[Senate Hearing 118-445]
[From the U.S. Government Publishing Office]
S. Hrg. 118-445
FIVE YEARS OF THE FIRST STEP ACT:
REIMAGINING REHABILITATION
AND PROTECTING PUBLIC SAFETY
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 17, 2024
__________
Serial No. J-118-50
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
57-124 WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina,
AMY KLOBUCHAR, Minnesota Ranking Member
CHRISTOPHER A. COONS, Delaware CHARLES E. GRASSLEY, Iowa
RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas
MAZIE K. HIRONO, Hawaii MICHAEL S. LEE, Utah
CORY A. BOOKER, New Jersey TED CRUZ, Texas
ALEX PADILLA, California JOSH HAWLEY, Missouri
JON OSSOFF, Georgia TOM COTTON, Arkansas
PETER WELCH, Vermont JOHN KENNEDY, Louisiana
LAPHONZA BUTLER, California THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Majority Staff Director
Katherine Nikas, Minority Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Booker, Hon. Cory................................................ 5
Cornyn, Hon. John................................................ 3
WITNESSES
Charles, Matthew................................................. 8
Prepared statement........................................... 38
Responses to written questions............................... 56
Markle, Steve.................................................... 13
Prepared statement........................................... 42
Smith, Charlie................................................... 11
Prepared statement........................................... 45
Smith, Ja'Ron.................................................... 14
Prepared statement........................................... 53
Responses to written questions............................... 58
APPENDIX
Items submitted for the record................................... 37
FIVE YEARS OF THE FIRST STEP ACT:
REIMAGINING REHABILITATION
AND PROTECTING PUBLIC SAFETY
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WEDNESDAY, JANUARY 17, 2024
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
G50, Dirksen Senate Office Building, Hon. Richard J. Durbin,
Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Klobuchar, Hirono, Booker, Padilla, Welch, Butler, Graham,
Cornyn, Lee, Hawley, and Tillis.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Hearing of the Senate Judiciary Committee
will come to order. Senator Graham, the Ranking Member, is
running a few minutes late. He told us to go ahead and start
without him, he'll join us. I want to thank the witnesses that
are here today, and members of the Sentencing Commission, I
believe are also in attendance. Thank you for joining us.
This hearing, ``Five Years of the First Step Act:
Reimagining Rehabilitation and Protecting Public Safety,'' is
long overdue. Today, the Committee will hear from four
witnesses about the success of the First Step Act. It is the
most significant criminal justice reform legislation in a
generation. I want to thank Ranking Member Graham and his staff
for working with us to select today's witnesses. It echoes the
bipartisan spirit of cooperation that led to the enactment of
this landmark legislation.
I also want to thank everyone who has joined us today,
including the U.S. Sentencing Commission Chair Judge Carlton
Reeves and his colleagues, who've been hard at work updating
the Federal sentencing guidelines to reflect the First Step's
reform. Last month marked the fifth anniversary of Congress
coming together and passing the First Step Act by an
overwhelming bipartisan majority in both the House and the
Senate. At the outset, I'll turn to a video about the passage
and the impact it's had.
[Video presentation.]
Chair Durbin. I was proud to champion this landmark
legislation, and I want to give special credit to Senator
Grassley who couldn't be here today, he's not feeling well, but
he was a real leader on this effort. It was signed into law by
President Trump. It was truly bipartisan from the start. It
included support with Senator Grassley, as I mentioned, Senator
Booker, Senator Lee, Senator Whitehouse, and Senator Cornyn. I
believe those two individuals are with us here this morning.
It acknowledges the obvious. The vast majority of people
who are incarcerated will one day be released, so we should
help prepare them for successful reentry. In the last 5 years,
this landmark legislation has reduced the population in our
overcrowded Federal prisons, safely and effectively reuniting
families and revitalizing communities.
In addition to looking toward the future, the First Step
Act helps to remedy the effects of the harsh and misguided drug
sentencing laws from the 1980s. I remember that era very well.
I was a Member of the House of Representatives. The arrival of
crack cocaine scared the hell out of us. We decided to impose
new sentencing guidelines, which would make it clear to the
public once and for all that if you do crack cocaine, we're
going to hit you and hit you hard. We sure as hell did. 100 to
1 disparity in sentencing between powder cocaine and crack
cocaine.
The net result of it all, sadly, was not what we'd hoped
for. The price of crack cocaine on the street went down instead
of up. The number of users went up instead of down. And we had
the largest Federal prison population in the history of the
United States, predominantly African Americans who were
convicted of those crimes. The sentences were astronomic. What
used to be a matter of a handful of years turned into 10, 15,
20, 25 and beyond. That was the reality of the situation that
we faced when we started talking about reforming the situation.
The First Step Act helps to remedy the effects of that,
those sentencing laws in the 1980s. I authored legislation, the
Fair Sentencing Act of 2010, that reduced the disparity of 100
to 1 between crack and powder, to 18. It's a long story as to
how we came up with that magic number, but that was the number
we had to live with. The First Step Act makes Fair Sentencing
Act retroactive, allowing those still serving sentences under
the disparity to petition for re-sentencing.
I'm thankful for the tireless efforts of many dedicated
advocates and families who never gave up hope that this bill
could become law. Since the First Step Act's passage, I've met
so many Americans who've successfully returned home because of
this historic legislation. Some would still be in prison today
if Congress had not passed the First Step Act and President
Trump had not signed it.
Today, we will hear from one of them. One of our witnesses,
Matthew Charles, I told him he was the star of the show after
that video. I'm glad you're here, Mr. Charles. The First Step
Act has been quite a success. Of almost 30,000 people released
under its reforms through January 2023, only 12.4 percent have
been arrested for new crimes. Compare that to Bureau of
Prison's overall recidivism rate, more than three times that
number, 43 percent.
Even with this legislation's achievement in reducing
recidivism, we must remember that it is indeed a first step in
a long journey toward thinking about rethinking rehabilitation
and reversing failed approaches in our criminal justice system.
In order to make our system fair, we must continue to learn the
proven successes, smart on crime policies like the First Step
Act. We must provide more opportunities for those who were
incarcerated to reenter society successfully, reunite with
their families, and contribute to their communities.
Now, make no mistake, as much as I believe in what we've
done and would do it all over again, there've been some of
these situations where people have been released and broken my
heart. I thought we'd got them on the right path, but it didn't
happen. We can't give up on so many who are going to be
successful in reuniting with families and rehabilitating their
lives because of those few, but I think of them as well.
Five years ago we wrote the blueprint for Reimagining
Rehabilitation and Protecting Public Safety, and we know by the
numbers that it works. Today I'm looking forward to reflecting
on what we can achieve moving forward. Senator Graham has not
arrived yet. I'm going to recognize Senator Cornyn, will you
give the opening statement, and thank you for your
participation and help on this issue from the start.
Senator Cornyn. You bet.
STATEMENT OF HON. JOHN CORNYN,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Well, Mr. Chairman, thank you for giving us
the opportunity to discuss the crime in America and the
important role played by our justice system. As we know, as you
noted, the First Step Act sailed through Congress 5 years ago
with overwhelming support on both sides of the aisle. It passed
a Republican-led Senate, 87 to 12. It passed a Republican-led
House, 358 to 36. Those were the days, and President Trump
signed it into law.
When we debated the First Step Act, we talked about the
revolving door of the criminal justice system. We aimed to
reduce recidivism rates and prevent formerly incarcerated
people from landing behind bars again, if possible. Portions of
the law were aimed at slowing the revolving door, particularly
those that focus on prison programming and evidence-based
recidivism reduction training that have been successfully
pioneered in many States, including my home State of Texas.
This Congress, I've continued to work with on these
priorities with many of my colleagues on both sides of the
aisle. Senator Coons and I, for example, have a bill to improve
supervised release. Senator Whitehouse and I are seeking to
reintroduce our Stronger Act, which will help incarcerated
persons battling substance use disorders and help educate law
enforcement on best practices. That Bill passed the Senate
unanimously last Congress and we're aiming to get it over the
finish line this Congress.
Rehabilitation, when possible, was and remains an important
part of our criminal justice system. But in order for criminals
to be rehabilitated, they first need to be held accountable.
Unfortunately, this administration and many liberal DAs across
the country have gone to great lengths to ensure that dangerous
criminals never walk through the doors of the criminal justice
system. Some of the most egregious examples have come straight
from our Department of Justice, our Nation's lead law
enforcement agency.
In December 2022, the Attorney General upended a long-
standing DOJ policy to charge the most serious readily provable
offense. Under this administration, prosecutors aren't to try
to hold violent criminals and drug traffickers accountable to
the fullest extent of the law. The Garland memo directs
prosecutors to consider whether non-criminal alternatives like
pretrial diversion would serve Federal law enforcement
interests.
Additionally, the Garland memo kneecaps prosecutors from
using the tools that Congress has given Federal prosecutors
like mandatory minimum sentences. If a violent criminal is
behind bars, he will not harm further on innocent people. If a
drug trafficker serves time behind bars, he will not continue
to pour poison onto the streets. Sadly, the Biden
administration and liberal prosecutors appear to be more
sympathetic to the dangerous criminals than they do to the law-
abiding citizens they harm.
Just look at the soft-on-crime policies of Rachael Rollins,
who was nominated and confirmed to be the U.S. attorney for the
District of Massachusetts. Every single person on this side of
the aisle warned that she would not enforce the law. She was
candid about it. I recall Senator Cruz spending 20 minutes
walking through her top 15 list of crimes that she would not
prosecute. These were serious crimes including resisting
arrest, destruction of property, drug dealing, and shoplifting.
Well, we know how it ended for her. She resigned under
serious allegations and ongoing investigations related to
corruption and abuse of authority. Yet this administration has
continued to double down on soft-on-crime policies. It set up a
task force to use Federal prosecution to take down Christians
praying in front of abortion clinics. It labeled Catholics who
attend mass in Latin as threats. It declined to bring any 1507
prosecutions for ongoing threats and harassment of our Supreme
Court Justices.
Well, and then there was the famous Garland--or I should
say, infamous school board memorandum that the Attorney General
still hasn't rescinded, even though the main predicate was from
a now-rescinded letter from the National School Board
Association.
That memo, which apparently still stands, and which is
official Department of Justice policy, directs the Justice
Department, the FBI, and the National Security Division, to
inject itself in school board meetings across the country where
parents have a constitutional right to peacefully assemble and
make their voices heard.
Well, I could go on about the failures of the Biden
administration to simply enforce the law, and the dire
consequences that ensue from that. But let me just conclude
with the 108,000 Americans who lost their lives last year due
to drugs, illegal drugs, primarily coming across the U.S.
Mexico border. We've had repeated comments under oath by the
Secretary of Homeland Security that the border is secure.
Well, he finally fessed up last week and said that 85
percent of the people who they encounter at the border are
simply released into the interior of the United States. So, the
border obviously is not secure as long as drugs like fentanyl,
that took the lives of 71,000 Americans last year alone,
continue to flow into the United States and into our
communities, across our State and Nation. So the American
people deserve to feel safe in their communities, but that
simply will not happen until we get back to a simple law and
order agenda.
I believe rehabilitation should continue to be an
aspiration of our criminal justice system, and certainly that
was my reason for my support for the First Step Act. But the
American people, I think, are questioning correctly whether our
law enforcement agencies and whether our Department of Justice
and liberal district attorneys in cities throughout the Nation
are equally committed to public safety. Thank you.
Chair Durbin. Thank you, Senator. And fortunately we have a
bipartisan effort underway to deal with border security. The
sooner it reports the better. I want to thank those who are
participating in that effort. I think we all understand that
challenges at our border we've never seen before in terms of
the volumes of people coming seeking asylum or refugee status.
And that is not a good system. It is not an orderly system. It
is one that needs to be changed, and I hope we can do it soon.
In a matter of weeks at the most come up with a Senate
bipartisan approach to it long overdue.
I also want to recognize the Chair of the Crime
Subcommittee, Senator Booker, who was an active participant in
the formation and passage of the First Step Act, and if Senator
Cotton, his Ranking Member is going to attend, I'll recognize
him as well. Senator Booker.
STATEMENT OF HON. CORY BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. Chairman, thank you very much. Truly one of
the best experiences of my life was working on this
legislation, rolling up sleeves, sitting at tables without
cameras around and working with good faith people on both sides
of the aisle to do something that was very remarkable. And the
accomplishments you laid plain here, and I think it should be
celebrated, the success we've made, Democrats and Republicans
coming together--Republican administration, who I got to know
very well during the process.
I think we have this falsehood that often rhetorically is
heard here in Washington, that somehow Americans are not
equally concerned, whether you're a Republican or a Democrat or
an Independent, about the safety of their communities. I come
from being a mayor of a city which has Republicans, Democrats,
Independents, where the number one issue was public safety. I'm
not sure if anybody here in the Senate more so than me, perhaps
equally, was on the ground in communities fighting for safer
neighborhoods.
I found out very quickly that the police leadership, from
the FBI Director to my local beat cops, knew that the solutions
to security were not solely law enforcement. That in fact they
felt like they were treating symptoms of a larger problem. And
it was a wave of using tools to create safety that clearly were
not achieving it, because in the years before I was mayor of my
city, we were the greatest incarceration capital, not only of
the world, but in all of humanity.
The United States of America locked up more people than any
other Nation or past empire when it comes to just the total
gross amount of humanity that was being put into jails and
prisons. The United States of America had one out of every four
incarcerated people on the planet Earth. It had one out of
every three incarcerated women on the planet Earth. And yet
during that same time, we saw the drug problem in America
getting worse.
And as a result of over-incarceration, hyper-incarceration,
and doing things to people in prison, we saw remarkably high
recidivism rates. When I became mayor of the city of Newark, I
realized that just helping people coming out of prison, being
that the recidivism rates were unconsciously high, could be one
of the best strategies. And we started doing a whole bunch of
other things to approach this problem.
Now, it was particularly acute to me that this was driving
racial disparities in our country, because incarceration rates
amongst low income communities and Black and brown communities
were incredibly higher than in other communities, even though
rates of drug use or drug selling were no different between
Blacks and whites. It led to the unconscionable reality to me
that not only were we the incarceration Nation, but we
incarcerated African Americans at such a high rate that there
were more Blacks under criminal supervision than all the slaves
in 1865.
And to look around when I became mayor in 2006, you started
seeing examples coming from Red States of people taking a
different approach. Texas became a model for prison reform in
2007 when the State allocated funds for drug treatment, mental
health, and rehabilitation for incarcerated individuals. The
Texas recidivism rate fell as did violent crime dramatically.
By 2018, Texas had closed four prisons, saving Texans $3
billion, and show that you can lower your prison population and
lower crime by focusing on empowering people, creating more
beloved communities, and dealing with the healthcare issues,
and mental healthcare issues, and addiction issues. Red State
after Red State were showing this.
South Carolina passed major sentencing reform in 2010 and
saw revocations for parole violations fall 33 percent,
recidivism rates falling below to 13 percent, and the State's
prison population went down 14 percent, saving taxpayers almost
half a billion dollars, and again, crime went down.
Georgia Republican Governor Nathan Deal signed prison
reform legislation into law in 2012, and the State had one of
the Nation's highest incarceration rates, costing over a
billion dollars a year. But within three years of lowering
their prison population, Georgia saw their crime dramatically
fall, and Georgia also went on to enact juvenile justice reform
and other criminal justice reforms that ultimately saw a 3.5
percent in its overall prison population decline from 2016 to
2012.
And so it frustrates me when opportunistically we use
issues of fear and understandable concerns about crime to drive
wedges between our society, as opposed to looking at the
practitioners out there in States and local levels who are
actually showing a lot of success. As much as we'd like to
think that ideas that were passed in the first step are somehow
original, they're not. They came from Republicans and Democrats
who just wanted to solve problems. And we didn't do everything
that Georgia, South Carolina, and Texas did.
We did not do all the innovations coming out of Red States.
We did some of them, and that's why we called it the First Step
Act. And so today we herald a celebration. You and I, Mr.
Chairman, have met with a lot of the families that had their
liberated people from prison reclaiming the ideals of our
democracy because the most sacrosanct aspect of our democracy,
if you read our founding documents, we were formed for our own
safety and security for the common defense, and we were formed
around the ideals of liberty.
And so we could continue in this institution pointing
fingers, damning and condemning, and adding to a culture of
contempt, or we could get back to what ideas are working in
States and cities, and how can we at the Federal Government do
practical common sense things to give strength and support to
that.
I sat last night with Denver's mayor, who's set remarkable
records for eradicating homeless populations in his community.
And he openly talked about the Republican business leaders he
worked with finding practical solutions that, hey, had the
secondary effect of limiting crime that's caused often in these
homelessness encampments.
And so I just want to encourage us, one of the best
experiences I've had in my decade in the Senate was around this
bill. Working with people that our side vilifies, from Jared
Kushner to Lindsey Graham, and they're working with people
that, I'm sure I'm not a beloved person in the media circles in
which my colleagues on the other side of the operate.
But we just said, let's come together and do what is
already working, what evidence-based shows it works, and have
the byproduct of lowering crime, lowering recidivism, and doing
what this country was called to do: to create more beloved
communities. I've gone to the homes of people who were released
by this bill. You want to talk about family values? Reunite
someone who is over incarcerated with their children.
You want to talk about stronger communities? People who are
released by this bill are leading nonprofits in some of these
communities dedicated to keeping other people out of prison.
And so, every issue that we sometimes opportunistically use to
beat the other side, I promise you, as I sat down with a mayor
last night for dinner, local mayors don't care about left or
right. As Fiorello LaGuardia said, there's no republican or
democratic way to fix a pothole.
We on this Committee could do more to get people access to
treatment. We could do more to stop mental health people from
committing crimes. We could do more to make our prisons places
of empowerment and not compounding trauma. We could do more to
help people who are hurting. We could do more in our country.
Common sense, bipartisan work to solve problems as opposed to
curse the darkness. And so this is a point of light. I
celebrate it. But if this is the first step, let's do more.
Let's do more. Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Booker. It's time for the
next step, and I think we all should be open to that
possibility. I want to welcome our consensus witness panel.
First witness will be Matthew Charles, a senior policy advisor
with the criminal justice reform organization, FAMM, and one of
the first people released from Federal prison under the First
Step Act.
We also are joined by J. Charles Smith, State's attorney
for Frederick County, Maryland, and president of the National
District Attorney's Association. We also welcome Ja'Ron Smith,
who served as a Deputy Assistant to former President Trump on
the White House Domestic Policy Council. And last but not
least, we'll hear from Steve Markle, special education teacher
with the Bureau of Prisons and the National Secretary Treasurer
for the Council of Prison Locals.
Let me lay out the mechanics. After swearing in the
witnesses, they'll each have 5 minutes to make an opening
statement. Members will then have 5 minutes each to ask
questions of those members of the panel. So let me administer
the oath and ask the panel to please rise. Raise your right
hand please.
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that the witnesses
thankfully have answered in the affirmative. And we're going to
start with Mr. Charles and your opening statement. Please
proceed.
STATEMENT OF MATTHEW CHARLES, FIRST STEP ACT BENEFICIARY,
NASHVILLE, TENNESSEE
Mr. Charles. Thank you, Chairman Durbin, Ranking Member
Graham, and Members of the Committee. Good morning. My name is
Matthew Charles and I'm happy to be here. Since I was released
under the First Step Act 5 years ago, I've spoken on several
occasions about my journey and that legislation. I've even
spoken to some of you before in this very Chamber. I'm happy to
be here today to mark the 5-year anniversary of this landmark
legislation.
I've been called a man of few words but many smiles. But
today I've got both. I'm honored and pleased to be with you now
to celebrate and reflect on the First Step Act and the
difference it's made in my life and thousands of others. But
before I talk to you about who I am today, you need to hear
about who I used to be, because my story is a story of
redemption.
That's an empty word, unless change has happened, and I can
assure you, change has definitely happened. I grew up in a
dangerous public housing block in North Carolina. My days and
nights were filled with fear. I was consumed with trying to get
as far away as possible from my father's relentless abuse and
frequent beatings. From the age I could talk and walk, these
things had occurred in my life.
Due to that environment and my father's influence, I soon
found myself with these huge wells of anger and frustration and
not much else. I began to act out as a way of coping. I got as
mean and as tough as my father was, and I made a lot of very
bad choices. Incidentally, I share all this not as an excuse,
but to help you understand why I made the bad choices that
resulted in my incarceration.
When I turned 18, in an effort to break free from my home
life and straighten out, I joined the Army. I still had so much
anger in me because of my past though. And when my service was
over, I turned to wayward living and selling drugs. This landed
me in State prison for about 5 years. Then things got even
worse. I was arrested in 1995 and convicted in 1996 for selling
216 grams of crack cocaine to an informant and illegally
possessing a gun.
Because of my prior criminal activity, and because I sold
crack cocaine instead of powder cocaine, I was given a 35-year
sentence. I want to be clear, I believe that my incarceration
was justified. I was far down the wrong path and my
incarceration allowed me to slow down, look inwardly and began
to heal and rehabilitate. However, I believe my 35-year prison
sentence was excessive. If crack and powder cocaine were
treated the same when I was sentenced, my sentence would've
been 20 years and not 35 years, but the 100 to 1 disparity was
in place at that time.
I told you my story was about redemption. Well, here's
where that begins, the good part. It was before sentencing in
the county jail and I met a guy named Jesus Duran. We got to
talking and when he was sentenced and transferring out, he left
me all of his things. I think he felt sorry for me, but among
those things was a Bible. I had never read the Bible before in
my life, had no interest in reading it, but for some reason,
sitting there in that jail cell, I cracked it open.
And as I read those words, turning the pages slowly, I felt
something deep inside of me change. All that anger and pain and
bitterness that had controlled me up until that point, I gave
it up. Just let go. I surrendered my heart and life over to the
Lord Jesus Christ. From that moment on, my attitude toward
people changed, right down to the officers that brought me my
food trays at the jail.
I thought about the hard journey ahead of me, 35 years, not
with agony and fear, but now with determination to be better
and not waste my life any further. I went to Federal prison and
continued to live out the new life that I had accepted
according to my faith. I worked as a GED tutor, a law library
clerk, and as a mentor to younger people. I helped illiterate
prisoners understand the letters they received from the courts
and their own families. And I drafted filings for them.
Over the next 21 years, I didn't receive a single
disciplinary infraction. And every day when I woke up, I lived
my life like someone who deserved a second chance, not like
someone whose life will be defined by my worst actions. All my
years in prisons, all of us inside together watch criminal
justice reforms on the horizon. We cheered when they happened
and were crushed when they went nowhere.
Senators, we also watch you and we prayed that you would
help us. When it seemed like the First Step Act might actually
pass, we we're all glued to the television. We watched
President Donald Trump as he was about to sign it, holding our
breath. And when he finally did, we cheered and shouted,
hallelujah. And I was released.
Thanks to many of you, especially Senator Grassley and
Chairman Durbin, I was spared from spending another decade
behind bars. I left prison for good on January 3, 2019. Just
two weeks after President Trump signed the bill into law. I
became the first person to benefit from the retroactive
provision in the First Step Act. I had a lot of amazing life
moments since my release. I was the guest of President Trump at
the 2019 State of the Union. I met Senators from across the
country, including many on this Committee.
But the most rewarding experience and the most important
work I have done, has been advocating for those that I left
behind. There are a lot of people still behind bars who, like I
was, are committed to making changes and finding a new path,
who do not need to spend decades in prison to learn about their
lesson, or to learn their lessons. I've been working hard for a
system that is fair and just and doesn't harm families and
communities by keeping people incarcerated unnecessarily.
Today as we reflect about the First Step Act, I am reminded
of the powerful broad bipartisan support this bill enjoyed when
it was signed into law by President Trump. I'm here today to
encourage Congress to continue on that path of bipartisan
criminal justice reform. Some people may fear that criminal
justice reform will make our communities less safe. But I'm
here to tell you, that your work on the First Step Act has
proven that this line of thinking is incorrect.
I've told you my story, but if I'm not special--and I'm
not--I'm not unique. In my advocacy work, I've met many, many
beneficiaries of the First Step Act who are out here in
freedom, making their families stronger and their communities
safer. They are living proof that reform does work. And 5 years
of data bears us out as well. Because of the First Step Act,
some of our country's most excessive and unfair sentencing
practices, misguided sentencing laws meant to keep us safer,
which in reality has had the opposite effect, have been
reformed.
This means that dangerous overcrowding in prisons is
decreasing, rehabilitation rates are on the rise, and thousands
of families like mine have been reunited and are stronger. As
to the fear people released will go right back into a life of
crime, of the nearly 30,000 people released under the First
Step Act, only 12.4 percent have been arrested or returned to
Federal custody, much lower than a general Federal recidivism
rate of 43 percent, which we also watched in the video earlier.
Between 2022 and 2023, participation in rehabilitative
programming and productive activities in prison has jumped by
more than a third because of the First Step Act. The vast
majority of people in Federal prison will be released one day,
over 90 percent of them will. Thanks to the First Step Act,
they will be better prepared to return to their families and
communities and be productive law-abiding members of society.
Remember, I told you that mine was a story of redemption. I
told you about that moment in my jail cell before I even got to
prison, when I felt redeemed, the day that I accepted the Lord
Jesus Christ. And I told you that my life in prison was one of
positive productivity. But the main reason I'm here today is to
tell you that my redemption meant nothing compared to what it
means now.
Now that the First Step Act has placed me out here in
freedom, it's out here that I can really walk the walk, and
make my family stronger, my community safer, and my country
more just and fair. Thank you for the First Step Act, and thank
you for this opportunity.
[The prepared statement of Mr. Charles appears as a
submission for the record.]
Chair Durbin. Thank you, Mr. Charles. Mr. Charles Smith is
next.
STATEMENT OF CHARLIE SMITH, PRESIDENT, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION, FREDERICK, MARYLAND
Mr. C. Smith. Thank you, Chairman Durbin, and Members of
this Committee. My name's Charlie Smith. I'm the State's
attorney for Frederick County, Maryland, just off 270. I'm also
president of the National District Attorney's Association,
which is the oldest and the largest national nonpartisan,
nonprofit organization. We represent over 3,000 elected State's
attorneys and district attorneys across the country, as well as
over 40,000 assistant prosecutors.
Part of our mission is to serve as the voice of America's
prosecutor. We recognize the vital role that prosecutors play
in the safety of local communities, including evaluating and
making ongoing improvements to our criminal justice system that
promote fairness, accountability, efficiency, and justice. And
so I do appreciate this opportunity to talk about NDAA's effort
toward realizing goals of the First Step Act.
By way of background, we are and should be, as prosecutors,
at the very forefront of continuously improving our criminal
justice system. We must support public safety and enforcement
of the law while promoting accountability, rehabilitation, and
alternatives to incarceration. So we are tasked with a
constitutional duty of protecting our communities. We serve
justice each and every day in our courtrooms, balancing the
needs of the victims of crime against protecting the innocent.
And once again, we're acutely aware of the need to improve and
reform our criminal justice system as we're doing it each and
every day.
So, the First Step Act was supported by NDAA. It was a
bipartisan effort to address front-end sentencing change and
back-end prison reform. And we felt it struck an appropriate
balance between addressing the needs of the current prison
population, while ensuring criminals are penalized
appropriately. The FSA provided meaningful change where truly
dangerous criminals are locked up for an appropriate period of
time, and those with addiction or mental health issues have a
chance for treatment and rehabilitation.
In terms of the First Step Act implementation, one of the
great things about the Act is its proven effectiveness for low-
risk non-violent offenders while ensuring the public is
protected from high-risk violent offenders. So only one year
after the First Step Act was signed into law, the Bureau of
Prisons received a risk and needs assessment through the use of
a tool known as PATTERN. And again, this tool was intended to
calculate the risk of recidivism of inmates as required by the
FSA.
It also made adjustments to good time credit--allowed
eligible inmates to earn good time credits for participating
and completing assigned evidence-based recidivism reduction
programs. So the BOP policies were updated to expand the use of
home confinement for low risk individuals and pilot programs
for the elderly and terminally ill inmates. And so the
Department's drug treatment strategy has enrolled thousands of
inmates in RDAP, which is the Residential Drug Abuse Program.
And last, they also use Medication Assisted Treatment Program
available to qualified inmates.
What we'd like to emphasize is that the First Step Act is
not just a feel-good act that sounds good in theory. It really
is not. The data suggests that recidivism rates have dropped
substantially, and we've heard those rates from the Chairman,
from Mr. Charles to my right, that are substantially lower than
the other rates. I mean, you're talking 12.4 percent versus
46.2 percent. I mean, those are compelling statistics, and go
to show that FSA was again, not just some kind of feel-good
act, but something that really had proven results.
In terms of the State impact, thanks to the reauthorization
of the Second Chance Act originally passed by Congress in 2008
under FSA, grant-funded initiatives and programs designed to
continue to reduce recidivism and improve the reentry process
remained intact. The Second Chance Act allowed nonprofit
organizations to be eligible grant recipients for programs
centered on career training and substance use disorder
treatment. It also established partnerships between Federal
prisons and faith-based and community-based organizations
around recidivism reducing programming.
From 2009 to 2022, BJA, the Bureau of Justice Assistance,
awarded more than 1,100 Second Chance Act grants amounting to
more than $600 million. Through Fiscal Year 2022, these grants
have been administered in 845 State and local agencies across
the United States and territories, with over 400,000
participants served. In Senator Graham's home State of South
Carolina, the Department of Parole, Probation, and Pardon
services created a leadership academy in four counties to
promote coordination and information sharing among supervisors
and managers.
Officers were trained on effective practices. Grant funds
were dispersed toward community-based substance use treatment
services to offset cost to participants, and risk and need
assessment results were used to modify caseload and guide
officers' decisions about interventions. As a result,
revocations decreased from 34 percent to 19 percent in a 5-year
period, from 2010 to 2015. Again, meaningful stats.
The New Jersey Administrative Office of the Courts used
grant funds toward risk-based supervision pilot programs in
three counties. Again, they used a standardized risk assessment
to evaluate the needs of people on probation, and modified
supervision practices and services based on these findings.
Probation officers' caseloads were adjusted to focus more
resources on individuals assessed as a high risk, not low risk.
Pilot participants were less likely to be arrested or to
violate their parole conditions within 210 days of the start of
the program. The rearrest rate was 11 percent compared to 18
percent in the control group. And the frequency of violating
parole conditions was 7 percent compared to 21 percent in the
control group. The Santa Maria Hostel in Harris County, Texas,
provides treatment for substance use disorders, supportive
housing, and mentoring services to formerly incarcerated women.
The Second Chance Act grant funds were used to hire
recovery coaches to provide one-on-one support to women in its
Path to Recovery program to assist with attaining their reentry
goals, as well as connect women with housing, education, and
employment services. And these few stories--there are many--
highlight that common-sense Federal legislation like the FSA
improves our criminal justice system and inspires States to
mirror these efforts at the local level.
Chair Durbin. Thank you, Mr. Smith.
Mr. C. Smith. Thank you.
[The prepared statement of Mr. C. Smith appears as a
submission for the record.]
Chair Durbin. Appreciate it. Mr. Markle.
STATEMENT OF STEVE MARKLE,
NATIONAL SECRETARY-TREASURER,
COUNCIL OF PRISON LOCALS, ROCKVILLE, INDIANA
Mr. Markle. Good morning, Chairman Durbin, Ranking Member
Graham, and Members of the Committee. I'm honored to represent
the Council of Prison Locals and provide a statement on the
implementation of the First Step Act within the Federal Bureau
of Prisons. The Council of Prison Locals represents nearly
30,000 Bureau of Prisons employees who work tirelessly inside
America's prisons. These dedicated correctional professionals
ensure the safety of inmates, staff, and the public even in the
face of adversity posed by some of the world's most dangerous
individuals.
Having worked for the Federal Bureau of Prisons for over 20
years as a special education teacher, I have firsthand
experience witnessing the positive impact of the First Step
Act. I can attest to the added desire for inmates to attend GED
courses, which will allow them upon completion to enroll in
vocational courses. We have seen the increase of inmates
enrolling in apprenticeship courses and participation in adult
continuing education classes.
The dyslexia screening requirement of the First Step Act
has assisted in identifying inmates with learning disabilities.
Identifying disabilities has enhanced our staff's ability to
assist these inmates. While the BOP is known and provided
educational courses for years, this Act has highlighted the
need to enhance what has been previously provided. An enormous
amount of classes have been added since the implementation of
the First Step Act.
Over the years, we have collaborated with Chair Durbin's
office and Senator Grassley's office in regards to the First
Step Act and its effect on the Bureau. Our Council also
continue to work with BOP representatives to develop policies
for the successful implementation and management of the First
Step Act. The Council remains committed to the First Step Act
and the goal to reduce repeat offenses and to prepare inmates
for release. Active participation in programs is crucial for
successful preparation.
Inmates now show more interest in programs that they may
have previously ignored. They currently receive credit for
being on waiting lists, trying to enroll into full programs. To
ensure inmates receive the necessary skills and education, it's
important to increase staffing, and also to increase
programming spaces. The Council supports the FSA's motive and
the ability to motivate inmates to stay engaged in programming,
reducing idleness.
I'm eager to discuss the First Step Act's effects on the
dedicated staff members who carry out the Bureau's mission each
day. Previous Directors of the Bureau of Prisons have lauded
the positive impact to the First Step Act before this very
Committee, and we acknowledge its importance as well. However,
we believe that certain factors, if left unaddressed, will
limit the Acts full potential.
Our primary concern is the current staffing levels within
the Bureau of Prisons. Since the signing of the First Step Act,
the filled positions in the Bureau of Prisons have decreased
from over 43,000 to the current amount of 34,000. This
reduction of 8,708 staff members raises concerns about our
ability to effectively carry out our responsibilities. The
impact of these staffing cuts particularly evident among our
correctional officers, who serve as our first line of security.
At the end of 2023, we have approximately 12,300
correctional officers, which are 8,000 below the appropriated
number from Congress. When requested for staffing members, the
Bureau often provides ratios and percentages to Members of
Congress. We have only 60.1 percent of our appropriated
correctional officers right now. The insufficiency leads to the
overuse of a procedure known as augmentation and reassignment.
This is where non-correctional officers are assigned to perform
the duties of correctional officers.
This not only compromises the safety by reducing the number
of staff available to respond to emergencies, but also hinders
the provision of programming in the First Step Act. To fully
realize the Act's potential, it's crucial to address the
critical staffing crisis within the Bureau of Prisons. The
Council believes that staffing crisis can only be resolved by
addressing a pay band issue. The current pay structure within
the Bureau is significant lower than other Federal law
enforcement agencies.
Additionally, the Bureau's pay scale is non-competitive
with also State and local law enforcement, or positions in the
private sector. Without addressing this pay disparity, the
Bureau will struggle to attract and retain employees,
ultimately hindering the overall success of the First Step Act.
In conclusion, Chairman Durbin, Ranking Member Graham, and
Members of the Committee, the First Step Act has been very
successful, however, it has yet to reach its full potential and
will continue on this path until the critical staffing and pay
crisis can be addressed. Thank you for the opportunity to share
our concerns with the Committee, and we're happy to answer
questions.
[The prepared statement of Mr. Markle appears as a
submission for the record.]
Chair Durbin. Thanks, Mr. Markle. Mr. Smith.
STATEMENT OF JA'RON SMITH, FORMER DEPUTY ASSISTANT FOR DOMESTIC
POLICY FOR PRESIDENT TRUMP, WASHINGTON, DC
Mr. J. Smith. Thank you, Chairman Durbin, Ranking Member
Graham, and Members of the Judiciary Committee. I am honored
here today to commemorate the 5-year anniversary of the First
Step Act. Growing up, I've witnessed firsthand the damage that
a broken criminal justice system can reap on families and
communities. So, when I got the chance to work on a landmark
criminal justice reform bill during my time in the Trump
Administration, I jumped on it.
I worked with many people in this room on both sides of the
aisle; right-of-center groups such as Right on Crime, Americans
for Prosperity, the American Conservative Union, Tzedek
Association, Prison Fellowship, the Deason Center, and many
others supported the bill and continued to lead on criminal
justice reform today. We worked hand-in-hand with Democratic
leaders in the House and the Senate, and with left-of-center
groups such as the ACLU, Cut 50 or Dream, and Families Against
Mandatory Minimums.
Together, we passed a bill that has had tremendous success.
However, some critics of the law have cherry-picked rare cases
of recidivism to claim the First Step Act contributed to the
rise in crime during the pandemic. That is simply not true.
According to Federal data, the recidivism rate for Federal
prisoners is about 43 percent. For those released under the
First Step Act, the rate is just 12 percent, and technical
violations, not new crimes, account for a third of that number.
We're now at a crossroads with a critical choice to make.
We can either pursue policies that have proven to fail, or we
can follow in the footsteps of the First Step Act and continue
to adopt policies that are smart on crime. That is exactly what
I've continued to work on since leaving the White House. I've
partnered with right-of-center and law enforcement groups to
continue pushing for reforms like the First Step Act that are
smart on crime.
We created a coalition called Public Safety Solutions for
America that is guided by four common sense principles for
reducing crime. First, support our police by properly funding
them. We need to ensure that there are enough police on the
streets and that departments have the amount of money they need
to attract, train, and retain the best talent.
Second, focus law enforcement's time and resources on
preventing and solving the most serious crimes. Police are too
often asked to play the role of social worker. Specialized
community groups must take on a larger role in managing mental
illness, drug use, homelessness, so police can focus more on
preventing and solving violent crime.
Third, implement evidence-based policies that have been
proven to reduce violent crime. For example, Dallas Police
Chief Eddie Garcia has used proven tactics such as focused
deterrence, hotspot policing, and urban blight reduction. As a
result, overall violent crime has decreased in the city for the
third year in a row.
Fourth, continue exploring, sharing, and enacting smart-on-
crime solutions that hold people accountable, increase public
safety, and respect the dignity of all human beings. These
types of smart-on-crime solutions resonate with conservatives.
Pollings from the Adams Project indicates that 86 percent of
Republican primary voters agree with the policies in the First
Step Act.
America deserves a more effective criminal justice system,
one that supports our police, holds criminals accountable, and
helps those who have earned a second chance successfully
reenter society without wasting taxpayer dollars. The First
Step Act was a bipartisan win that accomplished all of this. We
should strive for more bipartisan solutions, because at the end
of the day, safety for all Americans' should not be political.
And I just want to say lastly that in my experience, and
being blessed to be a part of this great piece of legislation,
the experience has showed me that anything is possible in
America. Even in the most partisan environments, our leaders
can come together and focus on reform that changes Americans'
lives and helps empower individuals.
And so I encourage you to stay focused and committed to
this effort and continue to do the hard work, staying up late
and working through your differences. Because at the end of the
day, it's all about our common goals as America to be a better
country. Thank you for your time and thank you. Good day.
[The prepared statement of Mr. J. Smith appears as a
submission for the record.]
Chair Durbin. Thank you very much, Mr. Smith. And let me
personally thank you for your constructive suggestions of
things that we might consider moving forward. Mr. Markle, thank
you for identifying the reality on the ground of the number of
corrections officers at risk every day, and some of the
challenges which we've created in Congress because of our lack
of funding appropriately in that field.
But I'd like to really go back to a point I made earlier
with Senator Booker. It's nice to feel good about what we've
achieved with the First Step Act, and we should. There are a
lot of great success stories. But what is the next step? What
is the next step? If we look at the current situation with the
law and its application, and the current situation facing us
with incarceration, we still have many, many challenges.
I'd like to invite you to give me any suggestions or ideas.
If you want to reflect on it and get back to the Committee,
that's fine too. But let me start with Mr. Charles. There was a
moment when your life turned around. Was that all your
decision, your experience? Was there something external that
made a difference to you that you think could help someone else
in the future?
Mr. Charles. I think what actually took place in my life
was, I was at a period to where I was in the county jail, my
past, like I said, had been one of shame. And at that moment, I
think the fact that I was arrested, in that county jail, and
open to change, that it actually happened. But I don't want to
get caught up on the fact that my story is unique in any
capacity, because people actually change or become
rehabilitated for various reasons.
A lot of times it may be because they've now been separated
from their family and their loved ones for a prolonged period
of time. It may be due to the fact that they've aged since
they've been incarcerated. And it may just be to the fact that
they've waken up and realized because of what I've done, I
don't have an opportunity to go anywhere. And that's kind of
like what took place in my life. The change happened, but I
wasn't released until 22 years later. Yes.
Chair Durbin. Well, I will tell you that nobody is asking
for the Durbin plan for shaping up Congress, but I'm going to
give part of it to you anyway. I think that every Member of
Congress in every two year term or every six year term, should
visit a foreign country. I think it's important to come to
understand that country even better and come to understand your
home even more.
And secondly, visit a prison. I've done that regularly
throughout my congressional career. It's important that Members
of Congress see this firsthand and meet the people in these
prisons, those who are serving time and those who are watching
them. It'll give you a better understanding of our system of
justice. And you'll realize, as Mr. Markle indicated, that
there is some danger associated with it for sure. There are
people there who are dangerous people and will always be
dangerous, and we have to acknowledge that reality.
But there are also people like you, Mr. Charles, who has
that one moment of Paul on the road to Tarsus, if I got that
correct, and struck from his horse and changed his life, and
you had that moment.
Mr. Smith from the District Attorney's Association, what is
your thought about what else we could be doing or should be
doing from the First Step Act?
Mr. C. Smith. Well, the First Step Act did a great job of
differentiating between good people making bad decisions, and
bad people making bad decisions. okay? The bad people who make
bad decisions, they stay in jail because they should. They're a
threat to public safety. The good people that made a bad
decision that were convicted for it, went to jail for it, are
getting rehabilitated and released earlier, as well they
should.
I think there's a narrative out there about mass
incarceration. Well, without mass criminality, there would be
no incarceration. So I think what we need to do is focus on why
people are committing crime in the first place. We have a
problem with crime in the United States of America, juvenile
crime especially. On a recent call to the White House, I was
told that car thefts among juveniles are almost a million car
thefts across the United States of America.
Chair Durbin. It's a terrible problem. Terrible challenge.
Mr. C. Smith. It's a terrible problem. So, we're doing a
great job of implementing reforms like the First Step Act. I
think what we're not really doing a great job of, is figuring
out why people are committing crime in the first place. I don't
know whether it's a lack of opportunity, whether it's a lack of
family, education, I'm not sure. But we need to definitely
focus on why people are taking a first step toward committing
crime and do something about that.
Chair Durbin. Thank you. Senator Cornyn.
Senator Cornyn. Thank you very much to each of the
witnesses for your contribution toward this important
legislation. And it is nice to be able to revisit something
that happened 5 years ago and to see that we were able to work
together on a bipartisan, bicameral basis and get something
done that's significant in so many different ways.
Mr. Smith, I want to just go over with you some of your
comments because I think they're really important and bear
emphasis. When we talk about over-incarceration, that's a
general comment and, I guess, designed to apply to all people
convicted of crimes. But you made the important point that--and
I can't think of a better way to say it--differentiating
between good people making bad decisions and bad people making
bad decisions.
In other words, you talked about the low risk nonviolent
nature of the people who benefited primarily by the First Step
Act and the role of the risk assessments--evidence-based risk
assessments, to determine who is likely to commit further
crimes if released and--and who would be unlikely to be.
So, do you think that's an important point to emphasize in
all this? It's not just saying we're going to open up the
prison doors and release serial murderers or people that are
likely to continue to commit serious crimes, but rather a
smart, targeted way to reduce incarceration, where people will
take advantage of the programs and deal with whether it's a
substance abuse problem or mental health problem, and are
likely to be successful like Mr. Charles has been able to be so
far.
Mr. C. Smith. Thank you, Senator. You used the word
strategic, I believe. And that's what we need to do. We need to
collect data. We're currently doing that through transparency
projects, first and foremost. But one of the reasons why I, as
an elected Republican prosecutor am in favor of data, is to
disprove what I believe to be false narrative out there about
who it is we prosecute and how long we seek prison sentences.
Because without the data, it's just unfounded opinion. And
so we need to be informed, and we need to realize what it is
that we're doing. And so without data we can't do that. And I
think one of the things that--that First Step did, was these
tools. They said, ``Hey, look, we're going to take a look;
we're going to drill down; we're going to see the data. This
data is irrelevant for whether we need to release somebody.
This data is relevant.'' So they got rid of some data points
that just made no sense.
And so I think if we continue to do that, we're going to
have informed decision-making about who is violent and who is
not, who needs to come back out into the community and who
should not, because let's face it, we still have a lot of
repeat violent offenders out there that are harming our
communities, urban and suburban for that matter.
Senator Cornyn. Let me ask you further about nonviolent
offenders. There's some people who suggest that people who deal
and distribute, sell illegal drugs, can be nonviolent
offenders. Is that your experience, that drug dealers are
nonviolent?
Mr. C. Smith. That's a tricky question. So, there are some
that are, and some that are not. Quite frankly, I grew up in
East Baltimore, one of five kids in a row home. Two of my
sisters were drug addicts. My one sister was a heroin addict
for many years, and died in her thirties, largely in part to
her addiction. So, she was a dealer user. So, she was
nonviolent. She'd, you know, sell a little bit, use a little
bit. There's plenty of those people out there.
And then we have drug merchants who have guns, they have
organizations, they are brutal in their tactics. And so, once
again, let's take a look at the data. Let's see who we're
dealing with here and treat each one appropriately.
Senator Cornyn. Well, what I was thinking about, and
appreciate the distinction that you drew, is the 108,000
Americans who died as a result of drug overdoses and poisoning
from fentanyl last year. And the way that that actually gets
distributed in communities throughout the United States. Is it
your experience that criminal street gangs and others in
communities all around the Nation are the principle mode of
distributing the drugs that come across the border and that
make their way into our communities?
Mr. C. Smith. I don't know if the criminal street gang
would be the organization that brings it across the border, but
they're definitely the organization that distributes it in our
local communities back home. There's no doubt about that.
Senator Cornyn. And they are the ones most likely to be
associated with gun violence and other--other crimes in our
communities, correct?
Mr. C. Smith. It's not uncommon for guns to be used in that
activity. That's correct.
Senator Cornyn. Thank you very much.
Mr. C. Smith. You're welcome.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I'd like to thank
all the panelists, and it is very clear that the First Step Act
has seen a lot of success, and it was done in a bipartisan way.
And I thank the Chairman, the Ranking Member, as well as
Senator Booker, who, for him, this is a very important issue.
I do want to ask each of you with the diverse backgrounds
that you have, as you talked about the successes under the
First Step Act, for each of you--and we can start with Mr.
Charles--what is the most effective next step that we can take
to follow up on the First Step Act that we should consider
pursuing in a bipartisan way? I know that the Chairman asked
some of you this, but I just wanted to get a sense from the
entire panel, what do you think is the most important next step
that we should contemplate?
Mr. Charles. Thank you, Senator. I would say in regards to
that question, there are two things that immediately come to
mind. I believe that there should be Second Look laws passed by
this Congress for those Federal prisoners. And the reason being
is because whenever I gave my testimony earlier, I spoke about
me serving 22 years in prison, and I also spoke about my saving
date, you know, that I accepted my savior in 1995, and I was
sentenced in 1996 to 35 years.
So, for over 20 something years, I was in Federal prison
with not one disciplinary infraction. I was doing everything
that you would want somebody incarcerated to do to show signs
of rehabilitation. But nobody knew that except me, my family,
and those that were formerly incarcerated around me, because
the judge never knew that; he sentenced me, and I was gone.
And the society never knew that. They just knew how I used
to be when I was out in the street. So, Second Look laws will
allow that person to petition the court, and then the court
will be able to look at that person's record of incarceration
and see have there been any, you know, substantial changes,
also to see what type of vocational or educational courses or
classes that they have achieved taken.
And then he would be able to make a conscious decision, of
course, with the district attorney also looking at that
petition and filing whatever statement that he want to for or
opposing it, and then be able to say, okay, this person has
made a significant change in his life and no longer remains a
threat or a public safety factor, and therefore could be safely
released back into society.
So I would say to create some Second Look laws is one, and
the other is--one that I'm hoping this Congress will pass this
year--is pass the Equal Act. And the reason being is because I
was sentenced under 100 to 1. I stated earlier in my opening
statement, how I was given a 35-year sentence as opposed to a
20-year sentence because of that disparity between those two
drugs.
We understand today, we understood as early as 2000, 2010,
when it was lowered to 18 to 1, Chairman Durbin stated how the
18 to 1 ratio just, he didn't say came out of thin air, but it
came up with something that was acceptable before this
Congress. But there needs to be no disparity between those two
drugs. And----
Senator Hirono. Yes. Thank you. I'm really sorry to
interrupt you, but yes, I know that we need to do more
sentencing reform. I'm sorry that you spent so many years in
prison, but I thank you for participating.
Mr. Smith, what is the next important thing that we should
pursue? And I have less than 2 minutes, so if you could just
make it very brief.
Mr. C. Smith. I think we need to be smarter about how
inmates earn diminution credits and get out. So, as we said, we
don't just want a second look. We want the prison population to
understand this is what they need to do in order to get out
earlier, as opposed to just coming before a parole board
saying, ``Hey, I've been here and haven't done anything
wrong.'' Let's focus on, ``I've been here and I've done a lot
of things right, and therefore, I'm reformed, I'm
rehabilitated, and I am less likely to reoffend when I get out
of prison.''
Senator Hirono. Mr. Markle.
Mr. Markle. I would say implementation. We have been doing
the best we can with what we have. We need more resources, we
need better policies. Our agency we work for sometimes isn't
the most transparent to Congress, but what we need to do is
provide you all with the information you need to pass the laws,
and then we need to have the resources we need on the ground to
actually implement those.
Senator Hirono. Mr. Smith
Mr. J. Smith. Yes, I would agree with Mr. Markle, that
certainly more funding to implement the First Step Act, and
being able to stand that up is going to help with further
reducing recidivism. But I also think focusing on community
supervision. I know that Mr. Cornyn mentioned legislation that
he sponsored to reform our supervision, that also will help
with recidivism. As you can imagine, with the First Step Act, a
number of the individuals that recidivated was from technical
violations, which we would need to reform in the Act; the
Community Supervision Act actually does that work. And so I
think that would be a excellent second step.
Senator Hirono. Thank you. Thank you very much. Just one
more point. We do have halfway houses for people who are coming
out of prison. Do all of you acknowledge that that is an
important step in having a person come back into the community,
to have these kinds of places for them to go to within their
own communities? Does anybody disagree with the importance of
these halfway houses? Okay. Thank you, Mr. Chairman.
Chair Durbin. Thank Senator Hirono.
Senator Cornyn. Mr. Chairman, may I make a unanimous
consent request?
Chair Durbin. Sure.
Senator Cornyn. I'd like to ask unanimous consent that a
statement from the National Association of Assistant United
States Attorneys be made part of the record.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Cornyn. Thank you.
Chair Durbin. Senator Lee, you're next.
Senator Lee. Thanks so much, Mr. Chairman. I feel a great
sense of pride at the fact that we're now marking the 5-year
mark from the passage of the First Step Act. This was a huge
event. It was a big accomplishment within Congress, but far
more importantly, this is a huge development to the men and
women who have benefited from it ever since then. Especially
for those who are now able to go on and live peaceful, law-
abiding, meaningful lives with their families and in their
communities.
And it's a real testament to the wisdom of this bill that
we've got you, Mr. Charles, here with us. I've really enjoyed
getting to know you. I got to know you shortly after you were
released from prison as the first individual to be released
onto the First Step Act.
And Ja'Ron, it's great to see you as always. And your work
in the last administration was absolutely essential to getting
this across the finish line. And of course, we have here today
a number of Members of this Committee who were very involved in
this measure. And it was a pleasure to work with the Chairman,
with Senator Booker, with Senator Cornyn, and so many others
who were part of the effort.
This, of course, was not the beginning or the end. It did
represent a culmination of many years of work together on both
sides of the aisle until this finally got passed and signed
into law by President Trump. And there was a lot of hard work
that went into this effort on this Committee on both sides of
the aisle.
It's absolutely essential as we celebrate this milestone,
Mr. Chairman, that we differentiate between this legislation
and the overwhelmingly positive effects that it's had; that we
differentiate this measure and what we celebrate from it, from
something that's totally different from it, which it's often
confused and can sometimes be mistaken.
The violent crime wave sweeping across our country has
absolutely nothing to do with the First Step Act. That is a
wave that's caused by a completely independent force. Something
having to do with prosecutors across the country who were just
deciding not to prosecute entire swaths of crime, including
some significant categories of violent crime, some of the most
egregious offenses.
And it's alarming to see the complete disregard that some
prosecutors show for public safety in their deluded effort to
advance some other kind of interest other than the rule of law
by just promising not to prosecute entire categories of crime.
Now, some have criticized the First Step Act for today's
crimes, but that's real wildly inaccurate. The First Step Act,
of course, does absolutely nothing to change the sentences
applicable for violent crimes, as Mr. Smith said--Mr. Ja'Ron
Smith, the First Step Act, ``is about developing and
implementing a system in which nonviolent prisoners are given
the incentive to improve their behavior and ultimately improve
themselves, gaining the education and tools they'll need to
succeed when they eventually do leave prison.''
I couldn't agree more. And blaming the First Step Act for
problems that are caused by deliberate prosecutorial inaction,
is about the same as getting your cavity filled by your dentist
one day, and the next day when your basement floods blaming
your dentist for the flooding. The results of the First Step
Act itself have been overwhelmingly positive.
In August 2023, the Council on Criminal Justice released a
report showing that individuals released under the First Step
Act had a recidivism rate 37 percent lower than those released
prior to the FSA were similarly situated. And even with the
10,000 prisoners released under the FSA, FSA beneficiaries
accounted for a minuscule portion. We're talking about 0.02
percent of national arrests, two one hundredths of 1 percent of
all national arrests.
I meet regularly with First Step Act beneficiaries like
Matthew Charles here, and including last month when I met with
a group of entrepreneurs, homeowners--men and women who are now
able to live with their families in their communities and lead
very productive lives. And some folks, like Weldon Angelos,
were facing life sentences or effective life sentences for
nonviolent drug offenses.
Mr. Angelos, of course, was what first sparked my attention
in criminal justice reform when, back in 2004, he was sentenced
to 55 years in prison for selling three dime bags of marijuana
to what turned out to be an undercover reporter--someone
working with the police--an undercover agent, a confidential
informant.
And because of the fact that he was charged for each of
those dime bags sold over a 72 hour period, and because he had
a gun on his person at the time of those transactions totaling
no more than $350--a gun that was neither brandished nor
discharged in connection with the offense--he was subject to
the 924(c) stacking problem, where those were each treated as
individual predicate offenses under the three strikes law,
leading the Federal judge who sentenced him no choice but to
give him 55 years.
Judge Paul Cassell himself, a former Federal prosecutor,
hardly known as minimum Cassell, not somebody known as being
soft on crime, made the unusual step of issuing an opinion
disagreeing with the sentence he was about to impose. He said,
``There are rapists, there are murderers, hijackers, terrorists
who don't get this much time in prison. And yet, I, as a
Federal district judge, have no choice but to send you away to
prison for 55 years.'' And then he said something that would
haunt me ever since then; he said, ``Only Congress can solve
this problem.''
And so that's what got me involved in this effort. And what
got me originally working with Senator Durbin after I got to
the Senate. I'm grateful to him and so many others who worked
hard on this effort. But the work is not done. One of many
problems that we've got with the 924(c) stacking problem, we
fixed it prospectively in the First Step Act, still needs to be
fixed retrospectively.
Mr. Angelos is out of prison only because President Obama
commuted his sentence, and President Trump later pardoned him.
But there's a lot left to be done, and I look forward to doing
that. Thank you very much.
Chair Durbin. Thank you, Senator Lee. And I thank you
personally for working so assiduously on this problem, having
seen it firsthand. Thank you very much. Senator Booker.
Senator Booker. Thanks so much. First of all, thank you
all, everybody in the panel for being here. It means a lot to
me. Steve, can I start with you? Just because you have so much
insight. I can't tell you how much benefit I get of visiting
Federal prisons, State prisons, jails, and actually turning to
the people that work there every day. And it's amazing the
wisdom that they have about just commonsense solutions and
ideas.
One of the things that concerns me is the practical impact
of the staffing shortages going on right now and what that
means for incarcerated individuals as well as, frankly, the
safety and well-being of the people that work. What can you
give us in terms of insights about what we should be doing
about that problem?
Mr. Markle. Well, I appreciate that Senator. Our number one
concern, and it has been for years, is not filling the
correctional officer positions that we've been appropriated
through Congress. I throw some numbers out there, and you know,
right now we are 8,000 correctional officers short from what
was appropriated from Congress. That's where it all starts.
If we don't fill the correctional officer positions then we
don't have the first line security in our institutions to
protect inmates and staff. But it also affects the programming
for First Step Act because we're constantly pulling teachers,
recreation specialists, case managers, counselors, out of their
primary jobs of actually, you know, working to reduce
recidivism and First Step Act programming, and we're actually
utilizing them to fill a correction officer spot.
That's where it has to stop right there. If we can fix the
staffing crisis we have, I think this program will just
flourish in the future.
Senator Booker. Yes. And that's frustrating to me that we
have this wisdom. We know what's working, but we're not filling
spots. Number one, I think is a safety issue for correctional
officers as well as for inmates. But then the other thing is,
it's failing. It's undermining the implementation of the First
Step Act.
Another thing I always do when I visit facilities is, I
turn to both people that work there as correctional officers
and wardens. I always ask them the question, ``Are there people
in this institution that are wasting taxpayer dollars and
really shouldn't be here?'' And even the toughest wardens or
correctional officers look at me and say, ``Absolutely, yes.''
And one of those populations is just the elderly, that
folks that have been there for years, sometimes decades, and
there's legislation that is talking about ways to get those
folks who really have aged, who are costing taxpayers even more
money because there's lots of costs associated with their age.
Would you agree with that conclusion?
Mr. Markle. I believe it's unique to the individuals that
we're talking about. I believe that there's a certain percent
of the populations that fall within that category. There's a
certain percent, based on their sentencing that they've had
before, that wouldn't.
But I think if the empirical data would support it, then
it's something that should be looked at. I can't say that the
elderly population, they don't cause any of the issues we have
in Federal prisons as far as discipline and other issues, but I
would say it's probably lower than the rest of the prison
population.
Senator Booker. Right. And there's some pilot programs that
are showing a lot of promise in this case. I think some work
that we should do together. Real quick, there are a lot of
actually interesting pilot programs going on in our Federal
prisons, and in some State prisons, I know, you know, a lot of
them from agricultural farming work to work with animals and
care.
If you could see some of the pilot programs that you know
about off the top of your head and say, ``Gosh, if Congress
would just expand this successful program, it would have such
an impact on the working conditions of the people, of
correctional officers, and the well-being and eventual success
of incarcerated individuals.'' What are some things that come
to mind when I ask that question?
Mr. Markle. I think vocational programs through education
are the most important. It's important to have more vocational
because as people progress through GED and they graduate, they
can move on to those. But those individuals that already have
high school diplomas and may already have GEDs, they can take
those immediately upon being incarcerated. I think those hands-
on experiences where you get firsthand knowledge on some sort
of a trade that you can take with you later on, I think those
are the most important.
I work at FCC Terre Haute, and they just started a rescue
dog program. And it's flourishing so far, they want to expand
it. And I think that those are the type of programs that are
very beneficial, not only to the inmates involved, but to
communities around the prisons as well.
Senator Booker. And all the data I've seen shows a dollar
invested in just need simple education program--GED, BA,
graduate degrees--returns to the taxpayers a lot in terms of
dropping the recidivism rates. It's a smart investment of
money. And for us, again, to ban people from getting Pell
Grants, for example, it seems like a nonsensical waste of a
taxpayer opportunity. You would agree?
Mr. Markle. When I started, there was Pell Grants still,
and I have nothing negative to say about that. I think the more
benefits we give, and the more availability we have for inmates
to provide any type of education or receive any type of
education is important. As long as the Bureau of Prisons and
the staff implement it, the resources are there on our side of
the table too. That's the most important part.
Senator Booker. Yes. I thank you. And again, to everybody
sitting there, friends of mine now, just thank you all for the
continued work and the testimony you given today. And I just
think it underlines the question I was giving, just that
there's still so much low hanging fruit in terms of things we
should just get done, like chip shots, I would say foul shots.
I just don't know, Chairman, whether you are good at that or
not, but, so I'll say layups as well.
Chair Durbin. Layups, yes.
Senator Booker. Layups, okay.
[Laughter.]
Chair Durbin. Thanks a lot, Senator Booker. Senator Welch.
Senator Welch. Thank you. Thank you, Mr. Chairman. And I
want to thank Senator Booker and Senator Lee for their great
work on this. I was a public defender in Vermont, and so many
of my clients had mental health issues, some were homeless. And
it was as though, I mean, you've heard this before, but in
frustration in our inability to address issues of mental
health, a lot of those folks ended up in the prison system and
then had a hard time getting out.
I'll ask all of you, what do we do about that? I think the
First Step Act has been incredibly helpful in acknowledging
that there's some folks who really are good to be getting back
out on the street. But talk to me about how we can have the
criminal justice system not be the mental health system of last
resort. I'll start with the prosecutor here.
Mr. C. Smith. Thank you, Senator. We implemented in
Frederick County a mental health court about three years ago. I
think the specialty courts are critically important because you
take a look at a segment of the population, the offending
population, and again, you try to figure out, why are they
offending? That it's crime fighting.
What people don't realize is--they feel like mental health
courts sort of soft-on-crime type of stuff, but it truly is
crime fighting. You're preventing these people from re-
offending and therefore preventing crime from reoccurring. So I
do believe that mental health courts, where you get people who
are not lawyers but are mental health providers and clinicians
in the process, so that they can determine what's best for this
person. And again, once again, be strategic in terms of the
offender and preventing further offense.
Senator Welch. Well, thank you. You know, the one thing
that's so frustrating about that is that if a person has like
an addiction problem, that is tough for them to address, and
it's not as though a lecture's going to do it and they're going
to elapse and relapse. But we still seem in this country, much
more than any other countries, to rely on the prison system to
be the place in the criminal justice system, be the place where
we somehow quote, ``address those issues.''
I'll ask Mr. Charles your thoughts on that since you have
some incredible experience of being on the losing side of that.
Mr. Charles. I agree with Mr. Smith. There needs to be more
mental health courts, and----
Senator Welch. Can you put your microphone a little closer?
I can't quite hear you.
Mr. Charles. Thank you. I said, I agree with Mr. Smith.
There needs to be more mental health courts, and we do know
that addiction and mental health sometimes play hand in hand.
And oftentimes, because what we call the justice system is
punitive in nature, it doesn't distinguish between a person
that has an addiction or mental illness. All it sees is the
crime that actually committed.
Senator Welch. Thank you.
Mr. Charles. And I've been in prison for 22 years, and I
can clearly say that no mental health treatment behind bars is
sufficient for some of these people that have addictions and
mental illness problems. So I think that, of course I believe
that people should be held accountable for the crimes they
commit, but they need to receive treatment along with the
sentence or treatment as opposed to the sentence and that's it.
Senator Welch. Thank you.
Mr. Charles. Because behind bars, they only get worse, not
better.
Senator Welch. And that gets us back to Senator Booker's
concern about the staffing in order to be able to provide
treatment or vocational training that we addressed.
Mr. Smith, I want to thank you for the good work you did in
your previous position in the last administration. One of the
things that happened during the pandemic, as you know, is that
there was a significant increase in the use of home
confinement. That's become very controversial. And to some
extent it's controversial because there is understandable
apprehension as to whether certain offenders can be trusted and
the public can be safe.
To some extent, it's a view that people want more punitive
action than, quote, ``home confinement.'' But my understanding
is that home confinement, by and large was quite successful.
What are your thoughts on that?
Mr. J. Smith. Well, I think you may be alluding to the
Cares Act----
Senator Welch. That's right.
Mr. J. Smith [continuing]. Which allowed a number of
Federal individuals to spend time at home confinement. And it
has been very successful. Former Attorney General Barr set
great criteria of who qualified for that home confinement, and
the recidivism rate for those individuals is less than 1
percent. It's extremely low. And we've saved a lot of money for
the Federal prisons, which we can use those dollars to invest
in the current infrastructure and implementation of the First
Step Act.
And so I think we should certainly continue down that road.
And I also want to mention on the mental health piece, you
know, I'm working with organization called Care Solace. I think
it's a critical thing as a country that we need to invest into
mental health infrastructure. That is a crime prevention piece
because a lot of people who end up in the prison system is
because of trauma backgrounds and lack of mental health and
drug abuse. And our ability to kind of set up that
infrastructure is critically important. So, working with local
mayors to do that would be helpful.
Senator Welch. Thank you very much. Thank you. I yield
back, Mr. Chairman.
Chair Durbin. Thank you, Senator Welch. Are you ready or--
Senator Butler? Senator Butler.
Senator Butler. Thank you, Mr. Chairman. And thank you to
my senior Senator for allowing me to engage the panel. Thank
you all so much for the work that you have done. You did it
before I arrived. And to be here to listen to the
implementation on the success of the hard work of my colleagues
is really inspiring for a new Senator like me who's excited and
urgent about continuing the important work that has preceded
me.
Mr. Charles, if it's okay, I'd love to start with you.
Thank you for sharing your story. And you received a lot of
attention, and your case received a lot of attention from my
famous constituents, Ms. Kardashian and others who helped raise
the awareness of the country of not just your story as you've
spoken, but to the stories of many others who have been in your
shoes.
After your release, you could have chosen to have a quiet
life and none of us would've faulted you for that. Instead,
you've decided that you're going to channel your experiences to
speak out in support of criminal justice reform, and we all owe
you a deep debt of gratitude for doing that.
I noticed that you have joined local lawmakers and criminal
justice reform advocates in Tennessee to discuss legislation
that would automatically restore voting rights for people with
felony convictions. And as we think about and are listening in
this panel, both in recognition but also soliciting ideas for
what is next, can you talk with us about the importance of
restoring voting rights and what you have seen and heard, and
why this is a place where you have invested your activism?
Mr. Charles. I would say that whenever it comes to
restoring voting rights, there's so many different collateral
consequences due to incarceration, and one of them shouldn't be
to lose your right to vote. I believe that right should be for
everybody, especially those that are no longer in prison or on
any type of supervision.
But to turn around and say that this person is ineligible
to be able to vote is to say that he can't be effective in his
community, although he's trying to do everything that he
positively can to be a part of the community. So I think, and
also, you know, just restoring the dignity of an individual who
has shown that he has substantially made changes in his own
life, and he'd like to be part of the elected process.
And there are representatives that have those same goals
and interests that he share, but sometimes he's not able to
vote for those individuals, just like in the State of
Tennessee, and you talked about it in the restoration of the
voting rights. There are some problems in regards to that
because it's so complex.
It makes a person jump through so many hurdles that even
trying to get your voting rights restored starts like a task
too complex for an individual, especially with limited
knowledge of government, or how to achieve such a purpose to go
through, you know, continue on and try to get their voting
rights restored.
So, I think that it needs to be simply, if you served your
time, especially if you're not on any type of supervision
anymore, and you are now contributing to society, then you need
to be able to also vote on whatever elected official, whether
local or national.
Senator Butler. Thank you so much, and again, thank you for
your activism and your continued commitment to this work. Mr.
Smith--at the other Mr. Smith, I'd love to direct this my last
question because of time to you. Thank you so much for being a
part of today's conversation. You're showing so many young
people who may believe that bipartisan work is impossible that,
indeed, when we find common cause and we pursue it vigorously,
that this is a model of government, and our democracy can truly
work. And so your presence alone is so meaningful. Let me ask
my question.
You, on a recent panel, talked about the most ingredient
being, quote, unquote, ``creating trust,'' and I think that
that is so essential. You went on to say that, ``It's hard to
navigate the contours of politics and people's differences, but
it's even harder if there's no trust there to have a difficult
conversation on what good looks like and what's a real win.''
Such a powerful comment.
You did a lot of work, as been acknowledged by many of my
colleagues, on helping to pass this incredibly important
legislation. Let me ask you, how can trust, in your opinion, be
restored to get to the next version of this great legislation?
Mr. J. Smith. Sure. So I think the biggest thing is you
have to, one, be very intentional of not letting the perfect be
the enemy of the good. You have to understand that like--there
are areas of common ground, and in achieving those areas of
common ground, having the openness of discussion with people
who may have differences of opinion.
And so being intentional about trying to figure out where
that bridge is, is a very important point. But then once you're
trying to create that bridge is also being in a position to
have a conversation of good faith, and that's why that trust
piece is so important. You know, in many cases, even
negotiating the First Step Act with a number of the Senators
that are on this Committee, you know, the trust wasn't there on
the front end.
But the fact that we had something in common like a North
Star that we all wanted to achieve, that allowed for us to have
that conversation on good faith, and that good faith
conversation allowed us to be very honest about the issue. And
then figuring out how we can get to yes on both sides by
learning about what we may have differences about, what are the
red lines.
And so it's extremely important. But it takes time and
focus in order for us to get there and leadership, you know,
having all the Senators' leadership, the President's
leadership, allowed to facilitate that type of conversation.
Senator Padilla [presiding]. Thank you. Senator Hawley.
Senator Hawley. Thank you very much, Mr. Chairman. Thanks
to all of the witnesses for being here. I've been enjoying
listening to your testimony as I've been back and forth to
other hearings. But thank you, thank you all for being here.
I'm going to be a bit of a dissenting voice today. I'll be
honest with you, the passage of the First Step Act predates me
in the Senate. This happened before I came, so I wasn't
involved in any of the negotiations, and I didn't get to vote
for it one way or another, and I certainly thank you for all
the hard work, those of you who are involved with it that did.
But I have to tell you, I've got major concerns with--with
how it is playing out, and particularly when it comes to
fentanyl. You know, my State, like I think every other State,
sadly in the country, is in the midst of a major fentanyl
epidemic. I mean, just a major fentanyl epidemic. It is the
number one cause of death in the State of Missouri for young
people who are over the age of 18--between 18 and 30-32, by
some margin.
And it's just getting worse. If you go and talk to any law
enforcement official in the State of Missouri--and I had the
privilege of working with them all over the State when I was
the State's attorney general--they will tell you that our
communities in Missouri, all of them, rural, urban, doesn't
matter, are just awash in drugs, and fentanyl in particular,
worse and worse and worse.
So I've got serious, serious concerns about how this law is
playing out with respect to fentanyl in particular. And I just
want to put a few things on the record. You know, number one is
we've got 190 people a day in the United States who die of
fentanyl overdose. Another Senate Committee just heard
testimony on this last week. That is, as one witness said at
that Committee hearing, that's like a 737 crashing every single
day. And again, that is happening in my State.
And what the First Step Act has done with regard to drug
offenses, including fentanyl, is the following: It limited the
application of enhanced penalties for serious drug offenses. It
dramatically cut back on the use of mandatory minimums for
serious drug offenses. Number three, it drastically scaled back
punishments for repeat drug offenders.
And the U.S. Sentencing Commission that tracks this data,
has found now that enhanced sentences for repeat offenders has
gone down by more than 33 percent since the First Step Act was
implemented. And all of that combines to effectively decrease
big time the penalties for fentanyl.
And then when you add in the fact that the current
President's Sentencing Commission has gone even further--the
Sentencing Commission, now tracking again, sentences for
fentanyl--found that the average fentanyl trafficking
sentence--so not possession, not possession--trafficking, the
average trafficking sentence has gone down by more than 12
months over the last 5 years, the average sentence.
And more than a third of fentanyl offenders receive a
downward variance from their recommended sentence. Again,
that's trafficking, that's not possession. So my concern is
that, at a time when we've got record amounts of fentanyl
coming over the border--27,000 pounds were seized last year;
that's hundreds of millions of doses--the DEA estimates that
20,000 pounds of fentanyl would be enough for 800 million
lethal doses. That's 860 percent more seized last year than in
2019.
And that's just the amount that was interdicted. Who knows
how much actually got through. At a time when we are just awash
with this, the effect of the First Step Act, when it comes to
fentanyl, has been to give traffickers and repeat offenders a
pass. And I just think that that is a huge, huge problem. And I
know in my State it is having hugely detrimental effects. So,
you know, I know Mr. Smith--Charles Smith, you're a prosecutor.
In fact, right now, you're the president of the National
District Attorney's Association, I think. Is that correct?
Mr. C. Smith. Yes, Senator. That is correct.
Senator Hawley. Yes. Well, thank you for your tremendous
work. And again, thank you all for being here. And thank you
for your tremendous work in that connection. You're on the
front lines, and believe me, I appreciate you. The people in
Missouri appreciate our attorneys; we call them prosecutors,
attorneys in Missouri. And just appreciate the tremendous work
that you do and I salute your work, and I salute all of you on
the panel.
I just want to say for my part as a former prosecutor, I'm
concerned by the position we're putting prosecutors in. I'm
concerned, most of all though, by the position we're putting
kids and families in by allowing repeat trafficking serious
offenders to get lighter, lesser sentences. And I'm concerned
about the effects this is having on safety in my State, on
overdoses in my State. And I hope that there's something that
we can do about this in the future. Thank you, Mr. Chairman.
Senator Padilla. Senator Whitehouse.
Senator Whitehouse. Thanks, Chairman. And thanks to the
witnesses for being here. I put a lot of work into the First
Step Act, and so I'm keenly interested in seeing too its proper
implementation.
If you don't mind, Mr. Markle, I'll begin with you. It's my
understanding that the recidivism rate for incarcerated people
who have been released through the First Step Act's reentry
program, is considerably lower than the general population. The
numbers I've seen is about 12.5 percent recidivism versus 43
percent recidivism. So more than a three times reduction.
And yet we've also heard that it's been hard for the Bureau
of Prisons to implement this and to expand the programs as the
bill expected because of staffing issues that have pulled
people away from this particular work. Could you describe that
situation to us so we've got it accurately from the BOP?
Mr. Markle. Absolutely. And the Council of Prison Locals,
we represent the correctional workers inside the facilities.
And what ends up happening is we have our rosters in place
every day that we need a certain percent or a certain number of
correctional officers to safely run an institution. What
happens is our staffing compliment has been reduced so far
below what was appropriated by Congress. We're nearly 8,000
correctional officers short from what was appropriated through
Congress.
So what happens on a daily basis is we still have to
maintain safety and security first. So they pull people out of
the programming area, such as education, psychology,
recreation, and case managers, counselors, the people that are
hands-on every day to do the First Step Act. They're pulled
from their primary positions, and they're placed in a position
to be a correctional officer because we have to maintain a safe
and secure institution first.
Senator Whitehouse. So they get pulled off so they can go
stand post in the facilities.
Mr. Markle. Absolutely. You're working the position as a
correctional officer. So, if I go in as a teacher, I could be
stopped on my way in and they say, you're not going to
education today. You're going to go to a housing unit. You're
going to be a correctional officer. Therefore, the programs are
just shut down. The inmates are idle. And we're reducing the
total number of staff that we have in the institution each day.
Senator Whitehouse. Well, thank you for your work. I've
worked for a long time with the Brotherhood of Corrections
Officers in Rhode Island, who say, quite accurately, that they
work the toughest beat in the State. And I appreciate the work
that you all do, and thank you for explaining that for us.
Mr. Smith, Rhode Island has had a lot of success
encouraging participation in programs that reduce recidivism,
primarily at our State incarcerated facility, the ACI. And now
with this program, we're seeing the Federal facilities
beginning to catch up. At this point, more than 100,000 people
have participated in these activities, and as I mentioned, the
recidivism rate seems to be responding very powerfully.
We got here because of a lot of support from law
enforcement. And I want to take a moment to thank you for all
of that and to ask you if there's anything that, from a
prosecutor's perspective, you'd care to add. Is this working?
Are there improvements? What would you like to see?
Mr. C. Smith. Well, certainly it's working because the data
says it's working. And that's what we as prosecutors try to do,
is be strategic in our approach to public safety. We do it with
the prosecution of crime. We determine which cases we're going
to divert away from the criminal justice system. We have very
vibrant diversion programs across the United States in our
prosecutor offices, whether it's a juvenile diversion program,
a drug diversion program, because once again, we're taking a
look at the difference between good people making bad decisions
and bad people making bad decisions.
We're diverting the good people, which apparently is what
you're doing in Rhode Island, and we're giving them
opportunity. We're also identifying them for early release
because they are rehabilitated and less likely to reoffend. And
those people who are violent, who pose a threat to public
safety and pose a threat to reoffend, we're keeping in jail for
their full sentence.
So, I would applaud Rhode Island. And I think Rhode Island
is no different from the rest of the States in the United
States and the prosecutors in that. We're just taking a look at
how we can be better. A lot of people use the word reform. I
just like improvement. I don't think we have to throw the baby
out with the bath water. We're not trying to tear down
everything that we've done. We're just trying to get better at
it. And I applaud you, Senator, for your work on the First Step
Act. And we're--at NDAA, we're more than happy to join forces
with you and other law enforcement partners in the future.
Senator Whitehouse. Much appreciated. I'll put another
little Rhode Island flag in the ground here. Many, many years
ago, we established a drug court quite early on that is now
very established, very successful. We've also established a
Veteran's Court, and we're working on a mental health court as
well. And the last time I went to one of these was to visit the
Veteran's Court.
And I'll tell you, having been a prosecutor and having seen
what it's like when an individual is marched out the back of
the courtroom, shackled, and in the arms of the security folks,
and the courtroom is quiet, but for the sounds of family
members sobbing, it is a very different feeling than when you
get to the Veteran's Court, graduations, they call them. And
the families have come to cheer on the veteran, the veteran's
community has come out enforced because there are really
significant veteran's programs that can come to the aid of
veterans and to get them on a really good path.
There's a very impressive community of veterans who
essentially staff the Veterans Court and interact with the
individuals who've been charged and then sent to the Veteran's
Court. And then there's very good tracking afterwards to make
sure that they don't recidivate, they continue on the path that
they've been shown through the Veteran's Court activities.
And there's balloons sometimes, there's cake sometimes,
their kids come dressed up, you know, girls in fancy dresses to
come and see, like, dad graduate. And once you've seen that, it
leaves an impression that's very hard to forget. We are doing
good here, and I thank you.
Senator Padilla. Thank you, Senator Whitehouse. I want to
take a moment to also thank the witnesses for joining us today
and for your testimony and participation. I think it's
important for you to be here so we can highlight the successes
of the First Step Act, which has made not just the public
safer, but our criminal justice system more fair. And I
appreciate Chairman Durbin scheduling this hearing for today.
So, as we celebrate the achievement and the successes, it
is also critical that we look forward to opportunities for
continuing to improve the system as Mr. Smith referenced just a
minute ago. And surely we do have plenty of work that remains
to be done. Now, prior to the Step Act, only the Bureau of
Prisons had the statutory authority to petition the court to
resentence an offender. However, this authority was rarely
used. From 2013 to 2017, the Bureau received 5,400 requests
roughly for compassionate release and approved 6 percent.
Under the First Step Act, incarcerated individuals may take
it upon themselves in limited circumstances to petition for
their own early release. My question is for Mr. Charles Smith:
Can you describe the impact this policy change has had on
incarcerated individuals, them knowing that they now have this
option and opportunity?
Mr. C. Smith. Once again we need to give incentive for
people to change, to be rehabilitated. As Mr. Charles noted to
my right, he was given a lot of those opportunities and took
advantage of all those opportunities. So I keep saying we need
to be strategic, but we do. We have to take a look at what
policies promote someone to be rehabilitated and to not
reoffend. And we need to get better at that. Under the old
system, it was just, you know, ``Hey, I did my time. I'm coming
up before the parole board. I didn't do anything wrong, so let
me out.''
And once again, I think the FSA went a long way towards
giving--incentivizing a lack of re-offending. And so once
again, I just wanted to applaud all the Senators that had a
hand in enacting this and passing it. And I think that, again,
we can fine tune it. I heard you know the good Senator talk
about some provisions in it that perhaps he believes are being
abused. But once again, every piece of legislation is not
perfect. Sometimes we just have to fine-tune it after we've did
the first step and maybe the second step, we'll fine-tune it,
make it better.
Senator Padilla. Exactly. And so in that spirit, when it
comes to compassionate release, do you believe it's being
adequately and equitably used today? Or any suggestions on how
to improve upon it and make it better?
Mr. C. Smith. You know, I do have a couple--we do see abuse
of the Compassionate Release Program. It's not rampant, but
there are people that are trying to take advantage of it, and
that's just going to happen with any population, inside of a
prison or outside for that matter. But I do believe that there
are circumstances that we as prosecutors have consented to the
compassionate release, especially with the elderly, especially
with the ill.
But I guess we, again--I would want to see the data points.
What is it that's being looked at in terms of compassionate
release to assure that that those people truly that should be
getting it, are getting it.
Senator Padilla. Thank you. My next question's going to be
for Mr. Charles, but let me preface it with the following. You
know, when we discuss these rehabilitation programs and
government efforts to create more just sentencing laws, we
often talk about individuals who will directly benefit from
these programs, these reforms, these improvements, if you will.
But there are also substantial benefits when communities
see the criminal justice system committed to prioritizing
safety and carrying out fair and equal justice. Mr. Charles how
do you believe fair sentencing practices impact communities,
not just the individual?
Mr. Charles. Thank you, sir. I definitely do. The fact
that--I'm just going to go back to the war against drugs, when
there were receiving 100-to-1 sentences for crack cocaine
versus powder cocaine. A lot of communities of color--I don't
just want to say that that disparity is not justified, but it's
also racially disparate, and a lot of communities of color that
have been ravaged due to drug activity that have taken place in
those communities, and their loved ones have been sentenced to
sentences anywhere from 30 years to life, when people who sold
the same drug, but not in other words, the type of drug, ended
up receiving a lesser sentence than their loved ones.
So a lot of times people see that and they be like, well,
the justice system isn't fair. When I was sentenced, I didn't
necessarily believe that the justice system was fair. I
understood that I should be held accountable for breaking the
law, and I was, and I received a 35-year sentence based on what
the law was at that time.
But as I review my sentence and reflect on the fact that
someone that just sold powder cocaine would've received a
sentence 15 years less than what I received, then that's not
fair. And communities of color have seen this, and they have
seen heavy police. Now, we believe in policing and preventing
crime, but communities of color oftentimes are heavily policed.
And whenever the law that they're being sentenced to is not
necessarily favorable to people in these conditions or people
of color, then that sets a stage for them to believe that the
law isn't fair. So I would say anytime that we can reform laws
that are not fair to make them more fair or repeal those laws,
then it's always going to be better for the community. And
community is going to be satisfied as far as their loved ones
returning home and feel within themselves that the justice
system is trying to be fairer.
Senator Padilla. That does impact the fundamental public
confidence in the justice system which is important. Welcome
Senator Klobuchar, you're up next.
Senator Klobuchar. Thank you very much, Senator Padilla.
Thank you, all of you that you're here to talk about our
progress after 5 years. I was honored to be here and support
the First Step Act and work on some of the provisions. So, this
is a really big deal, and I want to start with you, Mr. Smith.
I was former member of the District Attorney's Association,
as you know, and I also know that supportive prosecutors across
the country, not every single one of them, but your association
was really important in getting this done. And talk about why
that was? As prosecutors, I think that kind of jars people
sometimes, but one of the things I would always argue is, you
know, we're not like a business in every way in a prosecutor's
office, in that we don't want to see repeat customers.
We want people to be able to go on with their lives like
Mr. Charles has done. And could you just talk about the
importance of the reduction of recidivism?
Mr. C. Smith. Senator, I referenced before about crime
fighting, and I think that the general public sometimes thinks
these measures are soft on crime, and they're not. This is just
a different form of crime fighting. Crime prevention is just as
important to protecting the public, as taking the person who
committed the crime off the street. And so we were in support
of the First Step Act because it was common sense, it was
practical stuff that targeted low risk offenders through proven
data points, and the numbers bear out. You guys did a great
job. I mean, look at the recidivism rate. 46 percent. I mean,
that's incredible. There's no one that can argue with those
numbers.
Senator Klobuchar. Right. So you've got the--it was the
Justice Department numbers that nearly 30,000 who were released
under the First Step Act, only 12 percent recidivated compared
to the overall Bureau of Prison recidivism rate, which is more
than 46 percent. That's correct. Right?
Mr. C. Smith. Yes, correct. So, once again, we as
prosecutors take our oath to protect the public very seriously.
But I think sometimes we just get a bad rap. I mean, it seems
like half of the people think we're too tough on people, we're
putting everybody in crime. Then you got the other half of the
people that are saying, ``Oh, you know, you're too soft. You're
letting people out too early.''
But we thought at NDAA, the First Step Act struck a great
balance. And it proofed out with the data.
Senator Klobuchar. Yes. Mr. Charles thank you so much for
being here and sharing your experience. For years, Senator
Cornyn and I led the One Stop Shop Community Reentry Program
Act to help former inmates reintegrate into their communities
by creating resource centers that help them find jobs, housing,
mental health services, substance abuse treatment.
For years before I was a DA, I actually was involved in a
volunteer program called Amicus and visited a woman at the
women's prison for nearly 10 years. And I just saw this need
when you're there every single month and get to know someone
for what the plan is when they get out. So, could you talk
about, as someone who works to get inmates ready to reintegrate
into their communities, can you talk about the importance of
ensuring that people continue to have access to recidivism
reduction programs when they're released from custody?
Mr. Charles. Thank you, Senator. And I also want to thank
you for your work in reentry. Having reentry resources
available once a person is released is vital to them being
successful. I myself ran into hurdles when I was released. I
couldn't find housing, and because I couldn't find housing, my
stability was weakened. But thankfully I had a friend who
allowed me to stay with them for about four months until I was
able to get my footing.
So, being able to have these reentry resources available
for those that are returning to society allows them to have the
support so that they can be productive, so that they can go on
and be successful in their lives and in the lives of their
family members. So, without those things, including the
programs that are now placed in the prison because of the First
Step Act, allows those people to be able to learn vocational
educational skills and trades so that once they are released,
they will be able to find employment.
So, those hurdles that most people run into once they're
released from incarceration is housing, is employment, is
transportation. So if the resources are available or
organizations that are available that provide those things,
that person is less likely to recidivate.
Senator Klobuchar. Exactly. Last question, Mr. Markle. You
served special education teacher for the Bureau of Prisons--
thank you for that--for over 20 years. And talk about--I know
there's some waitlists as we look at these numbers, which I
just discussed with Mr. Smith that are so positive--but talk
about how waitlists to access First Step Act educational
programs could negatively impact the goals of the Act and what
Congress can do to improve the implementation. I know you
talked a little bit about these programs with Senator Booker,
but if you could talk about specifically waitlists.
Mr. Markle. Thank you, Senator. With the implementation of
the First Step Act, obviously education and programming and
everything that we do became very popular. So obviously inmates
wanted to be involved in programs that sometimes had been
forgotten. We've always done GED and Special Education, but
it's now emphasized by the First Step Act. So we can fill what
we can fill with the amount of teachers that we have, the
amount of staff and resources we have, we fill the classes up.
When we're able to be in the actual classrooms teaching and
not being pulled to different assignments, we do our best to
move through those. So inmates are on waiting lists. Some
additions were made to where they are receiving credit for
being on waitlist, but that's a problem too, because an inmate
is not receiving the actual programming or the benefits from
the First Step Act, but they're still earning the credits.
So the biggest problem is it's just we need the resources
and the staff to continue push forward to eliminate the
waitlist and actually get people into classrooms so they can
receive the benefits from the First Step Act.
Senator Klobuchar. Thank you. And thank you as well, Mr.
Smith, for your work. I have to head out, but I'll send you a
question in writing. I'm sure it'll be very exciting. So thank
you.
Senator Padilla. Thank you. And that concludes questions
from the Members of the Committee for today. On behalf of
Chairman Durbin, I want to express again our appreciation for
all the witnesses appearing before the Committee today.
As we discussed, the landmark First Step Act reimagined
rehabilitation and public safety in our criminal justice
system.
But there's more work to be done. Congress can and should
take more steps to reduce recidivism and direct resources to
address the root causes of criminality. I hope this hearing has
highlighted what Congress can accomplish when we're willing to
tackle difficult problems and work together to find solutions.
The hearing record will remain open for 1 week for
submission of materials for the record, including follow-up
questions from Members of the Senate. We'd ask that you all
reply as quickly as you can.
Senator Padilla. And with that, our hearing is adjourned.
[Whereupon, at 12:02 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Senator Cornyn:
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