[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


               FROM MIRANDA TO GIDEON: A CALL FOR 
                          PRETRIAL REFORM

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

                                HEARING

                               BEFORE THE

        SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         FRIDAY, MARCH 26, 2021

                               __________

                           Serial No. 117-16

                               __________

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


               Available via: http://judiciary.house.gov
               
                                __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
45-579                      WASHINGTON : 2021                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member 
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

                PERRY APELBAUM, Majority Staff Director
                 CHRIS HIXON, Minority Staff Director 
                                 ------                                

        SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                 SHEILA JACKSON LEE, California, Chair
                    CORI BUSH, Missouri, Vice-Chair

KAREN BASS, California               ANDY BIGGS, Arizona, Ranking 
VAL DEMINGS, Florida                     Member
LUCY McBATH, Georgia                 STEVE CHABOT, Ohio
MADELEINE DEAN, Pennsylvania         LOUIE GOHMERT, Texas
MARY GAY SCANLON, Pennsylvania       W. GREGORY STEUBE, Florida
DAVID CICILLINE, Rhode Island        TOM TIFFANY, Wisconsin
TED LIEU, California                 THOMAS MASSIE, Kentucky
LOU CORREA, California               VICTORIA SPARTZ, Indiana
VERONICA ESCOBAR, Texas              SCOTT FITZGERALD, Wisconsin
STEVE COHEN, Tennessee               BURGESS OWENS, Utah

                   JOE GRAUPENSPERGER, Chief Counsel
                    JASON CERVENAK, Minority Counsel
                           
                           C O N T E N T S

                              ----------                              

                         Friday, March 26, 2021

                                                                   Page
The Honorable Sheila Jackson Lee, Chair, a Member of Congress 
  from the State of Texas, Subcommittee on Crime, Terrorism, and 
  Homeland Security..............................................     1
The Honorable Andy Biggs, Ranking Member, a Member of Congress 
  from the State of Arizona, Subcommittee Crime, Terrorism, and 
  Homeland Security..............................................     3

                               WITNESSES

Barry Scheck, Yeshiva University Benjamin N. Cardozo School of 
  Law, Innocence Project
  Oral Testimony.................................................    12
  Prepared Statement.............................................    15
Anthony Graves, Harris County Public Defender's Office
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Premal Dharia, Institute to End Mass Incarceration, Harvard 
  University
  Oral Testimony.................................................    37
  Prepared Statement.............................................    40
April Frazier Camara, Defender Legal Services Initiative, 
  National Legal Aid and Defender Association
  Oral Testimony.................................................    60
  Prepared Statement.............................................    62
Michele Hanisee, Deputy District Attorney, Major Crime Division, 
  Los Angeles, California
  Oral Testimony.................................................    69
  Prepared Statement.............................................    71
June Rodgers, Chairwoman of The Victims' Rights Reform Council, 
  Millville, New Jersey
  Oral Testimony.................................................    74
  Prepared Statement.............................................    76
Reuben Camper Cahn, Keller/Anderle LLP
  Oral Testimony.................................................    78
  Prepared Statement.............................................    80

           STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED

Statement submitted by the Honorable Cori Bush, a Member of 
  Congress of the State of Missouri, Vice-Chair of the 
  Subcommittee on Crime, Terrorism, and Homeland Security for the 
  record.........................................................     8
Letter from Bob Andrzejczak, a member of the New Jersey Assembly 
  representing First Legislative District, submitted by the 
  Honorable Andy Biggs, a Member of Congress of the State of 
  Arizona, and Ranking Member of the Subcommittee Crime, 
  Terrorism, and Homeland Security for the record................     8

                                APPENDIX

Statement submitted by Sakira Cook, Senior Director, Justice 
  Reform Program, The Leadership Conference on Civil and Human 
  Rights for the record..........................................   110
Letter from the Honorable Theodore E. Deutch and Senator Kamala 
  D. Harris submitted by the Honorable Theodore E. Deutch, a 
  member of the Committee on the Judiciary from the state of 
  Florida for the record.........................................   126
Material Indifference: How Courts Are Impeding Fair Disclosure In 
  Criminal Cases submitted by Katheen ``Cookie'' Ridolfi, Tiffany 
  M. Joslyn and Todd H. Fries for the record.....................   128
The Use of Pretrial ``Risk Assessment'' Instruments: A Shared 
  Statement of Civil Rights Concerns submitted by 
  [email protected] for the record.................   233
What Causes People to Give False Confessions submitted by Lisa 
  Black and Steve Mills, Tribune reporters for the record........   243
Article--Bad-cop database really a ``remarkable'' step to 
  accountability submitted by the Albuquerque Journal Editorial 
  Board for the record...........................................   249

                  QUESTIONS AND ANSWERS FOR THE RECORD

Questions for the record from the Honorable Cori Bush, a Member 
  of Congress from the State of Missouri, Vice-Chair of the 
  Subcommittee on Crime, Terrorism, and Homeland Security........   252
Response to questions for the record from Premal Dharia to the 
  Honorable Cori Bush, a Member of Congress from the State of 
  Missouri, Vice-Chair of the Subcommittee on Crime, Terrorism, 
  and Homeland Security..........................................   253

 
           FROM MIRANDA TO GIDEON: A CALL FOR PRETRIAL REFORM

                              ----------                              


                         Friday, March 26, 2021

                        House of Representatives

        Subcommittee on Crime, Terrorism, and Homeland Security

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 11:12 a.m., via 
Webex, Hon. Sheila Jackson Lee [chairwoman of the subcommittee] 
presiding.
    Members present: Representatives Jackson Lee, Demings, 
Bass, McBath, Dean, Scanlon, Cicilline, Lieu, Biggs, Chabot, 
Tiffany, Massie, Spartz, Fitzgerald, and Owens.
    Staff present: Moh Sharma, Member Services and Outreach 
Advisor; Jordan Dashow, Professional Staff Member; Cierra 
Fontenot, Staff Assistant; John Williams, Parliamentarian; 
Kayla Hamedi, Staff Assistant; Ben Hernandez-Stern, Counsel; 
Joe Graupen-sperger, Chief Counsel; and Veronica Eligan, 
Professional Staff Member.
    Ms. Jackson Lee. The hearing will come to order.
    Without objection, the chair is authorized to declare 
recesses of the Subcommittee at any time.
    We welcome everyone to this morning's hearing which is on 
the title ``From Miranda to Gideon: A Call for Pretrial 
Reform.'' It is well-known that the Miranda Supreme Court case 
provided the well-known Miranda warning pretrial to give any 
defendant the right to counsel and to not have statements used 
against them, but to be able to be forewarned of their rights. 
And the Gideon case, of course, was to allow for an appointment 
of a lawyer for indigent defendants who cannot pay, and to 
recognize the importance of counsel, simple concept for 
pretrial and the issue of justice in America.
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today. If you would like to submit materials, please 
send them to the email address that has been previously 
distributed to your offices and we will circulate the materials 
to Members and staff as quickly as we can.
    I would also ask all Members to mute your microphone when 
you are not speaking. This will help prevent feedback and other 
technical issues. You may unmute yourself any time you seek 
recognition.
    I will now recognize myself for an opening statement.
    As I have earlier said, good morning. I believe this is an 
important hearing as a component of the justice system and, as 
well, the elements of the Constitution, particularly the Bill 
of Rights that govern the rights of all persons that will have 
to appear before a court of law, particularly, in this 
instance, in criminal proceedings.
    As I indicated earlier, Gideon and Miranda cases were 
significant cases to add to and enhance the justice system that 
is so much admired in many instances around the world. Although 
our system is not perfect, it is a system that is admired for 
its outreach and balance to ensure justice for those who appear 
before the court.
    That means that it is our important responsibility to 
ensure its near perfection and to recognize the balance between 
those who acted or are alleged to have acted, and those who 
have been impacted by those actions.
    The Subcommittee convenes today to examine pretrial 
justice, perhaps the most crucial stage of the criminal justice 
process. Following arrest, interrogation, pretrial detention, 
and charging decision all take place in the days immediately 
following arrest. From the outset, the pretrial process 
indigent defendants are at a disadvantage, often without access 
to counsel. They frequently find themselves detained pending 
arraignment.
    Law enforcement officers and prosecutors may exert 
disproportionate leverage during this period, since they have 
access to the defendant and all the evidence. Each of the major 
procedural steps--arrest, determining pretrial detention, and 
pretrial discovery--implicate the constitutional rights of the 
accused, who are presumed innocent.
    We must recognize and address the fact that current 
practices disproportionately disadvantage people of color. The 
interrogation stage offers one of the first opportunities to 
solve crime. It should be used in that capacity. Also, 
currently includes practices that may imperil constitutional 
rights and undercut the fair Administration of justice.
    Who are we in this Nation if we cannot provide that fair 
assessment and implementation of justice? In recent years, the 
number of documented cases of people wrongfully convicted 
because of confessions to crimes they did not commit has 
steadily increased. The Innocence Project estimates that false 
confessions have contributed to 28 percent of the 375 post-
conviction DNA exonerations in the United States, all of which 
involved cases of murder and/or sexual assault.
    In more than half of all cases in which the post-conviction 
DNA analysis cleared an innocent defendant it has also 
identified the actual perpetrator. Remind the Members that the 
DNA usage is only a recent phenomenon, and just take note of 
the fact of the many people that may have been falsely accused, 
and falsely convicted, and falsely serving time, many of those 
fall disproportionately in the minority communities, 
particularly African Americans.
    Research has shown that certain conditions and police 
interrogation tactics are psychologically potent, especially 
when used in excess, and that sometimes some types of suspects 
are particularly vulnerable. Let me very clear, we want, too, 
for our law enforcement to be able to bring those to justice 
who have perpetrated horrific crimes and actions against 
society. We realize that there has to be a justice system, and 
a system to hold them accountable. We want to do it in a way 
that allows chief and guiding force just as the word justice.
    One solution I propose in legislation is that all 
interviews and interrogations of felony suspects should be 
videotaped in their entirety from start to finish, without 
interruption, without loopholes or exception, and with a camera 
angle that focuses on both the suspect and the interrogator. 
Increasing transparency in this manner is essential for judges 
to determine voluntariness and coercion, and for juries to 
determine whether statements are reliable and the facts 
attributable to the suspect.
    Another issue for us to consider is the conditions under 
which children should be interrogated. Very, very serious, and 
very much a concern. Children are vulnerable, which is why they 
are statistically over-represented in false confession cases. 
Additionally, we must keep in mind the array of issues related 
to pretrial detention, a subject we will review in more detail 
in the future.
    We must also consider the question of which defendants are 
provided diversion or given a citation to appear in court. The 
current system produces disparately negative results for people 
of color, and on its face favors the wealthy.
    Lastly, we also must review aspects of the current system 
that discourages trial and favors a plea agreement. The 
combination of a number of pretrial practices ends up with the 
poor and people of color waiving their constitutional rights to 
a trial and pleading guilty, sometimes to crimes they did not 
commit.
    As you can see, we have many important issues to review 
today. Members, throughout our time as Members of this 
particular important subcommittee, because wrapped around this 
Committee is the question of justice that involves lives of 
those who may have been impacted by the criminal act, or 
alleged criminal act, and those who have been accused, falsely 
accused in terms of incarceration or loss of life through the 
justice system. Justice has to be real.
    I look forward to the witness testimony and the robust 
discussion that will follow.
    It is now my pleasure to recognize the Ranking Member of 
the subcommittee, the gentleman from Arizona, Mr. Biggs, for 
his opening statement.
    Mr. Biggs. Thank you, Madam Chair. I appreciate that.
    I once again request that you schedule a hearing of the 
Subcommittee to examine how the Biden Administration's crisis 
along the southern border affects Homeland Security and public 
safety. Last week all the Republican Members of the 
subcommittee, including Ranking Member Jordan, sent you a 
letter requesting that you hold such a hearing.
    We haven't heard back yet. I hope that we hear back soon 
because we think that this Subcommittee should hold a hearing 
as soon as possible to examine how the Biden Administration's 
failure to secure the southern border has allowed transnational 
criminal organizations, smugglers, and drug traffickers to 
engage in criminal behavior and harm public safety.
    I was just down at the border yesterday, Madam Chair. While 
on the Arizona border I learned of a group of 112 individuals 
who had surrendered to Border Patrol agents just a couple of 
days ago. The oldest person in that group was 94 years old, and 
the youngest was just 4 years old. That child was not traveling 
with parents, sibling, or grandparents, or in fact any other 
relative or legal guardian. That child had been placed in the 
hands of the dangerous cartels that traffic in human sex and 
drugs. The majority of the people in that group of 112 averred 
that they have come because they felt they had been invited by 
President Joe Biden.
    So, we have to have a hearing as soon as we possibly can.
    Today's hearing is very important. The Subcommittee will 
examine the pretrial stage of the criminal justice process. As 
a former trial lawyer who defended hundreds of individuals, and 
also engaged in prosecution activity as well, I can tell you 
this is an important topic. I thank you for bringing it 
forward.
    According to the majority's memo in preparation for the 
hearing, it will improve, one, the role coercive interrogation 
practices play in eliciting false confessions; two, pretrial 
detention; three, pretrial evidentiary burdens federal and 
State practices place on defendants; and four, proposals for 
reform.
    We have already seen how the majority has proposed to 
reform the pretrial stage. One member of this subcommittee, for 
instance, introduced the No Money Bail Act of 2019. That bill 
would completely eliminate bail in the federal system and make 
states that utilize bail for pretrial release ineligible for 
grants under the Byrne JAG Program. That is right, the sponsor 
intends to defund the police if states won't accede to his 
demands.
    Also, last year on New Year's Eve of last year while no one 
was looking, and without even a press release, Chair of the 
Judiciary Committee introduced the Federal Bail Reform Act of 
2020. His bill turns the federal pretrial release process on 
its head.
    With some very limited exceptions, his bill even creates a 
presumption for post-conviction relief while the convicted 
criminal is appealing the conviction. Chair Nadler's bill 
prohibits the court from imposing any condition of release that 
may impose a financial on the person released.
    I suppose we should just all hope defendants show up for 
their court appearances even after convicted, just as we are 
hoping tens of thousands of illegal immigrants will show up to 
their court hearings or report to ICE. It isn't working, which 
is why we have more than one million illegal border crossers 
with orders of removal wandering around the United States 
today.
    The Nadler bill also states that ``the judicial officer may 
not order the temporary detention of any person on the ground 
that may pose a generalized danger or a financial danger to any 
other individual or the community.'' So even if the judge or 
magistrate finds that the defendant poses a generalized danger 
to our community, the judge cannot temporarily detain the 
defendant who has already been convicted. I am sure that will 
make everyone in the community sleep better at night.
    Last year Chair Nadler also proposed bribing states to 
enter their jails. In that proposal, states were to be given 
grant dollars to release prisoners who did not ``pose a risk of 
serious, imminent injury to a reasonably identifiable person.'' 
I guess it was okay to release that person if the injury might 
be hours or days away, and perhaps not so serious.
    Again, there was no consideration allowed for a generalized 
risk to our communities in releasing these prisoners.
    You don't have to take my word when it comes to these so-
called bail reforms. We will have a witness today tell her very 
compelling, very tragic story.
    Madam Chair, I also offer into the record a letter from New 
Jersey State Assemblyman Bob Andrzejczak to California Speaker 
of the House Anthony Rendon warning him about the perils of 
bail reform. So, Madam Chair, I offer that letter into the 
record.
    Ms. Jackson Lee. Without objection, so ordered.
    [The information follows:]

    
                        MR. BIGGS FOR THE RECORD

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

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Biggs. Thank you.
    It is notable because Assemblyman Andrzejczak was once a 
proponent of bail proponent. When he actually saw it in action 
in his home state, he called it an absolute disaster.
    We will also look at pretrial discovery issues today. We 
need to ensure that discovery rules are equitable and that the 
government is held accountable. None of us want to see what 
happened to our late colleague Ted Stevens. We don't want to 
see that happen again. That being said, we should not be 
looking to change discovery rules that risk endangering 
witnesses and crime victims, which is exactly what New York 
State did.
    Under New York's discovery rules, prosecutors will no 
longer be able to assure witnesses that their identity will be 
protected. You don't have to take my word for it. Manhattan 
District Attorney Democrat Cy Vance said, ``I think to hand 
defendants a roster of who has spoken out against them just 15 
days after their first appearance, absent a protective order, 
is a seismic change that undoubtedly will dissuade witnesses 
who live in all neighborhoods from reporting crime.''
    I hope these are not the types of reforms my colleagues on 
the other side are considering.
    I understand that we will also be examining the practice of 
recording interrogations. I certainly support such practices. 
In fact, I think not to do that is irresponsible and reckless.
    However, I point out that last Congress Democrats twice 
rejected Republican amendments at markup to require custodial 
and non-custodial interviews be recorded by Department of 
Justice law enforcement agencies. I hope that is an issue that 
all of us can get together on in the spirit of bipartisanship.
    I thank the chair for holding this hearing today. I thank 
all the witnesses for being here. I look forward to hearing 
from them and their testimony.
    With that, Madam Chair, thank you, and I yield back.
    Ms. Jackson Lee. The gentleman yields back. I thank the 
gentleman for his statement, and I thank the gentleman for his 
letter.
    Chair Nadler speaks his regrets for not being able to 
participate this morning. So, it is my privilege to turn to Mr. 
Jordan. I now recognize the distinguished Ranking Member of the 
full committee, the gentleman from Ohio, Mr. Jordan, for his 
opening statement.
    Mr. Jordan?
    We will yield to Mr. Jordan as appropriate. So, we will now 
proceed to welcome all our distinguished witnesses and thank 
them for their participation. As I do that, let me also thank 
all our Members of Congress and this Subcommittee who are here 
this morning as well.
    I think it is an important statement to make those Members 
are working, and we have worked all through the week on 
important meetings and hearings. I am very appreciative of the 
Subcommittee Members who are on this hearing this morning, this 
very important hearing.
    So, again we welcome all our distinguished witnesses, and 
we thank them for their participation. Now, it is my privilege 
to begin by swearing in the witnesses.
    If you would raise as I turn to you, to turn on your audio. 
All witnesses turn on their audio and make sure I can see your 
face. Make sure that I can see your face. We are working to see 
everyone's face here.
    So, I am looking for every face here. Just a moment.
    Witnesses, have you unmuted? Everyone should be unmuted.
    Raise your right hand in a visible way so that we can see 
you in the screen.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief, so help you God?
    [Chorus of ayes.]
    Ms. Jackson Lee. All right. Thank you so very much.
    Let the record show that the witnesses answered in the 
affirmative. Thank you.
    We will now proceed with witness introduction.
    Barry Scheck is the co-founder of the Innocence Project, 
and a professor at Yeshiva University Benjamin N. Cardozo 
School of Law. There he serves as a director of clinical 
education for the trial advocacy program, and the Center for 
the Study of Law and Ethics.
    Mr. Scheck also was a staff attorney at the famous Legal 
Aid Society of New York, well-known in its tenure and, of 
course, its history.
    Mr. Anthony Graves is a community liaison with the Harris 
County Public Defender's Office. In 1992, Mr. Graves was 
charged with and convicted of murder, despite of a lack of a 
motive or any physical evidence connecting him to the crime 
scene. He served 12 years on death row before his conviction 
was overturned by a federal appeals court in 2006. He was 
released in 2010.
    His life since then has been a tribute to the values of 
this nation, and it reemphasizes the cruciality of this hearing 
and why we must insist on the assessment of the pretrial 
justice that occurs to those who may be wrongly accused.
    Premal Dharia is the co-director of the Institute to End 
Mass Incarceration at Harvard University. Prior to her current 
position, Ms. Dharia was Founding Director of the Defender 
Impact Initiative.
    Following law school she worked at the public defender 
services in the District of Columbia, and as a federal public 
defender in the District of Maryland.
    April Frazier Camara is the Director of Defender Legal 
Services Initiative at the National Legal Aid and Defender 
Association. She previously worked as a public defender with 
the Public Defender Service for Washington, DC, as a re-entry 
coordinator and, more recently, as a special assistant in the 
Juvenile Defender Unit at the law office of the Shelby County 
Public Defender.
    Michele Hanisee is a deputy district attorney for the 
County of Los Angeles for 22 years. She has tried over 100 jury 
trials, including 43 murders and three federal murders which 
resulted in death sentences.
    She spent five years in the hardcore Gang Division 
prosecuting gang murders. Has worked for the past ten years in 
the Major Crime Division handling high profile and complex 
cases. She also trained prosecutors and police officers across 
the State on gang homicide and death penalty law and is author 
of the California Gang Crimes Manual.
    June Rodgers is a resident of Millville, New Jersey. She is 
a mother of four and a grandmother of 14. For the past ten 
years she has been a direct support professional for mentally 
and physically disabled. She is also the New Jersey Chair of 
The Victims' Rights Reform Council, a non-profit organization.
    She has advocated against bail reform throughout the United 
States in honor of her son, Christian Rodgers. We offer to her 
our deepest concern and also the recognition that this 
Congress' House passed the Victims of Crimes Act that I was a 
lead sponsor on just last week.
    We thank her for her presence here today.
    Reuben Cahn is a partner in Keller/Anderle LLP where he 
serves as counsel to a number of individuals and corporate 
clients. He has tried over 100 cases to jury verdict and has 
argued twice before the Supreme Court.
    Previously, he served as a public defender, first in the 
State of Florida, and then in the federal courts. Prior to his 
current position he was chief assistant federal public defender 
of the Southern District of Florida, then the executive 
director of Federal Defendants of San Diego.
    Please note that each of your written statements will be 
entered into the record in its entirety. Accordingly, I ask 
that you summarize your testimony in five minutes.
    There is a timer in the WebEx view that should be visible 
on your screen.
    Let me as well indicate that you are doing a public service 
for your nation. Congress cannot function without these 
hearings and witnesses which are personal, lifetime experiences 
that help us contribute to the justice system of this nation.
    Again, we thank you for appearing before this important 
committee, and this important larger committee, the House 
Judiciary Committee.
    Mr. Scheck, welcome. You may begin.
    Mr. Cicilline. Barry, you're on mute.

                   STATEMENT OF BARRY SCHECK

    Mr. Scheck. Can I get the time back?
    Ms. Jackson Lee. Yes. Good morning.
    Mr. Scheck. Okay, thank you.
    Thank you, Chairwoman Lee and Ranking Member Biggs for the 
invitation to come and talk about pretrial reform to promote 
accurate and fair outcomes in our criminal legal system. My 
colleagues at the Innocence Project, as well as innocence 
organizations nationwide, examine cases where the innocent are 
convicted and the guilty escape apprehension.
    Each time that happens it is a tragedy for the wrongly 
convicted, the persons harmed by the crime, and the families of 
all involved.
    Since 1989, the National Registry of Exonerations reports 
there have been 2,755 wrongful convictions, including 375 cases 
where exonerations resulted from post-conviction DNA testing. A 
recent study by the Registry on Official Misconduct reveals 
extraordinary findings:

          Concealing exculpatory evidence occurred in 44 
        percent of exonerations;
          Black exonerees in general were more likely than 
        White exonerees to have been victims of misconduct, but 
        disparities were greater in murder cases, cases 
        involving death sentences, and drug cases;
          Police officers committed misconduct in 35 percent of 
        cases; prosecutors in 30 percent. However, in federal 
        exonerations, prosecutors committed misconduct more 
        than twice as often as police;
          False confessions were involved in 12 percent of 
        exonerations; and
          Twenty percent, one in five cases, involved wrongful 
        convictions where an innocent person pled guilty.

    The root cause of these wrongful convictions lies in some 
aspect of the pretrial process, which is why reform is so 
urgently needed.
    Congress should implement reforms in five areas, including, 
one, discovery reform. You recently legislated so that federal 
district courts are supposed to issue Brady orders that remind 
prosecutors of their obligation to disclose exculpatory 
evidence.
    A more systemic reform would be open-file discovery where 
data is accessible online and disputes can be resolved as to 
what was disclosed and when, and the defense has an opportunity 
to actually look at the files.
    We know such an open-file system can be implemented and 
successful because Texas has done it. It is the Michael Morton 
Act. Innocence Project client Michael Morton was wrongly 
convicted of killing his wife. The prosecutor in that case, who 
became a judge, hid exculpatory evidence. This case had 
national publicity, and it really shook the legal community in 
Texas.
    I must tell you that prosecutors, defense lawyers, 
Democrats, and Republicans came together to pass the Michael 
Morton Act. This is an open-file discovery system where 
everything is disclosed online, people can get to look at the 
files.
    Probably the most important provision in retrospect on this 
is pre-pleading discovery. At the time of a guilty plea all 
parties say here is everything that has been disclosed, the 
prosecutor acknowledges his or her obligation to have disclosed 
all exculpatory information, and then the plea happens.
    This would go a long way to eliminate that horrifying 
number of one in five people pleading guilty to crimes that 
they didn't commit.
    False confessions. False confessions are counterintuitive, 
as most people believe no one would confess to a crime if they 
were in fact guilty--unless they were in fact guilty. Yet, 
three of ten people proven innocent by post-conviction DNA 
testing actually confessed to crimes they did not commit.
    A false confession frequently creates tunnel vision for 
investigators where they will ignore reliable evidence that 
could have led him to actually apprehend the person who was 
guilty.
    Three things Congress can do that would really help:

          First, codify the recordation of interrogations 
        policy to ensure all federal investigations are 
        recorded, interrogations are recorded from Miranda 
        forward, exactly what the chairwoman held forth here. I 
        was so glad to hear Ranking Member Biggs acknowledge 
        that this is really important.
          Number two, you should add reliability as a factor in 
        terms of courts reviewing the admission of confessions.
          Number three, law enforcement should not engage in 
        explicit lies and deception during interrogations. That 
        leads to false confessions. Legislation banning 
        deception during interrogations has been introduced now 
        in New York, Oregon, and Illinois. Congress should look 
        at those bills and follow suit.

    The trial penalty which leads to innocents pleading guilty, 
along with the problems of cash bail, I urge Congress to pursue 
legislation in this area having to do as well with mandatory 
minimums.
    Improving access to forensic science by funding forensic 
science laboratories that are independent and allowing the 
defense access to real expertise. The Innocence Project client 
George Rodriguez was convicted based on unreliable serology 
from the Houston Police Department Crime Lab. Subsequent to 
that, the largest audit of a crime lab in the history of 
America was conducted.
    At the end of that, what Harris County decided to do is 
not--they removed the forensic science laboratory from control 
by the Police Department, set up an independent governmental 
entity, the Houston Forensic Science Center. It has an 
independent board appointed by the mayor, and a technical 
advisory board of scientists.
    It is the best crime lab, forensic science lab in the 
United States. People come from abroad to see it. It is 
transparent. It engages in blind proficiency testing. It is 
very efficient. It is the model that should be followed by 
Congress, who should be funding such equities. It is exactly 
what the National Academy of Sciences called for 12 years ago 
in its report on strengthening forensic science.
    The last thing--I know others will talk about it--I 
strongly believe is focus on holistic representation.
    Thank you.
    [The statement of Mr. Scheck follows:]
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    Ms. Jackson Lee. Thank you for your testimony, Mr. Scheck. 
Thank you.
    Thank you so very much. The gentleman's time has expired.
    I will now recognize Mr. Graves for five minutes.
    Mr. Graves, if you would unmute and begin your testimony.

                  STATEMENT OF ANTHONY GRAVES

    Mr. Graves. Thank you, Congresswoman. Thank you, 
Congressman Biggs. I am excited to be here.
    August of 1992, one week shy of my 27th birthday, I woke up 
to a knock on my mother's apartment door. It was the neighbor 
coming to tell me that the police were looking for me. Why?
    I decided to go outside and look for the police. An officer 
pulled up in a patrol car. I stopped to wait on him to approach 
me. I didn't know that this encounter with the officer would 
change my life forever. I had no idea I was about to spend the 
next 18 years behind bars, including 12 on Texas' death row, 
totally innocent.
    I cooperated with law enforcement 110 percent, so sure was 
I that the whole thing was some crazy mistake. They told me 
that another man had named me as his accomplice. That is it: He 
said my name. There was no other evidence to support his claim.
    I had four alibis. I was home with my then-girlfriend that 
night long before the murders. There was no physical evidence 
to connect me to it, fingerprints, footprints, blood on my 
clothes, or traces of embers, no skin cells or hair follicles 
from the victims, no eyewitnesses, except the man who said my 
name. He had burns on his body when he showed up to the 
victim's funeral.
    I witnessed the nearly unchecked power of the District 
Attorney's Office and how one individual can have so much 
impact in our lives. I witnessed how law enforcement can get 
tunnel vision once they have a murder suspect in custody. I 
witnessed the role of the media in shaping opinions around 
cases before trial. I also witnessed how judges give wide 
leeway to prosecutors instead of heeding the actual facts or 
some notion of justice for all.
    All these things eventually led to my wrongful conviction. 
Our criminal justice system is deeply biased and careless.
    Over the next 12 years I witnessed over 400 men being 
murdered at the hands of the state. I knew that I was innocent 
and, therefore, I remained hopeful.
    I was convicted after a sham of a trial replete with 
mistakes, bias, and tunnel-vision. Whatever was said by law 
enforcement was gospel. Lack of facts to support their 
conclusions were tolerated. Exculpatory evidence was hidden 
from me and my lawyers. I was expendable.
    After my trial, I was sentenced to die and sent to death 
row. My execution day was set twice. I remember the first time 
I was told the State had set an execution date. I was escorted 
to the major's office in handcuffs. He sat me down and told me 
that the State had set an execution date.
    My conviction was overturned after a wonderful journalist 
worked hard to uncover all the errors in my case and the bias 
that accompanied it. I hope that this Committee will find a way 
to address the issues that are plaguing our criminal justice 
system and fix it to make it better for us all, because every 
person matters. Every effort makes a difference. Believe me. I 
know.
    Thank you.
    [The statement of Mr. Graves follows:]
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    Ms. Jackson Lee. Mr. Graves, thank you so very much for 
that contributing testimony. Thank you is not an appropriate 
word for what you went through, but for you to be able to share 
that with us who are fact finders, thank you for being here 
this morning.
    Ms. Dharia, you are recognized for five minutes. Please let 
me know if I am pronouncing your name correctly.
    Ms. Dharia. Thank you so much. It is Premal Dharia.
    Ms. Jackson Lee. Thank you so very much. You are recognized 
for five minutes.

                   STATEMENT OF PREMAL DHARIA

    Ms. Dharia. Thank you for holding this hearing and for the 
opportunity to testify. I have spent my entire career working 
within and around the criminal legal system, and I am grateful 
for this opportunity to discuss important measures that 
Congress could undertake to address our country's addiction to 
incarceration and punishment, and the crisis of mass 
incarceration that is devastating our communities.
    The United States leads the world in the rate at which it 
incarcerates its people. We have 4 percent of the global 
population, but 20 percent of the global prison population. 
With nearly two million people in prison on any given day, the 
United States incarcerates approximately the same total number 
of people as the two largest countries on earth, India and 
China, combined.
    In 2018, more than 10.7 million people entered U.S. jails, 
the equivalent of locking up every person in Portugal, Greece, 
or Sweden. A larger number of people in jail on any given day 
have not been convicted of any crime but are instead awaiting 
trial and presumed innocent.
    We cannot lose sight of the clear historical trajectory of 
racism and White supremacy that plays a part. Populations of 
those detained pretrial have more than doubled over 15 years, 
and they are disproportionately Black and Hispanic.
    This is not an accident, and it did not just happen on its 
own. We make choices every day; political choices, policy 
choices, and cultural choices that shape our systems. When it 
comes to the criminal legal system, many of those choices have 
been made in the context of a history of racial oppression, and 
also in the context of political narratives that stoke fear and 
ignore evidence.
    Regardless of where you fall on the political spectrum, it 
is, hopefully, safe to assume that there is a universal desire 
to keep our communities healthy and safe, and that differences 
arise when we think about how to get there. It is important to 
take a step back, given those differences, to make sure we are 
all using the same definition of ``public safety,'' a phrase 
that has in some ways taken on a life of its own. Popular 
conceptions of dangerousness, of violence, and of who commits 
crimes and why are very often not based in evidence or fact. 
Harm is, of course, very real, as is violence. Our communities 
need to find ways to both address harm and to address the 
people and the circumstances that cause it.
    How we do that has to be grounded in what is real, in what 
the evidence says about what actually increases harm in our 
communities. We also have to recognize that our efforts to 
respond to harm or prevent harm can themselves cause harm, 
often to and within the very communities we are trying to 
protect. It is past time we started considering the very real 
human and community costs of removing people from their 
families, from their jobs, and from their homes when we think 
and talk of public safety.
    I am encouraged that the Subcommittee is holding this 
hearing because the way we treat individuals before trial 
serves in many ways as a catalyst for so many other problems in 
the system.
    Approximately 98 percent of criminal convictions in federal 
courts are produced by a guilty plea, with high rates of guilty 
pleas in many states as well. Nearly every single person who is 
in a prison is there because they pled guilty. They have 
generally done so without adequate access to effective counsel, 
without adequate discovery or information about their case, 
without adequate investigation or expert consultation, and with 
the specter of increased penalties and charges hanging over 
their heads. Our system is not the system of adversarial trials 
envisioned by its creators, it is, instead, a system of pleas, 
one grounded in coercion, imbalance, and opacity.
    Working to eliminate this coercion is essential to ending 
our system of mass incarceration, in which people are removed 
from their communities and incarcerated, subjected to onerous 
conditions and surveillance, and marked with punishments they 
will carry for the rest of their lives, in large part because 
we choose to allow prosecutors to possess a set of tools that 
they can use to extract guilty pleas.
    Prosecutors can pursue pretrial detention, they can up-
charge cases, they can threaten offenses that carry mandatory 
minimum sentences, they can withhold discovery material, they 
can obscure police misconduct. Because they can do all of this, 
not only do guilty pleas result, the transparency mechanisms 
built into our criminal process, but such as suppression 
hearings to examine police misconduct, evaporate.
    Throughout the testimony today you will hear evidence that 
the methods and policies we use are riddled with the potential 
for abuse and error. They must be constantly questioned and 
analyzed. We cannot sit back and assume we are doing things 
right. Indeed, we are quite clear we are doing things wrong.
    There are a variety of reforms that Congress could pursue 
at every stage of the pretrial process that would not on their 
own fix the larger crisis, but that would make inroads towards 
the kind of thoughtful change we need.
    These include:

          Moving to cite-and-release and reducing the number of 
        custodial arrests;
          Guaranteeing access to counsel by moving the 
        attachment and availability of counsel earlier in the 
        process to the time of arrest, and making defense 
        attorneys available at police stations;
          Limiting the length of interrogations, requiring 
        reporting, eliminating police officers' ability to lie 
        and coerce, and ensuring the presence of counsel;
          Ensuring speedy trial rights; and
          Implementing discovery reform, including the adoption 
        of open-file discovery, earlier provisions of discovery 
        in Brady materials, eliminating the materiality 
        requirement for Brady and Giglio in the context of 
        pretrial disclosures, requiring disclosure prior to 
        plea negotiations, and eliminating the Jencks Act, or 
        at least requiring earlier disclosure of witness 
        statements, including Grand Jury material.

    We need jury pool and Grand Jury pool composition reform to 
include standards that ensure reflectiveness, and enfranchising 
those with felony convictions to serve on juries.
    Finally, indigent defense funding standardization.
    Each area is described more fully in my written testimony.
    Thank you again for holding this hearing and for inviting 
me to present testimony.
    [The statement of Ms. Dharia follows:]
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    Ms. Jackson Lee. Thank you so very much. The gentlewoman's 
time has expired. Thank you for your testimony.
    I now recognize Ms. Frazier Camara for five minutes. You 
are recognized, Ms. Frazier Camara.

               STATEMENT OF APRIL FRAZIER CAMARA

    Ms. Frazier Camara. First, I would like to say thank you to 
Chairwoman Jackson Lee, Ranking Member Biggs, and the Members 
of the Subcommittee for inviting me to testify today.
    My name is April Frazier Camara, and I am Chief of Lifelong 
Learning at National Legal Aid and Defender Association, and 
also the co-founder and chair of the Black Public Defender 
Association. Today I am going to focus my testimony on racial 
inequity.
    In the past year we have witnessed and awakening, a 
resounding call for racial justice. As some of you may know, 
the racial inequities in state-sanctioned violence against 
Black people did not begin with the killing of George Floyd and 
Breonna Taylor but, rather, it is a part of a long legacy of 
White supremacy that started with slavery, and that currently 
exists today with the incarceral system, including the criminal 
legal system.
    Our country is demanding some systemic changes to the 
criminal legal system, and policymakers must meet the moment. 
Our failure to reckon with our past and specifically confront 
the legacy of slavery, Black codes, lynchings, Jim Crow, 
redlining, and the war on drugs has brought us to where we are 
today.
    So, as Congress considers the pretrial reforms discussed 
today, it is crucial to call your attention to who is being 
policed, who is being criminalized, and who is being 
incarcerated.
    Black communities are disproportionately surveilled, 
arrested, and funneled into the criminal legal system. From 
arrests to incarceration, Black and Latino communities are 
disproportionately impacted by the criminal legal system. They 
are more likely to be arrested and, once arrested, they are 
more likely to be convicted and, once convicted, more likely to 
receive harsher sentences than their White counterparts.
    Black women alone comprise 44 percent of the people 
incarcerated in jails today. Black men are six times more 
likely to be incarcerated than White men. If we do not disrupt 
these systems of harm, one in every Black child born today can 
expect to go to prison in his lifetime.
    This is a crisis and it must end. There are two systems of 
justice in America: One for those who are wealthy, who are 
disproportionately White; and one for those who are low income, 
who are disproportionately communities of color.
    The legal theory of affording everyone equal constitutional 
rights under the law does not match the reality when you walk 
into courtrooms across America today. Eighty percent of people 
accused of crimes in State court are represented by public 
defenders. Most public defenders' offices are woefully 
underfunded and under-resourced. There is no equal access to 
zealous representation in America.
    So, as this Committee considers the path forward for 
pretrial reform, I would urge you to center your responses on 
the lived experiences of directly-impacted communities of 
color. When we discuss the world of public safety, very rarely 
does it include the perspectives of the Black community. 
Historically, public safety is defined for impacted Black 
communities instead of with them, which has led to the current 
reality where Black communities are being targeted rather than 
protected.
    We risk repeating the failures of the past if we do not 
stop and intentionally center the voice of the Black community.
    I will close my comments today with a call to action from 
Dr. King. ``History will have'' us ``to record that the 
greatest tragedy of this period of social transition was not 
the strident clamor of the bad people, but'' rather ``the 
appalling silence of the good people.'' As a nation, we have a 
choice: Will we remain silence on issues of racism and White 
supremacy, or face our painful history and present reality?
    I look forward to speaking with the Committee today and 
engaging you on these important issues. Thank you.
    [The statement of Ms. Frazier Camara follows:]
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    Ms. Jackson Lee. I thank Ms. Frazier Camara. Thank you very 
much for your testimony and thank you for being here today and 
that powerful testimony.
    Ms. Hanisee, you are now recognized for five minutes. Thank 
you.

                  STATEMENT OF MICHELE HANISEE

    Ms. Hanisee. Thank you. Good morning, Madam Chairperson and 
Members of this committee. Thank you for inviting me to speak.
    I have spent nearly 23 years as a prosecutor in the largest 
local prosecutorial agency in the nation. I am proud to say it 
is an extremely diverse office that has a history of hiring and 
promoting women and persons of color. For the majority of that 
time in the office my caseload has consisted of murders and 
sexual assault. Any improvement to the criminal justice system 
that decreases the possibility of wrongful conviction, while 
balancing the rights of victims and witnesses, is laudable.
    As a prosecutor, I have seen the impact of the justice 
system not just on the accused but also on victims and 
witnesses. Intimidation of victims and witnesses is, sadly, not 
rare. More than one of my witnesses was murdered either before 
or after their testimony. I have had witnesses whose cars were 
firebombed, houses shot at, or were threatened in court as they 
testified with the classic index figure stroke across the neck 
gesture.
    These victims and witnesses didn't volunteer to become 
participants in the criminal justice system, they were drafted 
against their will by the acts of the accused. So, we need a 
justice system that is fair to both the accused and to victims 
and witnesses.
    We have learned recently in California about changes in 
cash bail and what they can entail. Cash bail can 
disproportionately impact the poor or, more to the point, 
advantage the wealthy. Cash bail isn't necessary so long as the 
accused can still be detained based on a risk assessment that 
accounts for flight risk, victim safety, and public safety, and 
which allows judges to make appropriate deviations to address 
the particulars of individual cases.
    Detention consideration can't be based simply on algorithms 
but need to include the nature and particulars of the crime. 
Certain crimes, due to the pathology involved, are more likely 
to be repeated at great harm to the victims. Domestic violence, 
child molestation, and child abuse are some examples. The abuse 
can not only be repeated but can actually escalate once a 
perpetrator has been publicly accused, and on many unfortunate 
occasions a victim of domestic violence was murdered when the 
accused was not detained pending trial.
    In California, changes to pretrial detention status are 
based on changes in circumstance or a triggering event like a 
willful violation of the terms of release. I do want to note, 
in California that people are provided counsel at the very 
first court appearance.
    Being found guilty at trial is a changing circumstance that 
justifies a change in detention status, because prior to trial 
the accused is presumed innocent. That presumption disappears 
upon a finding of guilt. So, when a person is found guilty of a 
serious or violent crime that is going to result in 
incarceration, the presumption is that they will be put in 
custody absent a significant justification for a judge to 
deviate from that presumption.
    Videotaped interviews of arrestees and suspects are 
absolutely optimal. However, admissibility of a statement in 
court should never be conditioned on the use of audio or video 
recording because too many things can go wrong through no fault 
of the officer involved. Exclusion of evidence should only ever 
be based on the constitutional considerations enumerated by our 
courts, particularly the Supreme Court of the United States.
    California's discovery laws require more and earlier 
disclosure than the federal system. In the absence of a 
significant reason to withhold pretrial discovery, it is 
provided to the defense promptly. However, promptness is 
contextual and has to take into account the volume and nature 
of the evidence and the necessity of processing and documenting 
that evidence. In the average murder case, for example, 15 days 
active justice by the New York proposed statute is not nearly 
enough time.
    In California, all witness statements are provided to the 
defense prior to trial. As a matter of practice, many, many 
months, in fact years before trial.
    There are, however, valid reasons at times to delay 
disclosure of evidence, such as risk of harm to victims and 
witnesses, and risk of jeopardizing an ongoing investigation. 
When delayed disclosure occurs, typically under the supervision 
of a judge who conducts ex parte review of the evidence and can 
issue appropriate orders.
    Police reports often contain personal identifying 
information that can be used to target victims and witnesses. 
The privacy and safety concerns of victims and witnesses should 
be weighed against the rights of the accused.
    So, in summary, I just want to say that while pondering the 
harm caused by incarceration, I implore you not to forget the 
harm caused by those who commit crimes, and the rights of the 
victims and witnesses to be free from threats, harassment, 
intimidation, and repeated interviews and hearings that take 
them away from their jobs and families. The safety and rights 
of victims and witnesses must be balanced against the rights of 
the accused.
    Thank you so much for allowing me to testify today.
    [The statement of Ms. Hanisee follows:]
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    Ms. Jackson Lee. Thank you so very much for your testimony 
and your service.
    Now, I yield five minutes to Ms. Rodgers. We offer our 
deepest concern and sympathy for your loss.
    Ms. Rodgers, you are on for five minutes to testify.

                   STATEMENT OF JUNE RODGERS

    Ms. Rodgers. Good morning.
    Ms. Jackson Lee. Good morning.
    Ms. Rodgers. I want to say good morning to everyone and all 
the witnesses and everyone. I want to thank you for the 
opportunity to address you today as a victim of bail reform.
    I live in Millville, New Jersey, and bail reform was 
implemented in my State on January 1st of 2017. My nightmare 
began on April of 2017. Jules Black, a convicted felon, was 
taken into custody once again for gun possession. Because of 
bail reform, he was released back onto the street.
    While in custody, he was given a risk assessment test which 
asked him questions such as: Can you afford bail? Will you show 
up for all court appearances? If you were released, do you 
promise not to commit another crime?
    Well, as a result, the algorithm deemed him to be of low 
risk and safe for release. The presiding judge in the matter 
was compelled to release him because the laws of bail reform 
required him to release him by the results of the test.
    Four days later, Mr. Black gunned down my son Christian 
Rodgers in broad daylight. Since then, Mr. Black has 
accumulated more charges in this case by using his girlfriend 
to threaten the eyewitness and the lives of her children. So, 
now she also lives in fear of her life.
    These are the types of people who are benefitting from bail 
reform. Had it not been for bail reform, it is my belief that 
my son Christian would still be alive today. It is very 
disturbing that the policymakers are touting the success of 
cashless bail, but no one is considering the victims and their 
families in all of this. I cannot express enough the pain and 
the anguish that my entire family is suffering from losing such 
a kind and loving person as Christian was. He was well-loved 
almost by everyone who knew him.
    It still pains me deeply whenever his two small sons often 
ask where he is and when is he coming home. I, myself, still 
have nightmares about seeing the picture of his lifeless body 
laying on the ground that someone had posted on Facebook.
    I was distraught when I found out that this all happened 
because of bail reform. I went to my local politicians about 
this issue, and one of them had the nerve to refer to Christian 
as being collateral damage. This angered me to no end.
    The very people who say they care about poor Black 
communities are only concerned about this paid political 
agenda. Politicians are telling us that cash bail is unfair to 
us poor Black people, but I am here to say that not being able 
to live in peace is more unfair. We are not safe to walk down 
the street in the middle of the day.
    As I continue my fight for the victims of bail reform, I 
would like to invite the policymakers to join me in having a 
further common-sense dialog about bail reform in our local 
communities, not just here in our nation's capital, and to 
please include the people who will be most affected by these 
laws.
    I thank you for inviting me to speak on this issue that 
means so much to me. I look forward to answering your 
questions. Thank you.
    [The statement of Ms. Rodgers follows:]
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    Ms. Jackson Lee. Ms. Rodgers, let me personally thank you 
for being willing to appear before a Committee of the United 
States Congress in your pain. I want you to know that your 
testimony has been received. We thank you so very much for 
committing yourself to be here to provide the information that 
you have given us.
    Thank you again.
    Ms. Rodgers. Thank you so much.
    Ms. Jackson Lee. It is now my pleasure to recognize Mr. 
Cahn for five minutes of his testimony. Mr. Cahn, you are 
recognized.

                STATEMENT OF REUBEN CAMPER CAHN

    Mr. Cahn. Thank you, Chair Lee, Chair Jackson Lee, Ranking 
Member Biggs, and the other Members of the subcommittee. Thank 
you for the opportunity to speak about these important issues 
today.
    Ms. Rodgers, I want to say my heart goes out to you. I 
cannot even imagine the pain of losing a child in those 
circumstances.
    I recently returned to private practice after 30 years as a 
public defender. Now, I represent not only individuals but also 
corporations, wealthy corporations. I was immediately struck by 
the truism that a corporation fighting for its money has far 
more rights to information about the case against it than an 
accused citizen fighting for his freedom or his life. I want to 
try and put this in practical terms and consider what it means.
    Imagine to start, Chair Lee, Members of Congress, that a 
campaign manager who has violated finance laws. The prosecutors 
suspect that you are involved. A Grand Jury subpoenas documents 
and witnesses, your campaign manager is threatened with 
charges, but offered a sweetheart deal if he testifies again 
you.
    The Government indicts you, offers probation if you plead 
guilty, but threatens five years in prison then if you go to 
trial. In your innocence, what can you do to take apart the 
case against you and prove your innocence?
    Well, you can't depose your accuser, or anyone else for 
that matter. You can't subpoena third parties for emails or 
documents that might lead to evidence that proves your 
innocence. You cannot demand the prosecutors turn over all the 
evidence they have against you. In many courts, even when 
prosecutors possess evidence of your actual innocence, they can 
withhold it unless and until you are actually in trial.
    From law school on you are told that a trial is a search 
for truth. If that is really to be the case, we have to fix the 
system. There are a few simple fixes.
    First, we need to recognize that Brady has failed. In Brady 
the Supreme Court recognized that no criminal trial or 
sentencing can be fair if a defendant doesn't get information 
that could help the defense at trial or sentencing. The court 
left it to prosecutors to turn over this evidence, and the 
results are predictable.
    Recent examples in New York, Judge Alison Nathan was forced 
to sanction prosecutors for burying exculpatory evidence. Those 
were her words.
    The Ninth Circuit upheld dismissal of the Cliven Bundy 
case, calling the prosecutor's repeated failures to disclose 
exculpatory evidence egregious.
    These are two examples. There are others.
    Last fall, prompted by the disastrous Ted Stevens 
prosecution, Congress passed the bipartisan Due Process 
Protection Act to promote prosecutorial accountability. The 
Department of Justice has resisted Congress's clear intent, and 
continues to insist that a prosecutor alone should be able to 
decide what information gets turned over, arguing that its 
prosecutors are trained on what to disclose, to err on the side 
of disclosure, and to pursue justice, not conviction.
    Well, I believe that all of this is true, but I know that 
it doesn't matter in the real world. That is why we still see 
cases like Ted Stevens and Cliven Bundy. Prosecutors are simply 
not the right people to decide what evidence the defense sees. 
If the trial is really going to be a search for the truth and 
not a sporting contest, both sides must have equal access to 
evidence.
    This means that Criminal Rule 16, the primary procedural 
device for discovery, should allow discovery of any information 
likely to lead to admissible evidence. Criminal defendants 
should be given the same rights as civil defendants.
    Second, defendants need to be able to investigate their 
cases. When Congress passed the subpoena rule, Rule 17, it said 
the Rule is substantially the same as its civil counterpart 
which allows parties to seek documents leading to admissible 
evidence. The judge made limitations to render the Rule almost 
meaningless.
    Again, the revision needed is simple: Criminal Rule 17 
should be amended so it mirrors Civil Rule 45, as Congress 
intended it to do.
    Third, trial by surprise has to end. The Jencks Act allows 
prosecutors to withhold witness statements until after a 
witness testifies at trial. Statements need to be provided well 
before trial.
    Fourth, allow defendants to depose witnesses. This isn't a 
radical proposal. The State where I began my practice, Florida, 
allowed witness depositions, and this was way back in the 
1980s. Compelling pretrial testimony is a basic power enjoyed 
by every civil litigant and by prosecutors. It is absolutely 
wrong that accused citizens cannot do this.
    Making these simple changes will ensure that equal justice 
under law becomes a reality in this country.
    Thank you for the opportunity to address these issues. I 
look forward to answering your questions.
    [The statement of Mr. Cahn follows:]
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    Ms. Jackson Lee. Thank you so very much for your testimony 
as well, Mr. Cahn.
    Let me, as I begin, indicate again how crucial the role of 
each of you witnesses are in the order of justice, to provide 
us with the information that we are, in fact, needing to be 
able to address a myriad of issues, and particularly dealing 
with the question of justice, but also the question of freedom 
and the question of response to those victims, or families of 
victims as well, in this criminal justice system.
    Let me pause for a moment and determine whether Mr. Jordan 
has joined the hearing.
    Has Mr. Jordan joined? Mr. Biggs, has Mr. Jordan joined?
    Mr. Biggs. Madam Chair, I have reached out to him. He was 
on and I think he had to leave. So, I don't think he has come 
back on. I am sorry. I am sorry about that. Thank you.
    Ms. Jackson Lee. Not at all. We wanted to extend him a 
courtesy. Thank you, sir.
    Please, let him know that we wanted to make sure we 
extended to him a courtesy of his statement.
    Mr. Biggs. Madam Chair, I will.
    Ms. Jackson Lee. Thank you so very much.
    We will now proceed under the five-minute Rule with 
questions. I will begin by recognizing myself for five minutes. 
We will then work accordingly with our Members for this 
important hearing. Thank you so very much.
    Mr. Scheck, according to the September 2020 report from the 
National Registry of Exonerations, of the nearly 3,000 
documented cases since 1989 of people exonerated of crimes they 
did not commit, 44 percent involved government concealing of 
exculpatory evidence. What reforms would you propose to reduce 
the risk of wrongful convictions and ensure due process of 
people accused of federal crimes?
    Can you unmute?
    Mr. Scheck. Very simple. Open file discovery on the model 
of the Michael Morton Act in Texas. That is a really good 
statute. It also relies on pre-plea discovery. Everybody knows 
exactly what has not been disclosed, and the prosecutor's 
obligation should be carefully defined, is to turn over all 
information that tends to negate guilt or mitigate the offense.
    Let me say I subscribe to every one of the recommendations 
that Mr. Cahn put forward. They are critical if we can get them 
done. Depositions, like in Florida and lots of other states, 
that is crucial.
    The ability to issue subpoenas. No more trial by surprise. 
Everything that he put forward I subscribe to and adopt.
    Ms. Jackson Lee. Thank you very much.
    You also mentioned the whole idea of one in five pleading 
their case, and pleading a false confession. Do you have a 
solution to that?
    Mr. Scheck. Well, the things that lead to it I think, 
number one, of course, if you don't have discovery you wind up 
pleading. The cash bail situation there is no question puts 
pressure on people when they see there is no way for them to 
go, particularly, in misdemeanor cases.
    The trial penalty is crucial. We have to look at those 
mandatory minimums.
    I know that lots of our friends in the Cato Foundation, 
lots of different people recognize this problem. It is logical 
for so many people when charged with these mandatory minimums 
to plead guilty to crimes they didn't commit. So, I think that 
the bail situation, the mandatory minimums, trial penalty, 
those are all crucial reforms.
    Ms. Jackson Lee. Thank you very much.
    Mr. Graves, your legal case was full of injustices up to 
the very end. Step after step the prosecutor and investigators 
used unreliable information to put you on trial. The prosecutor 
in your case withheld exculpatory evidence from your counsel. 
The injustices started at the pretrial stage of the process.
    Immediately following your arrest, what were the first 
unjust acts of justices that led to your imprisonment? How 
should we prevent such injustices from happening to others in 
the future, Mr. Graves?
    Mr. Graves. Yes, ma'am.
    Ms. Jackson Lee. Yes. Thank you.
    Mr. Graves. Thank you for that question.
    Transparency, there was a lack of transparency at the 
initial stage. When I was arrested, and didn't know why I was 
being arrested, I asked the question. They wouldn't tell me. 
They took me to the police station. I am cooperating 110 
percent.
    I am asking officers because I am sitting there, could 
somebody tell me why I am here? Nobody would talk to me.
    Then, finally, they came in, read me my rights. If we would 
have had access to the intake video everyone would have seen 
Anthony Graves knew absolutely nothing about this case. That 
video never showed up until I was released.
    Also, they interrogated me for over 12 hours. At one point 
the White officers asked if they would just walk out of the 
room and leave me with the Black officers. Right? I am, like, I 
don't care. You don't have to leave because I don't have 
nothing to hide.
    Well, the Black officer asked me if he could record the 
conversation. I told him, sure, yeah. I don't care.
    We never heard that tape that we recorded. Why? Because I 
was telling him that I was innocent. That never came about.
    Lack of transparency is leading to wrongful convictions at 
the stage, at the pretrial stage.
    One thing I will say, is that when someone is in the 
custody of law enforcement, I don't think law enforcement 
should be able to talk to him without his attorney. Because 
that guy who is innocent, all he wants to do is tell the truth. 
He doesn't care about you telling him what you would be able to 
use against him, because he is telling the truth, not 
understanding that they are going to pick apart everything he 
said and try to use it against him. Because he is bungling at 
that stage.
    That was me. I just wanted to tell the truth. They picked 
apart what I was telling them and tried to make it seem that I 
was lying.
    Lack of transparency is leading to wrongful convictions. 
That is what I would say.
    Ms. Jackson Lee. Thank you so very much for that powerful 
testimony.
    My time has expired. I will seek another time to continue 
my questioning. At this time, I want to be able to yield to Ms. 
Bass. Is Ms. Bass?
    Ms. Bass?
    Ms. Bass. Ms. Bass is here.
    Ms. Jackson Lee. Wonderful.
    Ms. Bass. I would yield to you. You can take my time, and 
if I need some I will come back.
    Ms. Jackson Lee. Well, thank you. Are you sure, Ms. Bass, 
in relation to the five minutes? I will take a portion of it 
up. Do you want to go ahead at this time?
    Ms. Bass. No. You continue and I will take your last two 
minutes.
    Ms. Jackson Lee. You are very kind.
    Let me just continue with Ms. Camara. Ms. Bass has yielded 
to me, Members, so I am not on extended time. I thank her for 
her courtesy.
    Prosecutorial discretion over what charges are filed and 
what charges are brought in the pre-negotiation for each case 
means that prosecutors hold an immense power, amount of power 
in determining whose lives are defined by involvement in the 
criminal legal system and who can return to normal life.
    Can you just explain how an accused person's race affects 
charging decisions? Ms. Frazier Camara.
    Ms. Frazier Camara. Yes, Chairwoman Jackson Lee.
    In the federal system, African Americans are two times more 
likely to be charged with mandatory minimums compared to 
Whites. In the State system we see the use of habitual offender 
laws to result in a lot of racial disparity.
    As a former public defender, the reality is that we see 
every day in the courtroom that the charging decisions are 
influenced by implicit and explicit bias.
    Ms. Jackson Lee. Thank you.
    I am going to pause with a little bit of technical mishap 
here, and ask Ms. Bass to pause on the time, and ask staff to 
take note of the time remaining so that the clock can be 
cleared. We have three minutes remaining.
    We are going to turn to Mr. Biggs at this time.
    Mr. Biggs?
    Mr. Biggs. Yes, Madam Chair.
    Ms. Jackson Lee. You are not forgotten. You are recognized 
for five minutes. We are paused. Thank you.
    Mr. Biggs. Thank you. I appreciate that, Madam Chair.
    Ms. Jackson Lee. Recognized for five minutes.
    Mr. Biggs. Thank you. I appreciate the testimony of Mr. 
Graves was very powerful, as well as Ms. Rodgers.
    Several states, including California, Maryland, New Jersey, 
and New York have modified their--
    Ms. Jackson Lee. Mr. Biggs, if you suspend. The clock needs 
to be on five minutes for Mr. Biggs, please, back to five 
minutes.
    All right, Mr. Biggs, continue. Your clock should start at 
five minutes.
    Mr. Biggs. Great. Thank you.
    Several states, including California, Maryland, New Jersey, 
and New York have modified their bail practices to eliminate or 
de-emphasize the use of monetary bail systems. Many of these 
reforms have resulted in increases in property and violent 
crime.
    As I mentioned in my opening statement, one New Jersey 
assemblyman referred to it as an ``absolute disaster,'' and 
further stated that ``the public safety needs of citizens in 
New Jersey have suffered far greater than could have been 
imagined.''
    Ms. Rodgers, your testimony was compelling. Your story was 
truly moving. I am very, very sorry to hear about the loss of 
your son Christian to a convicted felon who was released on 
bail. I can't imagine your pain and I appreciate you being 
willing to share your story today and your efforts in your 
community to make policy changes.
    I understand you are the New Jersey Chair for the Victims 
Rights Reform Council, which is a non-profit organization. In 
that role, you are a voice for crime victims, and you wish to 
raise awareness. Could you please elaborate why you oppose bail 
reform as implemented in the State of New Jersey and elsewhere?
    Ms. Rodgers. Okay. It is because I think that when 
releasing these people back onto the streets with no bail, no 
supervision whatsoever, they are not considering the victims.
    We have here in New Jersey about 500 Members in our 
organization. A lot of their stories are pretty much the same. 
The guy or the perpetrator is released with no supervision just 
because the computer system says that they are not a threat. 
Then they will come right back out and commit more offenses, 
and a lot of them are deadly.
    So, now we have people not wanting to speak up or even 
report the crime because as soon as the person gets arrested 
they are right back out. We have to look at these people 
because they are coming right back into the same neighborhood. 
We are absolutely terrified. It is not right.
    Something should really be done about this. When we had the 
old cash system at least we could call whoever is holding their 
bond and say, hey, this guy is riding around with firearms and 
shooting up our convenience stores, or whatever. Someone would 
go and pick them up. It would not cost us anything.
    I work very, very hard. I know that my taxes are going to 
fund this cashless system with the ankle monitors and what have 
you. It is a mess. You will have to excuse me because, I get a 
little emotional every time I start talking about this. It is a 
shame.
    Then, it is like no one is listening to the victims. No one 
is taking this into consideration that we are the ones that are 
living this nightmare. It is just unbearable.
    Mr. Biggs. Thank you, Ms. Rodgers, for sharing that and 
explaining the situation regarding the release of the person 
who murdered your son. I appreciate you, again, being here.
    Ms. Hanisee, some witnesses have offered suggestions for 
reforms. Of those reforms, are there some that you would 
support and then are there some that would have negative 
ramifications in investigation or prosecuting of defendants?
    I am thinking of the open discovery that Mr. Scheck 
mentioned, as well as Mr. Cahn's pretrial witness deposition 
mandate. So, what do you think there, Ms. Hanisee?
    Ms. Hanisee. Yeah, there are some that I agree with and 
some that I don't. I want to say up front, I don't believe that 
Brady has failed. Citing a handful of cases where it didn't 
work is like saying seatbelts don't work because some people 
wearing them died in car crashes anyway.
    That said, the federal rules of discovery require far less 
disclosure than California rules. We do not have a Jencks Act. 
There is no specific Rule in California, and I wouldn't condone 
implementing such a Rule in California. All discovery is 
provided prior to trial. We don't withhold discovery pending 
plea.
    However, I don't think that open discovery is workable. 
There is too much information that really involves a lot of 
personal information about victims and witnesses that has to be 
closely guarded, and internal systems like rap sheets that has 
basically everything an individual would need to commit 
widespread identity theft, or use the information to identify, 
threaten, harass, and injure victims and witnesses.
    I also really do not believe at all that victims should be 
compelled to submit to depositions as in civil cases 
depositions are used to harass and intimidate witnesses. 
Compelling them to submit to repeated interviews against their 
will is a violation of their rights and disturbs their peace of 
mind, especially for child witnesses and witnesses of crimes 
like sexual assault and abuse. Repeated interviews for these 
victims just increase the psychological damage that they are 
subject to.
    This is where the rights and the needs of the victims and 
witnesses really need to be balanced against misuse.
    Mr. Biggs. Thank you. I yield back, Madam Chair.
    Ms. Jackson Lee. Thank you so very much, Mr. Biggs.
    Now, I am going to yield to Ms. Bass. Are you ready, Ms. 
Bass? You have three minutes remaining on the clock.
    Ms. Bass. Yes, thank you. I will just ask one quick 
question.
    I wanted to understand the impact of this system on 
juveniles, the young people that are involved in the juvenile 
justice system. Any of the witnesses, please.
    Ms. Frazier Camara. Representative Bass, I am happy to 
answer. When we look at the juvenile justice system, we see 
disproportionate minority representation in pretrial phases. 
Specifically, you see 62 percent of children who are held 
pretrial in juvenile adjudications are children of color.
    So, similar to the adult system, despite a lot of reforms 
that have taken place within the juvenile system, we still see 
glaring disparities around what children are held in detention 
facilities.
    Ms. Bass. Yes. Given the disparities, I would certainly 
like to know what kind of reform some of the other witnesses 
feel should take place.
    I know California is quoted a lot. Of course, I would 
disagree that everything is in disarray in California or the 
reforms are not working. Even before the reforms passed there 
was moves to repeal them. So, and some reforms weren't even 
given an opportunity to be implemented.
    I do think in California what we should have done is we 
could have built out the prevention side before we actually did 
some of the reforms.
    Anyway, maybe one of the other witnesses could explain, 
especially the woman representing the D.A.s could explain what 
type of reforms are needed, given the extreme disparity.
    Ms. Hanisee. Well, one type of reform I would like to see 
specifically to the juvenile system is just more funding, more 
funding for the juvenile justice system, and more funding for 
those facilities where juveniles are, unfortunately, 
incarcerated. When we are talking about juveniles, sometimes we 
are talking about people who are 17 years old and 6,1".
    We had an unfortunate incident recently where a, I believe 
it was a social worker in one of our juvenile facilities was 
beaten to death by a number of the individuals being held 
there. Some of them were juveniles and they have now killed 
this man who was a social worker.
    Ms. Bass. Excuse me. Let me reclaim my time. Yes, I am 
actually aware of the case that happened in Los Angeles. The 
vast many juveniles that are in the system, you can quote an 
extreme case.
    In California we have moved to shut down juvenile prisons, 
period, and to transfer it over to Health and Human Services. 
Given the science that we know now about brain development and 
the responsibility of juveniles, clearly different things need 
to be done instead of what is the current system.
    Ms. Hanisee. Well, as I say, encourage further and more 
extensive funding of the juvenile system. If you have ever been 
to the Eastlake Juvenile Facility, it is terrible. It is 
terrible. So, put more money into research and preventing these 
individuals from entering the system, and more resources in 
rehabilitating them once they are in.
    Ms. Bass. I will yield back my time in a minute.
    That doesn't speak to the type of reforms that need to be 
done. I agree there needs to be more funding.
    I yield back to you, Madam Chair. Madam Chair?
    Ms. Jackson Lee. Yes. Thank you so very much for yielding 
back, very much. You have asked a very important question.
    I don't know if I can get one in in the next one minute, 
but I will quickly try to do so with Mr. Camper Cahn before I 
yield over.
    Mr. Camper Cahn, what are the most pressing problems 
involving law enforcement's use of informants in federal cases? 
How can we best address them?
    I basically have 53 seconds. We will come back to you, but 
are you able to respond, Mr. Cahn?
    Mr. Cahn. Yes. I am sorry. I need to remember to unmute.
    Thank you for your question. So, I think that I should 
begin by noting that no one should be particularly surprised 
that informant testimony is at the heart of some of the most 
egregious failures in our system. If I responded to your 
question by proposing that the way to address the problem is 
really to level the playing field and allow defendants to pay 
for testimony and for the results of testimony we would all 
think it absurd because we would all understand that it is not 
the way to produce a reliable system that we can trust.
    If we are going to use informants in the system, if they 
are going to continue to be a part of the system, we are going 
to pay people for their testimony through freedom or in other 
goods, then there are two practical solutions that I could 
suggest to reduce the risk of wrongful conviction and to 
increase fairness.
    The first of these is to mandate recording of all 
interaction between informants and law enforcement from minute 
one, and to turn that over to the defense. The reason is this 
way juries can understand exactly what implicit promises and 
assurances are given to informants, not merely the explicit 
promises.
    The other thing is that juries can see the small and subtle 
way that informants shape their testimony to fit prosecutors' 
narratives. In the cases in which--
    Ms. Jackson Lee. Mr. Cahn, my time has expired.
    Mr. Cahn. Sorry to go over.
    Ms. Jackson Lee. We will let you finish that at another 
opportunity if we are able to take a second round. Thank you so 
very much.
    Let me yield now to Ms. Spartz for five minutes.
    Ms. Spartz. Thank you, Madam Chair. I appreciate this 
informing conversation. I have to tell you, I agree that 
alternatives as the ineffective pretrial services could be 
beneficial to both the problems that are mentioned.
    Ms. Jackson Lee. Are we able to hear Ms. Spartz? Ms. 
Spartz?
    Mr. Cicilline. I think she is frozen, Madam Chair, and 
nobody can hear her.
    Ms. Jackson Lee. Then, do you know, Mr. Biggs.
    Mr. Biggs. Madam Chair, I am trying to reach out to her, 
but she looks to be frozen. So, if you could go to our next, 
next questioner on our side, that would be great. Thank you.
    Ms. Jackson Lee. All right, I will do so. Do you have the 
list of the next individual, Mr. Biggs? Is she back?
    Mr. Biggs. I have the list. The next one would be 
Representative Chabot from Ohio.
    Ms. Jackson Lee. The clock will go back to five.
    Mr. Chabot, you are recognized for five minutes.
    Mr. Biggs, you work with Ms. Spartz.
    Mr. Biggs. I will, Madam Chair.
    Ms. Jackson Lee. Mr. Chabot, you are recognized for five 
minutes. Thank you, Members, for bearing with us.
    Mr. Chabot? Can you unmute, Mr. Chabot? Is he present?
    Mr. Cicilline. I am not sure he is still with us, Madam 
Chair.
    Ms. Jackson Lee. All right. Mr. Biggs, do you have another 
person?
    Mr. Biggs. Yes, Madam Chair. I have next Mr. Tiffany.
    Ms. Jackson Lee. Mr. Tiffany. Mr. Tiffany, you are 
recognized for five minutes. Unmute.
    Mr. Biggs. Is he still there?
    Ms. Jackson Lee. It is on you, Mr. Biggs.
    Mr. Biggs. Madam Chair, it looks like Mr. Massie. I am 
pretty certain he was, he was there just a second ago, so let's 
try that.
    Ms. Jackson Lee. Mr. Massie, I am prepared to recognize you 
for five minutes.
    I don't see Ms. Spartz back.
    Mr. Biggs, you are on again.
    Mr. Biggs. Then, I will go to Mr. Owens, Madam Chair, Mr. 
Owens whom I see.
    Ms. Jackson Lee. Mr. Owens, can you unmute?
    Mr. Owens. Yes, thank you so much. I just want to take a 
couple minutes.
    Ms. Jackson Lee. You are recognized for five minutes.
    Mr. Owens. Can you hear me okay? Am I coming through? Am I 
coming through, okay?
    Ms. Jackson Lee. Yes. You are recognized for five minutes.
    Mr. Owens. Okay. Mr. Biggs, if there is anybody who wants 
to take over my last, I just want to have a couple comments I 
just wanted to say here.
    Earlier we were talking about the juvenile system. I think 
it is very important that we recognize that this has nothing to 
do with the color of a person's skin. It is policies, it is 
around these young people that have put them in a position 
where they have really no hope.
    I am speaking from an environment which I grew up in at a 
time we had 70 percent of Black men committed to their marriage 
and children. We now have flipped that over upside-down based 
on policies. We now have in the State of California, 2017, a 
DOJ, a DOE study, 35 percent of Black boys in the State of 
California in 2017 cannot pass standard reading and writing 
tests.
    So, what we have, you wonder why there is such a 
disproportionate number of Black men, boys and men, is because 
we are not giving them opportunity to work, to get instructed, 
to be educated. To tie this into just the color of their skin 
is not correct. We need to make sure we are tying it to the 
policies that has put these Black families in the place that 
they are in right now.
    Also, making sure that those families are still trying to 
find safety and their communities are safe. In the beginning of 
the day we have bad people being released into a community of 
good people, bad people will end up causing havoc and 
terrorists and fear. We just cannot allow that to happen.
    So, let's make sure as we go through this process of reform 
that we look at the beginning, the genesis of this. It goes 
back to the family unit has been turned upside-down over the 
last 50 or 60 years by policies purposely put in place to make 
sure that our young people do not have hope in our country, do 
not believe in themselves. They are angry and they will go out, 
therefore, and do things that is not going to give them the 
opportunity to have the American experience, the American 
dream.
    Just wanted to make that real quick point because of my 
experience, again, of starting a program here in Utah, Second 
Chance for Youth. I am the founder. So, I have been working 
with the juvenile system for the last three or four years. It 
has been a dream of mine for decades. My dad and I talked about 
how we can get our young people believing in our country again. 
It comes down to policies, my friends. So, let's make sure we 
change those policies to give our kids hope that they can 
succeed and move forward.
    I yield back.
    Ms. Jackson Lee. The gentleman has yielded back.
    I now recognize Ms. Demings for five minutes.
    Ms. Demings. Good afternoon, everybody. I want to thank the 
chair and the Ranking Member for this hearing, ``From Miranda 
to Gideon.'' I am quite familiar with both.
    I truly believe that the level of representation a person 
is able to receive, or how long a person sits in jail waiting 
to go before a judge, should not be determined by a person's 
ability to pay. Everyone knows I spent 27 years in law 
enforcement. During that time, I served in every rank, 
including the rank of chief of police.
    I served as a detective and as a detective sergeant. I took 
my oath to the Constitution. I say that with perfect peace. I 
took my oath to the Constitution very seriously. I do believe 
that in any state, anyone who was treated unfairly, inhumanely, 
or trapped into making a false statement deserves justice.
    I am glad we are advocating on their behalf. Mr. Graves, I 
cannot imagine serving 18 years on death row as an innocent 
person. Hear me clearly: That is shameful.
    Ms. Rodgers, my heart goes out to you and your family for 
your loss.
    Today, Madam Chair, I chose to advocate on behalf of 
victims of crime. As we well know, victims come in all ages, 
genders, cultures, and races. Too many of the victims during my 
experience as law enforcement, let me make this clear, look 
just like me.
    It appears we seldom remember the victims, their faces, 
their stories, their voices, and their rights these days. The 
victims in Georgia and Colorado have a right to live, and so 
many other sons and daughters who have been gunned down in a 
country that we say is the greatest country in the world.
    Let's remember the victims who have been raped, robbed, and 
assaulted, victims of economic crimes and had their life 
savings stolen from them. People who have been victims of hate 
crimes--that is a familiar one these days--because of who they 
are or who they love.
    Today, Madam Chair, I choose to use my very limited time 
advocating for the victims of crime. I will continue to use my 
time, my talent, and my energy to advocate for justice, which 
does include justice for the victims.
    With that, Madam Chair, I yield back.
    Ms. Jackson Lee. I thank the gentlelady for her eloquence, 
and she is well positioned on this Committee to find the kind 
of balance and respect for those unjustly accused and 
convicted, and as well as she so eloquently said, those who are 
victims. Because isn't it interesting, those individuals seem 
to fall heavily in communities of color, and particularly, 
African-Americans? So, thank you for your testimony/statement 
today, as a member. Thank you so very much. I appreciate it.
    It is now my desire, Mr. Biggs, to call upon a member. Is 
Ms. Spartz ready?
    Ms. Spartz. Thank you, Madam Chair.
    Mr. Biggs. Here she is. Thanks.
    Ms. Jackson Lee. Yes, Ms. Spartz, you are recognized for 5 
minutes. Thank you.
    Ms. Spartz. Okay. Thank you very much.
    I appreciate this hearing today. In fact, for trial 
services for lower-risk crimes, low-risk offenders, it could be 
very beneficial. Actually, I talked to Stephanie Ruggles. She 
is Director of Pretrial Services in Hamilton County, Indiana, 
in my district. They really have a gold-standard system with 
involvement of stakeholders, and then, other wraparound 
services, job placement, housing placement, and with safety 
rates--87 percent of the people don't come back into the 
criminal justice system.
    It is important to have an effective mechanism. When I 
discussed with her what are really some of the things that made 
the system successful additional to all of the involvement of a 
variety of stakeholders, she mentioned, also, very effective a 
pretrial risk assessment tool which was validated with 
researchers.
    So, my question is for Ms. Hanisee. What other things have 
you seen in the system that have been working effectively to 
make sure that we have the right mechanisms/tools to 
rehabilitate people that have a right framework and things that 
may be a factor; make sure that we give people second chances, 
but also have a proper system that addresses really harsh 
crimes? So, what things could you suggest?
    Ms. Hanisee. Well, I would suggest putting far more 
resources and far more study into rehabilitation before 
releasing individuals early, particularly violent, and serious 
offenders, to make sure they are rehabilitated before you start 
releasing them early. Unfortunately, the California Department 
of Corrections and Rehabilitation and the Los Angeles County 
Probation Department have a woefully poor rate of 
rehabilitating individuals. I just don't think they put the 
same resources into that. It is a government agency; they have 
limited resources, as do all government agencies, including my 
office.
    There are groups in Los Angeles who have been successful at 
very rehabilitation, including rehabilitation of violent 
offenders. One, in particular, is the Anti-Recidivism Coalition 
in Los Angeles, but it is a resource-intensive program. That 
said, they have very low recidivism rates for their offenders. 
They have what they all credible messengers who enter the 
prisons and start working with individuals in prison while they 
are still incarcerated. They have had very successful rates. As 
I said, it is a labor- and resource-intensive process, and they 
are also really strict with their people they are supervising. 
They will violent someone or refer them to the court for 
violation for really very minor infractions, and they are 
strict. I think that the level of accountability, combined with 
the credible messenger aspect, is what has made them really 
successful.
    Ms. Spartz. Okay. Thank you. I yield back, Madam Chair.
    Ms. Jackson Lee. Thank you so very much, Ms. Spartz, for 
your participation.
    I am now delighted to yield 5 minutes to the gentlelady 
from Georgia, Ms. McBath.
    Ms. McBath. Thank you so much, Madam Chair.
    First and foremost, I just want to say thank you. For 
everyone that is here today, thank you for expertise and thank 
you for sharing your stories with us as to how we are going to 
be able to really promote public safety while also making sure 
that our courts are seeking true justice.
    I especially want to thank those of you that are here today 
to share your personal stories. Mr. Graves, I am so sorry for 
your incarceration, your unjust incarceration, and I am so 
happy that you are free here today to be able to testify before 
us.
    Of course, Ms. Rodgers, I am so, so sorry for your loss, 
and I can honestly say that with full empathy to my core 
because I know the pain of losing a son to senseless gun 
violence, and there are just absolutely no words that can bring 
back your son, Christian, just as there are none that can bring 
back my son, Jordan. I know that, as mothers, all we can do is 
just completely speak our truth and share our stories. So, I 
thank you for being here today to tell us about your son.
    I think it is critical that we always continue to hear from 
victims and survivors of gun violence and listen to their 
needs.
    Last week, we were able to pass a bipartisan bill to 
support services for victims of crimes and their families. I 
know how important that funding is, so that so many of our 
communities and families can try to heal again. We can never 
bring back a loved one, but I hope that our bipartisan bill to 
fix the Victims of Crime Act funding will give meaningful 
support to those who really, really need it.
    Mr. Graves, I will start with you. Your testimony speaks to 
the potentially enormous human toll that can come from wrongful 
detentions. We know that pretrial detention can absolutely be 
deadly, and unfortunately, according to the Bureau of Justice 
Statistics, suicide continues to be the leading cause of death 
in jails, where many people are held for pretrial detention.
    Mr. Graves, during your pretrial detention, do you ever 
recall if you had any access to mental health services?
    Mr. Graves. Thank you so much for asking me that question. 
No, I don't recall. I never had access to any mental health 
treatment.
    Ms. McBath. I am sorry to hear that. Yes, I am sorry.
    Mr. Graves. Yes, I was in jail for two and a half years 
before trial.
    I just want to--bail reform is hard--I just want to address 
something I heard earlier. Bail reform is hard, and my heart 
goes out to Ms. Rodgers and you for losing your child. I sat in 
jail for two and a half years with no bond, and I was 
absolutely innocent; wasn't even in the same town that the 
crime happened in; had an alibi, witnesses who knew I was home. 
I was with my family. I sat in jail two and half years with no 
bond. So, I understand that. Are we going to be a Nation of 
laws or what? Because we are supposed to be presumed innocent 
until guilty.
    So, are we going to be a Nation of laws? If we are, then we 
have to actually let people out that hasn't been convicted. Are 
we going to massage that law, and we are going to decide based 
on our emotions whether this person should stay in jail or not 
because he done something to me? Our system cannot be based 
around someone's personal experience, but it has to be what is 
best for us and the society. I am saying, if I am innocent 
until proven guilty, why am I still in jail for two and a half 
years for something I didn't do?
    Ms. McBath. Thank you.
    Mr. Graves. So, it is very hard.
    Ms. McBath. Well, thank you so much for that, Mr. Graves. 
Once again, we are so, so sorry for the injustices that you 
have suffered.
    I like to move on. Ms. Dharia, your testimony noted that, 
among those listed in the National Registry of Exonerations, 70 
percent of those with a mental illness or intellectual 
disability made a false confession. What can we do to enable 
public defenders and mental health professionals to identify 
those with mental illness and prevent false confessions?
    Ms. Dharia. Thank you and thank you for the question.
    I want to sort of echo condolences to those who have shared 
their personal experiences as well and offer some thoughts 
about how we can identify precisely the kinds of things that 
you have mentioned. The vulnerabilities of people that are 
impacted by the system, right, are broad. They span youth in 
terms of age of people who are impacted, mental health issues, 
intellectual disability, sophistication in terms of 
understanding the legal system and how it works. There are a 
number of pieces there in which people can be further 
victimized and harmed by the process, in which we need to take 
safeguards to ensure they are not.
    With respect to false confessions, in particular, there are 
scores of reports and studies and pieces of evidence that 
support a number of reforms that can minimize the number of 
false confessions. I have named some of them earlier, as have 
Mr. Scheck and others. First and foremost, access to counsel, 
and meaningful access to counsel. Counsel should be made 
available at the time of arrest and made available at police 
stations. Currently, our system allows for the invocation of 
the right to counsel, but that doesn't actually mean that 
counsel should--
    Ms. Jackson Lee. Ms. Dharia, wrap up your answer.
    Ms. Dharia. Okay.
    Ms. Jackson Lee. If you could summarize your answer, 
please?
    Ms. Dharia. Sure. So, access to counsel, eliminating the 
ability of police and law enforcement to lie, which is 
currently fairly unfettered, and ensuring that there are time 
limits on detentions as well. So, those are all measures that 
could be taken immediately to address the likelihood and 
prevalence of false confessions.
    Ms. Jackson Lee. Thank you.
    Ms. McBath. Thank you so much for your answers.
    I yield back.
    Ms. Jackson Lee. I thank the gentlewoman for her important 
questions as well. Thank you.
    Let me now yield 5 minutes to Mr. Fitzgerald. Mr. 
Fitzgerald, you are recognized for 5 minutes. Can you unmute, 
please?
    Mr. Fitzgerald. There we go, sorry about that, Madam Chair.
    Ms. Jackson Lee. That is okay.
    Mr. Fitzgerald. We don't have private bail bonds in 
Wisconsin. We don't have it. We haven't had it since 1979, and 
I think there are three other states. If I am correct, I think 
Oregon is one of them. I think Kentucky. Mr. Massie might want 
to talk about how they do it in Kentucky. I don't think they 
are all the same. I know this is a very broad hearing we are 
looking at, but there are very specific things I think that the 
states are doing that could be applied. It is worth examining.
    The one thing I just wanted to go back to--I think that Ms. 
Hanisee had touched on this, but it might be lost, and that is 
that, under federal rules on criminal procedure, the Supreme 
Court precedent ensured that defendants, obviously, get a fair 
trial under due process with the Fifth and Fourteenth 
Amendments. I think what is lost sometimes is, can you walk us 
through kind of why pretrial detention is really more based on 
the risk of harm to the public and to the victim, and then, 
flight risk as well? I mean, this isn't about the individual's 
prior record or convictions. It is about a snapshot right there 
in front of the bench on whether the person is a flight risk. I 
am wondering if you could just address that.
    Ms. Hanisee. Yes. Prior to some recent changes, bail was 
based upon the crime charge, and it was presumed to be an 
accurate charge. It is, in a sense, based on the person's 
history, not so much criminal history, but if they have had 
prior failures to appear, which are recorded on rap sheets. If 
they have had a failure to appear in court, or willful failure, 
that information will be in their probation reports or with 
their rap sheets. That is a legitimate consideration for the 
court. If they have previously been ordered to appear by a 
court and willfully failed to do so, that is a significant 
consideration, but, also, the crime charged, and the nature of 
the crime charged. Clearly, it is a risk to the public and a 
risk to the victims to allow individuals who have committed 
violent offenses to be released into the public, particularly 
in those crimes that target known individuals. I am talking 
about domestic violence, child abuse, child molestation, rapes, 
and those types of offenses where the perpetrator is fixated on 
an individual.
    I will also mention stalking. We have a lot of celebrities 
here in California and we have some people who, unfortunately--
and probably due to some mental health issues--do stalk 
celebrities here, and it can be quite frightening and 
dangerous. The fact that someone suffers from mental health 
issue doesn't mean that they cannot also perpetrate a violent 
crime.
    So, those are the kinds of offenses and the types of 
circumstances that the judges should be able to evaluate and 
look at in determining whether a person is appropriate for 
pretrial release.
    In comparison, for misdemeanor offenses and nonviolent 
offenses, the detention levels are very low and minimal because 
they are not an immediate risk to the public and to public 
safety.
    Mr. Fitzgerald. Very good. Thank you, Madam Chair. I just 
wanted to touch on that point and appreciate the time and the 
hearing this morning. I yield back.
    Ms. Jackson Lee. We thank the gentleman for his time, and 
we thank the gentleman for yielding back.
    It is my pleasure now to yield 5 minutes to the gentlewoman 
from Pennsylvania, Ms. Scanlon. Ms. Scanlon, you are recognized 
for 5 minutes.
    Ms. Scanlon. Thank you. Thank you very much, Madam Chair.
    Thank you all for being here.
    As we are talking about these important issues, of course, 
we each bring our individual experiences to the conversation. I 
am particularly concerned about how pretrial practices impact 
juveniles in our criminal justice system, and particularly, how 
insufficient access to counsel and manipulative investigatory 
techniques can lead juvenile defendants to confess to and 
accept plea bargains for crimes they didn't commit.
    Before I came to Congress, I often worked at the 
intersection of child advocacy and the school-to-prison 
pipeline, including participating in the defense of some 
children who were caught up in what became known as the ``kids-
for-cash'' scandal in Pennsylvania. For those who don't know 
about it, between 2003 and 2008, hundreds of Pennsylvania teens 
were sentenced to for-profit detention centers in which the 
sentencing judges had a financial interest, often after they 
had been pressured to waive their right to counsel or confess 
to crimes that they didn't commit.
    Since coming to Congress, just in the last two years, I 
have seen two juvenile detention centers in my district close 
after widespread abuse of the children who had been housed 
there. In some of the most heartbreaking cases, it appears that 
juveniles who were sent to the detention centers for allegedly 
having committed misdemeanors were, then, beaten by guards, and 
when they tried to fight back, they ended up charged with 
aggravated assault felonies and sent to adult prison.
    So, the Supreme Court has long held that juveniles lack the 
maturity and mental acuity to be treated as adults in our 
justice system--underdeveloped sense of responsibility; they 
can be impetuous. Basically, their prefrontal cortex has not 
completely developed. So, that is the angle that I am 
interested in with your testimony.
    Ms. Dharia, you testified about the human cost of removing 
people from their homes and families. Can you speak to the 
impact of the human cost on juveniles of removing them with 
pretrial detention?
    Ms. Dharia. Absolutely. Thank you for the question. The 
human cost of removing anyone from their communities is 
tremendous, and we shouldn't underestimate it in any of these 
conversations. Juveniles, of course, have their lives ahead of 
them. The earlier that we start exposing them to the trauma and 
harm of the pretrial detention system or the carceral system at 
all, the more we are setting people up to continue the cycle of 
harm. It is a cycle, right? We respond to harm and trauma with 
additional harm and trauma, and none of it adds up to healing 
or to safety or to health.
    So, acknowledging that early, when children should be in 
school, when children should be supported by their communities, 
and at home with their families, and learning to socially 
develop--and rather than providing all of those things and 
investing in that, we are exposing them to violence, to harm, 
to coercion, and to trauma.
    I think an important piece of this as it relates to, as you 
mentioned, in particular, confessions and coercion by law 
enforcement, and this is true for adults as well--that the 
people at this stage of proceedings are presumed innocent, and 
that the law enforcement approach currently presumes guilt, 
right? A lot of these coercive tactics, a lot of these attempts 
to extract confessions and to lie to get certain responses, 
presume guilt, and that is not what our law demands and it is 
not what law enforcement should be engaging in. So, that is an 
important precursor to addressing the further harm of pretrial 
detention.
    Ms. Scanlon. Thank you.
    I would love to speak to all of you all day.
    Mr. Scheck, your testimony touches on several issues that 
have impacted the juvenile defendants whom I am thinking about 
in these questions. Could you address how juvenile defendants 
may be impacted by--we have talked a little bit about dissent, 
interrogation, pressure to avoid the trial penalty, and how 
holistic defense mechanisms might help them, such as through 
special education, mental health supports, et cetera.
    Mr. Scheck. Yes, I would be glad to. One need not say 
anything more than the exonerated five in New York or Kalief 
Browder, somebody that was held in on cash bail and suffered 
terribly, and was there forever in terms of solitary 
confinement.
    The American Psychological Association has issued clear 
papers about the increased risk of false confessions among 
juveniles. That is why eliminating deception, in particular, by 
law enforcement in terms of interrogations is extremely 
important, certainly when juveniles are concerned. Of course, 
the recordation, and most importantly--in some ways, people 
overlook this--that there should be a requirement, a factor for 
courts to consider, that the confession received, particularly 
from a juvenile, is reliable. In other words, there is 
corroborating evidence that shows that a juvenile's 
confessions, or anyone who is confessing to a crime, with 
information that only the real perpetrator and the police would 
know, where they said something that led to other incriminating 
information. Without that reliability requirement, which, 
unfortunately, in Colorado v. Connelly, the Supreme Court has 
not given us, courts cannot intelligently assess confessions to 
see whether they are reliable and not false.
    Ms. Scanlon. Thank you, and I yield back.
    Ms. Jackson Lee. Thank you very much for your testimony. 
The gentlelady yields back.
    Now, I would like to recognize Mr. Massie for 5 minutes.
    Mr. Massie. Thank you, Madam Chairwoman, for having this 
important bipartisan Committee hearing.
    Ms. Dharia, you touched on speedy trials, and I would like 
to relate a story for when I was county executive. Our biggest 
line item in the budget next to the roads was the jails. I 
noticed a pattern over there. We had overcrowding and they were 
always trying to get us to build more jails. That wasn't the 
problem. The problem is we had too many people awaiting trial.
    There was this perverse incentive for the judges at the 
State level to keep inmates in there because they would pull 
them out after 16 months, and then, encourage them to plead 
guilty for time served. Now, the interesting thing is the 
counties paid for the time served. It went to the county 
budget, and the State didn't have to pay for the incarceration. 
So, in Kentucky, at least, we have got the State pushing the 
burden of incarceration, the fiscal burden, onto the counties. 
So, they have this incentive to get the inmates to serve time 
in county jails before they come up.
    This wouldn't be a problem, and unreasonable bail wouldn't 
be a problem, if we actually just followed the Sixth Amendment, 
I feel like. What is right now the accepted threshold for a 
speedy trial in the Supreme Court or elsewhere?
    Ms. Dharia. Well, as you have described, even just 
describing the county and the State differential there, rules 
differ by state. Our criminal justice system is a completely 
piecemeal jigsaw puzzle of rules and statutes, and the 
approaches to them have been different everywhere, particularly 
in the pandemic when a lot of jurisdictions attempted to 
address their speedy trial statutes and to expand the time that 
people could be held to try to manage the pandemic. DOJ did 
that for the Federal Government as well, where U.S. Attorneys 
were seeking to enlarge the time that people could be held. So, 
there is not clean answer to the question of how long people 
are traditionally held or generally held in different places.
    I do think that your question, though, touches on a bunch 
of these different issues that people have been discussing 
today because they all relate to each other, right? The 
question of pretrial detention being part of how pleas are 
coerced, and the question of whether discoveries provided 
earlier in the process, so that people can make decisions and 
move on--these are all interconnected and they relate to the 
amount of time that people spend pretrial and to when and how 
they can make informed and voluntary decisions. So, I think 
they are all interrelated.
    Mr. Massie. Since you mentioned discovery, that is a good 
transition into my next question, which deals with facial 
recognition. You sort of have this same problem when you use 
canines to establish probable cause. How do you cross examine a 
canine? I think you shouldn't be able to use a dog to establish 
probable cause because, really, it is up to the handler to say 
that the dog saw something or smelled crack instead of a 
cheeseburger.
    Now, I am worried that we are going to have this same 
problem with facial recognition. How do you cross examine an 
algorithm, and will the Brady material be available? The 
algorithm identified 10 other suspects that aren't being 
prosecuted. Is that made available?
    So, if any of the witnesses would like to speak to that, I 
would like to open that up for a brief comment.
    Mr. Scheck. Yes, I can address that. You are absolutely 
right in terms of facial recognitions because there is no clear 
discovery of close matches. The way it comes into courts right 
now is that it is viewed as a, quote, ``investigative lead,'' 
unquote, right? So, we don't even have to disclose it to you--
it is an investigative method.
    If I could go back just one minute, because, Mr. Massie--
    Mr. Massie. I will give you 30 seconds.
    Mr. Scheck. You made a great point about pretrial detention 
and exactly the situation you described. I don't want to leave 
without calling attention to holistic representation. There is 
this amazing study out of the Bronx where they compare holistic 
representation to traditional defense. It found that, over a 
10-year study, in terms of pretrial custodial sentences, and 
custodial sentences overall, a 15 percent decrease, 1.1 million 
fewer days of custodial punishment. It was a huge savings. It 
is a much better way to do defense, and it really will promote 
safe communities.
    Mr. Massie. Thank you.
    In my remaining 30 seconds, I want to point out that the 
racial and economic injustice extends beyond those who are 
incarcerated. Ms. Camara mentioned that African-American males 
are six times more likely to be incarcerated than Caucasian 
males. Well, when you go do an instant background check to 
purchase a firearm, it turns out that, within races and 
ethnicities, a lot of people share the similar surnames. I have 
been trying to get from the DOJ and the ATF, because they 
collect this data, the false-positives that occur at a higher 
rate among minorities when they go to try and purchase a 
firearm. There were 112,000 denials in the last year we have 
data and only 12 prosecutions. Most of the denials are false, 
and I am very concerned that a lot of those denials are 
racially biased because of the mass incarceration of African-
American males and the fact that a lot of Latinos share 
surnames among them. So, just maybe we could get that data from 
the DOJ at some point.
    Thank you.
    Ms. Jackson Lee. Mr. Massie, your time has expired. Even 
though your particular example will be challenging to some of 
us who certainly want the legal purchase of a gun, but we 
certainly don't want the illegal purchase--
    Mr. Massie. Correct.
    Ms. Jackson Lee. You are making a very good and I hope that 
we will have a bipartisan opportunity to work on some of the 
issues that you raise as it relates to pretrial detention and 
pretrial procedures.
    Mr. Massie. Thank you.
    Ms. Jackson Lee. Thank you so very much for your 
questioning.
    It is my pleasure now to recognize Ms. Cicilline for 5 
minutes. Thank you for your presence.
    Let me also acknowledge Ms. Dean as well being present at 
the hearing today.
    Mr. Cicilline, 5 minutes, and you are recognized. Thank 
you.
    Mr. Cicilline. Thank you, Madam Chair.
    Thank you to our witnesses. It is great to see all of you, 
and thanks for your testimony.
    Of course, I, too, want to extend my condolences to Ms. 
Rodgers for her terrible, terrible loss and to Mr. Graves for 
what you experienced. Thank you both for your willingness to 
share your stories.
    Mr. Scheck, thank you for the great work that you do. It is 
good to see you again.
    It seems like the reliance on these false confessions that 
are produced as a result of deception by law enforcement is a 
pretty easy thing to fix by simply prohibiting that practice. 
Do you agree, Mr. Scheck? I think you are on mute. I think you 
are muted.
    Mr. Scheck. Sorry.
    I absolutely agree. I think what is fascinating now is, if 
you look at experts in interrogations who deal with high-valued 
detainees, one of the major companies is Wicklander-Zulawski--I 
can't pronounced their name--the professional interrogators, 
they don't believe in deception. They know this can produce 
false confessions. It is a simple thing. The legislation is 
good. They don't do it in Europe.
    Mr. Cicilline. Right. I don't think it is done in any other 
Western countries.
    Mr. Scheck. Right.
    Mr. Cicilline. I think you are right, that is an easy thing 
for us fix, and I hope we will do that. I also think the 
recommendations that Mr. Cahn made that you also supported are 
very sensible.
    It reminds me I was a public defender, and then, a criminal 
defense lawyer for most of my career. I remember a colleague 
telling me he was working on a case, and he has papers on the 
floor, United States v. John Smith. His son said, ``What is 
this?'' He said, ``That's the case.'' He said, ``The whole 
country is against you?'' His dad said, ``Sort of.'' It is 
really about leveling the playing field.
    One of the things I am really interested in is open file 
discovery that you referenced that the State of Texas does. I 
think Ms. Hanisee has said, ``Oh, that is not workable.'' Would 
you just speak a little bit about how well that has worked in 
Texas and what it actually entails?
    Mr. Scheck. I really welcome somebody to come there. It has 
been unbelievable. All the prosecutors, they are my witnesses, 
and Republicans, who say this has really worked. They have put 
it online.
    So, the case comes in and there are provisions made to make 
sure that information that everybody agrees should be 
redacted--because it would endanger lives or invade people's 
privacy--is redacted. Then, it goes online and everybody gets 
to look at it.
    Because, as Mr. Cahn said, we just can't depend on 
prosecutors themselves, particularly in federal cases with all 
this information--no one prosecutor, or even group of them, is 
going to be able to go through all that data the way that a 
defense lawyer would to find out what is really relevant and 
really is information that tends, many feel, to mitigate the 
offense.
    When you have this open file system where you can actually 
see what was disclosed, when it was disclosed, no disputes, and 
most importantly, you really have to look at the Texas 
statute--I cited it specifically in my testimony--that at the 
time of the plea, everybody is sitting there. You know exactly 
what has been disclosed, the prosecutor is asserting, all 
exculpatory information has been provided, and then, the plea 
goes down.
    Because, I must tell you, with all the innocence work we 
have been doing across the country, when the Registry put out 
that 20 percent of people are pleading guilty to crimes they 
didn't commit--that is what the exoneration data shows and that 
means something. That is why we have to have pre-pleaded 
disclosure.
    Mr. Cicilline. One of the other things that I know from my 
own practice is, when you sit through an arraignment, you see 
lots of people of color; White folks, when you go to the prison 
and do your prison visit, it feels like the White folks have 
all been weeded out. So, this disparity in who gets held, both 
pretrial and post-conviction, is an issue, a very serious one.
    I am just wondering, when you think about pretrial 
detention and the impact it has on the ability of that 
defendant to prepare for trial, to help locate witnesses, all 
the difficulties, what kinds of reforms should we be thinking 
about to ensure that people are not disadvantaged from their 
ability to actually help prepare their defense because of their 
economic status, their inability to post bail?
    Secondly, this other question about the charging decisions 
by prosecutors who can by themselves decide whether or not 
someone will face the mandatory minimum or not, and then, you 
run into these impossible situations in which innocent people 
say, ``I want to plead guilty because I can get out to a lesser 
charge, even though I didn't do it. Otherwise, I have to sit in 
trial as an innocent person awaiting my trial.''
    So, just in those areas, what kinds of recommendations 
would you make to the committee?
    Mr. Scheck. Well, personally, that the Federal Government 
has to step up. We need a Marshall Plan for indigent defense. 
Because it has been demonstrated--John Pfaff's book ``Locked 
In''--we can show that so much more money has gone to assist 
prosecutors who are benefitted in the State system because they 
do have police departments to work for them, right? Nothing can 
get somebody out of jail who should be out jail pretrial. 
Because they can raise money for bail, if it still a cash bail 
system, or they can put move forward, or they can meet 
conditions for release.
    A good lawyer, and a lawyer from a holistic defense system 
that is rooted in the community, that is the best thing. This 
study--I can't say it enough times--in the Harvard Law Review 
from the Qualtrone Center, a 10-year study where they show that 
holistic representation compared to traditional representation 
dramatically reduced custody, particularly in the area of 
pretrial release. It is far better representation. It is good 
for the community. It increases community safety. It is where 
you ought to put your money.
    Mr. Cicilline. Thank you.
    With that, Madam Chair, I yield back.
    Ms. Jackson Lee. I thank the gentleman for his questions, 
and I thank you for raising the issue of the law enforcement 
and the misrepresentation in some forms of pretrial work. I 
want to make sure that everyone knows that not one single 
member on this Committee ignores the impact on victims and 
community/families that are impacted, but I think we can work 
on those issues. Mr. Cicilline, I understand we are moving on 
that legislation. As we are looking to protect our victims, we 
want to make sure, as I said, that we emphasize justice. So, 
thank you so very much for your questioning.
    I want to check with Mr. Biggs. Mr. Biggs, do you have a 
member at this time?
    Mr. Biggs. It is my understanding that you have gone 
through all the Republican witnesses, Madam Chair.
    Ms. Jackson Lee. All right. Thank you so very much.
    Mr. Lieu, you are recognized for 5 minutes.
    Mr. Lieu. Thank you, Chairwoman Jackson Lee, for holding 
this important hearing.
    Before I ask my questions, I want to make a statement about 
the radical voter suppression law that Republicans in Georgia 
enacted yesterday. Voting is one of the strongest expressions 
of our voice, of our opinions, of our beliefs. When Republicans 
enact voter suppression laws, they are canceling the voices of 
many voters. So, if you are a Republican who supports a radical 
Georgia voter suppression law, don't ever lecture anyone on 
cancel culture ever again. In fact, that law is so extreme, it 
criminalizes giving water to voters in line. If freedom means 
anything, it means we should be able to give water to another 
human being. If you are a Republican who supports the radical 
Georgia voter suppression law, don't ever lecture anyone on 
freedom ever again.
    Now, I would like to talk about bail reform. On any given 
day, hundreds of thousands of Americans are sitting in jails 
not because they have been convicted of anything, but because 
they can't pay the fee to leave jail. It is un-American. It has 
a disproportionate effect on the poor and people of color, and 
it is perverse because it ends up causing people to plead 
guilty at much higher rates.
    My first question goes to Mr. Scheck. Thank you, first, for 
your work on Innocence Project. The people who can't pay this 
fee to leave jail, it would seem like they are the same kinds 
of folks that would lose their job, can't handle healthcare 
expenses, have a whole cascade of rippling effects.
    You had a pretty stunning statistic that showed about 20 
percent of people plead guilty to crimes they did not commit. 
Do you believe the cash money bail system contributes to that?
    Mr. Scheck. There is no question about it, which is not to 
say that there aren't things that can be done to improve the 
release system to prevent some of the terrible things that we 
have heard about today. The bottom line is, the cash bail 
system has penalized poverty. If you are a poor person who 
can't make cash bail, or you have to get out to keep your job, 
it is logical that you will plead guilty. It is logical to 
plead guilty to get out. It goes way, way back. ``The Process 
Is the Punishment,'' Malcolm Feeley's great book about this. We 
have known about this for decades. We are now becoming, 
thankfully, in this era far more cognizant of the fact that 
race and class has everything to do with this, and we can stop 
it.
    What Mr. Massie was talking about in his particular system 
just illustrates it. We can't run a system where we are 
inducing guilty pleas all the time to make the system work, and 
the way we induce it is we keep people in jail who just can't 
afford to pay bail.
    There are so many good ways to change that. As I pointed 
out, the holistic representation and just changing the way we 
look at public safety can do so much for that.
    Mr. Lieu. Thank you, Mr. Scheck.
    I have introduced the Pretrial Integrity and Safety Act, 
along with Chair Nadler. It provides grants to assist local 
jurisdictions to move away from the money bail system into a 
better system, such as, for example, the system that Kentucky 
has or Washington, DC, and so on.
    So, I have a question for Mr. Cahn. First, thank you for 
your service as public defender. Do you believe that freedom 
and liberty should ever be linked to how much money you have in 
a bank account, so that you can pay a fee to leave jail?
    Mr. Cahn. Well, thank you for that question. I think the 
answer is certainly not. I think that it is important to 
understand that not only is this devastating to the people who 
are kept in jail and have no opportunity to return to their 
lives, and how destructive that is, how they lose their jobs, 
they lose their apartments, they lose their cars, and can never 
reclaim their lives, even if they are innocent. It is also 
devastating to the communities in which they live, and it can 
be devastating in other ways.
    When a cash system is in place, it is not only that the 
innocent get out; it is that, oftentimes, people who are truly 
dangerous, simply because they have the money, sometimes from 
criminal enterprises, to pay a bail bond with a corporate bail 
bondsman can be free, can be out on the street, rather than 
having some real look at whether or not people need to be 
detained.
    I would like to point to one other aspect of the way in 
which money affects people. It affects their inability to 
contest their cases. We talk about innocent people pleading 
guilty. I think one of the reasons that we haven't touched upon 
is the sense of hopelessness that a defendant in prison, 
pretrial detention, feels when they realize that their lawyer 
is so overworked and underfunded that there is no possibility 
of that lawyer investigating and contesting their case.
    That is why Congress should act, not only to encourage 
adequate funding for State defendant systems, but also should 
look at an independent and adequately funded federal defender 
system. The Cardone Committee of the Judicial Conference issued 
a report calling for such a system in the federal system, and 
Congress needs to look at that and address that and move 
forward with it. That is another way to prevent innocent people 
from pleading guilty in this system.
    Mr. Lieu. Thank you. I yield back.
    Ms. Jackson Lee. Thank you. The gentleman yields back. The 
gentleman's time has expired.
    Let me now yield to Mr. Biggs?
    Mr. Biggs. Yes, Madam Chair?
    Ms. Jackson Lee. I have a member who is requesting 2 
minutes, not myself. The two of us will conclude. I don't know 
if you have another member here. Without objection, I am 
prepared to yield to her, but I want to be fair and don't know 
if you have another individual that, likewise, would use 2 
minutes.
    Mr. Biggs. Madam Chair, I still have a couple of Members 
on. I will check with them. Feel free to go ahead and give 
those two additional minutes, and I will ask my Members.
    Ms. Jackson Lee. Thank you so very much. That excludes you. 
I understand you have some information you want to share.
    Mr. Biggs. Yes, thank you.
    Ms. Jackson Lee. Thank you.
    Now, I am happy to yield to Ms. Scanlon for 2 minutes.
    As I do that, I thank Mr. Lieu for his testimony. I just 
want to make sure--Mr. Correa?
    Ms. Scanlon, you are recognized for 2 minutes.
    Ms. Scanlon. Thank you. There was just one more issue I 
wanted to speak to.
    We talked a little bit about the fact that juveniles are at 
this disadvantage, given their development, et cetera, during 
pretrial. So, they are more likely to plead guilty. They are 
more likely to make a false confession in many circumstances. 
Then, when they are incarcerated, they are more likely to be 
abused, statistically, than adults, and less likely to be able 
to navigate the jurisdictional hurdles to being able to get 
relief.
    So, one of the things that I have been working on is a bill 
called the Justice for Juveniles Act, for which we had 
bipartisan sponsorship, that would exempt juveniles from the 
administrative revenues portion of the Prison Reform Litigation 
Act.
    So, Ms. Camara, could you speak to how that might benefit 
juveniles going forward?
    Ms. Camara. Absolutely. I think you raise a very important 
question about the susceptibility of children, because that is 
who they are--they are children--to abuse when they are in 
juvenile detention facilities. I would point to D.C. Public 
Defender Service as a national model where you actually have 
public defenders embedded within juvenile detention facilities. 
PDS has an office where children can reach out confidentially 
to raise issues concerning confinement, but also advocate for 
the issues that arise concerning their release, whether or not 
they are properly programming and receiving credit for 
rehabilitation, which ultimately impacts when they are able to 
return home to the community. So, I would definitely point to 
the D.C. Public Defender Service Juvenile Reentry Program as a 
national model that should exist in every state.
    Children's rights must be protected, and we have to invest 
in making sure that they are not abused when they are in those 
detention facilities.
    Ms. Scanlon. Thank you for that, and I appreciate that, as 
we move forward and try to find better models.
    Thank you, and I yield back. Thank you for everyone's 
courtesies.
    Ms. Jackson Lee. Well, thank you, Congressman Scanlon, and 
I want you to know this Committee is particularly interested in 
juvenile justice. We thank you for that initiative, and we will 
be turning our attention to juveniles in the justice system. I 
think all of this will be more than appropriate. So, we thank 
you for your line of questioning and for your leadership.
    Your time is expired.
    Let me now yield to Mr. Biggs. Mr. Biggs, is there anyone 
that is requesting a moment? Mr. Biggs?
    Mr. Biggs. Madam Chair, thank you. Of our Members who are 
still on, so far as I can see, no one has requested additional 
time.
    Ms. Jackson Lee. All right. Mr. Biggs, I am going to yield 
to you for 5 minutes. I need to take a clarifying 5 minutes, 
not to be considered a second round. I want to be able to thank 
our Members and the witnesses. I am going to yield to you, for 
the record, we want to clarify that Ms. Bass was kind enough to 
yield to me for a moment, but we left, when we finally 
concluded, 3 minutes on the clock. So, I wanted to make sure 
you had the time, as we conclude this hearing. I want to be 
able to make time to thank all the witnesses, but I do have two 
questions that I have.
    So, I am going to put 5 minutes on the clock for you, Mr. 
Biggs. If you have submissions to the record, or any other 
matters, please, you are yielded to at this time. Thank you 
very much for your participation in the hearing. Thank you.
    Mr. Biggs. Thank you, Madam Chair. I appreciate that.
    I do want to thank all of our witnesses. It has been very 
informative. This has been a very important hearing, I think. I 
thank all the Members who have also participated.
    So, I want to go to Ms. Rodgers, if I can, just because I 
had some questions for you that I had not been able to ask 
because I ran out of time, because that happens the way that 
goes. I know that, Mr. Graves, I particularly thank you for 
your testimony as well. Both of you, very difficult 
circumstances in coming forward and testifying today. I am 
very, very appreciative.
    Ms. Rodgers, I wanted to know if anyone in New Jersey had 
been held accountable for the clearly faulty risk assessment 
that led to your son Christian's murder.
    Ms. Rodgers. Not at all. As I stated before, there was a 
person, a politician, that referred to my son as being 
collateral damage and it is the same all over the State with 
all the victims of this bail reform. All we hear is how 
successful it is, but no one is considering us and the things 
that we have to go through.
    Then, they are talking about, oh, bail reform is a good 
thing and people are getting speedy trials and less detainment, 
and everything, but it has been four years since this happened 
to my son and we are still waiting on a trial. So, to me, it is 
a total nightmare.
    The only thing that I am asking is that they go back to the 
drawing board on some of these things because it really wasn't 
fair the way they implemented it, anyway, because they never 
informed us of the ins and outs of this thing. They just said, 
``Here, we're enacting this new law, and you all are just going 
to have to swallow it.'' They did not consider us in these 
neighborhoods.
    There are a lot of people just saying, ``Oh, well, it's not 
fair to the people that are accused of these crimes.'' I am not 
saying everyone with misdemeanors and first-time offenders, or 
whatever, should be held without bond and go through all of 
this. I am talking about the people with the bad history, the 
terrible offenders, and things of that nature.
    My main objective is to have our neighborhoods be safe. I 
have grandchildren that can't go to our city park because of 
this mess. I am sick of going to funerals of people that I know 
who have lost people because of this very thing.
    This is my thing: Everybody is talking about cost and 
money, and this and that. How much is too much when you are 
losing lives? I don't know. My thing is, we should come 
together as a people to figure out this thing, because it was 
done recklessly. It is not fair to us.
    Mr. Biggs. Well, Ms. Rodgers, I really appreciate your 
coming in and giving testimony today. I am very appreciative. I 
know it has got to be difficult, but I am grateful. I am 
grateful to all the witnesses, again, for being here today.
    With that, Madam Chair, thank you for the additional time, 
and I will yield back to you.
    Ms. Jackson Lee. Thank you very much, Mr. Biggs. I just 
want to make sure; did you have documents you wanted to submit 
into the record?
    Mr. Biggs. Madam Chair, I submitted the one in my opening 
statement, and hopefully, we will get that to you digitally.
    Ms. Jackson Lee. Thank you so very much.
    Mr. Biggs. Thank you.
    Ms. Jackson Lee. I, too, wanted to utilize a brief time to 
ask two more quick questions, but also to incorporate my thanks 
to all the Members. I will do so by acknowledging all of them 
and to give some data that is extremely important.
    So, let me quickly go to Mr. Scheck and build on 
Congresswoman Scanlon's line of questioning. Juvenile suspects 
as well as adults with mental health problems or intellectual 
disabilities and how they invoke false confessions. It is an 
empirical fact, too, that they often fail to comprehend and 
routinely waive their Miranda rights. What measures do federal 
law enforcement agents take to protect these highly vulnerable 
individuals during an interrogation and ensure that they are 
not coerced, tricked, or otherwise induced into a giving a 
false confession? That is for you, Mr. Scheck.
    Mr. Scheck. Yes, again, special care must be taken and 
training when you are dealing with an intellectually disabled 
person. I mean, we at the Innocence Project, they are still 
dealing with the case of Pervis Payne, who is on death row in 
Tennessee, which is really one of the great travesties in terms 
of an intellectually disabled person who is in exactly the 
position you just discussed.
    Again, the best thing is recording the interrogations. It 
is very important that you put into the Federal Rules of 
Evidence the idea that a confession should--the issue of 
reliability should be considered when you are looking at a 
confession because so many intellectually disabled people, or 
anybody that is in a position where they are being coerced and 
they give a confession, the only thing the Supreme Court looks 
at in Colorado v. Connelly is voluntariness. It only makes 
sense that you should also consider the issue of reliability. 
All the experts in interrogations always agree; they look to 
see, is this information that only the real perpetrator or the 
police would know? Did this lead us to other incriminating 
evidence?
    Ms. Jackson Lee. Thank you.
    Mr. Scheck. That is the reliability test, and that should 
be put into the law.
    Ms. Jackson Lee. Thank you so very much.
    Mr. Cahn, I could not finish with you. Quickly, would you 
respond to this question? Evidence shows that lying informants 
and cooperators are responsible for a sizable percentage of the 
wrongful convictions in this country. The reliability of 
informants poses serious systemic concerns. You started to 
answer, but what are the most pressing problems involving law 
enforcement's use of informants in federal cases, and how can 
we best address them? I am saddened that your time is short 
because I have to conclude with some other comments. Mr. Cahn, 
would you please try to give me a response to that, please?
    Mr. Cahn. Let me try and be very brief. First, I think that 
Congress needs to look seriously at the rewards that can be 
offered informants and prosecutors' unilateral power to offer 
those rewards.
    The other suggestion I would make, practical suggestion, is 
that evidence about informers needs to be turned over early, so 
that the defense can investigate. It is only when there is 
adequate time to investigate these informants that there is an 
opportunity to learn what their true motives are, what their 
true role in the crimes are, and to expose that, when 
necessary, to a jury. So, I think that is an essential element 
of ensuring fairness in our system.
    Thank you.
    Ms. Jackson Lee. Thank you very much for providing that 
insight. I think that is an area that needs to be assessed. Of 
course, we need to make sure that we are fair to all.
    Let me start out, first, with my appreciation to all of the 
witnesses.
    As all the witnesses have done, I want to acknowledge Ms. 
Rodgers and her pain. It has not gone ignored, and this 
Committee believes in justice and we are as much concerned 
about those who are victims as we are concerned about those who 
are victims in the justice system.
    So, again, we want to express our appreciation to the 
witnesses that include, of course, Mr. Scheck, Ms. Dharia, Ms. 
April Frazier Camara, and Mr. Reuben Cahn. I believe that we 
have called off all our witnesses. We want to make sure that we 
express our appreciation for all of you for your presence here 
today.
    It is also important, Ms. Hanisee, of course, and Ms. 
Rodgers, it is also important to make sure that the record is 
clear. There was testimony or a statement that I believe should 
be adjusted, or at least there should be something in the 
record. Allow me to indicate the following information very 
quickly that needs to be included.
    This data is somewhat listed as the most recent data, but 
it is 2013. Black juveniles were more than four times as likely 
to be committed as White juveniles. American Indian juveniles 
were more than three times as likely, and Hispanic juveniles 
were 61 percent more likely. We do know that this issue of 
committing juveniles, and as well not having access in the 
pretrial or the preliminary stages, can be very devastating to 
young people, and it falls heavily on minority youth.
    Let me say to Mr. Graves, who I have had the privilege of 
knowing, as I conclude, what happened to you has happened, 
tragically, to many in an unfair justice system. I think what 
is most explicit in your testimony is that you are open in your 
responses to all those who question you, and all you wanted to 
do is press your innocence. Of course, the tape that was 
utilized, in your knowledge and your understanding, was never 
provided to show your innocence. Your guilt seemed to rely on 
someone who called your name, whether as an informant or an 
alleged co-defendant. You were unjustly prosecuted. I think 
that is an important point that we need to make.
    So, let me, as I conclude this hearing, again, acknowledge 
all the Members that participated.
    I think it is appropriate to indicate that justice requires 
a response to those who are victims. In most instances, that 
involves those who are falsely accused and that involves those, 
Ms. Rodgers, who have suffered. Our greatest sympathy to you.
    I conclude in this hearing to acknowledge the killings in 
Atlanta, where eight victims' lives were taken. Six of those 
were Asian-Americans. It requires this Nation to bring the 
perpetrator to justice; that justice be rendered to them.
    As well, to acknowledge those victims in Colorado, which 
included a law enforcement officer. We mourn with their 
families, and, of course, justice must be brought to them. This 
Committee is a Committee that believes that justice is one that 
we must fight for and we must render.
    So, this concludes today's hearing. We thank all of you for 
your participation, Members and witnesses alike. I thank you 
for the commitment that you have made to present your facts and 
your testimony to the United States Congress. You are truly 
distinguished, and we thank you for your attendance and 
participation.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    Ms. Jackson Lee. With that, I would call this hearing is 
now adjourned. Thank you all so very, very much.
    [Whereupon, at 1:42 p.m., the Subcommittee was adjourned.]
     

                                APPENDIX

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                  QUESTIONS AND ANSWERS FOR THE RECORD

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