[Senate Hearing 114-475]
[From the U.S. Government Publishing Office]
S. Hrg. 114-475
OVERSIGHT OF THE BUREAU OF PRISONS:
FIRST HAND ACCOUNTS OF CHALLENGES FACING THE FEDERAL PRISON SYSTEM
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
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AUGUST 4, 2015
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Patrick J. Bailey, Chief Counsel for Governmental Affairs
David N. Brewer, Chief Investigative Counsel
Caroline T. Ingram, Counsel
Rebecca N. Nuzzi, Professional Staff Member
Gabrielle A. Batkin. Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Kevin Burris, Minority Counsel
Laura W. Kilbride, Chief Clerk
Lauren M. Corcoran, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Johnson.............................................. 1
Senator Carper............................................... 2
Senator Booker............................................... 4
Senator Ayotte............................................... 25
Senator Baldwin.............................................. 27
Senator McCaskill............................................ 42
Prepared statements:
Senator Johnson.............................................. 49
Senator Carper............................................... 50
WITNESSES
Tuesday, August 4, 2015
Piper Kerman, Author, Orange is the New Black; My Year in a
Women's Prison................................................. 7
Jerome Dillard, Reentry Coordinator, Dane County, Wisconsin...... 9
Udi Ofer, Executive Director, American Civil Liberties Union of
New Jersey..................................................... 11
Charles E. Samuels, Jr., Director, Federal Bureau of Prisons,
U.S. Department of Justice..................................... 31
Michael E. Horowitz, Inspector General, U.S. Department of
Justice........................................................ 33
Alphabetical List of Witnesses
Dillard, Jerome:
Testimony.................................................... 9
Prepared statement........................................... 104
Horowitz, Michael E.:
Testimony.................................................... 33
Prepared statement........................................... 132
Kerman, Piper:
Testimony.................................................... 7
Prepared statement with attachments.......................... 52
Ofer, Udi:
Testimony.................................................... 11
Prepared statement........................................... 108
Samuels, Charles E., Jr.:
Testimony.................................................... 31
Prepared statement........................................... 123
APPENDIX
Letter submitted by Mr. Horowitz................................. 142
Statements submitted for the Record
Center for Naval Analyses.................................... 144
Eric Young President Council of Prison Locals................ 406
Kevin A. Ring, Director of Strategic Families Against
Mandatory Minimums......................................... 414
Eric Williams................................................ 421
Response to post-hearing questions submitted for the Record
Ms. Kerman................................................... 423
Mr. Ofer..................................................... 445
Mr. Samuels.................................................. 462
OVERSIGHT OF THE BUREAU OF PRISONS: FIRST-HAND ACCOUNTS OF CHALLENGES
FACING THE FEDERAL PRISON SYSTEM
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TUESDAY, AUGUST 4, 2015
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Ron Johnson,
Chairman of the Committee, presiding.
Present: Senators Johnson, Lankford, Ayotte, Ernst, Carper,
McCaskill, Baldwin, Heitkamp, Booker, and Peters.
OPENING STATEMENT OF CHAIRMAN JOHNSON
Chairman Johnson. Good morning. This hearing will come to
order.
Let me just say, I am really looking forward to this one. I
was telling the witnesses, I have read all the testimony, and I
generally do that to the best of my ability. Sometimes, the
testimony provided before this Committee can be a little dry,
and as I am reading it late at night, it will put me to sleep.
Not so in this case whatsoever. I think the testimony was
fascinating, partly because I am somewhat new to this issue.
I am going to keep my statement somewhat brief, because I
know Senator Booker would like to make an opening statement. I
am happy to have him do so, because he has been obviously
involved in this issue a whole lot longer than I have.
I just want to make a couple brief remarks. Being an
accountant, being a business guy, I am pretty data-driven. The
data, the statistics on this particular problem, the Bureau of
Prisons (BOP) and our high levels of incarceration rates, are
pretty stark.
In 1980, for example, there were 25,000 people in the
Federal Prison System. Today, there are 209,000. That is a 736
percent increase as our population has only increased 40
percent. In total, back in 1980, there were about 500,000
people in prison. Today, there are 2.3 million. We in America
have the highest level of incarceration in the world, in 2013,
716 people per 100,000 population. The next closest country was
Rwanda with 492. If you take a look at Canada, it is 118.
So, I guess my primary comment is, when you look at those
stark statistics and you see--and, by the way, and I appreciate
that Jerome Dillard is here from Madison, Wisconsin. I met with
him earlier as part of a group called Nehemiah Project, a group
of individuals, some of them ex-offenders spending some time in
jail, trying to help other people re-enter society. I remember
during that meeting, Jerome, how many times did I wince as I
was being told the stories of how unbelievably difficult we
make it for former offenders, people in jail to re-enter
society.
So, the purpose of this hearing is to lay out these
realities, understand that what the Bureau of Prisons is
dealing with is an incredibly difficult and complex problem,
and by the way, I do have to mention that the testimony by
Charles Samuels, the current Director, I think is also
powerful, and he kind of lays out a little bit of the problem
in terms of the dual mission of the Bureau of Prisons. Let me
just quickly read from his testimony. ``The dualfold mission is
to protect society by confining offenders in prisons and
community-based facilities that are safe, humane, cost
efficient, and appropriately secure, and then, second, to
ensure that offenders are actually participating in programs
that will assist them in becoming law-abiding citizens when
they return to our communities.''
That is a tough task, and I wish I could say I was looking
at the statistics and say that, boy, we are really nailing that
one. We have really got this problem solved. We do not. We are
a long ways from it. I think the testimony will be that in the
Federal system we have only a 41 percent recidivism rate, where
in State and locals it is over 60 percent. I guess when you
look at that, we are maybe doing something better on the
Federal level than we are doing State and local, but boy, that
is a long way from a successful result, and I am sure you will
agree with me on that.
I am not going to steal Ms. Kerman's thunder off of her
testimony, but at the very end, I want everybody to pay very
close attention to the quote she is going to provide from Mr.
Thomas Mott Osborne, because I think it really lays out exactly
what is at issue here and exactly the question we should be
asking as a civilized society.
So, with that, I will turn it over to my Ranking Member,
Senator Tom Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks, Mr. Chairman.
I want to thank Senator Booker for encouraging us to hold
this important hearing. We want to thank all of you for coming
as witnesses.
My day job before I came here to the U.S. Senate was I was
privileged to be Governor of Delaware for 8 years and very
actively involved in the National Governors Association (NGA).
In Delaware, we do not have sheriffs' jails. We do not have
county jails or city jails. We have a State correctional
system. We have one for adults and we have one for juveniles.
In my second term as Governor, a fellow named Barry
McCaffrey came to Delaware, General Barry McCaffrey, Retired,
and he was at the time the Nation's Drug Czar, and he wanted to
come and visit a program in the city of Wilmington at Gander
Hill Prison because we were doing a pretty good job in terms of
reducing recidivism by about half, from about 75 percent to
maybe 40 percent. He wanted to find out, how are we doing it.
He brought with him an ABC camera crew, as well.
I will never forget, before he actually went into the
prison and looked at the program to see how it worked, we met
with about 50 inmates, and we met in a room much smaller than
this room. They were all in their white garb, and General
McCaffrey and myself. And, I had been to many of their high
schools or their middle schools, grade schools, through
churches, their ballgames, and had some idea who some of them
were. They knew who I was.
And, I said to the guys before we got started on the
program part of the tour, I said to these 50-some, most of
them, I do not know, 19, 20, 21, 22 years old, I said, how did
you guys end up getting here? What happened in your lives or
did not happen in your lives that led you here? About five or
six guys spoke up before we took our tour and they all told
stories that were very similar.
I was born when my mom was young. I never knew my dad. I
ended up in kindergarten. Other kids could actually read. They
knew their letters. They knew their numbers. I could not. I got
into first grade and I started falling behind. In the second
grade and the third grade and the fourth grade, just falling
further behind. Along about the fourth grade, this one guy
said, I realized if I just act up in class and just be a real
nuisance, the teacher would stop calling on me. And, so, he
would put his head down and just stay out of trouble.
And, they said, eventually, they will be put out in the
hall, probably about the fifth or sixth grade. And probably
when I was in the seventh or eighth grade, I was suspended from
school. And for a while, he said, I liked that, because I was
no longer embarrassed by how little I knew.
And, he said, when I was in the ninth grade, I got expelled
and I found myself on the outside in a world, he said,
everybody wants to be popular. Guys like me want to be popular,
he said. If you are a good athlete, you can be popular in
school. If you are smart, you can be popular in school. If you
are good with girls, you can be popular in school. He said, I
was none of those.
And, he said, I was on the outside and I wanted to feel
good about myself, and the only way I could feel good about
myself was to take drugs or to consume alcohol, and when I did
that, I felt good about myself. He said, I did not have any
ability to pay for those things. I ended up in a life of crime
and I ended up in this prison.
Every one of them told the same story.. And the fellow who
was the Commissioner of Corrections for me at the time was a
fellow named Stan Taylor, a wonderful guy. He used to say to
me, ``95 to 98 percent of the people that are incarcerated in
our State are going to end up being released and come back into
our society. And we can send them back out into society as
better people, better parents, or better criminals. And,'' he
said, ``it is our choice. It is our choice.'' And, to an
extent, it is a choice of the inmate themselves.
So, we are big on root causes in this Committee. I am big
on root causes in this Committee. And, if we take young men,
young women, not-so-young men and not-so-young women, and
actually do something about their addictions while they are
incarcerated, that is helpful. If we do something about the
lack of an education, that is helpful. If we do something about
their lack of work skills or actually the ability to have to
get up in the morning and know they have a job to go to, that
is helpful. All the above.
States are laboratories of democracy. We can learn a lot
from them. And we can learn from one another. Today, we are
going to learn from you and we look forward to this very much.
Again, Cory, I just want to thank you for suggesting that
we be here. Let us have a good hearing. Thank you.
Chairman Johnson. Thank you, Senator Carper.
Again, I will ask for unanimous consent to enter my written
opening statement in the record,\1\ and with that, Senator
Booker.
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\1\ The prepared statement of Senator Johnson appears in the
Appendix on page 49.
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OPENING STATEMENT OF SENATOR BOOKER
Senator Booker. I just want to start by expressing my
gratitude to the Ranking Member and to the Chairman for having
this hearing. It has been probably the best experience I have
had in the U.S. Senate since I began about 18, 19 months ago,
to find such bipartisan willingness to deal with issues of
justice in our country. It is extraordinary from my hour
meeting with Chairman Grassley yesterday to being able to sit
with you today, Chairman, to see this bipartisan willingness to
confront the wrongs in our country that surround criminal
justice and a determination to do something about it.
Chairman Johnson. Let me just interject before you go on,
and we talked about this earlier. I was going to do a field
hearing in Milwaukee on high levels of incarceration. We did
not do it on that subject because this is so complex and it was
difficult to design the hearing so it would not be
inflammatory.
Senator Booker. Yes.
Chairman Johnson. So, again, I appreciate your working with
me so we hold this first one here. But, again, this will be the
first----
Senator Booker. Yes.
Chairman Johnson [continuing]. In a series. What we ended
up doing instead is we held a hearing on school choice, which
starts really at the beginning part of this time spectrum in
terms of not providing a proper education, and it ends up
leading to this end result in terms of prison.
But, again, I appreciate your willingness to work with me
on this, and I am hoping at some point in time we can move this
discussion into different areas that this is pretty relevant.
One of them certainly would be in Milwaukee. Thank you.
Senator Booker. I am grateful to you. We have had
countless, now, conversations about criminal justice reform,
and your eagerness, willingness, sincere desire to do something
about it has been, I think, really encouraging to me in my
early months in the Senate, so I am thankful for that and for
this opportunity to be here today.
It is a movement now in our country to do something about
it. When you have a President of the United States willing to
visit a prison, being the first person to do so, we see that
that is a part of our culture as a Christian. It says in the
Bible, Matthew 25, ``When I was hungry, you gave me something
to eat. When I was thirsty, you gave me something to drink.
When I was in prison, you came to visit me.'' This
understanding that our criminal justice system is not about
fear and retribution but should be guided by principles of
justice, fairness, and ultimately redemption, to me, that is
the American way.
But, unfortunately, we have gone in a way that so far cuts
against our common values and our ideals. This age of mass
incarceration on a whole is violating our core principles in so
many areas. To have us, as we claim to be the land of freedom
and liberty, but to have one out of every four imprisoned
people on the planet Earth here in the United States of
America, even though we only have 4 to 5 percent of our
population, runs contrary to our core ideals.
To do this at such a massive expense to the taxpayer,
unnecessarily egregious expenditures, where we spend about a
quarter-of-a-trillion dollars a year incarcerating human
beings, many of whom do not need to be incarcerated at the
lengths in which they are, runs against our values.
When we see our infrastructure crumbling in this country,
yet we have the resources between 1990 and 2005 to build a new
prison in the United States every 10 days, that runs against
our fiscal prudence and our values as a Nation.
When we see poor people being ground up into a system but
for the fact that they do not have the resources for their
liberation, that we have modern day debtors' prisons in our
country, that runs contrary to our common values.
We now are at a point in our country where we have
literally almost one out of three Americans, between 75 and 100
million Americans, have an arrest record. If we were to go back
to the Revolutionary times and tell them that there was going
to be a government in this land that would be seizing the
liberty of almost one out of three people, we would definitely
have sparked that Revolutionary spirit. And, now is a time that
we need a revolution when it comes to issues of crime and
punishment.
Now, the Chairman was very clear, and I think it is
important to restate, that this is a narrow hearing about one
specific aspect to begin a process of looking for reforms. But
please know, if you look at just our Bureau of Prisons, our
Federal prison population has expanded 800 percent since 1980.
The Bureau of Prisons now has almost 200,000 inmates and it is
35 to 40 percent over-capacity. It employs nearly 40,000
people, and last year, in fiscal year (FY) 2014, the Bureau of
Prisons' enacted budget totaled an astonishing $6.9 billion.
Just working on transportation and commuter rail, seeing the
fraction of that we are debating over when we are spending this
much.
This Bureau of Prisons now is 25 percent of the Department
of Justice (DOJ) discretionary budget. In my very first meeting
with then-Attorney General (AG) Holder, he actually talked to
me about the urgent crisis he faces if the Bureau of Prisons is
squeezing out his entire budget, taking money away from things
that we should be investing in for homeland security for our
protection overall as a citizenry because of this massive
explosion.
The Bureau of Prisons is so large that it is absolutely
critical that we in Congress, this Committee, exercise our
oversight to ensure that taxpayer dollars are being spent
wisely, and especially in light of what many States are
showing, that you can reduce your prison populations
dramatically, saving taxpayer dollars and lowering crime at the
same time.
So, make no mistake. As a mayor, I learned that you have to
make sure that when a crime is committed that there is a
punishment and people get a proportional punishment. But, I am
troubled by some of the practices that are obviously failing to
live up to our common values and just do not make in any way
economic sense, as well.
And, so, I am grateful for this hearing. There are some
areas which I think we really need to drill down that are in
those small areas that we can make improvements now that can,
Mr. Chairman, make a big difference.
One of them is solitary confinement, known in the Bureau of
Prisons as segregated housing units. It is a practice that many
people, medical professionals, human rights activists, civil
rights activists, indeed, other countries, consider torture
because of its impact. Prolonged use of solitary confinement on
an inmate often results in severe psychological harm.
Justice Kennedy in a recent Supreme Court decision
questioned the constitutionality of this punishment, saying
``the penal system has a solitary confinement regime that will
bring you to the edge of madness, perhaps madness itself.'' The
medical community confirms that reality. It is time that the
Federal Government acts as a model to ending this practice of
solitary confinement.
Also, Congress gave the courts the authority to release
prisoners early for extraordinary compelling reasons, known as
compassionate release. The Bureau of Prisons has the ability to
release prisoners now that are facing imminent death or serious
incapacitation. The data is clear on this population. They are
not a threat to our safety and our community, and they are
costing taxpayers extraordinary amounts of money. This is a
Compassionate Release Program that is properly named and should
be explored.
Then-Attorney General Holder issued guidelines to allow the
Bureau of Prisons to expand the pool of applicants who may be
considered for compassionate release. This is something we
should look at.
Finally, I hope that we can explore what programming the
Bureau of Prisons provides to those that are the least of these
in our society, those that are often marginalized, and I am
specifically talking about those who are suffering from mental
health challenges and drug addictions. Right now, States across
America are struggling to control, for example, a growing
heroin epidemic, and many of these people are finding
themselves addicted in a Federal system that does not
adequately treat them. The Bureau of Prisons must find a way to
assist inmates who are struggling with addiction and with
mental health.
Again, I want to thank you, Chairman. This is a hearing
that I have been very excited about. I want to thank our
witnesses. I especially want to thank Charles Samuels, who has
met with me personally. We have had great conversations. His
tenure is actually coming to an end, but he is a dedicated
public servant representing the administration, and I know they
are committed to reforms and have a record of making some
progress on these issues that I have outlined.
Thank you.
Chairman Johnson. Thank you, Senator Booker.
And, again, we all want to thank the witnesses and welcome
them. It is the tradition of this Committee to swear in
witnesses, so if you will all rise and raise your right hand.
Do you swear the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Ms. Kerman. I do.
Mr. Dillard. I do.
Mr. Ofer. I do.
Chairman Johnson. Thank you. Please be seated.
Our first witness is Piper Kerman. She is the author of
Orange is the New Black, a memoir about her experiences in
Federal prison. She is also a Board Member of the Women's
Prison Association, which works to promote alternatives to
incarceration to women. Ms. Kerman.
TESTIMONY OF PIPER KERMAN,\1\ AUTHOR, ORANGE IS THE NEW BLACK:
MY YEAR IN A WOMEN'S PRISON
Ms. Kerman. Mr. Chairman, Ranking Member, and Members of
the Committee, I appreciate you inviting me here today. In my
memoir, Orange is the New Black, I recount in detail the 13
months that I spent incarcerated in the Federal Prison System,
with most of my time served at the Federal Correctional
Institution (FCI) in Danbury, Connecticut.
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\1\ The prepared statement of Ms. Kerman appears in the Appendix on
page 52.
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I have worked with many women and men who are returned
citizens, like me, and we all want to get back on our feet, to
reclaim our rights of citizenship, and to make positive
contributions to our communities. Our experiences are essential
to understanding the reform that is needed in our criminal
justice system so that it will provide for public safety in a
way that is legal and humane and sensible, and that is why I am
here today.
Women are the fastest growing population in the American
criminal justice system, and their families and communities are
increasingly affected by what happens to women behind bars.
According to the Bureau of Justice Statistics, 63 percent of
women in prison are there for a non-violent offense. Many are
incarcerated due to substance abuse and mental health issues,
which are overwhelmingly prevalent in prisons and jails. And,
the rate of sexual abuse and other physical violence that women
experience prior to incarceration is staggering.
Female prisoners suffer these problems at greater rates
than male prisoners and these experiences are relevant both to
their crimes and to their incarceration. But, these issues are
not being adequately addressed by the Bureau of Prisons.
The research on criminal justice involved women and girls
shows that the risk factors I mentioned require different
approaches in order to reduce women's recidivism and result in
successful reentry. This is not unlike findings in other
fields, such as health care, where research shows that women
experience heart attack symptoms quite differently from men and
their treatment needs differ, and this understanding has saved
women's lives.
The Bureau of Prisons should adopt gender-responsive
correctional approaches that interrupt cycles of unnecessary
suffering. States like Washington provide a road map to do this
successfully.
When I was locked up in Danbury, I knew women who were
trying to raise their children during brief reunions in the
visitors' room, while fending off sexual harassment and
struggling with addiction and trying to get a high school
education so that when they got out, they stood some chance of
surviving, despite their felony conviction.
I saw women in Bureau of Prisons prisons denied necessary
medical care and women with mental health issues wait for
months to see the one psychiatrist who was available for 1,400
women. And, that is unimaginable in a system where at least 65
percent of women experience some kind of mental illness.
Equally shocking were the mandatory reentry classes inmates
took to prepare to leave prison. I attended one on housing,
which was led by a man who worked in construction in the
prison, and the mostly poor and overwhelmingly minority women
who were attending that class desperately wanted to know how
someone with a felony conviction and few resources could find
safe, affordable housing to live in after release. And instead,
we heard about fiberglass insulation and roof maintenance and
some other home improvement tips.
The reentry health classes that we took were taught by a
culinary department officer who had no expertise or information
on reproductive health, mental health, or substance abuse
options post-release. He had, however, played professional
baseball for a brief time, and, hence, his authority on the
health topic.
Many of Danbury's policies were questionable, but it was
relatively close to home for most of the women who were serving
time there. Families could visit. Children could see their
mothers, many of whom were raising their kids on their own
before being sent to prison.
Yet, the BOP disregarded this when it chose to convert
Danbury FCI to a men's facility in 2013. This sent women beyond
the BOP's stated goal of no more than 500 miles from home, and
it has also deprived many of them of programming that male
prisoners enjoy, such as UNICOR employment, which is very
important, or the residential drug and alcohol treatment
program, which not only is one of the most effective programs
the BOP has, but also is one of the only ways to earn a
sentence reduction in the Bureau.
It is worth noting that the desire to empty that prison of
women caused the Bureau of Prisons to examine prisoners'
sentences and exercise its discretion granted by the Second
Chance Act, signed into law in 2008 by President Bush. Hundreds
of women were reassigned to complete their sentences in halfway
houses or even in home confinement. And while briefly exercised
in the case of Danbury FCI, the BOP has not used its authority
under the Act to safely reduce the Federal prison population
and return as many prisoners as possible to their communities.
The BOP should place all eligible prisoners in halfway
houses or home confinement at the earliest possible dates and
should use compassionate release and sentence reduction
programs, and this would help relieve the persistent
overcrowding and keep staff and prisoners safer while reducing
costs.
Finally, the BOP must be led by individuals who value the
role of communities and families in rehabilitation and
understand the particular needs of women. We appreciate the
service of Director Samuels, and he leaves at the end of this
year. He should be replaced by a leader who is committed to
enacting these values into policy. I urge the administration to
look outside of the existing Bureau leadership for strong
candidates who will make the BOP a model system driven by
innovation and creativity.
I close with the words of the legendary reformer and warden
of Sing-Sing Prison, Thomas Mott Osborne, who famously asked,
``Shall our prisons be scrap heaps or human repair shops?''
Today, with the biggest prison population in human history here
in the United States, we must insist on a different answer to
this question.
Thank you.
Chairman Johnson. Thank you, Ms. Kerman.
Our next witness is Jerome Dillard. Mr. Dillard is the Jail
Reentry Coordinator for Dane County, Wisconsin. He also served
as the Director of Voices Beyond Bars, a group aimed at helping
former inmates transition in the community by offering
employment and computer classes. And, Mr. Dillard, again, I
just want to thank you for traveling here from Wisconsin for
your testimony. Please.
TESTIMONY OF JEROME DILLARD,\1\ REENTRY COORDINATOR, DANE
COUNTY, WISCONSIN
Mr. Dillard. Thank you, Senator Johnson. In opening, I want
to thank this Committee for having me. I want to thank you,
Senator Johnson, and my other Senator from Wisconsin, Tammy
Baldwin, for having me sit before you today.
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\1\ The prepared statement of Mr. Dillard appears in the Appendix
on page 104.
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I sit here as a formerly incarcerated citizen who served
time in both Federal and State prison systems. My crimes were
non-violent, driven by a long history of drug addiction.
While doing time in prison, I witnessed a system that was
ballooning with predominately young African Americans who were
serving long prison sentences--10, 20, 30 years--for drug
crimes. This was troubling to me, seeing so many young men
losing the prime of their lives to the criminal justice system.
It was while doing time, I made a strong determination that I
will do all I can to stay out of our prison system.
I have been out roughly 19 years now and I have had the
opportunity to share my own journey of recovery at correctional
centers, educational institutions, conferences, and in the
community, giving my personal account on how peer support
directly aided in the success of my recovery with regards to
substance abuse and mental health.
We often do not think of the formerly incarcerated citizens
as assets in the work being done to address the issues of
incarceration. The power of peer-led groups and organizations
provides so many essentials needed for the successful reentry
of individuals returning to our communities. An in-house prison
support network of this type would be helpful for the process
of rehabilitation. Some of the barriers to creating this sense
of community are opposition from the Bureau of Prisons and the
State prisons staff with fostering that ``us'' and ``them''
mentality. Real cultural competency training would be a value
in all prison systems.
I want to say, in the work that I do, I realize that the
barriers are tremendous. Individuals returning to the community
from State and Federal prisons are often faced with huge
amounts of debt--child support, restitution, supervision fees,
and on and
on--real barriers to individuals who are oftentimes subjected
to the lower-paying jobs that are available in our communities.
I was given an opportunity to work in a mental health
Alcohol and Other Drug Abuse (AODA) prison in our State. This
is a unique facility that is invaluable because they provided
mental health and trauma-informed care on an individualized
basis. What I witnessed there in the programming that went on
there, I cannot say enough about, because traumas are so
prominent with this population.
As I talked to these men, many--and often I asked, how many
men had their fathers in their lives, and the majority of the
times, these individuals would say, my father was in prison, or
I do not know my father, and I was raised by the streets. These
are some of the traumas. Even fatherlessness is a trauma that
usually goes unaddressed. And for those in our inner cities,
they are humongous. They are huge.
In the time that I have, I really cannot elaborate on many
of the things that I would like to say, but I am going to say
this in closing. In working with our incarcerated and formerly
incarcerated citizens over a decade now, I am beginning to see
a shift in confronting mass incarceration. It is an issue that
both political parties agree on, that America's addiction to
mass incarceration is not working. It is costly. It does not
restore people. And, I personally feel that the climate is
right and the ground is fertile for real criminal justice
reform.
The modern War on Drugs produced an overall prison
population that remains unprecedented in world history. At the
Federal level, the growth in the incarceration rate has been
even greater and more sustained than in the States.
I am encouraged by some of the initiatives that are taking
place on the local level in many States and counties. In my
county, we are working to address the racial disparities and
reduce the number of those incarcerated at all levels of the
criminal justice system. And, great works are being done
addressing these problems, and I feel that addressing these
problems will require far more than tinkering with the
sentencing policies of non-violent offenders or revamping
prison programs.
To achieve a reasonable level of incarceration, we will
need to substantially reduce both the numbers of people
admitted to prison and the length of their sentences. In making
a suggestion, I would like to say to the BOP to continue to
solicit feedback from people who are serving time so they can
craft programming that is to the prison population. The BOP
programming needs to match the labor market data about high-
growth industries. It also needs to be specific to the regions.
And, last of all, the BOP needs to advocate to Congress for
laws that allow more merit time, early release, and incentives
for good behavior or programming.
Thank you.
Chairman Johnson. Thank you, Mr. Dillard.
Our next witness is Udi Ofer. Mr. Ofer is the Executive
Director of the American Civil Liberties Union (ACLU) in New
Jersey. Through his work at the ACLU, he has worked on the
State level to form a blueprint on how to reduce the prison
population in New Jersey. He worked closely with Governor Chris
Christie to pass bail reform legislation which takes effect in
2017 and is estimated to reduce the prison population in New
Jersey by about 8,500 inmates. Mr. Ofer.
TESTIMONY OF UDI OFER,\1\ EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION OF NEW JERSEY
Mr. Ofer. Thank you, Chairman Johnson, Ranking Member
Carper, and Members of the Committee. My name is Udi Ofer and I
am the Executive Director of the American Civil Liberties Union
of New Jersey, and it is my honor and privilege to be here
today on behalf of the ACLU and our more than one million
supporters living across the United States, including in New
Jersey.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Ofer appears in the Appendix on
page 108.
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Today's hearing comes at a critical moment in our Nation's
history, when there is a rare opportunity to take bold action
on criminal justice reform. Republicans and Democrats alike are
taking a second look at our Nation's criminal justice system,
and Republicans and Democrats alike are becoming much more
pragmatic and much less ideological in their approach to
criminal justice.
Following decades of punitive policies that have sent
millions to prison and devastated communities, particularly
low-income communities of color, Americans are now realizing
that our Nation's prisons and jails have grown too big, and
that all too often, the people who end up imprisoned really
suffer from drug addiction or mental illness and should not be
incarcerated in the first place.
We all know the story of the growth of our Nation's
incarcerated population. Our Nation's jails and prisons hold
almost 2.3 million people on any given day. The Federal prison
population has increased from 25,000 prisoners in 1980 to more
than 207,000 today, and all of this comes at an annual cost to
taxpayers of tens of billions of dollars.
But, the costs have far more severe consequences than
simply the fiscal expenses necessary to incarcerate 25 percent
of the world's prisoners in a country with 5 percent of the
world's population. The true costs are human lives, and
particularly generations of young black and Latino men who
serve long prison sentences and are lost to their families and
to their communities. And, the fact is that African Americans
and Latinos are disproportionately engulfed in our broken
criminal justice system.
So, it is clearly time for a change. We are at a
crossroads, as Americans recognize the need to reform both our
Federal and State criminal justice systems. So, with this in
mind, I come before you today to urge you to seize this
opportunity to reform prison practices, reduce the incarcerated
population, and create a system that is smarter, a system that
is fairer, and a system that is more cost effective.
And at the top of any reforms of Federal prison practices
must be the issue of solitary confinement. Approximately 5
percent of Federal prisoners are in solitary confinement. That
means that on any given date, 11,000 people in Federal
prisons--11,000
people--are confined to a six-by-nine cell and deprived of
basic human contact, with little to no natural light and
minimal, if any, constructive activity for 22 to 24 hours a
day. In some Federal facilities, the average time that a
prisoner sits in continuous solitary confinement is 4 years.
You need to look no further than the front page of today's
Science section of the New York Times--and it is the Science
section, not the Politics section--to get a better
understanding of the mental and physical consequences of long-
term solitary confinement.
And, according to a recent independent review of the
Federal Prison System solitary practices, there are major
problems. Federal prisons send thousands of seriously mentally
ill individuals into solitary confinement, people who should be
receiving treatment, not sitting in ``the hole,'' and Federal
prisons use solitary on close to 1,400 people who are there for
protective custody but instead are subjected to virtually the
same conditions as prisoners who are in solitary for
punishment.
So, what can we do about this? Well, there are many small
yet important steps that the Bureau can take today and that are
outlined in the independent review. Yet, the truth is, if all
that we take today are small steps, then we will have lost this
historic moment for bold change. Now is the time for historic
change. Solitary confinement has no place in American prisons.
Physical separation may sometimes be necessary for safety and
for security, but isolation is not.
Therefore, we call on the Bureau of Prisons and we call on
the Congress to resolve this issue once and for all. First, it
is time to abolish the use of solitary confinement for persons
under the age of 18 and for persons with mental illness.
Senators Cory Booker and Rand Paul have already introduced
legislation, the REDEEM Act, which would prohibit the use of
solitary confinement on juveniles and we fully support this
legislation.
Second, for all other prisoners, the Bureau should abolish
periods of solitary confinement lasting longer than 15 days,
period. We believe that implementing these recommendations will
lead to a smarter and more humane system and will lead to a
decrease in the Federal prison population by reducing
recidivism rates.
Finally, a couple of quick words about New Jersey. Given
the focus of this hearing on BOP practices, the lessons from
New Jersey are not directly applicable, but there are some
important lessons worth mentioning. New Jersey is not a perfect
model. We have terrible solitary confinement practices, but
there are some things that we have done well.
In 1999, New Jersey's incarcerated population peaked at
more than 30,000. Today, it is at about 21,000, a 30 percent
reduction in a decade-and-a-half. How did we achieve it? We
achieved it through numerous policies, with the biggest ones
being changing our harsh mandatory minimum sentences for drug
offenses and a decrease in the number of parolees returned to
prison for technical violations. And as mentioned by Senator
Johnson, we have recently had a major victory in a bipartisan
manner, working with Governor Christie, to overhaul our State's
bail system, which we believe will lead to thousands of fewer
people sitting in jail simply because they are poor.
So, look, nationwide, the bipartisan commitment to criminal
justice reform is as strong as it will ever be, so the ACLU
urges the Congress to take bold action to adopt our
recommendations, which would help to increase fairness and
justice at every stage in the system.
Thank you.
Chairman Johnson. Thank you, Mr. Ofer.
I do want to stress, you have mentioned the word
``bipartisan'' a number of times, and this is true. Some of the
folks in this Committee have been describing problems and look
for the areas of agreement, and this is something I think that
we have broad agreement on. This system is not working, as Mr.
Dillard pointed out. It is just not working. We have to take a
look at the facts and admit that harsh and stark reality.
Ms. Kerman, you obviously have a pretty unique story here.
You did not spend much time in your testimony--maybe people
more tied into pop culture fully understand--but if you could
just quickly describe what you were put in prison for, and at
the tail end, I would also like you to tell me, what do you
think your punishment should have been?
Ms. Kerman. Thank you for your question, Senator Johnson.
When I was in my early 20s, which is a very typical risk time
for folks to be involved with crime or to commit a crime, I was
involved with a relationship with someone involved with
narcotics and I carried a bag of money from Chicago to Brussels
in support of a drug trafficking enterprise.
I voluntarily left that situation. Good sense kicked in. I
was very fortunate. I had a college degree already. I had many
benefits and privileges, and so I was able to return to the
United States and to get my life back on track and to put any
involvement in crime behind me.
Many years passed before I was indicted in the Federal
system, and ultimately, I was sent to prison 10 years after I
committed my offense. I pled guilty to my crime very swiftly. I
was very fortunate to only serve 13 months of a 15-month
sentence.
One of the things that was so striking to me the very first
day that I spent in prison was that so many of the women that I
was incarcerated with, who I would spend a great deal of time
with, were serving much harsher sentences than I was. And as
the days and the weeks and the months went on and I came to
know those other women really well, it was impossible for me to
believe that their crimes were so much more serious than mine.
In fact, the only conclusion I could draw was that they had
been treated much more harshly by the American criminal justice
system than I had been treated because of socio-economic
reasons, differences in class and, in some cases, because of
the color of their skin.
I left the custody of the Bureau of Prisons in 2005. I had
2 years of supervised release, probation, which I completed
successfully.
When I reflect on the punishment for my crime, I certainly
cannot protest it when I think about the harshness with which
poor people and disproportionately poor people of color are
treated in this country.
It is hard, however, to believe that there was a lot of
social benefit to the community drawn from my incarceration. It
prevented no new crimes. I think, particularly when we consider
the punishments that we have meted out for drug offenses, we
have to reflect on the enactment of these mandatory minimum
drug sentencing laws, generally in the mid-1980s. At that time,
I think that those laws were intended to curb substance abuse
and addiction and some of the crimes that grow out of substance
abuse and addiction.
Today, many decades after we passed those laws, we have put
millions and millions of Americans in prison and saddled them
with felony convictions, and today, illegal narcotics are
cheaper, they are more potent, and they are more easily
available than when we put mandatory minimum sentencing laws on
the books and incarcerated all those people. I think we can
only draw the conclusion that in terms of curbing substance
abuse and addiction, that those laws are a failure and that
locking people up for drug offenses, particularly low-level
non-violent drug offenses, is a huge waste of time and money.
Chairman Johnson. So, let me go back to what I wanted you
to answer, the final question, though. I agree, it is not
working.
Ms. Kerman. Yes.
Chairman Johnson. I think there are two reasons for prison,
punishment and deterrence.
Ms. Kerman. Yes.
Chairman Johnson. So, what type of punishment is
appropriate and that would deter people from, for example,
trafficking drugs to young people, which is pretty damaging for
society? I mean, what do you think would be the alternative?
Have you given that any thought?
Ms. Kerman. I think that a very appropriate part of my
punishment, if it was not confinement in a prison, would have
been a lengthy term of community service working with people
who are addicted to drugs and with families that are suffering
from the ravages of addiction. What I experienced while I was
incarcerated was very intense close friendships with women
whose lives had been devastated by substance abuse and
addiction, and that really brought home to me the harm of my
own actions, and I think that that is one of the most
appropriate ways to deal with those kinds of harms.
Chairman Johnson. Good answer.
And, very briefly, because I want to get to Mr. Dillard, as
well, the other women that were in prison, I know you do not
have the statistics on it, but in general, were they there for
also just basically drug crime?
Ms. Kerman. Oh, in particular----
Chairman Johnson. The vast majority?
Ms. Kerman. In both State and Federal systems, but
overwhelmingly in the Federal system, women are incarcerated
for non-violent drug offenses and for property crimes. But in
the Federal system, I mean, I think if any member of this
Committee had the opportunity to meet the hundreds of women
that I did time with, you would probably walk away from getting
to know those women with a deep feeling that their confinement
in a prison cell or a prison facility was just a colossal waste
and not an appropriate way of intervening in the things that
put them into the criminal justice system.
Chairman Johnson. Thank you.
Mr. Dillard, obviously, we met in discussions about the
difficulty of reentering society after you have served your
time. Talk about the challenges. I mean, you were talking about
the huge debt levels. You are sitting in prison and your child
support just continues to build, and then you get out, it is
very difficult to find a job, and one of the things I am
working with Senator Booker on is a ``ban the box'' for Federal
employees to serve as an example, so hopefully something like
that would work to give people the opportunity to get a job.
But, even if you get a job, a lot of these are entry level.
They do not pay a whole lot. And, yet, we expect people who
just get out of prison to all of a sudden start paying off
those debts. Describe what happens when they are unable to.
Mr. Dillard. Well, the fact is, when you are faced with
these barriers--and I, too, came home faced with many
barriers--the fact is, I had support, I had individuals who
kept me encouraged, and I had someone to give me analogy, and
that was putting a little bit behind you at a time.
I was fortunate to be able to obtain a living wage
employment about a year-and-a-half after being out. That was
helpful, because after 13 years, I finally got a tax return.
And that analogy of putting that debt behind you a little bit
at a time is something that I teach to young men today.
The fact is, many of our young people have ties to the
criminal justice system and there is so much hopelessness that
comes with being tied to the criminal justice system that,
often, they feel that there is no place for them in the
workforce. Application after application, turn down after turn
down, because, in many instances, of your criminal convictions.
Individuals lapse into hopelessness, and from there, addiction
can raise its ugly head, or hustling, or just becoming part of
the norm in many of the communities that have had to result to
these things.
Chairman Johnson. Again, in our meetings, one of the
individuals we were talking with spoke that not paying child
support ends up being a parole violation----
Mr. Dillard. Yes.
Chairman Johnson [continuing]. Which lands you right back
in jail, correct, which costs us $33,000 for a male prisoner,
and, I think, Ms. Kerman, is it not about $50,000 for a female
prisoner?
Ms. Kerman. Yes.
Mr. Dillard. Yes.
Chairman Johnson. So, again, it is these enormous
challenges just trying to reintegrate into society, get a job,
and then when you are unable to pay off your child support,
which, again, we all want people to be responsible and pay for
their children, but then you land right back in jail. Is that
what I heard. Is that basically true?
Mr. Dillard. Well, in some cases. But, the fact is, child
support continues to accumulate even while you are doing time.
I had a gentleman who was released from prison after 15 years,
$60,000, $70,000 in debt with child support, along with all the
other things that came. The only employment that he can find
was working in a fast food restaurant at a minimum wage. And
after taking home his second paycheck, he was, like, I cannot
make it like this. I just cannot. Over 40 percent of his check
was being taken before he even got it, and that is a
discouragement, really, for him to continue working at a
minimum wage position and not be able to pay rent or have
transportation.
Chairman Johnson. OK. Thank you, Mr. Dillard. I am out of
time. Senator Carper.
Senator Carper. The Chairman said a few minutes ago there
are two reasons for prisons, punishment and deterrence. I would
say there is at least one more, and that is to try to correct
behavior so that when people come out, they will be less likely
to recidivate and simply to commit crimes again and return to
our prison.
I mentioned earlier how Stan Taylor was Commissioner of
Corrections when I was Governor for my second term, and his
words that still ring true today, the overwhelming majority of
people who are incarcerated are going to come out some day.
They are not there forever. They will come back into our
society and to our communities, and they can come out as better
people or they can come out as better criminals.
Senator Booker, alluded to a moral imperative that we face,
whether people of faith or not. He alluded to Matthew 25, when
I was hungry, when I was thirsty, when I was naked, when I was
sick and in prison, did you come to see me? I have been in
every prison in Delaware. We transformed Ferris School, which
really was a juvenile prison, into a real school. And, I have
given this matter huge amounts of time and thought over the
time that I was there and even now.
In the National Governors Association, we used to say--I
would say to my cabinet when we would have cabinet meetings
dealing with a particular issue, I would say, somebody, some
Governor in some State has dealt with this issue. Figure out
how to deal with it and do so successfully. We have got find
that State, that Governor, and whoever worked on this
particular challenge in that State.
A lot of what we are talking about here, somebody has done
something really good that could serve as a model. States are
laboratories for democracy, and before we go off for the Bureau
of Prisons just starting from scratch, we need to look around
our country and say, well, where are some States that are doing
some things really well?
In our State, we changed a juvenile prison into a real
school. In our State, we decided when we had people in prison,
we were going to have them for a while. Why not work with them
on their educational skills, actually create a school within
the prisons to work with them on their drug addictions, to give
them an opportunity, whatever faith they might be, but to
actually exercise their faith, learn about their faith, to
prepare for transformation, to learn skills, whether it is
upgrading computers, whether it is building furniture, whether
it is learning auto repair, and literally taking the whole
fleet for the State of Delaware, the car fleet, and basically
provide maintenance in our prison system so that people at
least have that kind of skill when they walked out.
What I would like to do is to ask each of you to give us
one terrific example--it could be in a State or a local
correctional system--one terrific example within the system,
within the prison itself, or, frankly, without, because if we
do not do a lot better on the early side, the early childhood
side and so forth, we are not really going after the root
cause. But, just give us one good example. It could be in the
correctional system, it could be before, it could be after
release, that you think we ought to really drill down and try
our best to emulate. Thank you. Ms. Kerman.
Ms. Kerman. Thank you, Senator Carper. I currently teach
nonfiction writing in two State prisons in Ohio, and one of
those prisons is a men's medium-security prison. It was built
for 1,400 men. It currently houses 2,600 men. It is led by a
young warden who was trained as a social worker at Ohio State
University (OSU). He does things differently than any prison I
have ever set foot inside.
The prison has more lifers than any other prison in the
State of Ohio. It is one of two prisons with the lowest
violence rate in that prison. So, that is a big change over
time in that facility. That warden and his predecessors have
done a great job at making that a much safer prison, and that
warden has--and his staff have a tremendous amount of
rehabilitative programming of every sort, whether it is
vocational, educational, spiritual.
One of the first programs that was ever put in place there
back in the 1990s was an interfaith dorm where prisoners of
different faiths would come and live in that dorm for one year,
do a special curriculum, learn how to deal with each other and
their differences, and then go back out into general population
as change agents.
That prison is a really interesting place and that warden's
philosophy and the philosophy of all of his staff--because one
man cannot do it all, all of his staff need to be on board for
him to do that--is really inspirational, I think.
I want to make a note on some of the results that that
prison gets, back to Udi's testimony about solitary
confinement.
Senator Carper. Ms. Kerman----
Ms. Kerman. Yes?
Senator Carper. I would like to listen to you for the rest
of the morning, but I only have two more minutes, so I am going
to ask you to just hold it right there if you will----
Ms. Kerman. OK.
Senator Carper [continuing]. And we will, hopefully, have a
second round and we will come back and finish it.
Ms. Kerman. OK.
Senator Carper. I would note this. I am an Ohio State
graduate, undergrad, and one of the things that attracted me to
the
KEY/Crest Program, which we instituted in our adult prison
system at Gander Hill Prison that Barry McCaffrey, the Nation's
Drug Czar, came to see, the guy who developed, helped us
develop that and implement it in Delaware, was Jim Inciardi
from Ohio State who literally came out of Columbus, Ohio, and,
frankly, worked pretty well.
Mr. Dillard, same question. Give us just one great example.
Piper has given us one. Give us one, as well.
Mr. Dillard. Well, I personally feel that the work is on
the offenders themselves, and it was a lifer who really made a
difference in my life, who spoke life into me. And throughout
my prison sentence, I realized how the older inmates really
worked with and tried to encourage the younger ones. I still
feel that you cannot leave formerly incarcerated citizens out
of the equation. Mr. Ofer.
Mr. Ofer. So, if I may, I am going to give two quick
examples.
Senator Carper. Go ahead.
Mr. Ofer. One is solitary confinement, since that was the
focus of my testimony. There are examples of States that have
dramatically reduced solitary confinement without causing risk
to staff and to inmates, and a good example is Colorado. In
2011, Colorado placed in solitary confinement about 7 percent
of its incarcerated population. Today, it is about one percent
of its incarcerated population. We have seen a dramatic
decrease in the use of solitary by banning the use of solitary
against some vulnerable populations, like people with serious
mental illness, and by restricting the number of days that you
could be sent. So, that is one.
The second example is bail reform, and what we have done in
New Jersey and what other States and some municipalities are
looking at, in New Jersey, we had 10,000 people sit in jail
awaiting their trial because they could not afford a few
thousand dollars in bail. We have completely revamped that
system, where now your bail and whether you are going to be
released pre-trial or not is determined by your risk assessment
and not by whether you are poor or rich.
We believe that that change in and of itself will lead to
about three-quarters of the 10,000, so 7,000 to 8,000 fewer
people sitting in jail. Before this reform, the average time
that a person sat in jail awaiting their trial was 314 days.
These are people that are presumed innocent until proven guilty
and they were being treated like guilty, and this is a
phenomenon all over the country. And, this is one of the ways
that we can dramatically reduce our jail population in the
United States.
Senator Carper. Let me just close by saying this. Senator
Booker and I talked about the moral imperative that we have in
this country, to look out for the least of these. We also have
a fiscal imperative. And while our budget deficit is down a
lot, it is still substantial, and we have a fiscal imperative
to meet the moral imperative in a fiscally responsible way,
hence the need to find out what is working, do more of that,
find out what is not working and do less of that. Thank you so
much.
Chairman Johnson. Thank you, Senator Carper.
Before I turn it over to Senator Booker, because you
mentioned my name and did not quite get it right, I said that
we jail people to punish and to deter, but then I also fully
mentioned the mission statement of the Bureau of Prisons, to
ensure that offenders are actively participating in programs
that will assist them in becoming law-abiding citizens when
they return to our communities, and, of course, I highlighted
Ms. Kerman's testimony where she quoted Thomas Mott Osborne,
``Shall our prisons be scrapheaps or human repair shops?'' I
strongly hope that our goal is that they are human repair
shops.
So, with that, Senator Booker.
Senator Booker. Thank you, Mr. Chairman.
Udi, let us jump in real quick. So, solitary confinement.
Can you please describe this, because as I have had these
conversations with friends and others, people often think that
solitary confinement is a result of someone having done
something wrong in prison, and why is solitary confinement so
commonplace? Is it because prisoners are doing things wrong in
prison?
Mr. Ofer. Well, we have seen as a Nation a dramatic
increase in the use and reliance on solitary over the last
couple of decades. We do not have exact reliable scientific
data since we actually do a terrible job as a country tracking
how many people are placed in solitary, but there is consensus
that its use has increased dramatically, particularly in
response to overcrowding, and where prison officials are
overwhelmed and their quick reaction is to send people to the
hole.
So, we have examples from New Jersey, we have examples from
around the country of people being sent to solitary for things
like talking back. I will give you a New Jersey example, out of
New Jersey State Prison in Trenton, where an inmate by the name
of Sean Washington, in 2013, he was a clerk at the library and
he wanted to leave the library to go bring some legal papers to
one of the other inmates. Yet, a corrections officer said, you
cannot leave, and the facts here are a bit disputed, but the
worst facts, the facts that the State claims, is that Mr.
Washington then said, ``Mother f-er'' to the correction
officer, ``do not tell me what to do.'' That is the worst
facts. What was his punishment? Ninety days in solitary
confinement.
That is a real example. Those are examples that we see all
across the Nation.
Senator Booker. I am just wondering, just for time, so we
know that people are being sent to solitary for many different
reasons.
Mr. Ofer. Right.
Senator Booker. Some of them have to do with administrative
issues and the like. Does it work in terms of in somehow
affecting the behavior of prisoners? Is there any productive
value in the Bureau of Prisons?
Mr. Ofer. Well, I am going to push back for a second on
some language that you used, in that some people are sent to
solitary for administrative reasons. That is a loaded term,
because the Bureau of Prisons and other prisons commonly call
solitary administrative segregation----
Senator Booker. Right.
Mr. Ofer [continuing]. And it sounds really harmless, but
in effect, it is solitary and people are sent there for really
minor reasons, and some reasons are for protective custody,
like I mentioned in my testimony.
For example, the lesbian, gay, bisexual and transgender
(LGBT) community, which faces disproportionate harassment from
other inmates in prisons, a lot of times, they will be sent to
involuntary protective custody to protect them from inmate
violence, yet they are being punished. We see this happening
all the time.
In the Bureau of Prisons, for example, according--oh, you
asked what was--does it actually work? So, recently, there was
an independent review that was released to the public in
February of this year by the Center for Naval Analyses (CNA)
that looked at solitary practices in our Federal prisons and it
looked to this question. Does inmate behavior change following
solitary? And their response was, absolutely no.
Senator Booker. I would just like to pause there. Can we
have that report put into the record\1\ for this hearing.
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\1\ The report referenced by Mr. Ofer appears in the Appendix on
page 144.
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Chairman Johnson. Without objection.
Senator Booker. And then I want to just also say that not
only LGBT, lesbian and gay prisoners, but, obviously
transgender----
Mr. Ofer. Transgender, absolutely. But, let me actually say
what the CNA report actually found, because it is very
important. It looked at an inmate's disciplinary record 12
months before being sent into solitary and 12 months after
coming out of solitary, and it found virtually no change
whatsoever.
Senator Booker. So, let us get to your article you held up
today, the consensus upon medical experts. What is the damage,
the trauma, the effect on an individual to be in solitary
confinement, you said a shockingly, often on average, of 4
years? I have talked to numerous inmates who have experienced
that length or more. What is the damage done to someone in
general, and would you also include in that someone who already
has a mental health challenge?
Mr. Ofer. First of all, when I think of this issue, and to
use an example that is contemporary, I think of it similar to
climate change, in the sense of there are certain people that
just deny the science. Yet, within the scientific community,
there is consensus. There is consensus about climate change and
there seems to be consensus also about solitary confinement.
Senator Booker. Please do not lose this Committee by
talking about climate change. [Laughter.]
Let us stick to the bipartisan consensus here. [Laughter.]
Mr. Ofer. But, what I mean is that there is consensus in
the scientific community about the harms of solitary
confinement, and there are really two kinds of harms. One is
that it exacerbates preexisting conditions, so mental illness
that existed before is exacerbated and becomes worse.
And, second, it also produces mental illness and also
physical illness, things like anxiety, depression,
hypersensitivity to stimuli, bipolar disorder, there have been
documentations of that. The list is long, and I am happy to
provide the Committee with citations to every----
Senator Booker. I think that would be helpful if you would
provide more citations.
Mr. Ofer. We will do that.
Senator Booker. I want to switch. First of all, I just want
to say, both to Mr. Dillard and Ms. Kerman, it is extraordinary
that you are here with your testimony about what the experience
of actual people who have been behind bars, and that is
extraordinary.
And, Ms. Kerman, I would like to just, in the little bit of
time that I have left, just drill down on something that is
often not talked about, but what is happening as a result of
overcrowding. We saw this in Danbury when it was converted into
a low-security men's facility. You were close to your family,
and I am really wondering, what impact does being in prison in
close proximity to loved ones have on an inmate, and what
impact would gender-specific programming have on a woman's
ability to successfully reenter. If you could, in the one
minute I have left, just hit on both of those issues really
briefly.
Ms. Kerman. OK. Proximity to home, family, and community is
overwhelmingly important for both men and women who are
confined to prison or jail. The opportunity to----
Senator Booker. And, let us just be clear. The majority of
women in prison have children, and the majority of imprisoned
people, period, are the No. 1 breadwinners for the family
before they are incarcerated.
Ms. Kerman. Absolutely. The overwhelming number of women in
prison are mothers, and most of those mothers are the mothers
of minor children, kids under the age of 18, who experience
sort of a seismic impact when their mothers are incarcerated
because a lot of those moms are single moms who have primary
responsibility for their kids.
So, the opportunity to touch your children, to hold, for
your children to be reassured that their mother or their parent
is OK is incredibly important both to parent and child. The
opportunity to see your own parents or family members, to
maintain ties to the community, broadly considered, to which
you will almost inevitably return--Senator Johnson is
absolutely correct. The vast majority of people who are in
prison are coming home from prison.
So, those lifelines to the outside community are
incredibly--we cannot overstate how important they are to
public safety, to people's safe and successful return home to
the community, because when prison--when correctional systems,
whether it is the BOP or otherwise, cut those lifelines by
making visits very difficult, by placing people very far from
their families, or by making prisons inaccessible in other
ways, by making phone calls exorbitantly expensive, or by--many
jails have ``no contact'' visits through glass, which is a huge
disincentive to have a visit--those lifelines are cut and the
person who is incarcerated is much less likely to have both the
family support, the safe and stable housing, the access to
networks which might help them gain employment, all of which
are primary concerns for successful reentry. And that is true
whether you are talking about men or whether you are talking
about women.
When we are talking about female prisoners, just very
quickly and briefly, we know that the three things that drive
women's involvement in crime in their incarceration are
substance abuse, mental illness, and, again, that overwhelming
experience of violence, either sexual violence or physical
violence. Eighty percent or more of women and girls in the
system report that happening to them before they were
incarcerated.
So, the problem with incarceration--prisons and jails are
very harsh places by design--is that for prisoners who have
experienced very significant trauma, like rape, childhood
sexual abuse, domestic violence, many of the commonplace
correctional practices are very reminiscent of some of those
abuses. And, so, that creates a serious challenge in terms of
regular engagement with female prisoners in terms of their
rehabilitation and in terms of their, again, ability to return
home safely.
Senator Booker. In deference to my colleagues, I am over
time, but thank you for that substantive----
Ms. Kerman. Absolutely. Thank you.
Chairman Johnson. Thank you, Senator Booker.
And, by the way, when Mr. Ofer delved into climate change,
he did not lose the bipartisan agreement. [Laughter.]
I think we, by and large, agree there has been climate
change, always has been, always will. Senator Heitkamp.
Senator Booker. And vaccines work, is that correct?
[Laughter.]
Chairman Johnson. Yes, they do.
Senator Booker. Yes, they do.
Senator Heitkamp. Thank you, Mr. Chairman.
At the risk of being embroiled in that side discussion, I
was the Attorney General in North Dakota, spent a lot of time--
actually, most of the drug task forces were under my
jurisdiction and we ran a lot of those, and it was at a time
when there was a growing concern in 1992 with the drug problem
and with more and more violent crime. And as a result, we saw
incarceration rates really skyrocket because of desperation.
And, I will tell you this. It has been my experience that
we constantly treat the symptoms, but never treat the disease,
and that is really where we are today, talking about how do we
treat the symptoms and not how do we treat the disease.
I will tell you a story about a very wise man. I did a
juvenile justice project, and one where we made it a little
easier to transfer kids into the adult system. But, I traveled
around the State of North Dakota with a prison warden by the
name of Winston Satran. He was a very wise guy, and at the time
in North Dakota, you could actually interview every prisoner
who came into the prison system, and he would sit down and he
would say, tell me about your life. And as they talked, they
would say, my parents were divorced at 11 and I went to live
with my grandma, and he would write ``11'' in their prison
file, because in his opinion, that prisoner was 11 years old
emotionally.
And, that is where we get stuck, because a lot of this is
related to trauma. A lot of this is related to not
understanding trauma. And we exacerbate it by not only treating
the trauma, but engaging in behaviors that further the trauma,
whether it is isolation from family, whether it is isolation
from any human contact at all.
And, so, let us be honest about the task that this society
has imposed on the Bureau of Prisons. None of this should be
any judgment on the Bureau of Prisons. We have given them an
impossible task. They have to take in--and prison crowding is
part of that. They have to maintain some level of security. And
they are as desperate for solutions as what they can be. But,
we are here talking about things that are way downstream, and
we are not here talking about things that are upstream.
And, so, the juvenile justice system is led, really, by a
lot of very enlightened people at the Department of Justice,
has really begun a transformation into trauma-informed and
trauma-based therapies, looking at what can we do to treat
trauma, how can we basically prevent a lot of abuse, and a lot
of abuse is self-medication. A lot of addiction, it is
chemical, I get it. I get that that is maybe the old model.
But, a lot of it is self-medicating for the trauma that has
been experienced in people's lives.
And, so, with all of that, I would like to know how we
could design a system of prevention so that we do not see more
people. What would you all, in your experience, like to see in
communities that would prevent the kinds of outcomes that we
are seeing right now in the Bureau of Prisons? And we can start
with you, Ms. Kerman.
Ms. Kerman. I think it seems that there is a tremendous
amount of recognition--thank you for the question, Senator
Heitkamp--that substance abuse and mental health problems,
including full-blown mental illness, but also the everyday
demons that many people suffer at some point in their lives,
contribute to people's bad choices and breaking the law. And,
so, a significant commitment to handle those health problems in
the public health system as often as possible rather than
criminal justice system----
Senator Heitkamp. Can I ask just quickly, of the women that
you worked with and were incarcerated with, how many of them
were given a choice of drug court or some kind of intermediate
kind of intervention?
Ms. Kerman. Yes, that is very rare in the Federal system.
That is much more common in State systems or county systems of
justice. There is a program in New York called Justice Home,
where women who are facing at least a year of incarceration,
when their district attorney and their judge agree, are able to
enter this program called Justice Home. They stay at home,
generally with their children, and are, face a set of
accountability measures, but also get the mental health
interventions or the substance abuse interventions, the
parenting classes, the vocational training, whatever is
specific to their case that is needed for them to get better
outcomes.
In New York, it costs about $60,000 a year to incarcerate
somebody. That program costs about $17,000 a year. If we threw
in the cost of foster care for a family with two children, the
costs would mount to $129,000 a year.
Senator Heitkamp. Thank you.
Ms. Kerman. So, yes. That is a good example.
Senator Heitkamp. Mr. Dillard.
Mr. Dillard. Thank you for your observations, Senator
Heitkamp. Trauma-informed care is truly something that is
needed if we are going to be preventive. All I can use myself
as an example of someone who had traumas at the age of 12, 13
years old, who walked around with them for 35 years, never
addressed, and I am just bearing them. When I was diagnosed, I
had been severely depressed most of my life, one reason that I
self-medicated with illegal drugs. Had I been diagnosed, maybe
I could have been given legal drugs and avoided the criminal
justice system.
The fact is, we never look at the cause. We just look at
the effect. And many of these young men and women who I
encounter in the work that I do today have tremendous traumas,
and we are working as a peer organization to help them work
through that to avoid walking around a hurting people, because
we know that hurt people. And, if we do not address those
traumas early on, then further down the road, after recidivism,
we are still going to be paying a much higher cost.
Senator Heitkamp. Thank you. Mr. Ofer.
Mr. Ofer. So, I am going to give a perspective informed by
the fact that I spend a lot of my time in Newark, New Jersey,
which is a terrific city, and it is a city that is plagued by
poverty, and in certain communities, there is violence. And,
what I see in Newark, and really a lot of urban areas across
New Jersey and even across the country, is that the only agency
that is available in that municipality to address social needs,
or at least the agency that is primarily available, is the
police department. And, to me, that is the root cause of the
problem.
You have well-meaning police officers, you have well-
meaning city officials that literally have no one else to go to
if there is, let us say, some minor misbehavior happening on
the street that is minor, but that should not be treated by the
criminal justice system.
And, I will criticize also diversion programs. While they
are certainly better than sending someone directly to jail or
prison, my reaction is, this person should not have been
entangled with the criminal justice system in the first place.
They should not have been arrested and then diverted to
alternative programs. We need to buildup the resources of
municipalities, of States, to have other agencies to go to when
they are interacting with people with mental illness or with
drug addiction problems.
Senator Heitkamp. And, if I could just close with a
comment, the stigmatization of that label is something you will
carry the rest of your life.
Mr. Ofer. Yes.
Senator Heitkamp. It will prevent you from getting student
loans. It will prevent you from getting a job. And, so it is
with a great deal of care that we should take that next step,
because we are, in fact, relegating that person to a certain
quality of life for the rest of their life, especially given
the age of the Internet, where we can find out anything about
anyone.
And, so, I just wanted to make a broader point, that we are
here to talk about what we are going to do with high
incarceration rates, but we cannot look at this problem without
looking at the broad scope of services that are provided and
how we can work more effectively for prevention.
Chairman Johnson. Thank you, Senator Heitkamp. Senator
Ayotte.
OPENING STATEMENT OF SENATOR AYOTTE
Senator Ayotte. Thank you. I want to thank all of you for
being here.
I think, like my colleague, Senator Heitkamp, we both were
Attorneys General in our State before we came here to the
Senate, and one of the things that I had worked on as an AG was
reentry programs. And, I am a strong supporter of the Second
Chance Act and supporting its reauthorization, but saw it from
an Attorney General context where even people who were
incarcerated for serious crimes, that we did not give them any
path for success going forward, because they came out, if they
had a substance abuse problem, the underlying issue was never
dealt with. If there were mental health factors, that was not
dealt with. No job. No place to live. If you put yourself in
those shoes and you are that person and you are put out on the
street, then, I dare say that all of us around this dais
probably would not be able to put it back together.
So, I wanted to get your thoughts. Dr. Dillard, I saw that
your focus is really, as I understand what you are working on,
it would be some form of reentry program, and we saw it in our
State get some momentum and then sort of fizzle and wanted to
get your thoughts on reentry-type programs and what more we
could do to make them more effective to try to end this cycle
and to get people on to productive lives. And then I have some
other followup questions, but I would appreciate it.
Mr. Dillard. Well, I think reentry is a crucial point if
there is planning done and individuals are giving different
options. I know the Federal system, 6 months in a halfway house
is something that I went through that was very beneficial for
me. I just was not released to the streets, and I was able to
obtain employment during that period and save some money to be
able to rent a room, at least, when I was done with my Federal
time.
What I am seeing today, though, is young men coming out of
our State and county systems homeless, 17, 18 years old, who
cannot go live with their mother because they have been told,
you cannot go there because of substance abuse connected to
their housing. And, they are couch surfing. And, oftentimes,
when they are couch surfing, it is probably with those who are
not doing so well or the anti-socials that had an influence on
them being placed in the criminal justice system in the very
first place.
Housing initiatives are huge. I do not have the solutions,
but I can say that we are working on them in the region that I
am working in. Nonprofits and faith-based organizations are
engaging with us in providing housing at an affordable rate.
Preparation is huge. Individuals have to identify certain
things while in custody in order to have a paradigm shift that
this cannot be an option. This cannot be an option.
I had a client to tell me that committing a new crime was
not his first choice, but it was his very last option, and I
know the troubling times that he was in, sleeping on park
benches, could not go to the shelter for various reasons, and
he committed a new crime. As he told me, it was not his first
choice, it was his very last option. And, so, the reentry
process, along with all the barriers.
I think mentoring from formerly incarcerated or connections
with organizations that hire formerly incarcerated, because we
are Ambassadors. I look at us as being those who can help them
through those trying times and pivot points of reentry.
Mr. Ofer. Senator, may I respond to that question very
quickly?
Senator Ayotte. Sure.
Mr. Ofer. This is an oversight hearing on the Bureau of
Prisons, and the independent review that I keep referencing to,
and I am happy to submit my annotated copy--you will have a lot
of highlighting--actually looked at this question of the Bureau
of Prisons' practices on reentry programming, and here is its
finding in one sentence. ``There is no formal Bureau-wide
reentry preparedness program specific to restrictive housing
and inmates in these settings have very limited access to
reentry programming.''
The Bureau does not do a good job in reentry programming.
About 2,000 people a year in the Federal Bureau of Prisons
(FBOP) go from solitary back to community. One of the things
the study found is that many of them--they do not know the
exact number, because the Bureau does not track it--are sent
directly from solitary back to communities. That is a terrible
practice that needs to stop immediately. There needs to be a
focus on reentry programming in the Federal Bureau of Prisons.
Senator Ayotte. Thank you.
And, Ms. Kerman, I wanted to ask you, one of the things
that we are seeing, and I saw this when I was AG, as well, but
we are seeing just on a devastating scale in our State right
now is opioid and heroin addiction. I have been working on
legislation called the Comprehensive Addiction and Recovery
Act. I am hoping that we are going to take this issue up here
to not only the--I hope the Second Chance Act, but also this
Comprehensive Addiction Recovery Act.
There was some discussion you had about this idea of
alternative courts up front. What would you do as you think
about this issue? How many people did you encounter that had
addiction issues that were underlying why they were in prison?
And how do you
see--this, to me, to Senator Heitkamp's point, I fully agree.
We cannot arrest our way out of this. This is a public health
crisis.
Ms. Kerman. Yes.
Senator Ayotte. But, I wanted to get your thoughts on what
you think we should be focusing on those.
Ms. Kerman. Thank you, Senator. What is happening in New
Hampshire is also happening in Ohio and all over this country
in terms of huge spikes in deaths from heroin and other----
Senator Ayotte. It is devastating. I mean, you would not
believe the parents that are coming to me. It is just
heartbreaking.
Ms. Kerman. Yes, it is. It is devastating. It is
fundamentally a public health question first and foremost, and
so it is intersections with the criminal justice system really
should be secondary, particularly as we continue to see violent
crime rates very low.
And, so, while obviously people who sell or use drugs are
breaking the law, remembering that intervening in that
addiction cycle is the single most important thing and cannot
be accomplished with a prison or a jail cell, is completely
central.
We see a lot of folks in the States trying lots of
different things, and I am obviously neither a doctor nor an
expert in addiction, but we see safe harbors in places like, I
believe, Gloucester, Massachusetts, and some other parts of the
New England States have really tried very innovative approaches
to getting folks the medical help they need and having that be
the primary concern rather than incarceration.
When we look at States like New York, New Jersey,
California, the States that have reduced their prison
populations the most and also have simultaneously continued to
enjoy huge declines in violent crime, one of the things that we
have seen in those States, and I know Udi could weigh in on New
Jersey, is a huge decline in prosecutions and incarceration of
people for low-level drug offenses and a recognition that
public disorder is a reflection of a health problem and that is
the way to tackle it.
Senator Ayotte. Thank you.
Chairman Johnson. Thank you, Senator Ayotte. Senator
Baldwin.
OPENING STATEMENT OF SENATOR BALDWIN
Senator Baldwin. Thank you.
First of all, I want to thank our panelists. What a
tremendous opportunity it is to hear from you and interact with
you.
Mr. Chairman, I really want to join the thanks for holding
this hearing, also to the Ranking Member. As you said in the
outset and many have commented, this is a very big and very
complex issue, and so I hope we will have additional
opportunities, and I want to say that I am glad that you are
recognizing this Committee's role in that discussion and I hope
that we can keep that up.
There are a number of things I wanted to touch on. I heard
the Ranking Member talking about upholding the models in States
that are working, and I usually love to brag about my State,
but in this particular case, I am just going to share some of
the statistics about racial disparities in the incarcerated
population in our State.
In Wisconsin, African Americans constitute only 6 percent
of the State population, a little bit more. Thirty-five percent
of those incarcerated in State prisons are African American.
According to a recent study from the University of Wisconsin in
Milwaukee, 13 percent of Wisconsin's African American men of
working age were behind bars, which is almost double the
national average of 6.7 percent. And the figures were
particularly shocking and dismal for Milwaukee County, where
more than 50 percent of African American men in their 30s had
served time in prison. Forty-five percent of the inmates at our
Federal correctional facility, Oxford, are African American,
and 19.3 are Hispanic. And, I hope as we continue to work on
this very complex issue that that will be on our minds.
I also just wanted to mention, and people were talking
about their previous service, attorney generals. I was never
attorney general. I practiced law in a small general practice
firm at the very beginning of my career, mostly general
practice. A couple of times, I took misdemeanor public defender
cases. That is really my only immediate interaction.
But, I was becoming involved in county politics and State-
level legislative office at this time where I felt like I saw
the precursors of what we are seeing now being debated. So, I
had the honor, actually, as serving as Chairwoman of the
Corrections Committee in the State legislature for one term. I
actually took our committee to prisons for tours, for visits
for conversations with people who worked there, people who were
inmates there. We had sometimes legislative hearings in the
prisons. We went to the intake facility, one of the maximum-
security prisons, one of the medium-security prisons for men,
one of the minimum-security prisons for men. We went to the
women's prison on a couple of occasions and visited work-
release facilities.
At the same time, the legislature was talking about should
we allow private prisons to be built and run in Wisconsin?
Should we contract with other States to deal with our overflow
issues and have them house our Wisconsin prisoners? And the
counties were doing the same thing, because some of the jails
at the county level were overflowing.
And the debate, the substantive criminal justice debate in
our State at the time, and this is the early 1990s, three
strikes you are out, elimination of probation parole. We were
creating new felonies. We had an A felony and a B felony. We
created an AB felony. New crimes were being created. And, there
was a lot of debate about the elimination of prison-based
vocational programs. Mandatory minimums were a big topic. You
could see all of this sort of in the future, and now the future
has come and it is not going to be overnight that we figure out
what missteps we have had and how we deal with this in a saner
way.
I have a couple of questions, and if I do not get to all of
them, I am hoping that you will be willing to submit some
answers in writing for some things we might not get to.
Quickly, Mr. Kerman, you mentioned that women are the
fastest-growing prison population right now. I remember years
ago when I was visiting the women's prison in Wisconsin, it
seemed that, to me, there were gender differences in how they
dealt with certain issues. We have talked a lot about solitary
confinement. Is there a gender difference in how these issues
are dealt with in women's prisons? For example, I remember
being very concerned about over-medication of women in the
women's prison to deal with behavioral issues as opposed to
placement in solitary confinement. Is this something we should
still be looking at?
Ms. Kerman. We should absolutely be looking at the use of
solitary confinement in men's and women's prisons. I echo Udi's
testimony that solitary confinement is often used not for the
most serious infractions, like an assault, for example, but
rather for very low-level infractions. Women are overwhelmingly
likely to be incarcerated for a non-violent crime and are very
unlikely to use violence while they are incarcerated. Women's
facilities do not tend to struggle with violence as one of
their guiding issues in terms of security. Solitary confinement
is overwhelmingly used as a punitive measure.
Female prisoners are disproportionately likely to suffer
from mental illness. Mental illness in men's facilities is a
huge problem. It is an even bigger problem in women's
facilities.
One of the tragic things about solitary confinement is that
mentally ill people have a more difficult time following the
rules of a prison, and so what you see is spiraling sanctions
which ultimately land them in solitary confinement, a place
profoundly inappropriate for anybody with mental illness. A
regularly healthy person who is placed in solitary confinement
for 10 days, after 10 days will start to significantly
deteriorate mentally, emotionally, psychologically, let alone a
mentally ill person placed in those circumstances.
Senator Baldwin. Since I only have a couple of seconds
left, let me ask a quick question about reentry and both in-
prison and after prison access to vocational and educational
programming, and you can certainly feel free to elaborate after
the fact in writing, because I know I have such limited time.
But, again, I recall the restriction of any sort of public
funds or individualized financial aid assistance to those,
particularly in State prison, because that was something I was
looking at closely. I believe that has continued over time, and
we have additional restrictions once a person is back in the
community, they want to seek additional vocational or higher
education generally. It makes it impossible for the financial
aid.
You have talked already, Mr. Dillard, about people emerging
burdened with debt not related to higher education. Tell me a
little bit about the options for people to secure post-high
school education upon release.
Mr. Dillard. Well, I am seeing more opportunities opening
up for individuals post-release. At one time, there was you
check a box and you could get student loans. I am happy to hear
that the Pell Grants, there is a pilot going on within the
Federal system with Pell Grants. I am so happy to hear that,
because it is a fact that individuals prior to 1994--I know
many individuals who served time prior to that who came out
with Associates' degrees and went on to achieve Bachelors' and
Masters'. The fact is, 98 percent of those who get a Bachelor's
or a higher degree never return to prison. I mean, that is
something that we cannot ignore, and I think that we should
support as far as higher education within the system.
Senator Baldwin. Thanks.
Chairman Johnson. Thank you, Senator Baldwin.
We do have a second panel, and we could keep going on. This
has been fascinating. Again, I want to thank this panel.
As we talked beforehand, the purpose of every hearing, from
my standpoint, in this Committee is to define a problem, lay
out the reality so we collectively can admit we have it. I
think you have accomplished that goal big time----
Senator Booker. Mr. Chairman.
Chairman Johnson. Yes.
Senator Booker. If I may, this is such a complex issue and
we have dealt with such distinct verticals here, from solitary
confinement to the lack of reentry programs, it might be good
to pick one of those verticals, given the vastness of this
problem, and maybe hold another hearing where we can invite----
Chairman Johnson. I was just going to get there. This is
just a first in what I think will end up being a series of
hearings. We actually have a mission statement for this
Committee, a little unusual for a Senate Committee. It is
pretty simple: to enhance the economic and national security of
America. I think this issue touches both.
One of the things we have tried to do in this Committee,
too, is find the areas of agreement. I think what you have seen
in this hearing is that there is a great deal of bipartisan
agreement that what we are doing just is not working, and not
because of lack of effort by our next panel of witnesses, by
any stretch of the imagination.
So, Mr. Ofer, I would encourage you and your organization
to continue to press for this and work with those of us that
want to solve this problem. I think your points on solitary
confinement are dead on and we need to fix that.
Mr. Dillard, God bless you for having turned your life
around and taking your circumstance and offering that to your
fellow man to help other people find redemption and, again,
turn their lives around, as well.
Ms. Kerman, I think with your unintended celebrity, I think
you have done an excellent job of raising these issues. I have
already spoken to my staff. I liked your answer to the question
in terms of what are alternatives. And from my standpoint, a
rigorous dose of community reparation and those types of
programs, community service, I think is probably appropriate
for people that have committed crimes. We do need some
punishment. We need deterrence. But, hopefully, in those
community service, you just might heal and you just might find
that a far more effective way at dealing with these issues than
locking somebody up and really seeing the result that is simply
not working.
So, again, I just want to thank everybody here on this
panel. I want to continue to work with you and work with
Members of the Committee on a bipartisan basis. This is just a
first of what will be, I am sure, a series of, I think, very
important hearings. So, thank you very much.
We will call up our next panel.
By the way, if you have time, I would love to have you stay
and listen to our next panel, as well. But, you do not have to
feel obligated to.
[Pause.]
Mr. Samuels, before you sit down, I am going to ask you to
stand right away again, because it is the tradition of this
Committee to swear in witnesses, so if you will both rise and
raise your right hand.
Do you swear the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Mr. Samuels. I do.
Mr. Horowitz. I do.
Chairman Johnson. Please be seated.
Our first witness in this panel will be Charles E. Samuels,
Jr. Mr. Samuels is the Director of the Federal Bureau of
Prisons and was appointed on December 21, 2011. He is a career
public administrator in the Federal Bureau of Prisons,
previously serving as the Assistant Director of the
Correctional Programs Division, where he oversaw all inmate
management and program functions. Director Samuels was also
responsible for enhancing the agency's reentry initiatives. Mr.
Samuels.
TESTIMONY OF CHARLES E. SAMUELS, JR.,\1\ DIRECTOR, FEDERAL
BUREAU OF PRISONS, U.S. DEPARTMENT OF JUSTICE
Mr. Samuels. Good morning, Chairman Johnson, Ranking Member
Carper, and Members of the Committee. I thank you for your time
and focus on the important issue of Federal corrections.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Samuels appears in the Appendix
on page 123.
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I am pleased to discuss with you today the operations of
the Federal Bureau of Prisons. I am also pleased to speak on
behalf of our 39,000 dedicated correctional workers across the
country who are on the job 24 hours a day, 7 days a week, to
support the Bureau's public safety mission.
We protect society by confining offenders in facilities
that are safe, humane, cost efficient, and appropriately
secure, and we provide offenders programs to help them become
law-abiding citizens. Simply stated, we protect society and
reduce crime.
But, we face significant challenges. The Bureau does not
control the number of offenders who enter our system or the
length of their stay. We are required to house all Federal
offenders sent to prison while maintaining safety, security,
and effective reentry programs.
We house offenders convicted of a variety of offenses, many
serving long sentences and many with extensive histories of
violence. Drug offenders make up almost half of our population.
We house many individuals convicted of weapons, sex, and
immigration offenses, to include individuals convicted of
international and domestic terrorism. The Bureau is the largest
correctional agency in the country, with more than 207,500
offenders in 122 Federal prisons, 13 private prisons, and 178
community-based facilities.
Our agency began to expand rapidly in the 1980s, due
largely to the Nation's War on Drugs. From 1980 to the present,
we experienced an eightfold increase in the size of our inmate
population. Crowding in Federal prisons reached nearly 40
percent systemwide, and even higher at medium-and high-security
prisons, where the more violence-prone offenders reside. The
tremendous growth in the inmate population outpaced staffing
resources and negatively impacted institution safety. Our
ability to effectively supervise prisoners and provide inmate
programs depends on having sufficient numbers of staff
available at our prisons.
Recently population pressures abated slightly. In fiscal
year 2014, we saw the first decline in the inmate population in
more than 34 years, and we project declines to continue for the
next couple of years, but crowding will remain a challenge.
Staff safety, as well as the safety of the public and
offenders we house, is my highest priority. Every day, our
staff put the safety of the American people above their own to
keep communities safe and secure. Some of the saddest days in
my 27-year career occurred one week in 2013, when two staff
were killed in the line of duty. Correctional Officer Eric
Williams was killed on February 25, and the next day,
Lieutenant Osvaldo Albarati was murdered. These tragedies are
powerful reminders of the real dangers our staff face.
To enhance safety, the Bureau has taken advantage of
technologies for contraband detection and perimeter security.
We are piloting pepper spray for staff. And, we are requiring
the use of protective vests. We have increased our correctional
officer staffing at high-security institutions during evenings,
weekends, and holidays.
Over the past few years, we have been proactive in
addressing concerns regarding the use of restrictive housing.
Since 2012, we substantially reduced the number of inmates in
our special housing units and special management units. Less
than 7 percent of our population is in restrictive housing, and
very few inmates are housed without another individual in the
cell. Our focus is to ensure inmates are placed in restrictive
housing for the right reasons and for the right amount of time.
We created new secure mental health units for inmates who
need specialized treatment as well as a high degree of
supervision to protect themselves and others. We look forward
to making additional reforms in the area of restrictive
housing.
We have a saying in the Bureau, that reentry begins on the
first day of incarceration. This means that we assess each
offender by reviewing issues related to criminal behavior,
including substance abuse, education, and mental health. We
offer numerous programs to target offender needs and prepare
them to transition successfully to their communities. Many of
our programs have been proven to reduce recidivism, such as the
Residential Drug Abuse Treatment Program, Federal Prison
Industries, and vocational educational programs.
We have programs for mentally ill offenders, including
those with histories of trauma. We also have programs for
offenders with cognitive impairments, sex offense histories,
and those with severe personality disorders. We provide
programs to help offenders deepen their spiritual faith, and we
have programs specifically tailored to the needs of female
offenders.
The Bureau relies on a network of community-based
facilities, residential reentry centers, or halfway houses, as
well as home confinement. Community placements help offenders
readapt to the community and secure housing, jobs, medical
care, and more.
Chairman Johnson, Ranking Member Carper, and Members of the
Committee, this concludes my formal statement. I am proud of
the work our staff do to keep Americans safe. Again, I thank
you for your time and focus on the important issue of Federal
corrections.
Chairman Johnson. Thank you, Director Samuels.
Our next witness is Michael Horowitz. Mr. Horowitz is the
Inspector General for the Department of Justice. During his
tenure as the Inspector General, the Office of Inspector
General has identified a number of areas for possible reform
within the Bureau of Prisons, including its budget, inmate
programming, especially as it relates to the elderly inmate
population, increasing safety and security risk for inmates,
and implementation and management of the Compassionate Release
Program. Mr. Horowitz.
TESTIMONY OF MICHAEL E. HOROWITZ, INSPECTOR GENERAL,\1\ U.S.
DEPARTMENT OF JUSTICE
Mr. Horowitz. Mr. Chairman, Ranking Member Carper, and
Members of the Committee, thank you for inviting me to testify
today.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Horowitz appears in the Appendix
on page 132.
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The Justice Department faces two interrelated crises in
managing the Federal Prison System. Prison costs continue to
rise, while Federal prisons remain significantly overcrowded.
In an era of tight budgets, this path is unsustainable.
Since fiscal year 2000, the Bureau of Prisons' budget has
nearly doubled. It now accounts for 25 percent of the
Department's discretionary budget. The BOP has more employees
than any other DOJ component and the second-largest budget at
the DOJ, trailing only the Federal Bureau of Investigation
(FBI).
One of the primary drivers of these cost increases, in
addition to the increased prison population, is health care,
which cost the BOP over $1 billion in 2014--a 61 percent
increase since 2006. This rapid increase can partly be
attributed to the aging of the Federal inmate population. In a
recent OIG report, we found the number of inmates age 50 and
older increased by 25 percent from 2009 to 2013. By contrast,
the population of inmates under age 50 actually decreased by
one percent, including a decrease of 29 percent for inmates
under age 30. This demographic shift is notable because aging
inmates cost more to incarcerate.
Our report also found that BOP institutions lack
appropriate staffing levels to address the needs of the aging
inmate population. For example, while social workers are
uniquely qualified to assist aging inmates, BOP employs only 36
social workers nationwide.
We further found that the physical infrastructure of BOP
institutions cannot adequately house aging inmates and that the
BOP has not conducted a nationwide review of the accessibility
of its institutions since 1996. Additionally, we found the BOP
does not provide programming opportunities specifically
addressing the needs of aging inmates.
We also concluded that based on their lower rates of
recidivism, certain aging inmates could be viable candidates
for early release, a program that Congress has authorized.
However, we found that in just over one year following the
Attorney General's announcement of an Elderly Compassionate
Release Program, the Department and the BOP only released two
elderly inmates pursuant to it.
These findings are similar to what we reported in our 2013
review of the BOP's Compassionate Release Program for all
inmates. We found that BOP's program had been poorly managed
and was implemented inconsistently. Following our review, the
BOP expanded its Compassionate Release Program and has modestly
increased the number of inmates released under it.
In our 2011 review of the Department's International
Prisoner Transfer Program, another program Congress has
authorized and which permits foreign national inmates to serve
the remainder of their sentences in their home countries, the
OIG found that the Department rejected 97 percent of transfer
requests and transferred less than one percent of inmates to
their home countries to complete their sentences. We concluded
the Department needed to make a number of improvements to the
program, including ensuring it accurately determined whether
inmates are eligible for the program, and we are currently
completing a followup review to that report.
Another area where the BOP costs have increased
substantially is for private contract prisons, which are
largely used to house inmates, many of the BOP's 40,000 non-
U.S. national inmates. The BOP's budget for contract facilities
is over $1 billion, and the proportion of Federal inmates
housed in BOP contract prisons has increased from 2 percent in
1980 to about 20 percent in 2013. Indeed, two of the three
largest DOJ contractors are private prison providers.
In addition to addressing rising costs, the Department must
also continue to address efforts to ensure the safety and
security of staff and inmates. Prison overcrowding represents
the most significant threat to the safety and security of BOP
staff and inmates with Federal prisons at 30 percent over rated
capacity. Indeed, in every one of its agency financial reports
since 2006, the Department has identified prison overcrowding
as a programmatic material weakness, yet the problem remains
unresolved today.
In addition to overcrowding, the unlawful introduction of
contraband presents a serious threat to safety and security.
The unauthorized use of cell phones has proven to be a
particularly significant risk, and the GAO has reported that
the number of cell phones confiscated by the BOP more than
doubled from 2008 to 2010.
Additionally, sexual abuse in prison remains a serious
safety and security issue. The OIG has continued its
longstanding efforts to investigate sexual abuse by institution
staff at Federal prisons and detention facilities. In addition,
we recently reported on the Department's efforts to implement
and comply with the Prison Rape Elimination Act.
Finally, a significant management challenge for the
Department has been measuring the success of its prison
programs. An essential building block to achieving performance-
based management is having reliable data, an issue that has
proven to be a challenge for both the Department and the BOP. A
comprehensive approach to the collection and analysis of data
on how well BOP programs are reducing incarceration rates,
deterring crime, and improving public safety will help the
Department focus its resources and make strategic investments.
Thank you for the Committee's continued support for our
work, and I would be happy to answer any questions the
Committee may have.
Chairman Johnson. Thank you, Inspector General Horowitz.
Director Samuels, let me start with you. First of all, I do
not envy your task, and I really do want to thank you for your
service, which has been longstanding. So, let me start there.
According to your bio that I have in front of me, you began
as a correctional officer in March 1988. Because we have all
quoted statistics here that in 1980, the prison population in
the prison system was 25,000. Now, it is over 200,000. Can you
just give us your perspective in terms of what all has
happened, what you have witnessed over your career.
Mr. Samuels. Thank you, Senator. From my perspective,
having joined the agency as a correctional officer in 1988, and
around that time, the Bureau's population was a little more
than 60,000, I think historically, when you look at the Bureau
of Prisons and you go back to 1940 and from 1940 to 1980, the
Bureau's population pretty much remained flat for many years,
in excess of 20,000.
So, in 1980, which is the primary target for this
discussion, we as an agency, we had approximately 24,000
inmates in the Federal system. We had less than 9,000
employees, 41 institutions, and we were able to operate the
entire Bureau of Prisons for $330 million.
So, when you look at the increase from 1980 to 2013, we
were at more than 800 percent population growth and our
staffing did not keep pace with that growth. And, with our
mission, where we are tasked with anyone and everyone who is
convicted and turned over to the Department of Justice and
placed in the custody of the Bureau of Prisons. We have a job
to do, a significant job, and it takes staff to do the work
that is required.
Chairman Johnson. Let me ask you, from your perspective--
again, you have been there--what drove that dramatic increase
in prison population?
Mr. Samuels. Well, the war on drugs in the early 1980s was
a significant driver on the growth of the population, and as a
result, we were having more offenders come into the system.
And, we have a longstanding practice within the Bureau of
Prisons, and this goes all the way back to the 1930s, that our
reentry efforts are always in play, and that is to ensure that
we are providing rehabilitation. But, the challenges associated
with what we have to do is we are trying to protect the inmates
as well as the staff who are in our facilities, but the driver
has been the war on drugs.
Chairman Johnson. Has there been any legitimate increase
due to a crackdown on violent crime, that we just really,
again, appropriately, cracked down on that, or is that really,
like, we did not become a more criminal society. We were always
arresting those people, convicting them and putting them in
jail. Are we putting them in there longer? I want you to
address that potential aspect of this, as well.
Mr. Samuels. In regards to violent offenses, there is a
mixture of individuals in Federal prisons, as you all aware,
non-violent criminals and those with violence. And within our
population, I think it is very safe to say that we have very
violent offenders in our population, to include a significant
amount of gang members. In the Federal system, we have more
than 21,000 security threat group members who pose a
significant threat to the public, inmates, and staff.
Chairman Johnson. So, again, if we are talking about gang
violence, would that also be, again, generally driven by drugs?
Mr. Samuels. It can be driven by drugs if the gangs and
those who are associated with that activity, if it is part of
the structure within the gangs for monetary gain.
Chairman Johnson. OK. Let me, again, stick with Director
Samuels here and just ask some of the questions in terms of
Inspector General's testimony. Why have we not been more
proactive in terms of some of these early release programs that
have been authorized? I mean, is there a risk aversion there,
because, I mean, who wants to be responsible for releasing
somebody into the public that is going to commit another
violent crime. Can you just kind of speak to why we have not
taken advantage of those programs a little bit more robustly.
Mr. Samuels. Yes, Senator. As Director of the agency, my
authority is very limited when you look at taking advantage of
the various programs that are being referenced. With
compassionate release, and I will start there, we as an agency
did a thorough review and we determined a couple of years ago
when we were looking at the number of individuals who would
meet the criteria just for release based on terminal illness,
we discovered that there were a little more than 200 inmates in
the Bureau of Prisons, and once they were identified, you have
to go further in making sure that for those individuals who are
even being considered have the necessary resources if they are,
in fact, given the opportunity through a motion and are
released under that program. So, 200 inmates agency-wide with a
population at that time that was at 220,000 is a very small
number.
Chairman Johnson. So, again, we are talking about
compassionate release. We are talking about early release. We
are talking about release to foreign nationals. And, under all
three of those types of programs, are you saying the law or the
regulation is just written too restrictively and just does not
give you the latitude to utilize those programs more fully?
Then, Inspector General, I will be asking you the same
question.
Mr. Samuels. Well, we have expanded, as you know. With the
Compassionate Release Program, we moved from medical to non-
medical. And even when we look at those cases, and many are
being referred, when you are looking at the criteria as well as
being responsible for public safety for any of those
individuals having the propensity to continue more criminal
activity, we have to take that into account.
With the Treaty Transfer Program, and I do share the
concerns that the Inspector General has raised, we identified
through the audit a problem there and we have since that time
provided a number of training opportunities for our staff as
well as educating the inmate population on their rights under
consideration for the program, and we have seen an increase.
However, when we submit the applications for consideration,
there is another process that takes place with the Department,
working with the various countries who have agreements under
the Treaty Transfer Program, to make determinations on when
those individuals are removed.
Chairman Johnson. And, of course, they would probably
rather have the United States bear the cost of keeping those
people in prison themselves.
Inspector General Horowitz, can you just kind of, again,
speak to why, from your perspective, why some of these programs
have not been utilized more fully.
Mr. Horowitz. I think there are a couple of reasons, and I
would agree with Director Samuels, in many of them, it is not
because of the BOP decisionmaking, it is elsewhere in the
Department or the way the programs have been structured and the
restrictions that have been placed on their use. For example,
elderly release, age 65 and over is where the threshold was
set. The Attorney General announced that with great fanfare in
August 2013 the increase in that use of that program, yet there
are only two, we find, inmates being released under that
program a year-plus later.
Why is that? Well, in part, it is because of the 4,000-plus
inmates who are over age 65 in the Federal Prison System, they
have to meet certain very strict criteria, and both with regard
to meeting the criteria, and as we found in that program and
Treaty Transfer, the discretionary calls that have to be made.
And, perhaps it is risk aversion. Perhaps it is a feeling that
someone got a jail sentence, they should complete their
sentence.
Chairman Johnson. Let me ask, appropriately strict
criteria?
Mr. Horowitz. We had concerns with the elderly provisions,
for example, requiring people to serve a long period of time
and to demonstrate a lengthy period of service of a sentence.
What that meant was for inmates who were the least dangerous,
presumably had low sentences, they could not get released
because they had not served a long period of time. That seemed
odd to us.
Chairman Johnson. So, that is something we should really
take a look at.
Mr. Horowitz. Right.
Chairman Johnson. OK. Thank you. I do not want to go too
much over time. Senator Ayotte.
Senator Ayotte. Thank you, Chairman.
Director Samuels, I actually want to ask you about a
particular prison in my State that is important, especially. It
is in Coos County. It is FCI Berlin. And, I wanted to ask about
what the status is of staffing at that facility. Warden Tatum
has indicated that the facility was staffed at about 290 and
that there were about 1,200 incarcerated individuals there. Can
you give me an update on levels and also what the ultimate goal
is for capacity there and staffing?
Mr. Samuels. Yes. Thank you, Senator Right now, with the
plan for continued activation of the facility, we are working
very closely with the warden and staff there to ensure that our
recruitment efforts remain on target, and we are also ensuring
that as we build a population, that we are making sure that the
inmate-to-staff ratio is where it needs to be so we do not have
more inmates in the facility until we are very comfortable with
the number of staff that we have at the facility. And, this is
continuing to progress.
I know there was a concern at one period of time where the
applicant pool was not necessarily where we would like it, but
with the recruitment efforts, we are starting to see that we
have a very good pool for hiring individuals to work at the
facility.
Senator Ayotte. So, one followup I wanted on the applicant
pool. This is an area of our State where people are always
looking for more jobs, and so to get people from the area that
have strong backgrounds, one of the issues that has been a
challenge is the 37-year-old age restriction. And, has the
Bureau of Prisons actually reexamined this? I know I had
previously written the Bureau of Prisons on this issue, but it
is important that my constituents have an opportunity that live
in the area to work there.
Mr. Samuels. Yes. Thank you again, Senator. Our focus is to
make sure that we are aggressively hiring from the local
community as well as looking at veterans, and we do have the
ability for individuals who are applying who have served to
grant waivers, and we are in the process of doing that.
Senator Ayotte. Well, that is very good to know, and I
appreciate your prioritizing hiring people from the community.
I know they are anxious and would like opportunities to work
there, as well as our veterans, so I really appreciate your
doing that, and I think you will find that there are a really
dedicated group of people in the area, so thank you for that.
I wanted to followup on the prior panel. There was quite a
bit of discussion and criticism, actually, on the reentry
program piece from the Bureau of Prisons and the commitment
toward where we are when someone has finished their time and
putting forward successful programs and path to success, which
I am interested, because with our recidivism rate, it costs us
a lot financially and also to the individual, to the quality of
life that the person has an opportunity to set a new start, if
there is not a good system in place for success. So, I wanted
to get your comments on what you heard in the prior panel on
this issue.
Mr. Samuels. Well, thank you again, Senator. I, again, will
say to everyone that reentry is one of the most important parts
of our mission, along with safety and security of our
facilities. And, the expectation Bureau-wide is for all staff,
all the men and women who work in the Bureau of Prisons, to
have an active role in our reentry efforts.
On any given day in the Bureau of Prisons we have more than
52,000 inmates who are participating in education. We have more
than 12,000 individuals actively participating in our Federal
Prison Industries Program, which is our largest recidivism
reducing program in the Bureau of Prisons. Those who
participate are 24 percent less likely to be involved in coming
back to prison. And for vocational training, more than 10,000
inmates are participating. And, for those individuals who
participate compared to those who are not, the recidivism
reduction is 33 percent. And, you all are very familiar with
our Residential Drug Abuse Program, and we also have our non-
residential programs, as well.
And, we are very adamant in ensuring that these programs
are provided to all inmates within our population, to have them
involved, for a number of reasons. It is safer to manage
prisons when inmates are actively involved in programs, and we
are definitely trying to do our part to ensure that for
recidivism reduction in this Nation, we are taking the lead.
For the number of individuals who come into the Bureau of
Prisons, despite all the challenges and the figures that you
are hearing, the men and women in the Bureau of Prisons do an
amazing job. When you look at the specific numbers relative to
recidivism for the Federal system, when individuals leave, we
have 80 percent who do not return to the Federal system, 80
percent. We have always known that the overall recidivism for
the Federal system is 40 percent; 20 percent return to the
Bureau and 20 percent go into the State systems.
And, I would just also add that there is a study that has
been done, that for the State correctional systems, and it is
30-plus States, when you look at the overall average for
recidivism, it is 67 percent.
So, I would still say that we have a lot of work to do. I
mean, the goal is to have a hundred percent individuals never
returning. But, as I have already stated for the record, the
amount of growth that has occurred over that time period, we
are very limited with our staffing, but it does not remove us
from the commitment to our mission. If our staffing had kept
pace with the growth over the years, I do believe that I would
be sitting here reporting that the 80 percent would have been
much higher.
Senator Ayotte. So, I want to give the Inspector General an
opportunity to comment on how you think we are doing on reentry
and any work that you have done on that.
Mr. Horowitz. We are actually, Senator, in the middle of a
review of the reentry programs and the use of reentry, and we
are in the middle of field work going to the institutions to
look at those programs, look at the education programs, because
of the concerns we had heard. So, I cannot give you a report
yet out on it. I think we will have something later in the year
for you to look at. But, it is a very significant concern.
I will just pick up on what Director Samuels said about
staffing. That is a significant issue. That is a significant
safety issue, security issue, reentry, because what you see is,
first of all, by most accounts, the Federal staffing ratio of
inmate to staff is worse than many of the State systems, what
they have, and that has been exacerbated over time as the
prison population has grown.
There is a cascading effect of that. The Director and the
staff have to pull people out of other programs to do
correctional work, that they cannot be doing some of the other
programs we are all talking about. And, so, that, I think, is
lost sometimes and something certainly we are looking at right
now is that cascading effect. If you understaff the prisons,
the Director has to, first and foremost, make sure the prisons
are safe.
Senator Ayotte. I hope when you issue this report that you
will also give us guidance on what the models are. What are the
best models for reentry? If we are going to invest more
resources in this to create a better path for success for
people so that they do
not--so we can reduce the recidivism rate, I think your
recommendations on the piece of what is working best, where we
should invest resources, would be really helpful. Thank you.
Chairman Johnson. Thank you, Senator Ayotte.
While we are quick on this subject, I was handed a note
that apparently only 10,000 out of the 210,000 population are
participating in that reentry program. Can you just quickly
describe why, both of you? I mean, it sounds like a very
successful program. Why are not more people engaged in it?
Because I think, in total, we release about 45,000, I think
from the briefing, about 45,000 prisoners every year.
Mr. Samuels. Yes. If the 10,000 is in reference to the
vocational training programs, we only have a limited number of
opportunities that we can provide based on the number of
inmates in our system, and that goes back to the crowding. With
increased crowding, you have waiting lists in the Federal
Prison System, no different than any other system. And, the
goal is to try to push as many of these inmates through, and as
we complete classes, we bring more individuals in for
participation.
Chairman Johnson. It is what I expected as an answer. I
wanted to get that on the record. Inspector General.
Mr. Horowitz. Yes. I think that is generally what we are
finding, is there are limited resources. With limited resources
mean limited number of classes.
Chairman Johnson. OK. Senator Booker.
Senator Booker. Thank you very much.
Director Samuels, I really appreciate you being here, but
more importantly--or, excuse me, also, I appreciate the fact
that you visited me in my office and take a lot of the issues
and concerns. You represent the administration as a whole, as
the President has. You have done some extraordinary steps
around overall criminal justice reform and I am grateful that
you are here today. It means a lot.
I also want to just echo, you are a part of the law
enforcement community and your officers put themselves at risk
every single day to protect this Nation, and I am grateful for
the sacrifices that your officers have made. I am glad you
mentioned, as we see on the Federal and State level, we do have
officers not just losing their lives in the line of duty, but
also officers who are injured pretty severely, often, in the
line of duty, as well, and we as Americans should recognize
that and that sacrifice and commitment.
I want to talk to you really quick and focus my questions
on solitary confinement and begin with solitary confinement of
juveniles. There is a bipartisan dialogue going on right now
about putting real limitations on the use of solitary
confinement. Now, we know that this is an issue that faces
thousands and thousands of children across America, but when it
comes to the Federal system, this is actually a very small
amount. It would probably surprise a lot of people that we are
just talking about kids in the matter of dozens.
So, this is in two populations, really. It is children that
are tried as adults that are housed in adult facilities, and
then the contracts, if I am correct, that you do with State
facilities for juveniles, as well.
Do you think it is feasible that, as is being discussed in
Congress right now, and I have been in a lot of the discussions
in the Senate, that we just eliminate solitary confinement, or
severely limit it for children, being very specific, for
instance, by placing a 3-hour time limit on juvenile solitary
confinement and banning it really, for punitive or
administrative purposes? Is that something that you would see
as feasible and something that you would be supportive of?
Mr. Samuels. Thank you, Senator. I believe that for this
issue, and in the Federal system, as you have already
mentioned, we contract out this service. We do not have any
juveniles in an adult correctional facility. And, the
expectation that we have with the service providers for us is
that at any time they are considering placing a juvenile in
restrictive housing, they are required to notify us
immediately. And, even if that placement were to take place,
there is a requirement, also, that they have to monitor those
individuals every 15 minutes.
So, in regards to your question with looking at the
restrictions that could be considered, I would say that for our
purposes regarding this, that it is definitely something that
should be considered and looked at as a practice.
Senator Booker. And, so, if Congress were to act on
legislation putting those severe limitations on the practice,
with limitations of just a matter of hours, that you would
agree that is something that is feasible?
Mr. Samuels. Yes.
Senator Booker. I really appreciate that, and that is
actually encouraging to the discussions going on right now.
And, frankly, it is a small population, but doing it on the
Federal level would send a signal to really resonate throughout
our country and, frankly, is already being done in some
jurisdictions.
Pivoting to adult solitary confinement, if I may, this
practice, as you know, has been harshly criticized. If you were
listening to the other panel, there is a lot of data from the
medical community specifically, and also civil rights community
and human rights communities. A May 2013 report, which I know
you are also familiar with, from the GAO found that the Federal
Bureau of Prisons did not know whether its use of solitary
confinement had any impact on prison safety, did not know
necessarily how it affected the individuals who endure the
practice, or how much, frankly, it is costing taxpayers in
general.
Just this year, a recent internal audit by the Bureau of
Prisons noted inadequacies in mental health care and reentry
preparedness for people in solitary confinement. As was said in
the previous panel, many people max out in solitary and then
find themselves going right into the general--I should not say
general population, but going back into the public.
In many ways, I think these reports are kind of a wake-up
call of the seriousness of this issue, and so I first wanted to
say, do you know right now how many people are in solitary
confinement beyond 12 months, or, say, 24 months, or 36 months?
Do you have that data?
Mr. Samuels. Senator, I can provide that data for you.
Senator Booker. OK. So, we do track those folks who are
staying in, often for years in solitary?
Mr. Samuels. Yes. And, Senator Booker, First, I would like
just to state for the Bureau of Prisons, we do not practice
solitary confinement. In my oral testimony and my written
testimony, our practice has always been to ensure that when
individuals are placed in special housing, we place them in a
cell with another individual, to the greatest extent
practicable and our staff make periodic rounds to check on the
individuals. And, I also believe that it is important----
Senator Booker. And, I am sorry, I just really need to be
clear on that. Your testimony to me right now is that the BOP
does not practice solitary confinement of individuals
singularly in a confined area.
Mr. Samuels. You are correct. We only place an individual
in a cell alone in special housing if we have good evidence to
believe that the individual could cause harm to another
individual and/or if we have our medical or mental health staff
give an evaluation that it would be a benefit to the individual
to be placed in a cell alone. We do not under any
circumstances, nor have we ever had a practice of placing
individuals in a cell alone.
Senator Booker. OK. That is astonishing to me, and I would
love to explore that further, because all the evidence that I
have is that it is a practice at the Federal level. So, you are
telling me that there are not people that are being held for
many months alone in solitary confinement, is that correct?
Mr. Samuels. When you look at the Bureau of Prisons agency-
wide, that is not a practice. We have three forms. We have our
Special Housing Units (SHU), which are the majority of
individuals throughout the country placed in restrictive
housing. We also have a program we call----
Senator Booker. So in the SHU, which they are not
individually held.
Mr. Samuels. No, sir. And, on average, agency-wide, the
average amount of time that individuals are spending, on
average--again, total--is a little more than 65 days.
Senator Booker. And, so, the SHU is not solitary
confinement. There is not an individual in a cell alone.
Mr. Samuels. That is not the practice in the Bureau of
Prisons. It never has been the practice.
Senator Booker. I hope there will be another round.
Chairman Johnson. Senator McCaskill.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. Thank you.
Mr. Samuels, what percentage of the inmates that you are
responsible for have been convicted of a violent crime in the
Federal courts?
Mr. Samuels. Convicted of a Federal crime in----
Senator McCaskill. Of a violent crime.
Mr. Samuels. A violent crime----
[Pause.]
Approximately 5 percent.
Senator McCaskill. OK. So, we have 5 percent violent, 95
percent non-violent. I think the thing that people need to
understand, which I am not sure people do, is that 5 percent
that committed violent crimes, you do not even have primary
jurisdiction, probably, on most of those crimes in the Federal
system.
I do not think people realize that the Federal law
enforcement system was not designed or ever intended to address
what most people think of as crime in this country. It was
originally intended to be just for those kinds of crimes that,
because of the interstate nature of them, they needed to be
handled by the Federal Government. That would be crimes
involving the drugs going from country to country, then
eventually we started nibbling away at that and we started
doing bank robbers, and then we started doing interstate
kidnappings or interstate--and I know this, because we handled
a whole lot of murder cases when I was the prosecutor in Kansas
City, and nothing was more irritating to me.
We had the best homicide detectives, I believe, in the
Midwest in the Kansas City Police Department. We had
experienced prosecutors who handled murders every day, and
invariably when there was a really high-profile murder case,
all of a sudden, the FBI would start sniffing around and try to
grab that case and find some kind of interstate part of the
crime so that they would take the case, as opposed to us, who
handled murder cases all the time and, frankly, in my opinion,
biased as it may be, had much more expertise.
I say all this because you are spending $7 billion, and 95
percent of that money is being spent on non-violent offenders.
That is an astounding number on non-violent offenders, an
astounding number. So, my question is, how many times have you
been brought into the policy questions of who is being
prosecuted in the Federal system and why, because you guys do
not get 911 calls. Nobody calls the FBI with a 911 call. I used
to make the point to my friends who were FBI agents, hey, they
did not call you. They called us. So, the Federal system gets
to pick what this is not required. They get to decide what they
want to prosecute, unlike State prosecutors, who have to make a
decision on every single case.
So, are you ever called in to the policy discussions about
the growth of Federal law enforcement and this massive amount
of prosecution that is going on and the growth in the prison
system, because these decisions are being dictated by the
Department of Justice in how many cases they are actually
filing. Are you ever consulted on any of those decisions?
Mr. Samuels. Senator McCaskill, I would offer that the
Bureau of Prisons, when the discussions are taking place, we
are brought into the discussion when needed by the Department.
But, I also would share, which I am sure you are aware, that
for any policy decisions relative to who is being prosecuted,
that remains with my colleagues in the Department who will be
more than anyone else regarding this issue capable of
responding to that.
Senator McCaskill. So, let us get at the stuff that you can
do. Let us talk about the Elderly Offender Program. The way you
entered into some of the contracts, you did not specify out
what the costs of home detention was versus your detention,
correct? In other words, what you did is you did not--you were
not able in the pilot--is this not correct, Mr. Horowitz, that
they were not able to discern what a release into home
detention was costing versus incarceration in one of the prison
facilities?
Mr. Horowitz. That is correct. The GAO found that in their
review of the pilot.
Senator McCaskill. Correct. So, you are not in a position
that you can even analyze what the costs of a home detention
program versus prison would be, correct?
Mr. Samuels. Well, since that time, once the finding was
made, we have been working to isolate those costs.
Senator McCaskill. OK. And how are you doing that?
Mr. Samuels. We have put together procedures within our
Administration Division, the staff who are responsible for the
contracting oversight, to monitor----
Senator McCaskill. OK. There were 784 of 855 applicants for
the Elderly Release Program that were denied. Seven-hundred-
eighty-four out of 855 were denied. Can you explain why they
were denied, that massive amount? And, these are all elderly.
These are not young people.
Mr. Samuels. I can take your concern back, but from the
knowledge that I have regarding this, many of those
individuals, it was dealing with the issue of being eligible
based on the criteria that was put in place.
Senator McCaskill. Who sets the criteria?
Mr. Samuels. The criteria for the pilot?
Senator McCaskill. Yes. Who set it?
Mr. Samuels. That was established by Congress.
Senator McCaskill. So, we are the ones that said that if it
is a low-level offender that got an 18-month sentence, they
could not go to a home program unless they had served 18
months?
Mr. Samuels. Well, the Department was involved with the
final determination on what the criteria would be. But, that
was something that was done through conversation between
Department and Members of Congress.
Senator McCaskill. Well, I would love to know who was in on
that conversation, if you would provide that to the Committee.
And, I would like to see the criteria, because if you have 95
percent of your population is non-violent, and we know that the
recidivism rate for people over the age of 55 is somewhere
between 2 and 3 percent--by the way, that is a recidivism rate
that any reentry program or any drug court program or any State
court system would die for. That is an amazingly low recidivism
rate. I do not understand how we are turning down 784 of 855
applicants for a pilot program.
It seems to me that the institution is being stubbornly
stuck in the status quo, stubbornly stuck in the status quo.
And, I am so excited that we have critical mass around here. As
somebody who, against a lot of political headwind, started one
of the first drug courts in the country as an elected
prosecutor, I convinced the people in my community and the
police department that a drug court was a taxpayer factory,
because the people who went into drug court were either on
welfare or they were stealing. They were not paying taxes. And,
all the non-violent crimes they were committing was because
they were drug addicted. And that drug court movement--ours
began in 1993. It spread all over the country and the world
because it worked so well.
Do you know what I had to do? I begged the Federal
Government to participate in our drug court program. Did not
want to hear a word about it. I could not even get them to send
us their mules, the girlfriend mules. They would not even send
us those for--I mean, I was saying, let me take your cases,
your low-level drug offender cases. Would not hear of it in the
1990s.
And, I am just not sure that we have moved that much in the
Department of Justice, and I hope we can all work together.
I know my time is up. I have some questions for the record
about Reeves County, that contract. Why in the world are we
using a county as a go-between on a prison contract? And, also,
these criminal alien prisons that we have, that half of them
are immigration offenses, and I am curious about the $1 billion
price tag on that. So, I will get you those questions for the
record.
Thank you, Mr. Chairman.
Chairman Johnson. Thank you, Senator McCaskill.
I do not want to put words in your mouth, but I think we
are finding another area of agreement here, the Federal
Government getting involved in something that, from my
standpoint, is better left to the States and local governments,
because they are just better at it. They are closer to it. They
use a little more common sense approach.
I have frequently said, Washington, DC, the Federal
Government definition of it, is the law of unintended
consequences, and I think we are seeing a lot of that here
today--again, not because of good intentions, and not because
of people working hard and sacrificing, but I think that is
just basically true.
I want to be respectful of the witnesses' times. I know
Senator Booker had another question here. I am happy to do
that. But, let us not abuse the time.
Senator Booker. No, I am grateful, and I think we are
having semantic problems, Mr. Director. So, the DOJ defines
solitary confinement as the terms isolation or solitary
confinement mean the state of being confined to one cell for
approximately 22 hours per day or more alone or with other
prisoners. The health consequences for solitary confinement,
period, are well learned, and this is a common practice in the
Federal system. But, it is not just with other prisoners. In
the SHU, often, in the Special Management Units (SMUs), it is
common, as well, and the average stay in that is 277 days. And
in the Administrative Maximum Prisons (ADX), the average
solitary confinement is 1,376 days.
So, this is a real problem and it does exist, and forgive
me if my semantics were wrong, but I think I have more
precision now.
Mr. Samuels. No, sir, and I did want to clarify, and I
appreciate you bringing the subject back before, that at the
ADX, and when I testified in 2012, at that time, we had a
little more than 400 inmates at the ADX in Florence, Colorado,
which makes up less than one-third of one percent of our entire
population. And for that population, those individuals are
placed in a single cell, and the majority of that population,
also, when you look at their offenses, 46 percent have been
involved in some homicide at some point in their lives.
Senator Booker. Again, but the reality is, I do not care if
it is a homicide, non-violent drug crime, what are we getting
for taxpayers for putting them in an environment in which human
rights folks consider that torture, and we have a medical
community that has a consensus about torture, or the harmful,
excuse me, traumatizing effect of that.
And, so, what I am just saying is--and again, the crime,
violent, non-violent, I am just saying that this is a Nation
that does not endorse torture or believe that we should
traumatize folks, and if there is no data that supports us
actually having something positive coming out of this, it has
to be a practice that we should end or severely limit. And,
that is what I am just saying. I am trying to do a data-driven
approach relying on experts and science.
And, just because I want to stay on the good side of the
Chairman, I am going to shift off of this issue, because I have
enough questions to last another 10 minutes and I do not think
I am going to get that. I will tread upon----
Chairman Johnson. No, you are not.
Senator Booker [continuing]. His indulgences as long as
possible.
So, just real quick, a real quick point. The Bureau of
Prisons houses 14,500 women. As we talked about in the last
panel, overwhelmingly, these women have children, children of a
minor age. The trauma visited upon children, and those often
the primary caregivers, there is a lot of issues, and so I just
want to get to this one reality, that in Danbury, Connecticut,
which is a mere 70 miles away from the New York City area--I
like to call it the Greater Newark area--which is an easy reach
for visitors from the Northeast, that is going to be changed
and those women are now going to be moved, slated right now to
move to Alabama, to a facility there which is about 1,000 miles
away from the Greater Newark area, a drive that takes more than
16 hours.
And, so, why was the 500-mile policy enacted, which is a
good thing, which is something I endorse due to the cost of
travel. Would you commit to revising the rule to have a
presumption of 75 miles, if possible? Do you understand?
Mr. Samuels. Yes.
Senator Booker. Is there a chance to revise that rule?
Mr. Samuels. Senator, when we looked at the mission change
for Danbury, we made every effort to try to make sure through
fairness for those offenders who not only were living in the
New England States as far as their residence, but we had many
offenders there who were from California, who were from Texas,
and what we tried to do is make sure that with the realignment,
that we move those individuals who were not from that part of
the country so they could be closer to their families----
Senator Booker. So, we are taking care of the Californians,
but there are a lot of people from the Northeast, a lot of
women with small children who are having those connections
effectively severed, and that is very problematic.
I am just going to shift for now, if I can, and I
apologize. I just want to quickly just look at the private
prison issue real quick and shift to Mr. Horowitz, if I can. I
do not want you to feel like I was ignoring you in this
hearing.
Are you concerned about the growth of private prisons that
contract with the BOP, and what have you--that these prisons
are accountable to the public, because we have real issues with
these contracts, with a total costing us about $5.1 billion for
taxpayers--and these are for-profit companies that, according
to The Sentencing Project, 33,830 BOP prisoners were held in
private facilities in 2010, and by the end of 2011, that number
has grown significantly, to over 38,000. And, I am concerned
about oversight.
And then there is a lack of reporting, information that is
just--I can get a lot of information easily from the prisons
that are being run by the Director, but there is this
unbelievable, really offensive to me, lack of information and
data about our private prisons and what is going on there.
And, so I want a last part of that question, and then I am
done, just will wait for the answer, is the abuse reports of
immigrant detainees. Now, I understand these folks are non-
American citizens, but they are human beings, and the report of
abuse at our private prisons are troubling. Thousands of men
live in 200-foot Kevlar tents in some of these facilities that
each house about 200 men. The facilities are described as
filthy, insect-infested, horrible smells, constantly
overflowing toilets. This is an affront for this Nation, for
what we stand for.
For me, it is an affront, and I am just wondering, what
steps are you taking to hold these prisons accountable, to lift
the veil that protects the American public from knowing what is
being done with billions of these taxpayer dollars.
Mr. Horowitz. We are taking several steps, Senator. We
issued the report on the Reeves County facility earlier this
year, focusing on that particular private prison. Some of the
issues we found there were of concern, much like you have just
mentioned. Staffing levels, for example, as you know, Reeves
County had a riot several years ago. One of the issues was
supposedly staffing levels. We had concerns about staffing. We
had concerns about the billing and the contracting practices.
We made a variety of recommendations on that, as to that
facility.
We are currently looking at the Adams County facility in
Mississippi, Leavenworth in Kansas, private prisons, as well as
a broader review looking at the BOP's monitoring of overall
contract prisons, because that is an issue of concern, as the
spending has increased and the number of prisoners has gone
from 2 percent to 20 percent of the overall Federal prison
population. That is an issue of concern. So, we are doing those
reviews.
Several of the contract prisons, like Reeves, like Adams,
like the Willacy facility, the Northeast Correctional Center of
Ohio, have all had riots in the last several years. Those are
contract prisons being used by the BOP and it has raised the
concerns that we are looking at closely.
Senator Booker. And, why not better reporting? Why cannot I
or the public get the same kind of transparency in reporting
that we would get with the prisons that are directly under the
purview of Director Samuels?
Mr. Horowitz. And that is something we are looking at, as
well, because it is an issue both--we are looking at what kind
of reporting the BOP is getting from these institutions, in
addition, what kind of information is flowing and is
accessible, and why is not more being done to be transparent
about that.
Chairman Johnson. Thank you, Senator Booker, and you can
have my personal assurances that I will continue to work with
you personally. We will continue to use this Committee to
highlight these issues and work toward solutions. I think this
is an important issue.
I want to thank, again, both of you gentlemen for your
service to this Nation, for your thoughtful testimony. I want
to thank all the witnesses. I think we really did accomplish my
primary goal of every hearing, which again, is to lay out the
reality. Let us admit we have a problem. We have one here. I am
not saying we have the real ready solutions, but we certainly
have taken that first step and we have admitted we have the
problem.
So, with that, the hearing record will remain open for 5
days, until August 19 at 5 p.m. for the submission of
statements and questions for the record.
This hearing is adjourned.
[Whereupon, at 12:37 p.m., the Committee was adjourned.]
A P P E N D I X
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