[Senate Hearing 112-946]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 112-946

 RISING PRISON COSTS: RESTRICTING BUDGETS AND CRIME PREVENTION OPTIONS

=======================================================================

                                 HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             AUGUST 1, 2012

                               __________

                           Serial No. J-112-92

                               __________


         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT] 


                       U.S. GOVERNMENT PUBLISHING OFFICE
20-971 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 THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                           
                           
                           
                           C O N T E N T S

                              ----------                              

                       AUGUST 1, 2012, 10:06 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
    prepared statement...........................................    40
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    38

                               WITNESSES

Witness List.....................................................    21
Davis, Edward F., Police Commissioner, Boston Police Department, 
  Boston, Massachusetts..........................................     4
    prepared statement...........................................    22
Sedgwick, Jeffrey Leigh, Ph.D., Managing Partner and Co-Founder, 
  Keswick Advisors, LLC, Richmond, Virginia......................     6
    prepared statement...........................................    25
Tolman, Brett L., Shareholder, Ray Quinney and Nebeker, PC, Salt 
  Lake City, Utah................................................     8
    prepared statement...........................................    32

                               QUESTIONS

Questions submitted to Edward F. Davis by:
    Senator Grassley.............................................    49
    Senator Klobuchar............................................    46
Questions submitted to Jeffrey Leigh Sedgwick by:
    Senator Grassley.............................................    50
    Senator Klobuchar............................................    47
    Senator Leahy................................................    43
Questions submitted to Brett L. Tolman by:
    Senator Grassley.............................................    52
    Senator Klobuchar............................................    48
    Senator Leahy................................................    45

                                ANSWERS

Responses of Edward F. Davis to questions submitted by Senators 
  Grassley and Klobuchar.........................................    53
Responses of Jeffrey Leigh Sedgwick to questions submitted by 
  Senators Grassley, Klobuchar, and Leahy........................    58
[NOTE: At the time of printing, after several attempts to obtain 
  responses to the written questions, the Committee had not 
  received any communication from Brett L. Tolman.]

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

American Bar Association (ABA), Wm. T. Robinson, III, President, 
  statement......................................................   105
American Civil Liberties Union (ACLU), Laura W. Murphy, Director, 
  Washington Legislative Office, and Jennifer Bellamy, 
  Legislative Counsel, statement.................................   109
Boston Police Department, City of Boston, Massachusetts, report..   134
Council of Prison Locals, American Federation of Government 
  Employees (AFGE), AFL-CIO, Dale Deshotel, President, statement.   118
Families Against Mandatory Minimums (FAMM), Julie Stewart, 
  President, statement...........................................   144
Justice Strategies et al., August 8, 2012, statement.............   148
New York Times, The, ``Sensible Sentences for Nonviolent 
  Offenders,'' June 14, 2012, editorial..........................   151
Pew Charitable Trusts, Public Safety Performance Project of the 
  Pew Center on the States, Adam Gelb, Director, statement.......   113
Sentencing Project, The, Marc Mauer, Executive Director, 
  statement......................................................   156
Texas Public Policy Foundation: PolicyPerspective, Marc Levin, 
  Esq., Director, Center for Effective Justice, ``The Role of 
  Risk Assessment in Enhancing Public Safety and Efficiency in 
  Texas Corrections,'' July 2010, article........................    75
Texas Public Policy Foundation: PolicyPerspective, Marc Levin, 
  Esq., Director, Center for Effective Justice, ``Unlocking the 
  Key Elements of the Adult Corrections Budget,'' May 2011, 
  article........................................................    91
Texas Public Policy Foundation: The Texas Model, Marc Levin, 
  Esq., Director, Center for Effective Justice, ``Adult 
  Corrections Reform: Lower Crime, Lower Costs,'' September 2011, 
  article........................................................   103
United States Department of Justice, Charles E. Samuels, Jr., 
  Director, Federal Bureau of Prisons, statement.................   137
United States Sentencing Commission, Patti B. Saris, Chair, 
  statement......................................................   152
Vera Institute of Justice, Michael Jacobson, President and 
  Director, statement............................................   163

 
 RISING PRISON COSTS: RESTRICTING BUDGETS AND CRIME PREVENTION OPTIONS

                              ----------                              


                       WEDNESDAY, AUGUST 1, 2012

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Grassley, Hatch, and Lee.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Chairman Leahy. Today the Judiciary Committee considers the 
important issue of prison costs. We find more and more people 
incarcerated for longer and longer, but what I am hearing from 
Governors of both parties and certainly seeing at the Federal 
level is that Federal, State, and local budgets are facing 
enormous strains, which in turn takes money away from budgets 
that we might use to prevent crimes in the first place. So, 
again, the idea of do we have correctional officers or do we 
have police officers?
    At a time when our economy has been struggling to recover 
from the worst recession in 75 years, everybody's budget is 
strained, Federal and State, and we have to check whether the 
money is being wisely spent with overincarceration or whether 
we should spend elsewhere. There is mounting evidence that 
building more prisons and locking people up for longer and 
longer--especially nonviolent offenders--is not the best use of 
taxpayer money. In fact, it is an ineffective way of keeping 
our communities safe.
    Between 1970 and 2010, the number of people incarcerated 
grew by 700 percent. If you look at the prisons throughout the 
whole world, about a quarter of the prisoners are locked up 
here in the United States. I put that in perspective because we 
have about 5 percent of the world's population; we have almost 
25 percent of the people locked up. There are 1.6 million 
people in State and Federal prisons, and more than 700,000 are 
in local jails. Seven hundred thousand is more than the 
population of my State of Vermont. We incarcerate about one in 
every 100 adults.
    At the Federal level, over the last 5 years, our prison 
budget has grown by nearly $2 billion. In 2007, we spent 
approximately $5.1 billion on Federal prisons. This year, the 
Federal Bureau of Prisons requested over $6.8 billion. To do 
that, we will have to spend less money for Federal law 
enforcement, less aid to State and local law enforcement, less 
funding for crime prevention programs, and less funding for 
prisoner reentry programs. As we spend more money to keep 
people locked up, we have less to spend on the kinds of 
programs that evidence has shown works to keep crime rates 
down.
    In the States, the problem is also acute. We have seen the 
U.S. Supreme Court affirm a mandate that California release 
thousands of prisoners to alleviate unconstitutional 
overcrowding. We have seen police departments reduce the rolls 
of officers on the beat. We have seen successful crime 
prevention programs shutting their doors.
    In my State of Vermont, massive increases in prison costs 
prompted action. Between 1998 and 2008, the prison population 
had grown by 86 percent, and the projection was it would 
continue to grow. From 1996 to 2008, spending on prisons almost 
tripled, from $48 million a year to $130 million a year. Keep 
in mind this is a State of 650,000 people. With massive 
additional increases projected, the State instituted sentencing 
reforms that reduced the number of prisoners and saved $18.3 
million in corrections costs--$6 million of which was put into 
programs to keep people from committing the crimes in the first 
place. And recidivism dropped by 9 percent. Our violent crime 
rate dropped 5 percent between 2008 and 2010 while the changes 
were taking place. The property crime rate dropped 10 percent 
over the same period of time. The reforms not only save money, 
they keep communities safer. It is probably one of the reasons 
why Vermont has one of the two or three lowest crime rates in 
the country.
    Several other States, including very conservative ones, 
have adopted sentencing reforms and other policy changes. Texas 
has reduced its prison population by steering nonviolent drug 
offenders to treatment rather than prisons. They saw their 
crime rate drop by more than 8 percent, but they also saved $2 
billion.
    So this is a bipartisan issue. Sentencing reform works. 
Taxpayer dollars can be used more efficiently to prevent crime 
rather than just build more prisons.
    The U.S. Justice Department seems to finally be recognizing 
the perils of continuing the current trend. I will put that in 
the record. I think sometimes Congress has moved in too often 
the wrong direction--I know I made some mistakes in some of 
these votes--by imposing new mandatory minimum sentences 
unsupported by evidence while failing to reauthorize crucial 
programs like the Second Chance Act.
    So there are ways we can save billions of dollars and make 
the justice system safer. As I said, I will put my full 
statement in the record.
    [The prepared statement of Chairman Patrick J. Leahy 
appears as a submission for the record.]
    Chairman Leahy. I want to yield to my long-time friend and 
partner here, the Senator from Utah, Senator Hatch.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman.
    Chairman Leahy. The senior Senator.
    Senator Hatch. Thank you, Mr. Chairman. I appreciate you 
and your leadership.
    Good morning to everybody. We are here to discuss a rather 
important but delicate issue surrounding the rising costs of 
prisons. The Federal prison population is growing. Over the 
last 15 years, the Bureau of Prisons' budget has increased from 
15 percent to 24 percent, almost one-quarter of the total 
Justice Department budget. If we do not start to address the 
issue, it could result in reductions in the budget of Federal 
law enforcement agencies and pose threats to public safety.
    However, it is critical that we approach this issue 
carefully and reasonably and responsibly. The safety of the 
American public is of paramount concern, as far as I am 
concerned. This hearing is a good start to exploring viable and 
responsible solutions to these rising costs, and I look forward 
to future hearings and continued discussion on the issue, and I 
intend to work with our Chairman to resolve these problems.
    I am happy to have Brett Tolman here this morning, as well 
as the other witnesses who are here. We respect you. Brett is 
Utahan. He is a graduate of BYU Law School and a former Hatch 
staffer. Brett worked for us on the Committee back in 2003 and 
2004 as Counsel on the Senate Judiciary Committee, and in 2004 
he became Chief Counsel for Crime and Terrorism on this 
Committee. He went on to proudly serve as a U.S. Attorney in 
Utah from 2006 to 2009, and we are proud of him. Brett has a 
unique perspective as he has experience in this area from both 
the policy standpoint as well as his experience as a U.S. 
Attorney prosecuting cases.
    I want to apologize to the witnesses this morning because I 
will have to leave pretty quickly because I have a Finance 
Committee hearing that is going to start momentarily, but I 
wanted to be present for the start of this hearing to convey my 
interest in this serious and important issue.
    I am just very pleased to be a member of this Committee. 
This Committee does an awful lot of important work in this 
country, and we just really appreciate the time that you 
witnesses have taken to come and help us to understand these 
issues better. We are very grateful to you, and I will 
certainly pay pretty strict attention to whatever your remarks 
are today.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you, Senator Hatch. Thank you 
for what you said about Mr. Tolman. I did tell him when he came 
in here that he was one person that did not need somebody to 
tell him how to find the room or where to go.
    Senator Hatch. That is right.
    Chairman Leahy. And he is probably unique among witnesses. 
He has the distinction that both you and I have voted for him.
    Senator Hatch. That is right. Now, that is a real tribute 
to you.
    [Laughter.]
    Senator Hatch. Let me just say this. I am going to ask 
unanimous consent that a statement by Senator Grassley be 
placed in the record.
    Chairman Leahy. Of course.
    Senator Hatch. Thank you, Mr. Chairman.
    [The prepared statement of Ranking Member Chuck Grassley 
appears as a submission for the record.]
    Chairman Leahy. We have a lot of Utah here. We have Senator 
Lee, also from Utah. Mr. Tolman was confirmed before Senator 
Lee was in the Senate.
    Our first witness is Edward Davis, Commissioner of the 
Boston Police Department since 2006. Obviously that is an area 
I watch. I remember even as a young prosecutor going there and 
meeting with the district attorney of Suffolk County and 
talking about what was going on in Boston. In this capacity, 
Commissioner Davis has emphasized community policing and 
predictive policing through initiatives like the Safe Street 
Teams and Operation Ceasefire to reduce gang violence. He had 
served earlier as superintendent of police in Lowell, 
Massachusetts, for 12 years, received numerous awards, 
including the National Leadership Award in 2002 from the Police 
Executive Research Forum. He is a founding member of the 
Massachusetts Major City Chiefs. He has an undergraduate degree 
from New Hampshire College in Manchester, New Hampshire, a 
master's degree in criminal justice from Anna Maria College in 
Paxton, Massachusetts.
    Commissioner, we are delighted to have you here.
    Please go ahead, sir.

   STATEMENT OF EDWARD F. DAVIS, POLICE COMMISSIONER, BOSTON 
            POLICE DEPARTMENT, BOSTON, MASSACHUSETTS

    Mr. Davis. Good morning, Mr. Chairman and Senator Hatch and 
Senator Lee. It is an honor to be here and to discuss these 
very important matters. Again, my name is Edward Davis. I am 
the police commissioner in Boston.
    Drug abuse still plagues our Nation. In 2010, an estimated 
22.6 million Americans aged 12 or older reported being current 
illicit drug users, and drug-related crime continues to rise at 
a strong and steady pace.
    From a criminal justice standpoint, I believe that 
arresting our way out of this problem is not the solution. 
Addiction and profit are huge motivating factors, making the 
threat of long-term incarceration alone not enough to prevent 
recidivism.
    In Boston, we use a strategic approach to decrease overall 
crime. In urban communities across the United States, there are 
a small number of people committing a disproportionate amount 
of crime.
    Starting in 2006, we carefully targeted these individuals, 
and our overall crime rate dropped 30 percent at the end of 
2011 over those years, with a projection of an even greater 
decrease in the year 2012. Not only did our crime rate 
decrease, but so did our arrest rate by 35 percent during the 
same time period--contradicting the theory that arrest and 
prosecution alone can solve the problem of crime and violence 
on our streets.
    I have been a police officer for 33 years. I come from a 
family of police officers. For many years, I was very fortunate 
to lead a regional unit that investigated organized crime and 
narcotics while working closely with our partners from the 
Massachusetts State Police and Drug Enforcement Administration. 
I even did cases in Burlington, Vermont, Senator.
    I did this during a time when harsh penalties were being 
fully implemented during the Nation's War on Drugs. I, along 
with every narcotics officer across the Nation during those 
years, faithfully arrested and assisted in the prosecution of 
thousands of drug users and suppliers.
    I witnessed the terrible price of drug abuse and what it 
does to individuals, families, and society. And I learned that 
this method of mass arrest and strict prosecution alone will 
not work.
    Arrest is a vital tool but not the key. Incarceration 
temporarily keeps drug users and dealers off our streets, but 
does little to impact recidivism, as evidenced in a recent 
Georgia study that found that the 2-year recidivism rate among 
drug-court participants was 7 percent, compared with 15 percent 
for those on probation alone and 29 percent for drug users who 
simply served time in State prison.
    To be successful in reducing the crimes that are fueled by 
drug abuse, a strategic, thoughtful approach is needed. Our 
focus must be on the right people, those who are committing the 
large number of drug and violent offenses.
    This is an effort that requires rich partnerships, 
including other law enforcement agencies, but also health and 
human service agencies and community stakeholders like 
businessmen and educators.
    In Boston, we have a long history of valuing partnerships. 
We work closely with the Department of Probation to monitor 
Boston's most violent probationers with GPS ankle bracelets. 
GPS have proven to be a valuable tool in helping our 
investigators identify suspects and witnesses as well as to 
rule them out, increasing the certainty and swiftness of 
punishment. GPS mandated post release for drug offenders can be 
critical in reducing the recidivism rate by allowing 
enforcement of stay-away orders as well as helping to alleviate 
the financial burden of incarceration.
    We have come to realize that arrest can be more than an 
enforcement component of this problem. It can also be useful in 
encouraging if not forcing treatment alternatives. Programs 
like HOPE--Hawaii's Opportunity Probation with Enforcement--in 
Hawaii make it clear that a public health response to drug 
abuse will free up beds in our Nation's prisons--beds that can 
be better utilized for those who are serving time for violent 
criminal activity. Results from a 1-year followup evaluation of 
probationer outcomes found that only 21 percent of HOPE 
participants had been re-arrested versus 47 percent of those 
who did not participate in the program.
    As a Police Commissioner of a large city in this country, 
I, along with my colleagues, must focus our resources, our 
precious resources, and those of the judicial system on those 
individuals who commit violent crime.
    Punishment should target those who cause injury to others 
and those who commit crimes with weapons of any kind.
    Last year individuals randomly sprayed a Boston 
neighborhood with fire from an AK47. Our laws currently are not 
equipped to deal with this type of mayhem. And certainly the 
example foremost in our minds is the recent tragedy in Aurora, 
Colorado, bringing this problem to the public's attention once 
more.
    A stricter focus on violent offenders is critical to drive 
down unacceptable levels of homicides in our cities. These are 
the people that we should be incarcerating. Strong laws on 
those who use weapons of any sort in perpetrating crimes should 
also be the priority of our Government.
    It is not a secret that our prisons are overcrowded and 
cost us billions of dollars a year. The U.S. incarcerates some 
2.3 million people at an estimated annual price tag of about 
$70 billion.
    We need to continue our focus on taking violent offenders 
off our streets while creating a comprehensive response to drug 
offenders--one that encourages treatment and effective 
supervision when they are released.
    By creating a balanced pragmatic approach between 
enforcement and prevention, we can effectively impact 
recidivism rates and reduce the unwieldy costs of 
incarceration.
    Thank you.
    [The prepared statement of Edward F. Davis appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Commissioner.
    What I am going to do is take testimony from each of the 
witnesses, and then we will open it up for questions.
    The next witness is Jeffrey Sedgwick, who is managing 
director at Keswick Advisors, which he co-founded in 2009. 
Prior to that he was appointed by President Bush to serve as 
Assistant Attorney General for the Office of Justice Programs, 
where he served from 2008 to 2009--another person both Senator 
Hatch and I voted for. In this capacity, he oversaw the 
activities of offices including the Bureau of Justice 
Assistance, the Bureau of Justice Statistics, and the Office of 
Victims of Crime. From 2006 to 2008, he served as Director of 
the Bureau of Justice Statistics. Before that, he spent 30 
years as a professor at the University of Massachusetts. He 
earned his undergraduate degree from Kenyon College and his 
master's and Ph.D. from the University of Virginia.
    Dr. Sedgwick, please go ahead, sir.

 STATEMENT OF JEFFREY LEIGH SEDGWICK, PH.D., MANAGING PARTNER 
   AND CO-FOUNDER, KESWICK ADVISORS, LLC, RICHMOND, VIRGINIA

    Mr. Sedgwick. Thank you, Chairman Leahy, Senator Hatch, 
Senator Lee.
    We are all facing an unpleasant reality. We live in an 
austere fiscal environment that shows no sign of lifting in the 
near future. As a result, the criminal justice community is at 
a crossroads where it must make public safety expenditures more 
intelligently and more productively or else see the dramatic 
progress in reducing crime rates over the past 20 years eroded.
    This is a quote from Assistant Attorney General Lanny 
Breuer speaking last month to the National District Attorneys 
Association summer conference. I could not agree with him more 
on the problem. I doubt if anyone in this room disagrees. 
However, I believe he has oversimplified the tradeoffs in 
public safety that we need to consider in order to make good 
decisions.
    According to Breuer, we must recognize that a criminal 
justice system that spends disproportionately on prisons at the 
expense of policing, prosecutions, and recidivism-reducing 
programs is unlikely to be maximizing public safety. This 
suggests quite strongly that maximizing public safety is the 
result of a proportionate sharing of public safety spending 
among components of the criminal justice system. But 
proportionate to what?
    This framing of the tradeoffs strikes me as a very 
incomplete view of the problem for it casts the components of 
the criminal justice system as rivals for shares of a fixed or, 
even worse, diminishing budget. A more comprehensive view of 
the problem would cast the issue somewhat differently. As a 
first step, the budget of the criminal justice system should be 
large enough and no larger that it minimizes the total social 
costs of crime, including not only public expenditures on 
public safety but also the costs of victimization, tangible and 
intangible, to the public.
    As a second step, the allocation of funds among components 
of the criminal justice system should be guided by their 
demonstrated effectiveness in reducing crime. It is all too 
tempting to look first to the correctional system as a source 
of savings in a period of austerity. We have heard it said that 
the United States, along with the former Soviet Union and South 
Africa, is the most punitive country in terms of incarceration 
or prison. But this characterization is too simple.
    For example, the probability of conviction per offense is 
lower in the United States than in most industrialized nations. 
One reason for this may be the relatively high rate of plea 
bargaining and charge reduction that occurs in our criminal 
justice system. Also, the probability of being sentenced to 
incarceration given conviction is not noticeably higher for the 
United States than for other industrialized countries. Thus, a 
more nuanced view is that the United States is no more likely 
than any other industrialized democracy to resort to 
imprisonment for violent offenses. Rather, our high 
incarceration rate is the result of our comparatively high 
violent crime rate. Indeed, the United States reacts to violent 
crime in roughly the same manner as other industrialized 
democracies. It just has more of it.
    In April of this year, CBS aired a segment on its weekly 
news program ``Sunday Morning'' entitled, ``The cost of a 
nation of incarceration.'' The unmistakable implication was 
that the United States incarcerates too many at too high a 
cost. But just how large and costly is the prison population? 
As we have already heard, there were 2.2 million adults 
incarcerated in U.S. Federal and State prisons and county jails 
at the end of 2010, approximately 1 percent of the U.S. 
resident population. A recent report of the Vera Institute 
calculated the average cost per inmate of incarceration for a 
sample of 40 States at $31,286 per person. Hence, one could 
estimate the total cost of incarceration nationwide in 2010 as 
$70.9 billion. This is surely a significant sum, but is it 
either disproportionate in relative terms or too large in 
absolute terms?
    If we look at it on a per capita basis, the total cost per 
resident of the United States for public safety is $633, 
allocated $279 per person on police protection, $129 on courts, 
prosecution, and public defenders, and $225 on corrections. 
Whether that is too much or too little or disproportionately 
allocated would depend on the benefit each of those dollars 
achieves.
    Now, what do we know about those benefits? To be brief, we 
have had an experience in the United States during the decade 
of 1990's with a very large decrease in crime in the United 
States. And we know quite a bit from research what caused it. 
We know that demography had something to do with it. We know 
that the economy had something to do with it. We know 
particularly from the case of New York City that intelligent 
policing of the sort that Commissioner Davis just spoke about 
had a lot to do with it. But we also know from research that 
between 10 and 27 percent of the decrease that we saw in crime 
in the decade of the 1990's was due to incarceration. The value 
of that decrease in the crime rate was approximately $180 
billion annually. So I think as we talk about the value of 
incarceration and whether or not too much or too little is 
being spent, we need to frame it in terms of what was bought 
with those dollars we invested. Thank you.
    [The prepared statement of Jeffrey Leigh Sedgwick appears 
as a submission for the record.]
    Chairman Leahy. Thank you very much.
    Brett Tolman, a shareholder, of course, at Ray Quinney & 
Nebeker, where he is co-chair of the firm's white-collar 
criminal defense and corporate compliance practice groups, has 
been praised by both Senator Hatch and me, and before we 
embarrass him further, we will ask him to please go ahead.
    Mr. Tolman, welcome back to the Committee.

  STATEMENT OF BRETT L. TOLMAN, SHAREHOLDER, RAY QUINNEY AND 
               NEBEKER, PC, SALT LAKE CITY, UTAH

    Mr. Tolman. Thank you, Mr. Chairman, Senator Lee. I 
appreciate this opportunity----
    Chairman Leahy. Is your machine on?
    Mr. Tolman. Thank you. I am out of practice.
    Chairman Leahy. As Senator Thurmond used to say, ``Turn on 
your machine.''
    [Laughter.]
    Mr. Tolman. Thank you, Mr. Chairman and Senator Lee. I 
appreciate the opportunity to be here and testify today.
    Prior to my service in the U.S. Senate and prior to being 
the United States Attorney in Utah, I served in perhaps one of 
my more beloved capacities, and that was an Assistant United 
States Attorney alongside with Senator Lee in the U.S. 
Attorney's Office. As a line prosecutor in the Federal system, 
I personally prosecuted hundreds of felonies. While I 
prosecuted mostly violent felonies, I participated in the 
prosecution of white-collar criminals, drug traffickers, and 
others. Indeed, in my 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 30-
plus years in Federal prison.
    As I sit here testifying before this Committee, I am 
honored to have served in such a remarkable institution as the 
Department of Justice. However, my years of service also 
instructed me as to the great deficiencies in the Federal 
criminal justice system. The current one-size-fits-all approach 
and the warehousing of prisoners is proving to not only be 
dangerous to public safety but an unthoughtful misuse of 
precious taxpayer dollars. Experts across the political 
spectrum are finding themselves in agreement that the current 
growth of, and costs associated with, the Federal corrections 
system is unsustainable.
    The Committee has addressed many of the statistics that are 
plaguing the financial crisis associated. I will not go into 
great detail. It is interesting, though, from the 1940's and 
the incarceration of 24,000 Federal inmates to the near quarter 
of a million inmates currently being incarcerated is growth 
that was perhaps not anticipated, nor was it prepared for.
    Meanwhile, BOP costs are growing at an alarming and 
unsustainable rate. From 1998 to 2012, the budget has increased 
113 percent, from $3 billion to nearly $7 billion.
    The BOP budget continues to swallow an increasing amount of 
the Department of Justice budget. You have heard reference to 
over the last 15 years, the enacted budget has increased from 
15 percent to 24 percent of the Department of Justice's budget.
    During my tenure as U.S. Attorney, which included roughly a 
year as a member of the Attorney General's Advisory Committee, 
I observed the budget become the absolute center of focus of 
the Department of Justice and its U.S. Attorneys. More 
significantly, in individual U.S. Attorney's Offices across the 
country, lack of funding is increasingly the reason behind 
failed or abandoned law enforcement obligations and 
partnerships.
    I recently received a phone call from the police chief in 
West Valley City who indicated his frustration with the U.S. 
Attorney's Office no longer partnering with him on important 
task forces that they had formed. This is due solely to budget.
    Over the last dozen years, Congress and the Department of 
Justice have been so focused on prosecuting and punishing 
crime--emphasizing zero tolerance and tough Federal sentences--
that there has been an absolute failure to recognize that 
without an equal focus on recidivism reduction, the tough 
sentencing laws of the Federal criminal justice system may well 
be the downfall of a once proud and effective agency.
    Anyone who has worked with me personally or observed my 
tenure as a Federal prosecutor would not identify me as soft on 
crime. As United States Attorney, I was noted as being one of 
the more aggressive appointees when it came to pursuing crime. 
I personally participated in the prosecution of Brian David 
Mitchell, the kidnapper of Elizabeth Smart. In my own family, 
we have been affected by crime, having my older sister, who was 
kidnapped and raped when she was in college. My father was a 
peace officer in Los Angeles. We have well endured the impact 
of crime in my personal family.
    Notwithstanding, I can indicate to Congress that the 
Federal criminal justice system is not the shining example of 
the fairness in the administration of justice that it should or 
could be. Budgets for the U.S. Attorney's Offices are being 
squeezed due to the rapid growth of the BOP budget. Further, 
the Federal system has neither been thoughtful nor 
conscientious in its punishment of those it convicts.
    However, the States have provided us a model and a test 
case. Texas, often criticized for its harsh criminal 
punishments, is a shining example. It was slated to open seven 
to eight new prisons in the mid-2000's. Instead, Texas 
allocated $240 million for additional diversion and treatment 
capacity. The end result of both hard and tough law enforcement 
policies and recidivism focus was an unprecedented decrease in 
recidivism, a savings of nearly $2 billion, and a system that 
informs us in the Federal system that if we will not use a one-
size-fits-all approach but instead categorize our Federal 
inmates according to their risk of recidivism and then allow 
for them to earn time rather than just simply expanding good 
time, as many proposals currently propose to do, this 
thoughtful approach will result in a decrease in crime rates, a 
decrease in recidivism, and an increase in budget flexibility 
for prosecutors.
    Thank you.
    [The prepared statement of Brett L. Tolman appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you very much, Mr. Tolman, and 
I appreciate your personal experience in this area, although I 
regret that part of that involved the attack on your sister.
    Mr. Tolman. Thank you.
    Chairman Leahy. Commissioner Davis, as one who used to be 
in law enforcement, I feel that we should keep our streets 
safe. You are charged with keeping the streets safe in Boston. 
But you also said that you do not find incarcerating nonviolent 
offenders to be the most effective way to reduce crime and 
reduce recidivism. What are some of the more effective ways?
    Mr. Davis. Well, the most important thing really is swift 
and certain punishment, not length of punishment. Making sure 
that a person who is prone to commit violent crime or narcotics 
crime understands that ramifications are coming quickly and 
certainty is really the most important thing.
    We do a lot of different programs in the Boston Police 
Department. Operation Night Light, for instance, is a 
partnership with our probation people in Massachusetts. We go 
out to the homes of individuals we have identified as most 
likely to shoot or be shot, and it is a small universe. It is 
only 250 or so people in the whole city of Boston. But we are 
constantly staying on those individuals and letting them know 
that if they do not get out of that life, there are going to be 
ramifications to it. So we offer them hope through different 
programs, but we also deliver a very stern message that if they 
pick up a gun, they are going to jail.
    Chairman Leahy. Thank you.
    Mr. Tolman, you mentioned you served as U.S. Attorney in 
the District of Utah under President Bush, and you served on 
the Attorney General's Advisory Committee. Am I correct that 
you find there has been a tradeoff between the rising prison 
costs and the ability to have programs that might reduce crime?
    Mr. Tolman. That is accurate. Mr. Chairman, the U.S. 
Attorney's Offices in particular are now very focused on budget 
in ways that they have not previously been. There are 
partnerships with State authorities that are breaking down and 
falling by the wayside that were very important partnerships 
based on the lack of ability to be flexible enough to assist. 
That concerns me because there are Federal laws that are very 
important.
    I agree with the commissioner when he indicates that swift 
punishment--I would add that long punishment is often 
appropriate as well. I personally was involved in the 
prosecution of the kidnapper of Elizabeth Smart while I was 
U.S. Attorney, and I cannot in good conscience say that 
anything less than the many years he received is appropriate 
punishment. But if we do not focus on recidivism for those 
individuals that are likely to be rehabilitated, we will 
continue to warehouse a greater proportion than we are capable 
of being able to deter through our prosecutions.
    Chairman Leahy. I was talking to somebody earlier today. 
The example I used is you have somebody in a white-collar 
position, a stockbroker or something like that in New York 
City, buys $250 worth of drugs. If they are caught, they are 
probably going to get community service and a lecture and so 
on, and a fine. You have a kid who is a minority living in one 
of the slum areas and has $250 worth of drugs--the same 
amount--they are probably going to spend a few years in jail. 
And they are going to come out unemployable and probably have 
learned things in jail that they never would have learned 
otherwise.
    Am I overstating that?
    Mr. Tolman. No, that is not an overstatement. There have 
been, however, test programs such as Texas and even some of the 
faith-based rehabilitation and recidivism reduction efforts 
that were going on in the Federal system that have been able to 
reveal to us that you can impact those while they are 
incarcerated so that they are not just a revolving door, as the 
commissioner indicates, and continuing to commit crime.
    Chairman Leahy. Thank you.
    Dr. Sedgwick, I have represented my State for several 
decades, and before that I was a prosecutor for 8 years. I was 
very much of a hands-on prosecutor. I went to crime scenes. I 
tried a lot of my own cases, argued a lot of my appeals. I 
argued for tough sentences when we had violent criminals. And 
you have talked about violent offenders, and I think for 
violent offenses--we talked about the kidnapping case from Utah 
that shocked the whole Nation. Everybody agrees on the serious 
penalty there.
    But I also hear from somebody like Commissioner Davis who 
has a finite amount of money, has to protect a city, knows that 
there are pressures on his budget because of prison costs. And 
he says that for nonviolent offenders, simply imprisoning them 
for long terms does not help reduce recidivism.
    Do you think there are alternatives for nonviolent 
offenders that could actually save the taxpayers money and 
lower recidivism?
    Mr. Sedgwick. In answering your question, let me think back 
to an article that was written several years ago by James Q. 
Wilson, who argued that if you look at the American prison 
population, it is really made up of two separate components, so 
it is not a homogeneous population.
    One part of the American prison population are violent 
offenders who have done particularly horrific things, like 
kidnapping and rape. And they may never commit another crime 
like that again. Their likelihood of recidivism is very low, 
but we lock them up precisely because of the seriousness of 
what they did, and justice demands that they serve a sentence.
    The other component of the criminal justice system and the 
prison population in the United States are people who commit 
less serious crimes but commit them at very high rates, over 
and over and over again.
    The notion that the prison population in the United States 
is composed of people who have committed a property crime, a 
nonviolent crime, one or two, and are sentenced to a long 
period is just simply not supported by the evidence.
    Chairman Leahy. What about States that have mandatory 
minimums for drug cases?
    Mr. Sedgwick. I think you would have to look at--first of 
all, you would have to look at how those laws are administered. 
Given the prevalence of plea bargaining in the United States, 
my guess is that you are going to find very few cases of a 
young person with a single drug offense that winds up getting 
sentenced to a very long period of time, in part because, quite 
frankly, prosecutors know that is a bad use of resources.
    Chairman Leahy. We can give you a few examples, but go 
ahead.
    Mr. Sedgwick. Well, my point was simply going to be I could 
not agree more with the notion that, to the extent that such 
cases exist, that is a misuse of resources. One caveat, though. 
You brought up the issue of, you know, a non-minority youth 
with a drug offense versus a minority youth. I think one of the 
things that we want to pay attention to--and this gets to an 
issue that Commissioner Davis raised--we make a big mistake in 
dealing with drugs when we treat all drugs as if they are the 
same and they have the same influence on the criminal justice 
system. There is a tremendous difference in terms of the effect 
on crime among, for example, marijuana, opiates, and drugs like 
methamphetamine or cocaine or crack.
    Chairman Leahy. My point was not the two youngsters. My 
point was--and you know and I know--the well-connected person 
on Wall Street--or wherever else--who has bought $250 worth of 
drugs is going to be treated a heck of a lot differently than a 
minority in an inner city area who bought $250 worth of drugs, 
no matter what the drugs are. We are talking about $250 worth 
of drugs. And the treatment is going to be remarkably 
different. I think that it would be hard to argue that, but 
feel free if you want.
    Mr. Sedgwick. We can have that discussion another time if 
you would like.
    Chairman Leahy. All right. Senator Grassley?
    Senator Grassley. Since I was not polite enough to be here 
to listen to all of you, it was because I was at the 
Agriculture Committee meeting.
    Chairman Leahy. Where I was supposed to be.
    Senator Grassley. Yes, okay. Yes, he is a member of the 
Committee.
    Mr. Sedgwick, GAO examined the cost-effectiveness of the 
Second Chance Act pilot program designed to place elderly, low-
risk inmates in community correction. GAO reported that the 
Bureau of Prisons determined the program cost the Government an 
average of $4.50 more each day per inmate than leaving them in 
prison. GAO said that the Bureau of Prisons may have 
miscalculated this cost, but I think that really is not the 
relevant point. Even if Bureau of Prison is wrong, it still 
shows that we do not know enough about the value of such 
programs.
    I have serious questions about the wisdom of expanding this 
program based upon cost savings. I am also concerned about 
other grant programs created by the Second Chance Act that 
would fund nongovernmental organizations to assist released 
prisoners. So far, there is little evidence that they work, and 
recent IG reports suggest many grant programs have 
accountability and compliance problems.
    Mr. Sedgwick, do you think that we should expand pilot 
programs if we do not know whether they are working?
    Mr. Sedgwick. The simple answer is no. If we do not know 
that they work, I do not see why we should be investing large 
amounts of money in them.
    Senator Grassley. I think my second question would--you 
lead into my second question with your answer. As a former head 
of these justice programs, you know about these grant programs. 
How can we in Congress determine whether these programs are 
working or not?
    Mr. Sedgwick. Well, thank you for that question because 
that is the exactly where I was about to go. During my tenure 
as the Assistant Attorney General and the head of Office of 
Justice Programs, we put in place an Office of Audit Assessment 
and Management precisely to increase the amount of attention 
that was paid to rigorous evaluation of all of our grant 
programs. There are certainly grant programs that underlie the 
types of cooperative relationships that Mr. Tolman talked about 
and we see on the ground in Boston that have led to very 
effective cooperation between the community, Federal law 
enforcement, State and local law enforcement, and have had some 
tremendous results.
    The difficulty is it is easy to find particular programs 
that appear to be working in a particular setting. It is very 
hard to find programs that you can scale up to a nationwide 
implementation that continue to have demonstrated impacts.
    I recall visiting Boston in 2006 as part of the Attorney 
General's 18-city tour when we were looking at the purported 
crime increase in 2005 and had the opportunity to talk to a 
group of community leaders in Boston about what had worked in 
Boston to hold down the rates of violence. And they were quite 
clear about the fact that, to the extent that those programs 
worked--and they worked quite well in Boston--they are resource 
intensive and they are quite fragile; that is, they depend on 
stable working relationships and trust among partners that are 
resource intensive. It is not clear that those kinds of 
programs can be, you know, run up to scale nationwide, 
implemented and have the same effectiveness that they have had 
in particular communities like Boston.
    It is certainly worth trying them, but I have to say at 
this point, as someone who used to oversee the grant programs, 
we do not know as much about what works as we should and can 
know. I do not think we are in a place now, if you said to me, 
``Can you give me five or six programs, diversion programs, 
that we could use that would deal with offenders in 
alternatives to incarceration? '' I would be able to come up 
with four or five programs that we could implement tomorrow 
that would have a dramatic impact on recidivism rates.
    Senator Grassley. Let me ask, a short lead-in and then just 
one question that I would like to have all of you give a short 
answer to. Mr. Tolman testified about these recent proposals of 
good time calculation and earned time credit are kind of a one-
size-fits-all approach and, therefore, not effective. Assistant 
Attorney General Breuer recently advocated in a speech both of 
these policies as ways to deal with increasing costs of 
prisons. He advocated so. Focusing these savings on new 
policing, prosecution, and recidivism-reducing programs. So I 
have got several questions, but just one here that you can 
answer shortly. Do you agree with Mr. Breuer and the 
administration that simply letting Federal prisoners out of 
prison early by recalculating good time credit alone is a 
sufficient way to deal with increasing costs of Federal 
prisons? We will start with you, Mr. Davis, and then the other 
two of you, and then I will yield my time.
    Mr. Davis. Well, thank you, Senator. No, simply letting 
people out of jail early is not going to solve the problem. 
What is happening in Boston, though, is there are too many 
violent offenders with too many assaultive cases, too many gun 
possession cases, who are out on the street simply due to the 
fact that beds are taken by individuals who are in on minimum 
mandatory. And it is my estimation, after working in the drug 
field for many years, that a system that bases minimum 
mandatory sentences on 14 grams or 28 grams is missing the big 
picture. I want to put kingpins in jail for a long time, but 
there are a lot of people getting caught up in the dragnet, and 
it is affecting our relationship with inner-city communities.
    Senator Grassley. Mr. Sedgwick.
    Mr. Sedgwick. I could not agree more with the commissioner 
and would just add this: that I think a policy initiative that 
ramps up release rates or releases a cohort of individuals in a 
very short timeframe is a huge mistake, in part because you 
simply do not have time to do the pre-release programming that 
these individuals need in order to be successful once they are 
sent back to the community. Releasing someone from prison 
without prior preparation is imposing a cost on the community 
that that person is sent back to.
    Senator Grassley. Okay. Mr. Tolman.
    Mr. Tolman. Thank you, Senator Grassley. The States have 
really provided the answer to that question, which I think is 
the most poignant question relative to this issue, and those 
States that decided to do just as you indicated, to simply 
address an increase in good time, are not experiencing the 
reduction in crime rate, the recidivism reduction of those 
States that determined that they would not just expand good 
time. And that really is the problem with the Second Chance 
Act. It simply seeks to expand good time without addressing 
that not every inmate incarcerated is the same. And so that 
one-size-fits-all is just that. It is an attempt to try to make 
a very easy policy to reach, supply the benefit we are all 
looking for, and Texas proved that in order to do that, you 
cannot just expand good time. You have to actually make the 
inmate go through programs, work for it, and you have to assess 
which ones are willing--you are willing to take the risk to 
actually transfer to something different than lockdown 
incarceration.
    Chairman Leahy. Senator Lee.
    Senator Lee. Dr. Sedgwick, I thought you made an 
interesting point and you had some compelling evidence for your 
point that the fact that we have a higher incarceration rate in 
the United States generally does not necessarily mean that we 
are just tougher on people. It may just mean that we have more 
people committing crimes. I wanted to ask you about that in the 
context of some of the statistics that Mr. Tolman gave us and 
present the question to you in a slightly different way.
    As Mr. Tolman has pointed out, in 1998, we were spending 
about $3.1 billion a year through the Bureau of Prisons, and at 
the time that was about 15 percent of the Department of 
Justice's overall budget. In 2012, that number has more than 
doubled. It has increased by about 113 percent. It is up to 
about $6.6 billion, 24 percent. In 2013, it is expected to jump 
to 25 percent of all spending through the Department of 
Justice.
    Does that mean that during that 15-year period between 1998 
and now we really have had that many more Federal crimes being 
committed? Or does that perhaps say something differently about 
how crimes are being prosecuted?
    Mr. Sedgwick. That is a really good question. I think it is 
a combination of two things. One is it is a kind of cumulative 
effect of lengthening sentences, which was a strategy that was 
pursued beginning in the second half of the 1980's nationwide 
at all levels of Government in response to a rapidly increasing 
crime rate. It is worth noting--and I have not heard anybody 
refer to this yet, but if you look at the latest report on 
prison populations from the Bureau of Justice Statistics, one 
of the things that is absolutely striking, the opening graphic 
shows prison populations in the United States over the past 20 
years and shows them steadily going up. Superimposed over that 
is a graph that says what is the percentage change from year to 
year in prison populations, and it is steadily going down.
    In fact, in the last 2 years, the total population of 
persons under custodial supervision in the United States has 
fallen. That is exactly what you would expect if you look at a 
period where you have had crime go up, then start to go down, 
and over that period of time you have a fixed--or a given 
sentence length, you are going to see prison populations in the 
United States, if we do nothing, they are going to start to 
fall. Okay? Because the crime rate has been falling, we are 
adding fewer people to the prison population every year. Now, 
that is an aggregate figure for the United States.
    The case for the Federal Government is a little bit 
different because there have been policy decisions made at the 
Federal level to move certain types of offenders--and who they 
are changes from year to year as, you know, priorities change--
and cases from State and local jurisdiction to Federal 
jurisdiction.
    Senator Lee. And that in turn can----
    Mr. Sedgwick. And what that will do is that will rapidly 
increase the Federal prison population. Okay?
    Senator Lee. Thank you. That is helpful. And with that, I 
am going to switch some of my questions to Mr. Tolman.
    By the way, Mr. Chairman, Mr. Tolman and I have been 
friends since law school, and we even clerked together during 
our first year out of law school for a U.S. district judge 
named Dee Benson in Utah, and then we were at the U.S. 
Attorney's Office together. So we have a long history of 
reviewing each other's bench memos and draft opinions and 
briefs. I was in the appellate section when he was in the 
violent crimes section. I always enjoyed taking Tolman's cases 
on appeal. They were very easy to defend because the record was 
always chock full of really good evidence, and once in a while 
I got to see Brett's unique sense of humor within the pages of 
the transcript. And I thought to myself, ``There is no way the 
court of appeals is grasping the fact that he is intending to 
be funny right here.''
    Chairman Leahy. This certainly will not come out of any 
time to you, Senator Lee, but as you talk about this, it makes 
this member of the Committee nostalgic for the days of being a 
prosecutor. And I know in some prosecutors' offices--actually 
when I graduated from law school, and one of them was eager to 
get me to come to it, I did not, I went back to Vermont--but 
they would put a lot of the new lawyers immediately into the 
appellate division because they learned how they would have to 
defend mistakes made in the trial division. Then they would put 
them in the trial division.
    Apparently you did not have to defend mistakes of Mr. 
Tolman.
    Senator Lee. I did from others, just not from him.
    Chairman Leahy. And I well remember his work on this 
Committee, and I expect that it would have been enjoyable to 
work with him. So that is on my time, not on yours. Please go 
ahead, sir.
    Senator Lee. Thank you. Thank you.
    Mr. Tolman, in light of what Dr. Sedgwick said, I would 
like you to sort of relate that to your experience as a 
prosecutor, as a Federal prosecutor. Did you see a lot of 
shifting between 1998, which was about the time that you and I 
were clerking in the Federal court, up and through now, have 
you seen a shift, have you seen more cases that could have been 
prosecuted as State crimes, and in previous decades perhaps 
would have been, have you seen more of those shift over to 
Federal prosecution?
    Mr. Tolman. Thank you, Senator. And just for the record, I 
think I have a pretty good track record on appeal on my cases 
because you were in the appellate section. I have always 
conceded that Senator Lee's legal brain is significantly larger 
than mine. But I appreciated him in that position.
    That truly is my experience, and I will tell you, the Al 
Capone prosecution in its day was unique, but it is far more 
unique in this day and age. The prosecutions today are--and I 
could rattle off for you the many prosecutions from Rubashkin 
in Iowa, an individual serving a 27-year sentence with no 
criminal history and no actual victim of fraud.
    Senator Lee. This is a rabbi who has nine children.
    Mr. Tolman. That is right. You know, rather than the Pablo 
Escobars that we thought would be prosecuted, it is the Weldon 
Angelos, you know, the street corner dime marijuana dealer that 
brings a firearm to the corner because he is concerned about 
his safety, never uses it, never brandishes it, and is facing 
30-plus mandatory years.
    Now, long sentences----
    Senator Lee. Just because he happened to bring a gun to a 
crime that would otherwise have been a State offense punishable 
perhaps----
    Mr. Tolman. That is exactly right.
    Senator Lee [continuing]. With little or no prison time.
    Mr. Tolman. That is exactly right. And the Federal push to 
prosecute more and more crimes that were traditionally State 
crimes has been enormous--enormous--from firearms cases to the 
drug cases, and part of that is out of a frustration of not 
being able to prosecute the major kingpins in drug 
investigations.
    Senator Lee. How does that end up--and, Mr. Chairman, if I 
could have just another couple minutes? Thank you. How does 
that end up impacting the Department of Justice's ability to do 
other things that it needs to do? In other words, as it takes 
more and more cases Federal and takes more and more of them 
Federal in ways that result in these very lengthy sentences, 
how does that impact their ability to do what they need to do?
    Mr. Tolman. If anyone observed the mortgage fraud arena, 
there were some very large pieces missing. Where are the 
prosecutions of the underwriters, the large lending 
institutions that were participants in the mortgage fraud? Why 
are they not there? Because there is an inability to divert the 
necessary resources to battle at that level. It is much easier 
to grab the individual from the corner that is distributing 
small amounts of cocaine or other drugs than it is to invest 
that significant time it takes to bring down what really should 
be the targets of the Federal criminal justice system. Those 
are the large targets that States would have a problem bringing 
down.
    So I agree with you wholeheartedly that it hamstrings the 
Department of Justice and the U.S. Attorney's Offices, this 
enormous push to prosecute those State cases.
    Senator Lee. To prosecute them federally.
    Mr. Tolman. Yes.
    Senator Lee. Historically, you know, these kinds of 
offenses that would have been prosecuted by States would have 
resulted in convictions within the State penal system, and so 
the State itself would have some impact, would feel some impact 
from what it was doing. But with these newer pushes to move 
things along federally, you often have task forces consisting 
of both State and local and Federal law enforcement officers 
working together to push things into the Federal criminal 
justice system so that the State gets kind of a double benefit.
    Mr. Tolman. Yes.
    Senator Lee. It gets the imprisonment and perhaps a more 
lengthy prison sentence, which a lot of the people involved 
want to see for one reason or another, and the State does not 
have to pay for it.
    Mr. Tolman. That is right.
    Senator Lee. Doesn't that create kind of a free-rider 
problem that we can expect to continue to result in the 
continued expansion of this kind of problem?
    Mr. Tolman. That is accurate, and it will continue to 
expand. Texas' response to this large body of inmates--and keep 
in mind those incarcerated in Texas are nearly 200,000 
individuals. In the Federal system, it is a little over 
200,000. So we are talking about the same population of 
inmates, roughly. And for them to see such a drastic reduction 
in their crime rate and their recidivism rate, you have to ask 
yourself, What is it they are doing? They are recognizing that 
not every inmate is the same, and now the Federal system has to 
do that. Not every inmate that is in there is the same. It is 
more populated now with the same types of individuals that are 
prosecuted in the State than it ever has before. And so with 
that, there must be a system to assess those individuals 
differently than the Brian David Mitchell kidnapper or the 
Pablo Escobar or the Al Capone. They have to be assessed 
differently in terms of being able to earn transfers earlier or 
have the benefits of working while in prison. Otherwise, that 
old adage that the costs of incarceration which will always 
exceed the cost of investigating and prosecuting will continue 
to bury the Federal system.
    Senator Lee. In order to change that, we are going to need 
a change in policy, probably a change in legislation.
    Mr. Tolman. Yes, absolutely.
    Senator Lee. Thank you.
    Chairman Leahy. Might I also say--and I think Senator Lee's 
questions are excellent here, and I am concerned that we get 
into a position--and I have seen it in the past--where we get 
too worried about the statistics, how many arrests and 
convictions do we have. The arrest and conviction of an Escobar 
can be a drug crime arrest and conviction or some kid peddling 
something can be a drug crime conviction.
    I recall once when I was one of the officers the National 
DAs Association, we met with then-Director J. Edgar Hoover who 
was making a big point to us that the Congress may complain 
about his budget--actually, he had such control over the 
Congress there never were any complaints. But he said by last 
year, my budget was X number of dollars, but the FBI in just 
one year, we recovered twice X, or whatever the numbers were in 
property for the American taxpayers. Well, I recall that very 
well. We would have a sheriff who might find a stolen car that 
is now practically a junk heap, and almost immediately the 
local FBI office would be there and say, ``We will take over 
from here. That car cost $8,000 new. Okay. We recovered $8,000 
worth of property.'' And I worry that we get into these same 
kinds of things here. I worry, of course, about the cost to the 
taxpayer. But I also worry about the human costs that we put 
too much emphasis on the wrong things. You might have a task 
force spend 3 years to go after a real drug kingpin, and their 
statistics show one drug arrest. Or they go off a whole lot of 
minor ones and said, gee, we had real success, we got 300. I 
would rather get that drug kingpin.
    Or, Commissioner Davis, you go arrest everybody or you can 
put your people out there to say, hey, guys, we are kind of 
keeping an eye on you, careful what you are doing. And I 
remember when you first started some of those programs, and as 
you know, there was a lot of press in New England about that. 
You also had some naysayers when you first started, and they 
became some of your biggest backers.
    Last, we had a reference to the Second Chance program. That 
was, of course, championed by President Bush, and I agreed with 
him on that. I think we have a lot of studies that say it has 
been very positive and helped on recidivism. One of the reasons 
we have hearings is to find which things work and which do not. 
But I think that just as I urged the prosecutors in my office, 
I am more interested in what was the nature of the case, the 
quality of the case. I will judge how well we are doing based 
on that, not by the number of cases. It is too easy to inflate 
statistics if you do not care what the costs are down the way.
    Gentlemen, I apologize for the voice and the allergies 
causing it, but I thank you all for being here. Senator Lee, 
did you have anything further?
    Senator Lee. No. Thank you.
    Chairman Leahy. Then we will keep the record open for the 
rest of the day, and I thank you all for being here.
    [Whereupon, at 11:11 a.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 

                                 [all]