[Senate Hearing 111-411]
[From the U.S. Government Publishing Office]
S. Hrg. 111-411
EXPLORING THE NATIONAL CRIMINAL JUSTICE COMMISSION ACT OF 2009
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIME AND DRUGS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JUNE 11, 2009
__________
Serial No. J-111-31
__________
Printed for the use of the Committee on the Judiciary
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PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
------
Subcommittee on Crime and Drugs
ARLEN SPECTER, Pennsylvania, Chairman
HERB KOHL, Wisconsin LINDSEY O. GRAHAM, South Carolina
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JEFF SESSIONS, Alabama
RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma
BENJAMIN L. CARDIN, Maryland
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
Hanibal Kemerer, Democratic Chief Counsel
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 4
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina....................................................... 5
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Bratton, William, Chief, Los Angeles Police Department, Los
Angeles, California............................................ 5
Nolan, Pat, Vice president, Prison Fellowship, Lansdowne,
Virginia....................................................... 12
Ogletree, Charles J., Professor, Harvard Law School, Cambridge,
Massachusetts.................................................. 8
Walsh, Brian W., Senior Legal Research Fellow, The Heritage
Foundation, Washington, D.C.................................... 10
Webb, Hon. Jim, a U.S. Senator from the State of Virginia........ 2
SUBMISSIONS FOR THE RECORD
American Federation of Government Employees, AFL-CIO, Beth
Mothen, Legislative and Political Director, Washington, DC.,
statement...................................................... 28
Bratton, William, Chief, Los Angeles Police Department, on behalf
of Major Cities Chiefs Association, Los Angeles, California,
statement...................................................... 31
Burnett, Arthur L., Sr., Senior Judge, National Executive
Director, National African American Drug Policy Coalition Inc.,
Washington, DC., statement..................................... 43
Cowan, Jon, President, Third Way, Washington, DC., letter and
attachment..................................................... 61
Capazorio, Greg, President, Criminon International, Glendal,
California, statement.......................................... 75
Clarke, Harold W., Commissioner, Massachusetts Department of
Correction, President, American Correctional Association and
formal President, Association of State Correctional
Administrators, Boston, Massachusetts, statement............... 79
Federal Cure, Incorporated, Mark A. Varca, J.D., Acting Chairman,
Plantation, Florida, letter.................................... 84
Goodwill Industries International, Jim Gibbons, President and
Chief Executive Officer, Rockville, Maryland, statement and
attachment..................................................... 85
Hawley, Ronald P., Executive Director, Search, The National
Consortium for Justice Information and Statistics, Sacramento,
California, statement.......................................... 105
Human Rights Watch, David C. Fathi, Director, US Program,
Washington, DC., letter and attachment......................... 107
Hynes, Charles J., District Attorney, Kings County, Brooklyn, New
York, statement................................................ 110
Just Detention International, Lovisa Stannow, Executive Director,
Washington, DC., statement..................................... 113
Murray, Don, National Association of Counties, Washington, DC.,
statement...................................................... 116
National Association of Criminal Defense Lawyers, John Wesley
Hal, President, Washington, DC., statement..................... 121
NCCD, Center for Girls and Young Women, Washington, DC.,
statement...................................................... 123
Nolan, Pat, Vice president, Prison Fellowship, Lansdowne,
Virginia, statement............................................ 125
Ogletree, Charles J., Professor, Harvard Law School, Cambridge,
Massachusetts, statement....................................... 130
Rand Corporation, Greg Ridgeway, Santa Monica, California, letter 158
Simmons, Russell, Co-Founder, Def Jam Records, Founder, Rush
Communications, New York, New York, statement.................. 159
Stewart, Julie, President, Families Against Mandatory Minimums,
Washington, DC.,............................................... 160
Walsh, Brian W., Senior Legal Research Fellow, The Heritage
Foundation, Washington, D.C., statement........................ 166
Webb, Hon. Jim, a U.S. Senator from the State of Virginia,
statement...................................................... 182
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria determined by the Committee, list:
Rand Corporation, Technical report
EXPLORING THE NATIONAL CRIMINAL JUSTICE COMMISSION ACT OF 2009
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THURSDAY, JUNE 11, 2009
U.S. Senate,
Committee on the Judiciary,
Subcommittee on Crime and Drugs,
Washington, DC.
The Committee met, pursuant to notice, at 3:01 p.m., Room
SD-226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Subcommittee, presiding.
Present: Senators Klobuchar, Durbin, and Graham.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. Good afternoon, ladies and gentlemen. The
hour of 3:00 having arrived, we will proceed with this hearing
before the Subcommittee on Crime and Drugs of the Committee on
the Judiciary.
Today we have a very important hearing to explore the
legislation introduced by Senator Webb on the National Criminal
Justice Commission, to take up a great many topics of great
importance.
The Commission is structured to take up a comparison of
United States incarceration policies with those of other
similar political systems, including western Europe and Japan,
take up the costs of incarceration policies, including those
associated with gangs and drugs, the impact of gang activity in
our country, drug policy and its impact on incarceration, crime
sentencing and reentry, policies regarding mental illness, the
historic role of the military as it impacts on these criminal
law issues, and any other subjects which the Commission might
deem appropriate.
Our criminal justice system continues to be one of
perplexing complexity in terms of how we deal with it, a
tremendous amount of violent crime, a tremendous amount of
drug-related crime, very, very heavy statistics on
incarceration. My work in the field has been extensive, and I
have long believed that if we approached the criminal justice
system with two principal objectives, that a great deal could
be done to restrain it: with respect to career criminals who
commit 70 percent of the crimes, separating them from society;
with respect to the others who are going to be released, have
realistic policies of rehabilitation, detoxification, literacy
training, job training, reentry. We have an enormous problem on
recidivism, which has a very high cost on property damage, and
an even higher cost on human suffering.
Senator Webb approached me some time ago, a few months ago,
and told me about his ideas and asked if I would co-sponsor his
legislation, and I did so gladly. He was looking for bipartisan
support. I am sorry I cannot give that particular quality to
him.
[Laughter.]
Senator Specter. But I can give him considerable support on
the merits.
Senator Webb came to the Senate, with his election in 2006,
with an extraordinary record: a graduate of the Naval Academy
in 1968, a law degree from Georgetown in 1975, commended for
his excellence at the Naval Academy. Chose the Marine Corps.
Finished first in a class of 243. Got Marine Corps officers'
basic training in Quantico, served in Vietnam in heavy combat,
two Purple Hearts, heavily decorated with the Navy Cross and
the Silver Star medal, two bronze medals. Served as Secretary
of the Navy, so he has an extraordinary background coming to
the position of U.S. Senator from Virginia.
Senator Webb, we look forward to your testimony. I put that
in the plural because, as I stated to you earlier, you could
either sit here and testify or you could sit there. You can sit
there and then come up here and join me as we move to the next
panel of witnesses.
The floor is yours.
STATEMENT OF HON. JIM WEBB, A U.S. SENATOR FROM THE STATE OF
VIRGINIA
Senator Webb. Thank you, Mr. Chairman. I would like to take
about 5 minutes and just explain a little bit about my concerns
in this area. I would begin by thanking you for being,
originally, my lead Republican co-sponsor on this measure, and
also for your leadership in calling this hearing and helping to
move the legislation forward.
Also, Ranking Member Graham was an original sponsor on the
bill. I think we had nine members of the Judiciary Committee
who were sponsors on this legislation. I know full well your
work in this area over many, many years, and appreciate your
support in this endeavor. I look forward to continuing to work
with this Subcommittee, and also the full Committee, and
hopefully to move this legislation this year and to get to the
business of the commission that we're attempting to form here.
Mr. Chairman, we find ourselves as a Nation in the midst of
a profound, deeply corrosive crisis that we have largely been
ignoring at our peril. The national disgrace of our present
criminal justice system does not present us with the horrifying
immediacy of the 9/11 attacks on the Twin Towers and the
Pentagon, which in the end rallied our Nation to combat
international terrorism. It is not as visibly threatening as
the recent crash in our economy.
But the disintegration of this system day by day, year by
year, and the movement toward mass incarceration with very
little attention being paid to clear standards of prison
administration or meaningful avenues of reentry for those who
serve their time, is dramatically affecting millions of lives
in this country. It's draining billions of dollars from our
economy. It's destroying notions of neighborhood and family in
hundreds, if not thousands, of communities across the country.
Most importantly, it is not making our country a safer or a
fairer place.
I believe it is in the interests of every American, in
every community across this land, that we thoroughly examine
our entire criminal justice system in a way that allows us to
interconnect all of its different aspects when it comes to
finding proper approaches and solutions to each different
component part. I am convinced that the most appropriate way to
conduct this examination is through a Presidential-level
commission, tasked to bring forth specific findings and
recommendations for the Congress to consider and, where
appropriate, to act.
This particular piece of legislation is a product of long
years of thought, research, and reflection on my part as an
attorney, as a writer, including time as a journalist 25 years
ago where I examined the Japanese prison system for a cover
story for Parade magazine, and finally as a government
official.
In the Senate, I am grateful that Senator Schumer and the
Joint Economic Committee allowed us the venue of that committee
to conduct hearings over the past 2 years on the impact of mass
incarceration and of drugs policy. I also appreciate working
with the George Mason University Law School to put together a
comprehensive symposium that brought people from across the
country and to talk about our drug policy, and also
collaborating with a number of other institutions working on
such issues, including The Brookings Institution.
Once we started examining this issue over the past 2 years,
people from all across the country reached out to us, people
from every political and philosophical perspective that comes
into play, and from all walks of life. Since I introduce the
National Criminal Justice Commission Act 2 months ago, we've
seen an even greater outpouring of interest in, and support
for, this approach. My office, just in the past 2 months, has
engaged with more than 100 organizations, representing
prosecutors, judges, defense lawyers, former offenders,
advocacy groups, think tanks, victim rights organizations,
academics, prisoners, and law enforcement officials. In the
Senate, I am very grateful at this point that 28 of my
colleagues have joined me on the bill--as I said, I believe 9
from the Judiciary Committee.
The goal of this legislation is to establish a national
commission to examine and reshape America's entire criminal
justice system, the first such effort in many, many years. Mr.
Chairman, you laid out the areas that we believe should be
focused on. I won't reiterate them here. I have a full
statement that I would ask be submitted for the record at this
point, if I may.
[The prepared statement of Senator Webb appears as a
submission for the record.]
Senator Webb. I would like to say that we worked, along
with staff on this Committee, to bring a panel today that I
think is truly extraordinary in its breadth and in its depth of
understanding. It would be of great benefit for every American
to consider what they're about to hear from this panel. Again,
I appreciate you having moved this legislation as quickly as
you have and called this hearing, and it is my earnest hope
that we can enact this legislation by the end of this year.
Thank you, Mr. Chairman.
Senator Specter. Senator Webb, thank you for that opening
statement. I have already applauded your work in the initiation
of the legislation, and join you in it. I believe it's going to
receive widespread support. I can assure you that as Chairman
of this Subcommittee I will move it promptly, and will press to
have it moved by the full Committee, and press to have it
considered by the full Senate and try to get it done. I think
from a vantage point of mid-June, it could be done. A lot of
work needs to be done in this field and this commission is a
very, very good projection point. It's not a starting point,
it's a projection point.
Let me welcome the arrival of Senator Durbin, and again
express my thanks to him for yielding to me the gavel. He had
been chairman of this----
Senator Durbin. I thank the chair and am looking forward
very much to the testimony you are going to receive from this
panel. Thank you, Mr. Chairman.
Senator Specter. Senator Durbin, you've arrived just in
time to question the witness. Senator Durbin, in lieu of
questioning the witness, is now a fugitive.
[Laughter.]
Senator Specter. Would you care to make an opening
statement?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FORM THE
STATE OF ILLINOIS
Senator Durbin. I'll just make a brief statement. Thank
you, Mr. Chairman, for this Subcommittee hearing. When I handed
the baton over, it was with the request that you honor my
commitment to Senator Webb for this hearing, and Senator
Specter quickly said, ``But I'm already a co-sponsor of his
bill.'' I said, ``Well, then I think we're going to do quite
well here.''
I had an occasion a few weeks ago. We have an annual dinner
with justices of the Supreme Court and I had an occasion to sit
with one--I won't name names--and I said, now, if you were to
pick a topic for the Crime Subcommittee of Judiciary, what
would you pick, having given your life to law and being in the
highest court of the land? He said, ``You've got to do
something about our corrections system. If you set out to
design a system, you would never come up with what we have
today.''
I think it is a challenge to all of us to come up with a
sensible way to keep America safe, yet to treat prisoners
humanely and to do our very best to make sure that no
additional crimes are committed. Recidivism means another crime
and another victim, and we have to make certain that our
system, as Senator Webb has led us into this conversation,
really addresses so many aspects that need to be considered.
I've talked to Senator Specter about one of particular
concern to me, and that is the question of mental illness and
incarceration, both sides, the mentally ill who go into prison,
how they are treated, if they are treated, and what happens in
a prison that may aggravate or create mental illness.
Dr. Atil Gowonday wrote a recent article in The New Yorker
about the impact of solitary confinement on people who are in
prison, most of whom were likely to be released, and in what
psychological condition they go back into the world. It's time
for an honest appraisal and I think Senator Webb's proposal for
a Presidential look at this issue is long overdue, a commission
that will take a look at every aspect of it, give us sound
advice, and I hope that we have the political courage to follow
it.
Thank you, Mr. Chairman.
Senator Specter. Thank you, Senator Durbin.
I will now call our panel. Chief Bratton, Professor
Ogletree, Mr. Brian Walsh, Mr. Pat Nolan.
We've been joined by the distinguished Ranking Member of
the Subcommittee, Senator Lindsey Graham. Senator Graham, would
you care to make an opening statement?
STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman, very quickly. I
understand that Senator Webb testified. I regret I was not here
when he was testifying. I have joined forces with him and other
Senators to take a good, hard look at this. I want to applaud
Senator Webb for bringing this to our attention. It's something
he's been passionate about for a long time, I think. It's not
about being tough on crime, it's just being smart as a Nation.
We have a lot of people in jail in this country, more than
most, and we've got to figure out who needs to be there, and
are there other ways when it comes to some prisoners. I believe
there are alternatives out there available, and make sure that
our criminal justice system is not over-burdened and overloaded
with people that could maybe survive in some alternative
system. So, I welcome this hearing, and thank you for holding
it, Mr. Chairman.
Senator Specter. Thank you very much, Senator Graham.
Our first witness is the Chief of Police of Los Angeles,
William J. Bratton, who also served as Chief of Police in New
York City and in Boston. He comes to this witness table with
very, very extensive experience in law enforcement. During his
tenure at the Los Angeles Police Department, Part One crimes
have been reduced by 33 percent and homicides have decreased by
41 percent. In New York City, he was commissioner, working with
Mayor Guiliani's policy reforms and the unique Combat Stat
Crime Tracking System.
He has a bachelor of science in law enforcement from Boston
State University. He's a graduate of the FBI Executive
Institute and is about to receive a very unusual title:
Honorary Commander of the Most Excellent Order of the British
Empire, one step below knighthood--and I'm sure it's just a
stepping stone. Thank you for joining us, Chief Bratton. We
look forward to your testimony.
STATEMENT OF CHIEF WILLIAM BRATTON, LOS ANGELES POLICE
DEPARTMENT, LOS ANGELES, CALIFORNIA
Chief Bratton. Chairman Specter and distinguished members
of the Subcommittee, in my capacity as president of the Major
City Chiefs Association and----
Senator Specter. Is your microphone on?
Chief Bratton. Excuse me. My apologies, sir.
Senator Specter, distinguished members of the Subcommittee,
in my capacity as president of the Major City Chiefs
Association and Chief of the Los Angeles Police Department, I
am pleased to be able to contribute to the discussion and
debate on what I view as some of the most important issues
facing our society today.
The most important message that I want to leave with you is
that we must focus on preventing crime before it occurs rather
than respond to it after it does. This has been the focus of my
entire career, from a rookie cop in Boston, to now chief of the
Los Angeles Police Department.
One of the great failures of the President's Commission on
Law Enforcement, Administration and Justice was the acceptance
of the widely held belief at that time that police should focus
their professionalization efforts on the response to crime and
not the prevention of it. They mistakenly believe that the so-
called societal causes of crime--racism, poverty, demographics,
the economy, to name a few--were beyond the control and
influence of the police.
They were wrong. Those causes of crime are, in fact, simply
influences that can be significantly impacted by enlightened
and progressive policing. The main cause of crime, human
behavior, certainly is something that is a principal
responsibility and obligation of the police to influence. The
challenge in our democratic society is always to police
constitutionally, consistently, and compassionately.
The main criminal justice concerns in 1965 seemed to
revolve around the hostile relationship between police and the
African-American community, organized crime, a dearth of
research, problems with the growing juvenile justice system,
gun control, drugs, individual rights of the accused, police
discretion, civil unrest, and a broken and isolated correction
system struggling to balance rehabilitation and custody issues.
Sound familiar? Here we are, 40 years later.
The supervised population at the time was quoted as
hovering around one million people. That number has now swollen
to an estimated seven million. While we failed to effectively
address the tremendous increase in crime and violence in the
1970s and 1980s, we finally started to get it right in the
1990s.
Young police leaders were encouraged and financed in their
pursuit of education--and I am a product of an LEAA grant in
the 1970s--and that exposure led to the change in the way we do
business. We had been focused on a failed reactive philosophy,
emphasizing random patrol, rapid response, and reactive
investigations.
In the late 1980s, we began to move to a community policing
model characterized by prevention, problem-solving, and
partnership. We turned the system on its head and we were
successful in driving significant crime reduction through
accountability, measuring what matters, partnership with the
community, and policing strategies that emphasized problem-
solving, and broken-windows-quality-of-life initiatives.
We developed Comp Stat in New York, with its emphasis on
accountability, and use of timely, accurate intelligence to
police smarter, putting cops on the dots. The results, as
reflected by the dramatic crime declines of that period,
continue to this day in New York, Los Angeles, and many other
major American cities.
The main criminal justice concerns for policymakers today
revolve around the threat posed by gangs rather than
traditional organized crime, continued problems with the
corrections system in general, and with the seemingly
intractable problems of mass incarceration, a fractured and
unrealistic national drug policy, and a lack of protection of
the individual rights and treatment of the mentally ill.
George Kelling has noted, ``The jailing and imprisonment of
the mentally ill is a national disgrace that once again puts
police in the position of having to do something about a
problem created by bad 1960s ideology, poor legislation, poor
social practice, and the failure of the mental health community
to meet their responsibilities.''
The Obama administration's new drug czar, Gil Kerlikowske,
has said that he wants to banish the idea that the U.S. is
fighting a war on drugs and a shift to a position favoring
treatment over incarceration to try and reduce illicit drug
use. I agree with Gil and would go a step further by suggesting
that strong enforcement and effective prevention and treatment
programs are not mutually exclusive, they actually go hand in
hand. It is possible, from a responsible enforcement agenda,
without driving incarceration rates through the roof.
This bill recognizes what cops know and what the experience
of the past 40 years has shown, that we cannot arrest our way
out of our gang and drug crime problem. We recognize that
arrest is necessary to put hardened criminals away, however, we
will fall far short of our overall goal if this is all we do.
Our problems are systemic, widespread and growing and only
a singularly focused blue ribbon commission comprised of
informed practitioners, scholars, policymakers, and civil
rights activists can adequately address the calculated
formulation of intervention and prevention strategies.
America's system of justice is overworked and overcrowded. It
is under-manned, under-financed, and very often misunderstood.
It needs more information and more knowledge, it needs more
technical resources, it needs more coordination among its many
parts, it needs more public support, it needs the help of
community programs and institutions dealing with offenders and
potential offenders. It needs, above all, the willingness to
reexamine old ways of doing things to reform itself, to
experiment, to run risks: it needs vision. This was true when
it was penned 42 years ago by the President's commission, and I
think we can all agree that it still holds true even more so
today.
Thank you, sir.
Senator Specter. Thank you very much, Chief Bratton.
Our next witness is Professor Charles J. Ogletree, the
Jesse Clemenco Professor of Law and Director of the Charles
Hamilton Houston Institute for Race and Justice at the Harvard
Law School. Professor Ogletree edited a book released in
January entitled, When Law Fails: Making Sense of Miscarriages
of Justice.
He was recently presented with a 2009 Spirit of Excellence
Award from the ABA Commission on Racial and Ethnic Diversity,
and served as Deputy Director of the DC Public Defender system.
He has a bachelor's and MA in Political Science from Stanford,
and a law degree from Harvard.
Welcome, Professor Ogletree. The floor is yours.
STATEMENT OF PROFESSOR CHARLES J. OGLETREE, HARVARD LAW SCHOOL,
CAMBRIDGE, MASSACHUSETTS
Professor Ogletree. Thank you so much, Senator Specter and
Senators Durbin and Graham. I'm very happy to be here today to
speak on behalf of the Charles Hamilton Houston Institute for
Race and Justice.
I just want to say a quick paraphrase. It was 42 years ago
in a room like this that President Lyndon Johnson said about
Thurgood Marshall, ``It was the right time, the right place,
the right person, the right thing to do.'' His words 42 years
ago ring true today because it is the right time to look at the
criminal justice system and reform it.
It's the right place--the center of Congress--and the right
people--this body of Congress can make that happen--and it's
the right thing to do, because the one thing we've learned in
the course of examining our criminal justice system over many,
many decades is that it has been a failure.
I hope that one major thing we can achieve is to retire the
phrase ``a war on crime'' and replace it with the phrase
``being smart on crime'', because we've fought a war and we've
been unsuccessful. We have too many people in prison, more than
any other developed nation. Too many of them are black and
brown and young. We have too much money being spent on
punishment and not enough on treatment and early intervention.
Finally, we have not looked at real alternatives to the
criminal justice system. I prepared an extensive report with
data and research that I hope will be part of the record that
will be considered as well. Also, this is a propitious time to
think about this because you have never had, in my view, so
many people on the same side on this issue.
For most of my career, I remember feeling like I'm crying
out in the wilderness as the only one talking about repair in
the criminal justice system. As I look at this table today,
there are people with extensive experience who have come to the
sensible view that what we are doing now is just not working.
It's not working in terms of making safety a priority or
thinking of alternatives so that people won't find themselves
in the criminal justice system.
The other important thing is that Senator Durbin mentioned
a member of the U.S. Supreme Court who he talked with. It's not
difficult to figure out who that person might be, and that
person is not just a ``he''. There aren't many ``shes'' there,
but the reality is, there are a number of people who, every
day, apply our criminal justice system and it's very difficult.
Yesterday I saw a dear friend of mine, Paul Freedman, a
former prosecutor, a tough prosecutor, who is on the Federal
District Court in Washington, DC, on his own volition, reacting
to another Federal court judge, decided to impose a one-on-one
penalty for crack cocaine and powder cocaine, because his point
was, there's no sensible reason for me to do anything
differently when I realize that what I've been doing for many
years is just wrong. That's the judiciary taking it into its
own hands.
At the same time, it's very important to think about the
idea of a commission that has as its goal to figure out a
system that is smart, creative, progressive, and forward-
looking. The most important thing that I hope you'll hear over
and over and over again with our testimony today, and I say it
extensively in my report: it's a cost-effective way of doing
it. You can be smart on crime and save a lot of money. We see
that now when we think about the way that we're treating those
who are mentally ill, treating those who are impoverished and
under-educated, and they become the fodder for our criminal
justice system.
Also, I want to say this in terms of the challenges we face
today. Bill Bratton is a terrific police officer. I have known
him from his days in Boston, New York, and Los Angeles. The one
thing that he's always done is to stand up to fight crime, but
also insist on fairness. The fairness means, let's come up with
a policy that makes sense, not just for police officers who
have to, every day, put on that uniform and defend all of us,
but who also have the tools to make sure Senator Specter says
focus on the most serious and important crimes and make sure we
don't have our jails full of people who are largely non-violent
drug users, and that money becomes exorbitant.
The final point I want to make here, and I'll be happy to
answer questions later on, is that we at the Institute have
approached this issue with the idea of providing information to
those who are trying to solve this problem. When we look at one
particular problem, the problem of gangs, we wrote a report
more than a year ago called ``No More Children Left Behind
Bars'', and I'd like to submit that as part of the record.
That became the impetus for Congressman Bobby Scott's new
proposed bill, the Youth Promise Act. Our goal was to look at
whether or not treatment and prevention should be priorities
rather than simply punishment, and they are. They're cost-
effective. They're effective in many, many ways, and I think
it's the best way to go. Ultimately, as we know, we've heard it
said before, in the words of Ohio Governor Ted Strickland. He
said, ``You don't have to be soft on crime to be smart in
dealing with criminals.'' If we're driven by being smart and
creative, we can solve this problem.
Thank you.
Senator Specter. Thank you, Professor Ogletree. The report
you referenced will be made a part of the record, without
objection.
[The report appears as a submission for the record.]
Senator Specter. We'll also move all of the testimony and
all of the reports into the record, without objection.
Our next witness is Mr. Brian Walsh, Senior Research
Fellow, Center for Legal and Judicial Studies of The Heritage
Foundation, where he works on criminal law, and also on
national security and civil liberties. He has recently released
research on the so-called COPS program, Federal hate crimes
legislation, and public corruption prosecutions. He had been an
associate with Kirkland & Ellis. He has a bachelor of Science
in Physics from the University of Colorado and a law degree
from Regent University School of Law.
We appreciate your coming in today, Mr. Walsh, and the time
is yours.
STATEMENT OF BRIAN W. WALSH, SENIOR LEGAL RESEARCH FELLOW,
CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION,
WASHINGTON, DC
Mr. Walsh. Chairman Specter and Ranking Member Graham, I
appreciate this opportunity to address the National Criminal
Justice Commission Act. As you said, criminal justice reform is
a central focus of my research and reform work at The Heritage
Foundation. I'll just note briefly that my views are my own and
not those of The Heritage Foundation.
I commend and am encouraged by Senator Webb's attempts to
date to overcome the political and ideological boundaries that
have caused many of the problems in our criminal justice
systems, and I appreciate the Senator's efforts to reach out
across those same boundaries, seeking input to help improve and
shape the Act.
Over the past few years, we've worked with hundreds of
individuals and scores of organizations across the political
spectrum in an attempt to build consensus for principled,
nonpartisan criminal justice reform. My colleagues, allies and
I have gathered substantial evidence that the criminal justice
system is in great need of principled reform, particularly at
the Federal level, and have come to a consensus that this
reform should not be driven by partisan politics. We've heard a
little bit already about the problem of being considered ``soft
on crime'' and how difficult it is for legislative bodies to go
against that stream.
And while I think improvements are needed to S. 714 to make
it sufficiently principled and nonpartisan to garner widespread
support, it does include positive provisions. In particular,
the commission should undertake to identify just, effective
alternatives to incarceration for some categories of first-time
non-violent offenders, explore and report on the successes and
failures that the States have encountered with drug courts for
non-violent offenders charged with possessions of small amounts
of drugs, and study effective programs for easing offenders'
entry back into society after they are released from
incarceration.
For the remainder of my time I will focus on the needed
improvements to the bill. The goal of each improvement and each
recommendation is to help ensure that the commission would
investigate and report in a principled and nonpartisan manner,
and that its findings and recommendations would be considered
useful and authoritative by Americans across political and
ideological boundaries.
First, the composition of the commission should be modified
to ensure that the members of the commission adequately
represent: 1) the diversity of views, backgrounds, and
expertise needed to address all of the criminal justice issues
covered by the commission; 2) the interests of the 50 States in
protecting their sovereignty over criminal justice operations,
a core State responsibility; and 3) the criminal justice
interests and expertise of the executive branch. I've made
further recommendations about that in my written statement.
Second, the Act includes unstated assumptions that are not
necessarily well-founded. One such assumption is that
incarceration rates need to decrease across the board. Section
6 of the Act would direct the commission to make
recommendations to reduce the overall incarceration rate.
While it may be true that some prison sentences are longer
than necessary to fulfill the needs of justice, a directive to
decrease the overall incarceration rate strongly suggests that
all prison sentences are too long. This is simply not borne out
by the best available evidence and does not take into account
the recidivism problem, particularly with violent offenders,
and the need to make sure that those who have committed violent
crimes and are at high risk to recidivate are actually kept
incarcerated where they are incapacitated from committing
further crimes.
I have made similar recommendations about the drug policy--
that the recent public discourse on national drug policy has
been dominated by those who are broadly opposed to enforcement
and often favor drug decriminalization. The Act itself appears
to be premised on assumptions about drug enforcement policy
that are not entirely well founded.
Nothing in the Act mentions, for example, the successes the
States and the Federal Government have had in the fight against
drug abuse, and my written statement briefly addresses the
destructive effects of family drug abuse on children and the
correlation between the criminal history of incarcerated
offenders and their own history of drug abuse and dependence.
Although such facts do not justify all current drug policy,
this information about the national fight against drug abuse
should be granted its full weight by the commission in order
for its drug policy recommendations to be granted the type of
weight and authority that we would hope that they would
warrant.
Finally, I just want to address that my greatest concern
with the Act as currently written is that it does not guide the
commission to address the many-faceted problems of over-
criminalization, which include federalizing crime that should
remain under the jurisdiction of State and local law
enforcement, criminalizing conduct that no one would know is
criminal unless they both scoured and understood tens of
thousands of pages of statutory and regulatory law, and
eliminating the intrinsic safeguard requiring proof beyond a
reasonable doubt of criminal intent, which formerly protected
from criminal punishment Americans who never intended to
violate the law.
Working with the coalition that crosses political and
ideological spectrum, we came to substantial consensus before
the November elections about a proposal for both hearings and
reform proposals in the House, in particular, and we hope that
we will continue to be able to address those things in a
principled, non-partisan manner.
The overall goal, again, of all of these recommendations is
to make sure that the commission's work is widely respected and
understood to be something that is not favoring a particular
group or class of offenders, but all those Americans who could
be subjected, and have been subjected, to criminal penalties.
Our organization, working in concert with others, have
catalogued a number of examples and stories of those who acted
in ways that none of us would necessarily perceive as being
criminal, and yet found themselves in Federal prison or State
prison for substantial prison sentences.
With that, I look forward to your questions, and thank you
again.
Senator Specter. Thank you, Mr. Walsh.
Our final witness is Mr. Pat Nolan, vice president of the
Prison Fellowship, who comes to the witness table with a really
extraordinary record. He heads the Justice Fellowship, the wing
of Prison Fellowship that seeks to reform the criminal justice
system based on the Bible's principles of restorative justice.
He served in the California State Assembly for 15 years and was
the Republican leader for 4 years. He began his work on
criminal justice reform, as noted in his volunteered
information in his resume, after serving 29 months in Federal
custody for accepting campaign contributions that turned out to
be part of an FBI sting.
He authored a book released by Prison Fellowship on the
role of the church entitled, When Prisoners Return. He has a
bachelor's degree in Political Science and a law degree from
the University of Southern California.
Thank you for coming in, Mr. Nolan. You present an
extraordinary diversity of experience for the benefit of this
Subcommittee. You may proceed.
STATEMENT OF PAT NOLAN, VICE PRESIDENT, PRISON FELLOWSHIP,
LANSDOWNE, VIRGINIA
Mr. Nolan. It's an honor to be included on this panel and
to have a chance to address you. We strongly support Senator
Webb's proposal for a National Commission on Criminal Justice.
As you pointed out, I was very active on criminal issues in the
California legislature, especially on victims' rights. I was an
original sponsor of the Victim's Bill of Rights and received
the Victim's Advocate Award from Parents of Murdered Children.
But as you pointed out, my life took an unexpected turn, and
after I was convicted of racketeering for a campaign
contribution, I went to Federal prison and served in Federal
custody for 29 months.
What I saw inside prison really troubled me. Little was
being done to prepare the inmates for their return to society,
and the skills that the inmates learned to survive inside
prison made them more dangerous after they were released. My
role at Prison Fellowship is to work with government officials
to try to fix our broken criminal justice system. It's taken me
to 35 States, where I have worked with Governors, attorneys
general, secretaries and directors of corrections, and
legislators to try to change the system.
I serve on the National Prison Rape Elimination Commission
and I was a member of the Commission on Safety and Abuse in
America's Prisons. I was appointed by Governor Schwarzenegger
to his strike team on rehabilitation, and I currently serve on
Virginia's Task Force on Alternatives to Incarceration.
I tell you all this because this work has given me a chance
to see up close what is going on in our prisons. Frankly, it's
not working. They're in crisis. First, I'd like to make three
very important points. The first, is that our justice system
needs to keep us safe. That's the priority, and that will
result in fewer victims.
Second, we need prisons. There are some people that are so
dangerous, they need to be incapacitated and separated from
society, some of them for the rest of their lives.
The third, is that the crisis in prisons wasn't created by
corrections officials. There are dedicated corrections officers
and law enforcement that are merely trying to implement the
policies that they did not make. The report on the Commission
on Safety and Abuse in America's Prisons put it well: many of
the biggest so-called prison problems are created outside the
gates of the correctional facility.
Congress and State legislatures have passed laws that
dramatically increase prisoner populations without providing
the funding, or even the encouragement, to confine individuals
in safe and productive environments where they can be
appropriately punished, and for the vast majority who are
released, emerge better citizens than when they entered.
Our current policies have resulted in over-crowded prisons
where inmates are exposed to the horrors of violence, including
rape, infectious disease, separation from their family and
friends, and despair. Most offenders are idle in prison,
warehoused with little preparation to make better choices when
they return to the free world. When they leave prison, they'll
have great difficulty getting a job and it's very likely that
the first incarceration won't be their last.
The Pugh Center on the States has chronicled the magnitude
of the prison system and the challenges it faces: 2.3 million
Americans behind bars as this very moment, 1 out of every 100
adult Americans. Including those that are under correctional
supervision, another 5 million, that comes to 1 in every 31
adults is either in prison or being supervised on release. The
cost to taxpayers is a whopping $68 billion.
On average, corrections are eating up 1 out of every 15
discretionary dollars at the States and the spending on
corrections last year was the fastest-growing item in State
budgets. We just can't sustain this continued growth of
prisons. Corrections budgets are literally eating up State
budgets, siphoning off money that could go for roads, schools,
and hospitals.
But the dilemma we face is, how do we spend less on
corrections while keeping our people safe? My work in the
States has shown me that there are several that are doing a
terrific job of that and that Senator Webb's legislation could
be helpful to the others in doing the same thing.
Most social scientists agree that the drop in crime, some
allege that it's only due to the mass incarceration. In
reality, the experts agree about a quarter of it is, the rest
is a variety of factors, many of which Chief Bratton has
already talked about.
As I said before, we need prisons, but not for everyone
that commits a crime. Prisons are meant for people we are
afraid of, but we fill them with people we're just mad at.
Check kiters can be safely punished in the community while
holding down a real job, repaying their victims, supporting
their families, and paying taxes. A drug addict who supports
his habit with petty offenses needs to have his addiction
treated. Sending him to prison, where less than 20 percent of
the addicts get any treatment, does not change the inmate. When
he's released, he'll still be an addict.
Our object should be to get him off drugs. Spending $30,000
a year to hold him in prison without any drug treatment is just
plain wasteful. We can learn a lot from New York City under the
strong leadership of Chief Bratton. Most people are aware that
the crime rate dropped dramatically in New York, far more than
most other large cities.
For instance, the murders in New York dropped from 2,600 in
1990 to 800 in 2007. From 2,600 to 800. That's an astounding
fact. Also, the one crime statistic that can't be fudged are
bodies in the morgue. That was a real drop there.
What is not well known is that drop in crime occurred while
New York was cutting its prison population, making better
decisions about who they put in prison and for how long. They
looked at the tipping point, where sentences do not buy any
more public safety. That is really our object: how do we get
the most public safety for the dollars that we have? Sadly, I
don't think we're getting the bang for our buck from our
corrections spending.
Several States have succeeded in separating the dangerous
from low-risk offenders, and the results are impressive.
They've shown it's possible to cut the cost of prisons while
keeping the public safe. Last year, Texas--not exactly a soft-
on-crime State--made sweeping reforms in their prison system.
They reserved expensive prison beds for the dangerous offenders
and treat the rest in community facilities, and they've taken
the plans for building more prisons off the table, saving
hundreds of millions.
Senator Specter. Mr. Nolan, how much more time would you
like?
Mr. Nolan. Okay. I have three quick things that I think are
really important that the commission take up. The first, is to
treat the non-dangerous mentally ill in community treatments.
The police don't want to arrest these folks. They do what they
call ``mercy'' bookings because they're on the street, but
there are no beds to put them in. It's so much cheaper to keep
them in a community treatment facility. It's about $29 a day
versus $65 or so that it costs to keep them in prison. It also
makes management of prisons impossible, or jails. How does a
mentally ill person follow the orders.
The second thing is----
Senator Specter. Mr. Nolan, how much more time would you
like?
Mr. Nolan. It'll be like 2 minutes.
Senator Specter. OK.
Mr. Nolan. The second thing is, have swift and certain
sanctions for probation and parole violations. Now a vast
number of prisoners going to prison are for parole violations,
some of them serious, but a lot of them technical violations--
they missed an appointment with their probation officer, they
failed to report certain income, or they had a dirty UA.
Sending them back to prison at a cost of $30,000 a year isn't
the way to handle it.
The Pugh Center has studied a program in Hawaii by former
Federal prosecutor, now a judge, Stephen Ohm that brings them
in. If they have a dirty UA, they go straight to jail, but not
for years, for 24 hours, to hit them up the side of the head.
Some of these are knuckleheads that just can't follow the
rules, and this is a way to say we're serious about it: get
back in drug treatment, get back meeting your parole officer.
The results have been dramatic in that they have 85 percent
fewer missed appointments and 91 percent fewer positive drug
tests. So, it's working and it's saving the taxpayers a bundle.
The third thing is, match the parole supervision to the
risk. Now a lot of States have every parolee being supervised.
Instead, it should be focused on those that are a danger.
The last is a really ridiculous policy that limits mentors
that work with prisoners inside prisons from staying in touch
with them when they get out. Most of the States have this
policy and it interrupts the very good relationships of the
volunteers that are helping these inmates change their lives,
it cuts them off from the very people that could protect them.
It's just astounding that the States would have that. These
are the type of issues that the commission can address. The
States desperately need the help looking at these things.
They're so busy coping with the number of new prisoners that
come in from these long sentences and stronger crimes so they
can't look at these themselves. The commission can do that.
I thank you so much, Mr. Chairman, and Senator Webb and the
other co-sponsors, for carrying the bill.
Senator Specter. Thank you, Mr. Nolan.
Chief Bratton, you commented about preventing crime and you
have the unusual system of CompStat. I think this would be a
good forum to explain that. Other chiefs may be listening to
what we say here. Exactly how does it work and describe its
success rate.
Chief Bratton. The success in New York, which is fairly
well known, which is now continuing in Los Angeles with many
fewer police resources, is based on a system of timely,
accurate intelligence, the idea that gathering up your crime
information, both serious as well as minor--broken windows--
every day, analyzing it, and as quickly as possible putting
your police officers, whether in New York City with a lot of
cops where I could cover all my dots all the time, or in Los
Angeles I have to prioritize, where do I put my very small
number of cops on what dots. The very act of staying on top of
your crime information really allows you to rapidly respond to
emerging patterns and trends and stop them at a second or third
event rather than the 15th or 20th.
Then what we have also focused on is relentless follow-up,
the idea that the Federal Government in particular, and to a
lesser extent State and cities, are like ``one-eyed Cyclops'',
to quote my friend Dean Esserman from Providence, that we look
at an issue, we think we solve it, and we move on, and like the
carousel, we never come back to it again.
In policing, we stay on crime all the time. It never goes
away, so we never go away. So the CompStat model is very
simplistic, if you will, but it works. But what fuels is it the
idea, better to prevent the crime than expend resources, not
just police resources, but societal resources. So the
statistics that the gentleman to my left referenced, in New
York City what was not widely known, was during the Guiliani
time, my time as his commissioner, we purposely increased
incarceration rates for a period of time to get the attention
of the public and the criminal element, both serious and minor,
and the prison population rose from 18,000 to 22,000, the
capacity of Ryker's Island.
Right now, Ryker's Island houses around 11,000 inmates.
There's almost as many corrections officers on Ryker's Island
as there are prisoners. What happened? Police controlled
behavior, both quality of life, broken windows, as well as more
serious crime, CompStat, to such an extent we changed behavior.
So the failed philosophy of the last Presidential crime
commission that pointed police in the wrong direction for 30
years was that you, the police, society will figure out what to
do about the causes of crime, you go work on the results of it.
Well, we did that for 30 years and we saw the results: crime
went through the roof, peaking in 1990 with huge increases,
particularly fueled by crack.
The good news was that in the 1980s and the 1990s, American
police, working with political leadership, yourself included,
we got the crime bill of the 1990s, the first comprehensive
omnibus crime bill, and we changed America. Violent crime went
down 40 percent, overall crime 30 percent, and but for 9/11,
which sucked up so many resources that had been focused on
traditional crime, we would have kept it going down at an even
more dramatic rate.
So the idea now going forward to the new commission is that
certainly incarceration is a critical area, but if that's all
you focus on, if you don't focus on police practices, if you
don't focus on probation/parole practices, you are effectively
going to end up 30 years from now where we were in the 1990s as
a result of what occurred in the 1960s.
Senator Specter. Do you think the 1994 crime bill was
effective?
Chief Bratton. I'm sorry, sir?
Senator Specter. Do you think the Federal legislation in
1994, the crime bill, was effective?
Chief Bratton. It was effective in some respects. I'm an
example of that. Most of American police leadership today, my
predecessor and my two successors in the Boston Police
Department, for example, we all received educations in the
1970s as young police officers and sergeants entering the
police business where we were exposed by going to college in
the daytime, and at nighttime working as police officers. We
didn't get wrapped up in the blue cocoon of that era, which was
all about ``hook'em and book'em''. We understood that--the
first book I ever read for a promotional exam was Herman
Goldstein's Policing a Free Society. We ended up more
progressive.
The leadership of American policing today, which created
CompStat, quality of life policing, problem-solving policing,
focus on prevention, and within five years, sir, we'll be into
predictive policing. The next era is, we will be able to
predict with great certainty where crime is going to occur and
be more focused on preventing it. It's coming about because the
focus back then had some good results. It provided leadership
within policing that benefited the policing system and allows
us to also appreciate that it's not all about us, it's about
what part we play in the larger system. We are one element--
only one element--but I would argue one of the most effective
if we get it right.
Senator Specter. Professor Ogletree, you emphasized the
treatment aspect. We call it a correctional system, but we all
know it doesn't correct. The tremendous cost of recidivism. One
of the factors which has been so difficult is to get sufficient
public support to make the system correctional on the steps of
detoxication or literacy training or job training. What
suggestion would you make to how you get sufficient public
support to get the funding to do it?
Professor Ogletree. Senator Specter, I think this is an
idea where the public would actually support the idea of what I
would call a sane criminal justice policy if the public
understood something as simple as the collateral consequences
of punishment. You don't only go to jail when you commit a
crime in most cases, put aside minor crimes, but also you lose
your right to vote, you lose your right to hold a license, you
can't get a job, you can't travel, and you can't live in
certain communities. Therefore, the only thing you do is return
to crime, so the community is punished a second time because we
haven't thought carefully about what to do with this person
once they've served their time.
A couple of sensible things are going on with the mayor I
know in Oakland, a former member of the Congress, Ron Dellums,
and with another mayor, I know in Newark, Corey Booker. Both of
them are making contact with corrections officials before
people are released to get a sense of where they're going to
go, what treatment they need. It's a form of the second chance,
but the idea is that I don't want my community impacted by
someone being released today whom I know can't get a job,
doesn't have a license, doesn't have a place to live, and
they'll be committing crimes within 48 to 72 hours. So reaching
those people before they're released and working with
corrections is one thing.
The second thing is to think about our policies that
disenfranchise people in terms of working and to let the public
know that we're not saying that we're going to give the best
and most expensive jobs, the most revenue generating jobs to
criminals. That's not the right idea. But the idea now is that
someone who has a record can't get a job cutting grass or
painting a fence. Okay. Not a child care center, not in certain
sensitive areas, not in national security, fine. But the kinds
of work that they could do where they would be taxpaying, wage-
earning citizens is important.
I recall the line from Chief Justice Earl Warren's position
on Brown. Brown had a lot of interesting things to say, but one
thing said was that the most important thing was education. He
said, ``The very foundation of education is that it creates
citizenship.'' People consider themselves citizens, which makes
a big difference.
What I would suggest that we would have to do, and what
this commission could do very effectively, is to figure out a
way that people--like the old system, you have both a time of
punishment, but also a time of treatment and release, and that
we would make sure that we have a policy, a sane policy which
enforces that.
Senator Specter. Professor Ogletree, in terms of attacking
the underlying causes of crime, we talk about education,
rehabilitation, realistic rehabilitation, job training, during
your tenure in this field do you think we made any progress in
the last three decades on the underlying causes of crime?
Professor Ogletree. We have. To be fair, we have, because
what we've done is to get people, on their own initiative with
their own resources, to come up with creative alternatives for
education. If you look at what is being done right in New York
with the Harlem Enterprise Zone, you will see that this has
taken a community that would otherwise be viewed as crime,
drugs, violence, but in fact Jeffrey has taken this community
and said, you know, this is our community. We have to clean it
up; we have to respect it. So people from parents to children
are invested in it in some way that makes an enormous amount of
difference.
At the same time, James Bell in Oakland has the Byrnes
Institute which works with young people to make sure that we're
very careful about things like expulsion and suspension,
because when kids are out of school, all they do is commit
crime. All of our laws that talk about curfews at 9, the crime
is happening, as Chief Bratton will tell you, from 3 to 6,
these latchkey kids who don't have anyone supervising them.
The third example that's a pretty significant one is
resource-serious, but Chief Bratton will tell you, in Boston
what we had was a voluntary effort of clergy, the Ten Point
Coalition, the Black Minister Alliance, not meeting kids at the
church, but going out on the streets of Boston in Dorchester,
Mattapan, and Roxbury at midnight and talking to them, and
taking them to have some coffee and so they had something to
do. What I'm saying is that the community can address crime. It
shouldn't be a burden just on police, just on the criminal
justice system, but we have to use the resources that are
already there.
If we can replicate examples of the Ten Point Coalition and
the Black Minister Alliance in communities across this Nation,
ministers, retired teachers, senior citizens, all of us have an
interest in crime prevention, and we do that by telling
children we love them, they do have some future, we can help
them, and it doesn't cost the government money.
The idea is to make the community responsible for its own,
but do that in a sense that gives the community some power to
make sure that children have some alternatives other than the
idea that all they can do is hang out in the streets because
they can't get a job, they can't go to school, and they don't
have many ideas of success within their homes.
Senator Specter. How important do you think mentoring is on
that kind of community support?
Professor Ogletree. It's critical. It's absolutely
essential. You know that President Barack Obama and his wife
Michelle Obama were my students, and I think about both of
them. People see them and what they've done today, but Barack
Obama is a guy whose father was largely absent from his life.
His mother was pregnant as a teenager. He was moved around, not
the country, but the world as a young kid.
Yet, he had mentors who kept him in check, who made him get
away from bad influences, and led him to see that his life
could be different. The same thing with Michelle: a father who
was a working-class guy who had multiple sclerosis, but he took
care of his children. I think mentoring is perhaps the most
significant single factor.
And here is the point that we forget about: it's the
problem that we don't appreciate the fact that mentoring has
nothing to do with race and gender, that if we think, because
I'm white I can't mentor a black kid from Harlem, or I can't
mentor an Hispanic kid from Houston, we're wrong. If we don't
see this as our problem and our children and our community,
that's the problem.
Mentoring should be a global effort by everyone that
everyone can contribute, and that makes an enormous amount of
difference for these children to see somebody who loves them,
who has spent some time with them, and it's cost-effective
because it lets people, like senior citizens, let kids know
what it means to read a book, to think about a job, to be self-
sufficient.
Senator Specter. Senator Klobuchar?
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to our witnesses. Before I had this job I spent 8 years as
a prosecutor in Hennapin County, heading up that office. I saw
firsthand how the criminal justice system can work well, and
then some of the issues that we have with it as well.
I will tell you that my experience--Minnesota has a lower
incarceration rate than most States: we use probation more, we
hang sentences over people's heads, we have a functioning drug
court that has been improved and has some merit to it, I would
say, but we also have focused in recent years strongly on tough
sentences against people, felons who commit gun crimes and
things like that.
So I will say that despite many people who completely decry
our criminal justice system, I think there have been some
improvements in recent years. I can tell you that I come from a
city that was once called ``Murderopolis'' in the mid-1980s,
and because of some tougher sentences, but also some more work
on drug rehabilitation in our country, we actually saw vast
improvements, a very strong decrease in the amount of murders,
so no one is calling us ``Murderopolis'' anymore.
So I have interest in trying to make improvements, but also
wanting to make sure that while we fix what is broken, that
we're not going to hurt the good that has come out of some of
the tougher sentences for certain crimes as we go ahead.
I had questions, first of all, for you, Mr. Bratton. I
think we met once at a prosecutor's conference where I heard
you speak back then many years ago. But I know you're a fan of
community policing. I also think we could build on that with
community prosecution. We did some of that in our county that
was very successful. I do want to talk about whether you think
this commission should also be looking into community policing.
Chief Bratton. Community policing is, in fact, being quite
frank with you, what saved America in the 1990s. The Federal
Government entering into the partnership with State and local
agencies for the first time in an effective way, the omnibus
crime bill, some meaningful gun regulation, but its support of
the concept of community policing, the emphasis on partnership,
community, criminal justice system partnership within the
system, prosecutors working with police, working with
probation/parole, judges, et cetera, and the return to the
focus on prevention of crime. What we focused on in the 1970s
and 1980s was, as I was talking about earlier, was the
response: response time, arrest rates, conviction rates, all
important, but that's part of it.
The totality of it is, how do we prevent it in the first
place? How do we prevent people from becoming drug addicts? How
do we prevent people from being incarcerated? In the 1990s, we
learned a lot; the New York experience, CompStat, was a tool to
facilitate community policing. We resourced appropriately on
the police side of the house in that we had a lot of police,
100,000 more than we have now.
We also built a lot more prisons, but in the building of
the prisons, when we filled them up as the police put them
there, we in effect compounded the problem rather than, as
policing was doing, reducing the problem in terms of the
reduction of violence. There are too many people in jail that
don't need to be there, many who could be in treatment centers,
certainly the homeless, or what have come to be known as the
homeless, the majority of whom are in fact having mental
issues.
That half-million population in prison should not be there.
They're only there because there's no place else to house them.
Those half million in the 1960s and 1970s were in other forms
of prison: they call them mental institutions. We literally
dumped them from one place into another, and along the way a
lot of them became the homeless populations we see on the
streets.
So, effectively, your point that we not throw everything
out, but examine what has been working, what is continuing to
work, and what can we add to it, and let's get rid of what is
not. There's a lot that is not working.
Senator Klobuchar. OK.
Mr. Nolan, I appreciate your work. For many years I
visited--I think 10 years--a woman who was incarcerated in
Minnesota before I was a chief prosecutor. It got a little more
difficult then. But she had killed her pimp, and I got a sense
of the population. I went there about once a month and saw her
and got to know some of the inmates in the facility. I will say
that one of the things that I noticed, there were some people
there with severe mental illness.
One of the things that you've suggested that Mr. Bratton
just mentioned was to provide funding for providing more
community health facilities where non-dangerous mentally ill
people--I know we worked with the Mental Health Court for a
while when I was a prosecutor to take some of the urinating in
public cases, some of the cases that were non-violent, and
tried to make sure that these people were taking medication,
and working with them, and we had some success with that.
Could you talk a little bit about this idea of having a
place that is different from the prison for people who are
mentally ill to be incarcerated or to get treatment?
Mr. Nolan. Yes. First of all, it's wonderful you've gone
and visited the woman in prison. As I said, it's a lonely time,
and anybody that wants to turn their life around, having
somebody that comes and shows love for them and cares about
them, gives them hope. So, thank you.
The mentally ill population, as Chief Bratton said, we
closed our mental hospitals, but didn't build the community
facilities that were promised to take care of them, so they
ended up on the street and with the mercy bookings of the
police, they ended up in jail. The idea is to get them in a
stable environment. Ofttimes they're off their medications. If
they're on their medications, getting three squares a day,
they're totally functioning.
Senator Klobuchar. Exactly.
Mr. Nolan. They're not a danger to anybody. LAPD and LASO,
the sheriff's office, have a great program, crisis intervention
teams that are trained, specially trained officers that go out
when a mentally ill person is found in front of Denny's
worshipping the news rack, or whatever, that's the public
nuisance. What it does, is free up the patrol officer to
continue doing his work. These are specially trained and they
try to defuse the situation. Then they've worked out contracts
with local mental health facilities. They get first call on the
beds. That's what the need is. They need a bed that can give
them the acute care that they need, stabilize them, and then
they can go to a regular mental health facility.
The problem is, they don't have enough money. I don't know
about LAPD, but LASO has one shift, 8 hours out of the 24, and
they've had to choose the times to have that special team just
during 8 hours. The problem is, people don't act out during set
times of the day. If they had 24-hour coverage, it would be
much better.
The second thing, is that they have a bed to put them. I'll
give you a quick story of an incident that shows how absurd
this situation is. A deputy, before this program, arrested a
mentally ill person. Again, they were causing a disturbance. He
took them to the county hospital.
The L.A. county hospital refused to accept him and said,
take him to jail. The deputy said, this man is not a criminal,
he's sick. He belongs here. The hospital said, get off the
property, we're going to arrest you for trespass if you stay
here, and tried to arrest the deputy for trying to get the guy
the treatment he needed. It became a big--the watch commander
of the sheriffs and the commander at the hospital got involved
and they defused the situation, but that's how absurd the
situation was. You had a deputy that knew this man didn't
belong in jail.
Also, the mentally ill are horribly abused in prison.
They're taken advantage of, and then sometimes they also act
out and abuse people. The last thing is, it just makes
management impossible. Jails and prisons run on order,
following set patterns. That's how they control the population.
By definition, a mentally ill person can't follow the rules so
they end up in detention, solitary confinement, which
exacerbates their mental illness.
Senator Klobuchar. Are you familiar with the Mental Illness
Court that they had in Milwaukee where they actually have----
Mr. Nolan. Yes.
Senator Klobuchar. They have a place that people go and
they take their medication, the sentence is hung over their
heads.
Mr. Nolan. Right.
Senator Klobuchar. I think it was an interesting model to
look at. So, again, for lower-level offenders.
Mr. Nolan. That's exactly it. There are some mentally ill
that need to be--Charlie Manson needs to be locked up.
Senator Klobuchar. Thank you.
Mr. Nolan. But a lot of folks don't.
Senator Klobuchar. All right. I'll come back.
Senator Specter. Go ahead.
Senator Klobuchar. You want me to keep----
Senator Specter. Yes.
Senator Klobuchar. Okay. All right.
The other thing, Mr. Walsh, I want to thank you also for
being here. I appreciated your testimony where--I don't know if
you said it today, but in the written testimony where you
talked about how State and local governments are responsible
for 96 percent of those individuals that are either
incarcerated or on parole.
As we look at this commission and the setting up of the
commission, I'm very concerned that the people that are paying
for 96 percent of this have a voice, because I can tell you
what my impression was, being on the front line, managing an
office of 400 people, is that the people in Washington love to
put mandates down on us and put it in their brochures, and then
we got stuck with all the work without any funding.
So could you talk a little bit about helping local
governments have a voice with this commission?
Mr. Walsh. Yes. Thank you. And thank you for your interest
in this, too. You know, the principle which I mention in my
written statement is often called the Principle of
Subsidiarity, which is that those government officials who are
closest to the affected populations are typically in the best
position, like you were as a prosecutor in Hennapin County, to
know what the needs and the priorities should be for that
particular community.
So often when drug policy is made or other policy is made
at the Washington level, it doesn't necessarily reflect the
values, the interests, and the priorities of the local
community. So who those persons are who are ending up being
incarcerated--or mental health, perhaps, issues that are being
dealt with--in the population in that local community is being
dictated by a very broad, and not necessarily very nuanced,
policy that's being made in Washington.
So those who are on the ground, as I've learned in other
experiences that I had, including doing Katrina relief where I
was involved in getting the private sector on the ground very
quickly right after the hurricanes hit, one of the things you
learn is that the government officials who are closest to the
situation are the ones who understand what is happening on the
ground. They recognize it. It's very difficult for anyone in
Washington to really see those nuances.
So from that standpoint, I think one of the things that the
commission really needs is to have a robust representation from
the States. It's good that the commission right now has two
members who would be appointed, one by the chairman of the
Democratic Governors Association, the other by the chairman of
the Republican Governors Association. But it would be helpful
to have language in the statute which specifically states that
those interests need to be taken into account. And whether
those members are appointed by Congress or, as I also
recommend, that some of them be appointed by the executive
branch, that those be people who are staunch proponents of the
State and local law enforcement officials who right now
comprise 91 percent of all of the law enforcement officials
across the Nation.
So those are some of the ways that I think we can do it,
but part of it is just elevating the discourse and making sure
that we recognize that the States really do have the huge
burden. One percent of the arrests, I think, in 2003 were made
by Federal officials; 99 percent of the arrests were made by
State and local officials. That's something that gets lost in
the national publications, the national media.
It's important that we continue to bring that issue to the
fore because otherwise we end up with some of the guidance that
we were given--even, I hate to say it, but through the
Sentencing Reform Act--from the Federal Government, which
suggests that this is the best way, necessarily, to do
sentencing.
A lot of the States will follow that in, sometimes, lock-
step or rote, especially if there's money attached to it. So
from that standpoint I think it makes a lot of sense to get the
communities that Professor Ogletree was talking about well
engaged and to have them well-represented, with their voices
from the very beginning of the process--community leaders,
ministers, others--talking about what they're really seeing and
how to make sure that what we plan actually works.
Senator Klobuchar. Right.
Then the other thing you commented about was just the
sentencing, and how there are sentences that we should look at
changing, and we had a good hearing here on the crack/powder
disparity. I support changing that, and I think a number of the
other Senators do as well. But I am concerned--I will be honest
with this--I saw in our State some major improvements when it
came to, especially, some of the Federal gun laws that went on
the books that allowed for some of the worst criminals with
guns, that allowed that to be up to the Federal level.
I think that was very helpful in many cases for us, even
when they didn't go to the Federal level, the fact that those
sentences were out there. It gave us some leverage to enforce
the laws on the State basis. I think some of the changes in
sexual assault law have been helpful, I think some of the
changes in domestic abuse laws and those longer sentences have
been helpful.
So some of the rhetoric surrounding this bill, that the
entire system is broken, when in fact we have made strides in
many areas, does bother me. It is not to say that we don't need
changes to the criminal laws, we do. I come at it with these 8
years of experience of seeing the good side of using
rehabilitation and having programs that work, but I also come
at it as someone that has seen also the benefits of having some
of the strength of a strong criminal justice system with those
sticks out there.
Do you want to comment briefly on that?
Mr. Walsh. Yes, I would. I think you're right. In gun crime
in particular, there's an instance where--I hate to say it
again--there's a tenuous connection to interstate commerce in
many instances for those Federal crimes. That doesn't mean that
the States can't put in place the same type of laws, because
they have wide latitude to criminalize gun possession in
similar circumstances.
Now, the issue becomes, is there funding available and is
there a mandate available? So one of the ways that we--and I
think part of what the commission needs to do, is to recognize
that the average person has gotten to the place where they do
begin to look to Washington for all the solutions and to
recognize that the State capital is often the place where those
crimes can be put into place, those offenses can be put into
place, and then also look at how is money being allocated?
Some of the cost-savings measures that have been mentioned
here could be reallocated for, like, gun enforcement, as an
example. The benefit being that there is, again, a more nuanced
approach and it's more tuned to the gun offenders in that
particular State, that locality, whatever it is, and is not
necessarily as harsh as some of the cases I saw when I clerked,
for example, in the Federal court system, where basically an
offender had a single shell casing or a few shell casings in a
residence where he was staying, not even his shell casing. It
was undisputed. But he either knew that they were there or had
constructive possession of them and ended up spending time in
prison because that supposedly was sufficient to show that he
had possession.
So there's an instance where, at the State level, those
types of stories, I think, have a greater impact on the
electorate and they can begin to re-tune the policy. But I
think mental illness is an other example. It is good for
Washington to lead in terms of understanding what best
practices are, doing the thorough investigations, and then
bringing everyone to the table to begin to discuss it very
openly.
Senator Klobuchar. Yes. And I always just think about the
effects that these changes will have, and I think there are
some very good things we can do here. But I always remember,
it's not going to be on the gated communities, it's not going
to be where a lot of my colleagues live, it's going to be, the
effects of these policies, good and bad, in the criminal
justice system affect people in the Falwell neighborhood in
north Minneapolis where they depend on us to make sure we're
making the right decisions here.
I just want to end, because the Chairman has been so nice
to let me go on here, with Professor Ogletree. Thank you very
much for your work. I was very interested in your focus on
patrol officers--we call them probation in our State--better
monitoring using those compliance tools. We found that to be
tremendously effective and a good use of resources, and they
sometimes get left behind where someone, as long as they're
monitored, it has been a big help to know and to use some of
that sentence hanging over their head and to have probation
officers, especially if they're willing to be out in the
community.
Do you want to expand on that some more?
Professor Ogletree. I agree. When I was practicing here,
one of the great things was the great Probation and Parole
Division, not with guns, but with the idea to help people get
the jobs, make sure they kept their appointments, make sure
they treated their families respectful, and it created a real
partnership because you were in the halfway house. Right? You
were out of jail, but if you didn't follow my rules strictly
you would go back to jail. That was an important lever over
their head.
I think we need a lot of those, not just the idea of
probation and parole officers and other social workers and
people in the community, but as I said earlier, we need the
community to be invested in some reasonable way.
Here's the one thing that I would slightly disagree with on
both the inferences, yours and Mr. Walsh's. Here's the problem.
Everybody has their own idea of how much to add to punishment,
so you may want to do it on guns, someone else on sex offense,
someone else on the elderly. What happens is, you get a 24-
year-old who gets a sentence, not of 8 years, but of 30 years,
and he comes out 54 years old, doesn't have a high school
diploma, doesn't have a job, doesn't have a license.
Then he goes out, because he can't work, doesn't have a
place to stay, and 3 weeks later he's back. You say, what
happened? Well, no one did anything to prepare him for the life
that he's going to experience. My sense is that we've got to
think of not just the role of prosecutors, defense lawyers, and
police, but who are the problem solvers? No one has that role
in the criminal justice system. No one has to say, ``my job is
to resolve the problem, and my job is to do it in a smart and
creative way.''
It's being done by Chief Bratton and others, and police now
are more creative about it. It's being done by judges, as I
mentioned earlier, who are looking at the disparities between
two penalties and saying, well, let me do what I think makes
the most sense, and still be punitive.
One hundred and thirty months is still a lot of time, as
opposed to 160, no one is walking free. But I think the real
goal here is to figure out if we can have some group of people
who can step back and say, our job is to solve this problem in
a cost-effective way, and if we can't punish everyone as
severely as we'd like, how can we make them accountable?
My sense is, you've got to get a job, you've got to go to
work, you've got to earn a salary, you've got to pay your
taxes, you've got to respect the community. I mean, there are a
whole series of things that we think that can be done, and
we've seen that happen. I should say, if you look at the
testimony submission, virtually every single program that I
mention in here is an organic one. Some community person said,
I want to do this for these kids, and then they got a little
bit of money, then they got a little State money, and then they
got some Federal money.
So it was somebody locally who couldn't go to the mayor,
the Governor, or the city council or the legislature, but
somebody in Washington said, that's a very good idea, the youth
bill. That's a very good idea, L.A. is best when kids are in
school and staying off the streets. So my sense is that the
Federal Government shouldn't tell the local government what to
do, but it seems to me the Federal Government should find ways
to support creative programs. It's a competition. You don't get
it just because you're there, you have to prove to me that
you're doing something that makes a substantive difference in
the quality of life, not just of those in the criminal justice
system, but those who are fearful of walking down the streets,
shopping in the supermarket, living in the neighborhood. That's
what we have to do to have a comprehensive and sane, and I
would smart and creative, criminal justice policy.
Senator Klobuchar. Very good. And I hope you didn't believe
that I was against looking at this, because I come from a State
which, I didn't always like to say, has the lowest
incarceration rate in the country, but pretty much so. We use
probation all the time in a very positive way, and I think a
lot can be learned from that, especially at the Federal level.
But one thing you mentioned that I think is really important to
note is that a lot of times politicians don't want to pretend
people are going to get out, and some offenders should never
get out, do never get out, but many offenders do get out.
I think the willingness to focus on that part of the time,
what education they get when they're in prison--no one wants to
say they're getting out, but they are, so the more we can do to
equip them with those skills and to help them get jobs when
they get out--we have a great program in the Twin Cities called
Twin Cities Rise that has actual numbers.
This is one of these things that bugs me with programs, is
a lot of times you have no idea what works and what doesn't. I
think that we really need to have a focus on that as well. But
they have the numbers to show that they're willing to take
people in, train them, and get them out there in workforce. And
certainly at this difficult time in the economy it's even
harder for ex-inmates to come out and get jobs, and so I
appreciate that focus, and it must be a focus of this
commission. Thank you.
Professor Ogletree. I should also say that you know Cathy
Rickman, who is the co-chair with me of the Juvenile Justice
Section of the Criminal Justice Section of the ABA, and we've
been doing this very much. Donald Lewis, who's a classmate of
mine, the new dean of Hamline----
Senator Klobuchar. From Minnesota, yes.
Professor Ogletree. All of us have been talking about, how
do we do something for children? That is, we can't save
everybody, but if we can prevent something early, that makes an
enormous amount of difference. Minnesota is one of those States
that we've seen as a model of intervening in people's lives at
an early point and staying there until the problem is solved,
and it's made a tremendous difference in the recidivism rate
and the crime rate.
Senator Klobuchar. Thank you. And I do think the other
thing that made some difference, because we were called
``Murderopolis'', was that we had some tough sentences that we
were able to use.
Professor Ogletree. Right.
Senator Klobuchar. And I think the key is to have it be a
chisel and not a hammer in trying to get to the right place.
We're never going to be perfect, but maybe because I had to
play that voice in our State for so long, we have been called
the land of not just 10,000 lakes, but 10,000 treatment
centers.
Professor Ogletree. Right.
Senator Klobuchar. So I believe that it's important to have
both, and I appreciate the work that you've all done. Thank you
very much.
Senator Specter. Thank you, Senator Klobuchar.
We will make a part of the record letters, statements, and
reports from The Rand Corporation, Human Rights Watch, National
Association of Criminal Defense Lawyers, Council of Prison
Locals, AFGE, AFL-CIO, Federal Cure, Inc., Crimeon
International, Goodwill Industries International, Russell
Simmons, Kings County D.A. Charles Hahns, Families Against
Mandatory Minimums.
[The letters, appear as a submission for the record.]
[Annditional material is being retained in the Committee
files, see contents.]
We thank you all very much, Chief Bratton, Professor
Ogletree, Mr. Walsh, and Mr. Nolan.
That concludes our hearing.
[Whereupon, at 4:25 p.m. the Subcommittee was adjourned.]
[Submissions for the Record follow.]
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