to people, because I think because
they're told when to sit, when to go to the bathroom, whatever,
it's some--I mean, maybe not for you, but for people that have
been there a long time, they have no concept of, some of them,
no time, of responsibility, of a lot of things that--and I
don't know that people know that prison does have--it's more
than just locking up the body; it also quite often, and you
were alluding to that, affects the mind. I know people who have
come out after many years, and they don't even want to come out
of their house, they don't even want to come out of their
house, because they--it's--they become so conditioned.
Would you--I mean, any of you want to comment on that? I
had a whole other line of questions, but I'm kind of--but I
do----
Mr. Tolman. I had a conversation with a Federal judge
fairly recently that has sentenced some significant sentences,
and he said to me in a moment of candor, you know what
prosecutors have forgotten? And I said, no. And he said, how
long 2 years actually is. Because the sentences you seek as a
prosecutor often--you think of 2 years as a minimal sentence,
and perhaps a failure in your case. You think of 8 and 10, and
these numbers become almost badges of--of an acceptance in the
community that you're in as a prosecutor. And this judge said--
you know, who's been on the bench a while, he said, we've
forgotten how long 2 years is.
Mr. Cummings. Wow.
Mr. Chairman, just one other thing. I don't know if we got
this in the record. The ACLU written testimony, American Civil
Liberties Union, House Oversight, dated July 15. I'd like to
have that submitted.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cummings. I yield back.
Chairman Chaffetz. This has been a very productive 2 days.
We've had three good panels, good quality discussion, we've
talked about a whole variety of topics.
If there are additional materials, additional statements
that you would like us to review that could inform us, we'd
appreciate that, everything from drug rehabilitation, I think
the point made about the mental health issues and how we're not
assessing those, not dealing with those in so many of these
people who have mental health problems are ending up in our
system and dealing with law enforcement on a regular basis.
Very interested in Texas and what they're doing with the sort
of client choice. There could be nothing worse than to know or
feel you're innocent, or at least you want a good quality
trial, and you get assigned a public defender who's not up to
the case and doesn't seem to care about you. You ought to have
some choice. I just believe in that type of principle. It's
probably true in this instance as well.
I'm intrigued by this oversight of the Bureau of Prisons,
because we are only as good as the information we get. And we
get spread very thin. The inspector general, in this case, I
think, does a good job, but even they are spread thin on this
issue.
And one thing that I would like to be addressed, and if you
can follow up with me on, and we haven't really talked about
this, but there are victims' rights. You know, there are
victims on a lot of these crimes. Not everybody in prison is
innocent. There are a lot of people that have been harmed. And
I think we--to complete the circle to totally tackle this in a
thoughtful way, I think we also need to address victims'
rights.
And if you have additional thoughts or perspectives on
that, we haven't really heard that in the last 3 days, but that
too, in the completeness--the fullness of the discussion and
trying to get this right, we but get very few opportunities to
address these things. Hopefully I would encourage, I've been a
participant, I've worked hand in glove across the aisle and in
a bicameral way to get legislation passed, and then it won't be
addressed for a long time, and so we have but one chance, and I
want to get it right. Whether it's a series of bills or a bill,
I do hope we come together and that we can push this. And I
think you've seen a broad bipartisan support; not just one or
two people, very broad bipartisan support. We need to keep that
momentum going.
So we thank you all today for your expertise, what you've
given to your country, your patriotism, and we thank you. This
committee stands adjourned.
[Whereupon, at 12:31 p.m., the committee was adjourned.]
APPENDIX
----------
Material Submitted for the Hearing Record
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[all]