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tv   Politics and Public Policy Today  CSPAN  October 20, 2015 12:00pm-2:01pm EDT

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methamphetamine. i am sorry to admit i became dictated to the drug and began selling it to others for monetary gain to support my own habit. i was not a drug kingpin and i was not a major manufacturer. i just wanted the extra money in hopes that it would help me keep my family together. a woman that my co-defendant sold drugs to was arrested and agreed to cooperate with prosecutors in exchange for a shorter sentence. i was arrested. i knew i was guilty and i knew i was going to prison. with that said, i want to stress this important point. people who support mandatory minimum sentencing laws think that these long punishments will deter people from using or selling drugs. that is not the case. i can assure you that i had no idea that there were mandatory minimum sentences when i became addicted to drugs or when i was caught. i had no idea how much prison
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time i would face. federal prosecutors charged me with conspiracy to sell 10 kilograms of methamphetamine, a quantity based on testimony from the woman who pled guilty and cooperated with them. i never even saw that much drugs, much less sold it. i did not understand that my conspiracy charge meant i would be sentencing for everything my co-defendants did and everything that they said i did. when i went to prison, i learned that i was not the only person with this misunderstanding. many other women were doing time not just for their own mistakes, but also for the mistakes of their co-defendants, their husbands, their partners, other family members, or anyone else being charged in the conspiracy, whether they knew them or not. even though i pled guilty and i had no criminal history points under the sentencing guidelines,
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i still received a mandatory minimum sentence of ten years, plus almost another decade under the then-mandatory sentencing guidelines. in may of 1994, i was sentenced to 19 years and seven months in a federal prison. the woman who cooperated received probation. i deserved to go to prison. i had broken the law and i needed a wake-up call. but i did the not need 20 years prison to learn my lesson. the first years were the worst. i committed myself to self-improvement. i was sober. i earned an associates degree in business administration. and i started a bachelor's degree on social science. i participated in prison fellowship ministry and i stayed in close touch with my family.
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i kept my spirits high by believing i would never serve my full sentence. but there i sat, year after year, with many other women just like me. not only did i waste years of my life sitting in prison, but taxpayers wasted hundreds of thousands of dollars to keep me there. the worst part was not being able to be with my four daughters. i had already failed them once. and now they were growing up in foster care. visits are rare for many moms in prison, and very painful. prison time passes slowly. but children grow quickly. i wanted to get out and be a better, wiser parent while my children were still young enough for it to matter. my long sentence made that impossible. it's hard to parent on one 15-minute phone call a day.
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there are no more bedtime stories with kids, no helping them with their homework, no parent/teacher conferences. and it's a lot to miss and a lot to make up for. being that there is no parole in the federal system, the only sentence reduction prisoners can earn is up to 15% off for good behavior. i earned the full 15%. and i also asked to have my sentence commuted on three different occasions. all three times i was denied. the last rejection from president obama arrived after i was already home. i was released in 2010 after serving 16 years and one month. since my release, i have struggled to make up for lost time with my now-adult children. i provided childcare to my grandchild so that one of my daughters could pursue her own
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education. i volunteered with prisoner reentry groups, continued my own education, and i am now an advocate for all the grandmas, moms, and daughters that i left behind. even if the bill you are considering now had passed years ago, it would not have shortened my sentence. i wish that this bill went further to help more people. i would actually like to see congress repeal all mandatory minimum drug sentences. but this is a start. and it will help a lot of the women that i left behind. but i am hoping that it will only be a start. there is so much more work to do if this bill becomes law. thank you for considering my views, and i will be happy to answer any questions you might have for me. >> thank you very much. mr. cook. >> chairman grassley, members of the committee, i appreciate the
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opportunity to be here. i would like to begin, though, by making two clear points. first is, in our view the criminal justice system, the federal criminal justice system, is not broken. secondly, we have some i think very legitimate concerns about the legislation that's been proposed. as i begin, what i would like to do is point out to you that my perspective is not one from a hundred thousand feet. my per aspespe perspective is a level, from seven years as a police officer, 29 years as a federal prosecutor. i have experienced up close the death, destruction, and heartache, the violent criminals and drug traffickers, the individuals who stand to gain from this statute, this proposed legislation. i have viewed what they would bring to our communities. i have stood next to the casket of a 19-year-old boy while his mother asked me in tears how it is we could let that poison be sold on the street. i've stood in the neo-natal care
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ward of our local children's hospital and watched as the babies, the innocent babies went through drug withdrawal. knowing that that was nothing but a prelude to a life complicated by physical and mental health issues. and i've been to more than my share of homicide scenes. to understand this perspective i would like to ask you to go back to the mid-1980s, a time in our history when what we had seen and were seeing was violent crime had tripled in the two decades before that. drive-by shootings sealemed commonplace to us. many areas of the inner cities were controlled by drug traffickers. the american public was fed up. they demanded change and congress responded by fundamentally changing our
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criminal justice system. judicial discretion was narrowed for crimes that were literally tearing at the fiber of our country. a strong bipartisan congress in our country had a vision and a sentence of determination to take back our streets and to make those streets safe again. dedicated united states attorneys across the country, working with our local, federal, and state law enforcement partners and district attorneys' offices worked with these tools to take armed career criminals off the street. we used the mandatory minimums to dismantle drug trafficking organizations, often working from the very bottom up. and this criminal justice system with truth in sentencing should the revolving door of justice and became the model of a criminal justice system, one followed by states across the country, putting these armed criminals and drug traffickers
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in prison enabled us to drive crime down. in fact we drove violent crime down and cut it in half by 2013 and even more by 2014. then someone started the refrain of mass incarceration and nonviolent drug offenders in an attempt to suggest that the federal system and state systems were broken and to suggest the solution was to let criminals out. and slowly we entered the era of sentencing reform. one source reports that states, 30 different states enacted sentencing reform. on the federal side we began by backing away from prosecution of drug traffickers and from using mandatory minimums. and in 2007, as we know, we started what has now become the early release of 70,000 drug traffickers, some of whom have committed murder since being released while they should have been incapacitated. as these reform movements have spread across the country, more and more criminals have been
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released or avoided incarceration altogether. violent crime is returning to cities across our country. on top of that our country is in the grip of the worst heroin and opioid epidemic we've ever seen. 120 people are dying a day from drug overdoses. still people call for more reform. and you would ask, are there too many people in federal prison? of course there are. but they're there because they've committed serious crimes. the solution, i would submit to you, is not to let them out of prison. it is to address the root causes of the crime. with that, i would like to address the bill briefly. there are parts of the bill that we fully support. and we recognize the hard work that's gone into it. but a huge but not only vice of the bill is the retroactive
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application. that will have a real consequence on our community. it will further destabilize an already destabilized criminal justice system. victims will be notified that cases they thought were closed and had come to an end will be reopened. the cornerstone to a healthy criminal justice system is one that we can have confidence in, one that has finality. so i close with these questions. questions that i suggest the committee should ask and that every informed american will ask. with thousands of federal prisoners being released into our community early, with the violent crime surging upward and with the country in the grips of the worst epidemic, addiction epidemic in history, is the time right to make thousands of convicted criminals, violent criminals, eligible for release? is this the time to weaken the tools for front line prosecutors to use to dismantle drug trafficking organizations? we submit the prudent thing is to step back, measure the impact of the reforms already in play,
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and work aggressively to address the root causes of violent crime. >> thank you, mr. cook. >> mr. chairman, thanks for the opportunity to be here and thanks to the committee for the hard work to get to this point today with this significant legislation. i've submitted testimony. i have three objectives that i believe this legislation can produce. i want to describe them briefly. those three are first, i think we will seibert outcomes for public safety if this legislation is enacted. second, we'll see more rational and effective sentencing decisions that are possible. thirdly, we'll address racial/ethnic disparities in the using of incarceration. let me just eastboulaborate a b each. i think it's clear we're approximately past the point of diminishing returns in terms of what we get from public safety
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from incarceration. it's long been known that offenders age out of crime. a 20-year-old robber is much less a risk to public safety by the time he turns 30, 35, or 40 or so. this is true more or less across the board. so what happens is that for each successive year that we keep people in prison as those risk factors are starting to decline, we're getting less public safety that we produce through incarceration, and it's coming at an increased cost. as offenders age in prison it becomes more expensive to keep them there. weapon -- we have empirical data that show the effect of
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incarceration on crime. the conclusion is that yes, incarceration has some impact on crime, but the scale of that impact was, quote, unlikely to have been large, unquote. i think this measure will also help to produce public safety by giving us a better balance of criminal justice resources. we saw in 2007, when the sentencing commission adjusted its sentencing guidelines for crack cocaine offences, then persons in federal prison for these offences were released an average of about two years less than they previously might have been. the commission looked at recidivism rates following the releases and what they found essentially was that the people who were released two years earlier than the other cohort did previously had recidivism rates that were virtually
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identical. so we can reduce sentences, save costs without an adverse effect on public safety. in terms of sentencing outcomes, i think one of the real challenges and problems of mandatory sentencing is that we have a sentencing process there whe whereby one solution fits all. the safety valve over two decades now has provided a very appropriate option for cases that do not require a mandatory sentencing and would be injust as well. a substantial number of drug cases, many federal judges, the sentencing commission has provided very good examples of additional cases that could benefit from an expanded safety valve as is being proposed.
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i think there's no reason to believe judges wouldn't use the same careful and thoughtful manner that they have for 20 years now. in terms of the racial/ethnic disparities in incarceration, as we sit here today one of every ten black males in his 30s is incarcerated in prison or jail. and regardless of what each of us may think are the contributing factors of those outcomes, that's a situation that should be disturbing to all of us. one of the factors that contributes to that has been excessive penalties, particularly for drug offences. by making the sentencing act retro ack at the beginning of would take a major step -- retroactive would take a major step. a person sentenced before the day the legislation is adopted is serving more time in prison than an equally similar
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defendant the day after the legislation is adopted. the estimates are something like 6500 people might benefit from retro ack activity. most of these people still serve a very substantial prison term, just not quite as long. let me just close by saying i think this legislation can produce a better balance in our approach to public safety. i think it can reduce excessive incarceration. i think we'll see a more effective and more fair criminal justice system resulting from this. thank you. >> thank you. ms. mcdonald. >> chairman grassley, members of the committee, i'm honored to address you today. i wanted to examine the broader political context of the sentencing reform and corrections act. we're in the midst of a national movement for deincarceration and decriminalzation. that movement rests on the following narrative.
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america's criticism justice system, it has said, has become irrationally draconian, ushering in an era of mass incarceration. the driving force behind mass incarceration, the story goes, is a misconceived war on drugs. as president barack obama said in july in philadelphia, quote, the real reason our prison population is so high is that we have locked up more and more nonviolent drug offenders than ever before for longer than ever before, end quote. the most poisonous claim behind the deincarceration movement is that our criminal justice system is a product and a source of racial inequity. the drug war in particular is said to be affected by racial bias. mass incarceration is an allegedly destroying black communities by taking fathers away from their families. finally, prison is condemned as a gross waste of resources.
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nothing in this dominant narrative is true. prison remains a lifetime achievement award for persistence in criminal offending. drug enforcement was not the driving factor in the growth of the criminal justice system. violent crime is. since 1999, violent offenders ha have accounted for all the increase in the prisoner population. violent crime is also the reason why america's prison population is larger than other countries. the u.s. homicide rate, for example, is seven times higher than the combined rate of 21 western nations plus japan. the most dangerous misconception about our criminal justice system is that it is pervaded by racial bias. for decades, criminologists have tried to find evidence for that bias and have always come up
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short. in fact racial differences in criminal offending account for all the racial disproportionality of blacks in prison. the drug war was not a war on blacks. it was the congressional black caucus that demanded a federal response to the 1980s crack epidemic, including more severe penalties for crack trafficking. the demand for suppression of open air drug markets continues today. go to any police community meeting in harlem, south central los angeles, or anacostia in washington, dc, and you will hear some variant of the following plea: we want the dealers off the corner. you arrest them and they're back the next day. such voices are rarely heard in the media and indeed not often in the halls of congress. incarceration is not destroying the black family. the black marriage rate was collapsing long before
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incarceration started rising in the late 1970s. indeed, the late senator daniel patrick moynihan wrote his prescient call for attention to black out of wedlock child rearing in 1965, just as that era's deincarceration and decriminalization movement was gaining speed. it is crime, not incarceration, that squelches freedom and enterprise in urban areas. and there have been no more successful government programs for liberating inner city residents from fear and disorder than proactive policing and the incapacitation of criminals. compared to the costs of crime, prison is a bargain. the federal system spends about $6 billion on incarceration. the states spent 37 billion in 2010 on institutional corrections. the economic, social, and
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psychological costs of uncontrolled crime and drug trafficking dwarf such outlays. to be insure, the federal drug penalties are not sacrosanct. but though all sentencing schemes are ultimately arbitrary, our current penalty structure was arguably arrived at empirically, through trial and error. sentences were increased incrementally in response to the rising crime rates of the 1960s and 1970s. those rising crime rates were themselves the product of an earlier era of deincarceration and did he criminalization -- decriminalzation. as has been noted today, crime is shooting up again in cities across the country. police officers are backing away from proactive enforcement in response to the year-long campaign that holds that the police are the greatest threat
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facing young black men today. with pedestrian stops, criminal summons and arrests falling precipitously in urban areas, criminals are becoming emboldened. while i do not think that the current crime increase is a result of previous changes in federal sentencing policy, it behooves the government to tread cautiously in making further changes. however, i unequivically support the part of the act that attempts to engage all prisoners in work. i also support the supervised released pilot program of section 206, although it needs some tightening up to faithfully implement the swift, certain, and fair principles which inspire it. in closing, let me say that the committee could provide an enormous public service in it could somehow rebut the myth that the criminal justice system is racist. thank you for your attention.
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>> chairman grassley, members of the committee, thank you for the opportunity to testify today. as i have said in prior testimony, my experience in nearly a decade with the department of justice revealed the need for certain federal criminal justice reforms that are not only meaningful but the result of thoughtful analysis of deficiencies in the administration of justice, and there are some deficiencies. it remains puzzling to continue to read statements of some who apparently do not recognize or acknowledge any significant issues with the current system and urge congress to resist any meaningful reform. such a position raises questions of credibility and whether such are in touch with the experiences of those who have actually labored in the trenches of the criminal justice system. nearly all of the changes contained in the bill before this committee are the result of former united states attorneys and assistant united states attorneys identifying issues within the federal criminal justice system which are in need of attention. the reality is today's federal system is increasingly mired in
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the pursuit of low-level offenders who are too often overpunished by extremely long sentences that often do not match the gravity of the crimes committed. the results of these very real deficiencies is a burgeoning prison population that ironically, with its rising costs is becoming a real and immediate threat to public safety. that's why i'm here to praise the efforts of this committee on the remarkable bipartisan negotiations which have resulted in a thoughtful bill aimed at making needed changes to the front and back ends of the federal criminal justice system. i hope to convey today while there are additional issues that need to be addressed in the contrary of criminal justice, i am pleading to express my endorsement of s 2123. i am not alone in this position. many of my former colleagues have joined me in signing a policy statement of former prosecutors and other government officials, signed by federal judges including the likes of the honorable larry thompson,
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and describes the need for the reforms. i ask it be submitted into the record of this hearing, mr. chairman. specifically, there are a few provisions i believe to be the most important and impactful provisions on the front end of s 2123. it preserves the five and ten-year mandatory minimum sentences but broadens the existing safety valve and creates a second safety valve that focuses the minimums to higher level drug offenders. it clarifies and reduces the sentence for certain firearms offences but expands its application to include similar prior state level convictions, a very useful tool for assistant u.s. attorneys. it raises the statutory maximum for unlawful possession of a firearm and creates an overlapping range by reducing
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the mandatory minimum for armed career criminals. it applies the sentencing reforms retroactively. these are important because they refocus mandatory federal sentences and limited resources on higher level offenders and provide additional new tools to help law enforcement target criminals and enhanced penalties. they provide a more accurate focus on the role of the offender instead of drug quantity alone and increase a judge's ability to utilize limited discretion when determining appropriate sentences. this is the only way to be more effect i feel -- to more effectively tie the mandatory sentences to the higher level drug offenders and violent criminals. further, they fix the outlier problems associated with a recent trend toward count stacking. applying these reforms retroactively does not eliminate the mandatory sentence nor the additional time for the
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underlying offense which they will be sentenced for. i make clear that it is not enough to focus on sentencing reforms. by themselves, sentencing reforms doolittle or nothing to reduce recidivism. we must acknowledge the absolute essential inclusion of the corrections act in addressing the issues associated with risk and recidivism reduction. consequently the back end changes of s 2123 are perhaps even more immediately important, because they put a new focus on rehabilitation and establish risk and needs assessments as the cornerstone of more effective recidivism reduction programming. we will assess prisoners as they enter prisons and periodically reassess them over time as they complete the number, types, and intensity of programs they need and work in real jobs rather than sitting idle as most do today. this reassessment is vital. as it goes to the heart of the need for this legislation. it is true that risk of
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recidivism willi go down with good programming but we need to identify dynamic risk factors and indicators of real change. make prisoners show this change and then reassess them to measure them over time as they complete their programs. this will be a major advancement in the federal system, in fact it will establish a new standard for corrections in this country. it will incentivize prisoners to not only participate in programs and jobs alone but to personally contribute to the reduction of their own risk of recidivism. lower risk prisoners will be eligible to spend up to 25% of their sentences in home confinement and community supervision, producing significant savings. congress must act on this legislation. otherwise it will continue to tacitly allow the terms to be dictated by the scuexecutive an judicial branches.
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the reforms contained in s 2123 have proven successful in a number of states across this country. they have proven to increase public safety while reducing costs. i urge members of the committee to act quickly to report this bill to the senate floor. thank you. >> we will have a five-minute round. i'll start with judge mukasey. in 2014, you and other prosecutors signed a letter that opposed sentencing reform. you said that you believed, quote, our sentencing regimen strikes the right balance between congressional direction and the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety, end quote. i have also been a strong defender of our current sentencing framework. but i've always said that i was open to reform. two questions together for you to respond to. would you agree that this reform bill seeks to preserve our
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current sentencing framework by making reasonable and responsible changes, to wit, and two, does this bill still give prosecutors the tools to go after dangerous and violent criminals? >> the answer is yes to both. what i was against in 2014 was taking the structure apart. this, as you pointed out, preserves the structure and indeed, as a number of people have pointed out, it preserves intact mandatory minimums, while at the same time providing flexibility to both prosecutors and judges. so yes, that accounts for my change in not supporting that bill and supporting this one. >> the bill applies mandatory minimum sentences to serious offenders in a way that current law doesn't. it applies the enhanced drug minimums to serious violent offenders, not just drug offenders. it raises maximum sentences for
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unlawful possession of a firearm. and it counts gun crimes for the first time towards enhanced firearm minimums. so can you explain how these provisions target the application of mandatory minimum sentences towards some of the worst offenders? are these new tools good for prosecutors? >> these tools are good for prosecutors. i personally prosecuted an individual that provided the gun and ammunition that killed the longest serving police chief in utah at the time, chief cecil gurr. that individual under this bill would be able to receive 15 years in federal prison for his giving of the firearm with the instruction to kill, where we would not have been able to under current law. it was a source of frustration that the sentence did not seem to capture an individual such as that.
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this bill would provide that additional tool to an assistant us attorney. >> then a followup for you. the bill applies many of the mandatory minimum reductions recolle retroactively. some people have claimed it will release violent and dangerous offenders. but these inmates will still face the new mandatory minimums. can you explain why making these provisions retroactive does not mean that violent and dangerous offenders are going to be released on the street? >> absolutely. it does not remove the five and ten-year, nor does it remove, for example, under 924 c, the application of a 15-year mandatory minimum on top of a violent crime. if you were to take, for example, many of those 924 c use of a gun in a violent felony, oftentimes the judge is facing so many years of sentence that they have to administer refuse
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to even sentence on the underlying crime that they were arrested for, the drug deal for example, and will instead just sentence on the mandatory minimum. under this bill, it's providing more integrity to the sentence, so that you sentence on the mandatory minimum and the underlying offense. they will serve very long sentences if convicted of multiple 924 c's, multiple charges using a gun. and they will serve decades still, potentially, under this regime. it gets rid of, however, the absurd weldon-angelos type cases where you have 55 years with no criminal history to account for the sentence. >> i think you answered this question just now, but let me bring emphasis to the fact that some critics of our bill claim that it is soft on criminals and that it eliminates stacking on
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gun crimes under section 924 c. that's not true. so could you explain why under our bill a defendant will still face a consecutive mandatory minimum sentence for each and every gun crime he commits? isn't it true that our bill simply reforms the enhanced mandatory sentences so it is a better tool for repeat gun offenders? >> let's use weldon-angelos as an example. under this bill, weldon-angelos is not getting out and is not being sentenced to a small time in prison. he would be receiving at a minimum 15 years in federal prison, plus be sentenced on the underlying drug crime, which has a maximum of up to 15 years. so for anyone to say this is going to be weak on crime is not necessarily seeing what the application of the bill will be, even if those most extreme circumstances. under this bill you would still see a sentence of at least 15
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years. >> senator durbin. >> thank you, mr. chairman. mr. shelton, i met alton mills's mother and father. they've been to several meetings that i've attended to discuss this bill. i'm glad that you mentioned his case before us, because it is clearly a miscarriage of justice. the sentencing judge, judge aspen, not considered a pushover by anybody, said that this was a terrible outcome in this case. this man has now been in prison 20 years and no end in sight. he's been sentenced to life in prison for what appears to be two minor crack offences and the third one that put him away for life. while the kingpins who were ratting him out will be out of prison, he'll still be in prison. now, if that doesn't speak to the injustice of some of our current sentencing guidelines, then turn the page to ms. debi
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campbell. is there anyone here who thinks, having heard this woman give her candid testimony about her life experience, that she should have served 19 years and seven months in federal prison? does that make sense to anyone here? those arguing against reform are basically saying leave the system as it is. and i disagree. keep in mind that despite ms. macdonnell's testimony, using the word "decriminalzation" twice in her testimony, there is no decriminalzation in this law. none whatever. what we're doing is saying that a judge in his or her discretion can look at an individual case, a mandatory minimum case, still impose the maximum if they feel the case is so egregious and injust, but has the flexibility in some cases to bring the sentence down to a lower level. maybe they would have decided ms. campbell would serve only 16 years and seven months or 12 years and seven months.
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and each one of those instances, i would raise the question, is that serving justice? is that making us a safer nation? is that the right investment? mr. cook, i thank you for your service as a law enforcement officer and for your service as a prosecutor. and when you talk about the importance of police work, as ms. macdonnell has spoken, i couldn't agree more. the purpose we're trying to serve here is to have resources to put them into law enforcement in our communities, into the investigation of crimes, the arrests and conviction of those serious criminals that you described. the people who are dangerous. i want dangerous people off the street as much as you do. but we are putting more and more money into the incarceration of people like ms. campbell, for her case, 16 years. 16 years. don't you think justice is served and community safety is served by from time to time making an honest assessment as
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to whether our resources can be applied in communities to make us safer, more than keeping people in jail for decades? >> i do. and i think, though, what's been lost in the debate is, drug trafficking is a very serious crime. it has very serious consequences in our community. people by the scores are unfortunately dying every day. as i said, 120 people are dying by drug overdose every day here in the united states of america. we're in the midst of a heroin, an opioid epidemic like we've never seen. to suggest, as the inference what's been thrown about, that drug trafficking is a nonviolent offense, is the way it's often said, suggests, the implication is, it's not a serious offense. it is a serious offense. >> no one is suggesting it's not a serious offense. that's not even the suggestion by anyone involved in this. what we're trying to do is take
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those at the lowest level and say, they can be subject to sentencing guidelines which are different from those who are kingpins. you mentioned on the part ee e. we have dirty doctors who are peddling those opiates. they should have the book thrown at them. their worse than any drug dealers that i've ever read about. this bill doesn't change that in any way whatsoever. but the street level criminals, like alton mills, he's sentenced to life. how can it possibly be that the kingpins are getting off? they ratted him off and they're going to be free, they're going to have their freedom while this fellow is sitting in jail. >> of course i don't have the benefit of the entire record. i wish i did. but what happens in cases, many cases, is you have individuals in the drug trafficking organization who either don't cooperate or aren't eligible for the safety valve. i would take it that this
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individual didn't cooperate, didn't provide substantial assistance in the investigation. i don't know. i don't have the benefit. >> it was an 851 case, if that means anything to you. he was characterized a serious crime in his case. it wasn't applied to others. the reality is -- i don't know if i have time to read this. i'm running out of time. let me just conclude by saying this. my staff will forgive me, i'm sure it's a great speech. don't take it personally, joe. what we've trying to do is strike a balance, a prosecutor who has a serious criminal defendant before him still has the full range of maximum sentence possible under this mandatory minimum. the full range of it. we don't tie that prosecutor's hands in any way. but when it comes to cases like ms. campbell's or a case like alton mills, we give them the option. last point, retroactivity. we're not going to give blanket
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retroactivity. each one of them has to go back to the prosecutor as well as the sentencing judge to go through a process to determine whether they are eligible. it isn't a matter of opening the jail doors and saying you're free, go your own way. it's a much more complex arrangement. i yield the floor. >> senator sessions. >> thank you. crime and punishment is a huge issue for our country. it's something that i've chaired about a long time. it's for deterrence. if people know that they can commit crimes and they're not going to be punished, then they can tend to commit them more. it's for incapacitation. a person that's in jail can't sell dope, he can't murder someone, he can't rape someone, can't abuse a child. it's for rehabilitation. occasionally that happens. unfortunately history shows we're not as good as we would like to believe we are at that.
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and there's a great study in the laid '70s, a big study, that said people make decisions about whether to remain in criminal activity for a whole lot of reasons. one may be that prisons were bad. one of them would be they took advantage of the prison system. one may be they have life changing experiences, spiritual experiences that were mentioned. but it's difficult to have policies, that study concluded, that would impact them in a significant way. and ms. yates said, we've gone 30 years with the same recidivism rate. i think that's true. i would say, do you think, mr. tollman, nobody has ever tried a program to reduce recidivism? do you think if we have a program that could reduce recidivism by 40%, it wouldn't be adopted in every prison in america? i wish it weren't so. i wish there were a quick fix.
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i've worked with senator durbin. we heard the naacp's concerns. i think we've made some progress in dealing with the crack situation, where it appeared that african-americans felt they weren't fairly treated. this is a whole big deal. ms. campbell, these are brutal sentences. ten years in jail, 15 years, 20 years, is really a big sentence. and we need not to have people serve any more than they have to. but i think last week we heard the truth. we've got to be careful. if we let this slide back, we need to explain to those who come after us what we did or didn't do to let it happen. that's what i'm concerned about. and ms. macdonnell, i think you correctly mentioned that it goes from community based policing to broken windows philosophies to
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police presence in the communities. and i have been in communities, african-american communities, when they demanded that police come there and do something about the crime. and they're tired of their children being victimized and afraid to go out on the street at night like they did when they were a child in that community. i've heard that. and it's not a little bitty matter. mr. cook, you are very experienced at this. let's see if we can run down this kind of briefly. the booker decision a number of years ago that has undermined the sentencing guidelines significantly, did it not, didn't that in effect reduce prison sentences throughout the country? >> it did, sir. as well, it returned a huge amount of judicial discretion to the courts. the courts of course had been limited because of the
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sentencing guidelines. >> well, it did, that's one of the things that's already happened, since ms. campbell was sentenced. the sentencing commission has proposed a sweeping amendment to redefine what a career offender is. how does that impact? >> of course that's on the back of the supreme court's decision in johnson, which strikes down part of the armed career criminal act. we will as a consequence revisit all armed career criminal act convictions. and many of them will be eligible for much earlier release. the sentencing commission follow-on with the guideline amendment -- >> that will in effect reduce sentence? >> as to all career offenders and other criminals. if made retroactive, that will open a huge class. >> these are not little criminals. these are serious criminals. >> yes, sir. >> as a result of attorney general holder's memorandum, minimum sentences against --
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he's required them to limit opposition to minimum mandatory sentences in certain drug offense cases, is that right. >> that is correct, correct. >> i don't know how he can do that. >> we have backed away from prosecuting many drug offenders under the mandatory minimums because of that. >> now, as a result of these things and others, the durbin-sessions bill that we've passed, the federal prison population has dropped. i'm reading from your data, but it's prison data. in 2014 alone, 5,000 down. 8,000 in '15, fiscal year '15. the bureau of prisons predicts that the population will if you recall decline 12,000 inmates by the end of fiscal year '16, meaning in three years the population in federal prison will drop 11%. that sounds like a pretty significant trend.
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and i guess it would continue. and that's all without considering this legislation, is it not? >> it is. there's a huge cause for concern, because we knew what the recidivism rates are. recidivism rates run 45 to 77%. that's a lot of victims. >> it is. and that's a conflict too. mr. chairman, thank you. good to see you return, i'm glad to serve under you as chairman one more time. >> i was happy to have you with me, i'll tell you. senator whitehouse. >> thank you, chairman. first of all, thank you to the panel for being here. if i were to summarize the testimony, it would be that there is fairly widespread support for title 2 of this bill related to the improvement of reentry preparation for inmates
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who are being returned to socie society. and certainly no direct criticism of any part of it. so i'm going to hope that we'll be able to move smoothly forward with that part of the bill. in fact, with the whole bill. but we have obviously a house process to get through, and a conference to get through before the bill goes to the president's desk. so i would like to ask three of you, mr. tollman and mr. maur and mr. de roush, think forward to when the bill passes, presume it has title 2 in it intact, and give us advice on what we should be looking for from an oversight point of view, what should be the benchmarks or other advice
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you might have as to what should inform the implementation of that title by the bureau of prisons and th implementation of that title by the bureau of prisons and the department of justice. why don't we start with you mr. deroche and move on from there. >> thank you, senator. >> you have one minute each and then my time has experienced. >> as senator sessions said earlier, if something is working, you would expect that it would be expanded. in our experience in the federal of sentencing and bureau of prisons that this legislative body with your oversight hasn't been provided by with the types of metrix that isn't working in the same level done in the states. when states look for alternative sentencing than a mandatory minimum for a drug use to a drug court where the accountability was done outside they measure
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the success of sobriety on the other end of that sentence because they want to report to the policymakers and that budget counters as to whether or not the investment was making the community safer or not. and i believe that -- we're lavishing price on title ii, this is what opens the door. but as you're talking with the house and other negotiators in this to make sure that you are looking for expanded use of programming, life skills, mentoring. these the things that transform the system that are baked into every successful criminal justice reform that we've seen. >> mr. mauer? >> thank you very much. approach@your combined interest in these issues. let's not expect miracles from this issue and programming. criminal behavior involvement is a function of a variety of
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different factors. it's important we do more inside prisons to help people make it but then we have to transition outside. we have employment rates, family, all those things so even modest successes we should celebrate and try to build on those. that's the first point. the second is in terms of the risk level and the categorization in the legislation. and i understand, i think, the rationale for setting it up and using different risk levels. i would hope over a period of time if this legislation can be successful that we could gradually begin to take on all risk levels in prison and the reason is 95% of people are coming home someday so to categorically say certain people can't participate, we may be setting ourselves up for a bigger problem. >> mr. tollman? >> it's a great question. the states that have addressed
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similar title ii have realized risk of recidivism is the crux. is they've used static risk assessment tools to date. those are improved now with the great work of individuals like ed la tessa who says static is one thing, that's factors that don't change. but in this bill it uses static and dynamic so it requires reassessment of the risk of recidivism as they serve so you know whether or not they are actually reducing their risk. that's where congress can inject itself and identify is it appropriate appropriately reassessing. if they are then you experience what texas did, the closure of prisons and the savings of billions of dollars. >> mr. chairman, as i conclude let me express my appreciation to senator cornyn. it was a pleasure co-authoring this measure with him and in everything from size to disposition there are
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considerable differences between rhode island and texas but one place where we have the same outcome is that we have applied these techniques in our prisons and we have seen prison populations come down and crime rates come down together which was something that wasn't really thought possible so my appreciation to senator cornyn. thank you, chairman. >> thank you. i'm not sure what you mean by disposition. >> you know, we're sensible and thoughtful and -- >> that's what i thought you meant. >> you know, rhode islanders -- [ laughter ] >> approach@the point that you made, all of the points you made but one point in particular where you say that the test of sentencing reform is not on incarceration rate but rather it's on the crime rate and would you say that same standard should be used for the success of rehabilitation or reentry
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programs that we've been talking about here as well? is sure, those are in fact even more so because you're talking about the circumstances under which people are leaving prison and this's where the rubber meets the road when it comes to recidivism. to the exsent that you have reentry programs that are capable of changing the rate that would be -- that's obviously a welcome thing. >> as somebody who believes that not all good ideas emanate from the district of columbia and spread to the rest of the country but rather they should come the other direction, from the states and local community there is where we can learn from best practices i think we can be encouraged that some of the provisions of the corrections act which deals with the education, training, reentry programs actually has some real
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promise. and mr. chairman i'd ask unanimous consent to make part of the record this report from the national reentry resource center relating to the states' experiences. >> without objection. >> and i would just point out that in a number of these states -- for example georgia -- well, north carolina experienced after the implementation of their reentry program something modeled after the corrections act they saw a 19.3% reduction in recidivism. other states 10%. georgia 9.4%. rhode island. so i think rather than take this as a matter of faith or perhaps expressing our hopes and best wishes, we actually have real results we can point to that demonstrate the work. of some of these programs. i don't think there's as much disagreement among all of us here as it may look at first because obviously for the people who will refuse to avail themselves of the opportunity to
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get an education, deal with their drug and alcohol problem and the like incourse ration undoubted undoubtedly works. but for those people who will come out it strikes me as common sense to try to help equip them so they can cope with a productive life as opposed to being in the turnstile and into going back and forth so mr. deroach,d deroche, approach@that and i i think. mr. tolman, thank you to your contribution to our efforts as well. i want to just use the 1:30 left of my time to say as i traveled from houston to austin to san antonio to dallas most recently
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and asking people whether they're -- the faith-based community with whether their experts in this area in the criminal law or not, they tell me other problems that many former enmates have, they have problem ing jobs because they have a criminal record and even if you eliminate the box, as some people have imposed, employers will still get a criminal background check so whether they put it on their job application or not will still follow them. and obviously if they can't get a job, even if you're trained in a prison reentry program with skills that's going to limit your opportunity and increase the likelihood you'll repeat your -- end up back in prison. and the last thing that was mentioned to me and i hope we can address at some point along the way is the difficulty simply in finding a place to live
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because many apartments, for example, will not rent the premises to somebody who's been convicted of a felony and, frankly, i think they've -- they're entitle to be skeptical of that but i think we ought to recognize there's some real obstacles to people simply getting a job, finding a place to live, becoming reunited with their family which to me has to be one of the elements we ought to be -- find some way to encourage. so people can be successful in turning their lives around. a lot of challenges, mr. chairman. but approach@the good work senator white house has made on this bill. >> thank you for helping us have greater insight into this legislation. mr. tolman, i'd like to start
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with you, if i can. you used to be a federal prosecutor and you were later a u.s. attorney and i'm sure you've prosecuted people under these tough sentencing laws. in fact, i know you have. why do you believe in light of all of your experience as a federal prosecutor that mandatory minimums should be adjusted in the fashion proposed by this legislation? >> there's a need for adjustment not out of a need to change the ceiling. the need for the adjustment does not affect the tools that a prosecutor has. the need for the adjust system because the department of justice and as a prosecutor you care about disparities in sentence and you care about overpunishment and you care about underpunishment. this bill is the result of years of thoughtful analysis and it is modest and it addresses those
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areas that have the susceptibility of either abuse or overpunishment. but it is in no way a reduction of the tools or a retraction of the ability to deter, to punish and ultimately with title ii it increases the ability to rehabilitate so we've advanced the ball in all areas. >> there are those who oppose this bill and of those who oppose this bill, many insist that they oppose it because the overpunishment concern that those of us who have gotten involved in this effort and who are behind this bill is somehow imagined. that we've somehow imagined or severely exaggerated the overpunishment risk. i would like to ask you a couple questions about that. do you think it was overpunishment in the case of weldon angelos who sold marijuana on three occasions over a 72 hour period, relatively modest quantities,
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happened to have a gun on his person at the time, didn't brandish it or discharge it but had the gun on his person. have you met anybody who thinks that's a just sentence? >> i think that's the appropriate follow-up question. i have not met anyone that agrees that that punishment fit the crime. >> what about the judge? >> in fact, even the prosecutor that a prosecuted the case initially offered a 15-year sentence which is ironic since under this bill that's roughly about the sentence that would have occurred. but instead because of the stacking provisions, even the judge was in some ways, i know, so affected that felt that he wasn't sure he could continue being a judge if having to face these kind of sentencings. that's a real example. it's not just an outlier.
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you hear many examples. it can be common depending on the aggression of the office or the investigators. >> and this judge was not necessarily known as a minimum sentence kind of a guy. >> no, law and order. >> in the exactly like he was opposed to the law and order movement. >> that is correct. assistant u.s. attorney in the eastern district of virginia before. >> what happened, for example, there's a case that came out of the eighth circuit involving a gentleman who was renting an apartment in a home and in exchange for rent he agreed to lay carpet in a living room and in a hallway of that home. while laying this carpet, he was required to move the carpet that had been there previously and in the process of doing that he discovered a single round of ammunition. it was a .22-caliber round. and he didn't take it and discharge it, didn't put it in a gun. he took it and put in the a box
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somewhere in the home where he lived and set it aside, apparently forgetting about it. somehow it was later discovered he was in possession of this round of ammunition. he was charged with possessing it, he was a convicted felon and consequently was not allowed to possess ammunition and he was given a minimum mandatory sentence of 15 years in prison for possessing one round of .22-caliber ammunition. do you think that's a just punishment? >> i'm not sure there would be a prosecutor that could justify outside the existence of a homicide that resulted in the use of that ammunition which obviously is not the case. it's a disparate sentence. if this congress is concerned with the department of justice issuing by fiat a mandate to its prosecutors to ignore certain laws it should be equally concerned that it could issue a request that they be
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overaggressive in this same manner and that's why congress taking these issues and addressing them in a thoughtful way can prevent those highs and lows absurd extremes that should concern everyone. >> and mr. chairman if i could take just a few more seconds to complete this thought. there are those who have attacked this legislation by suggesting somehow that those of us who are behind this bill who have drafted it, who have introduced it are acting on the part of a desire to somehow dismantle the major overhaul of the criminal justice system that occurred 30 years ago and restroertrevert to a bygone era where criminals were not punished. as a former federal prosecutor do s that what we're doing with this bill? >> i think it's entirely unfair. it would be akin to someone accusing me for the years that i prosecuted cases that, you know, i didn't care about my service, i didn't care about the contribution i made.
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we're talking about a bill that is being supported by the likes of chairman grassley and senator cornyn and senator lee and senator hatch and individuals that i've watched and senator white house that were hard on crime, tough law and order-minded government officials. this should say something and should be a wakeup call to people that both sides of the aisle care about this issue and want to make it right and is there any other area than when liberty is at stake that we should care about making it right? >> well said, thank you mr. tolman. thank you mr. chairman. >> thank you. brent, nice to have you back with the committee. you once served on this committee. >> great to see you again. >> we're proud of you. i'm both -- and by the way i chatted with the judge on the angelos case and he was upset that he had to do that. i'm both puzzled and
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disappointed that the bill we're discussing here today does not include provisions to shore up mens rea requirements, or criminal intent requirements. the need for robust mens rea protections and inadequacy of such protection have been a central part of the overcriminalization discussion from the beginning. over in the house, members from both sides of the aisle have said the lack of criminal intent requirements is a major problem that congress must and should at dress and people across the ideological spectrum have agreed. the heritage foundation and national association of criminal defense lawyers, for example, published a study finding over half of all non-violent crimes proposed during the 109th congress contained inadequate mens rea requirements and over a quarter contained no mens rea requirements. at all. along similar lines, a coalition of left-leading groups including
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the national defense lawyers, the aclu and families against mandatory minimums authored a chapter decrying the absence of meaningful intent requirements in many criminal laws and calling on congress to pass a statute to "direct federal courts to read a protective default mens rea requirement into any criminal offense." from where i sit. i do not see how we can adequately address the problem of overcriminalization without getting at the root causes of the problem and one of those root causes is that we have let wither the fundamental principle that in order for an action to be criminal a person must have acted with a have intent. when criminal laws lack meaningful mens rea requirements, hardworking americans can face criminal penalties for accidental conduct or conduct that a reasonable person would not know was wrong.
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for this reason i believe any package of criminal justice reforms that passes this body must include provisions to strengthen mens rea protections. in particular, i believe such a package should include language setting a default mens rea requirement for all criminal statutes, especially those that lack such a requirement. this is an idea that general mukasey and many others have endorsed. now, there are three points to emphasize about default mens r a rea. first, such a provision would not overrooid existing standards set forth in statutes. all it would do is set a default for when congress has failed to specify the criminal intent required for conviction. second, a default mens rea would provision would not limit the authority of congress or agencies to create new criminal offenses, all it would do is require them to be more
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thoughtful about selecting criminal intent standards. third, a default mens rea provision would have no impact on statutes or regulations and prescribed civil penalties. it would only apply to criminal prosecutions where the where is whether to take away someone's freedom or impose other criminal penalties. i hope we can find a way to make the default mens rea in part of this package of justice reforms. i don't think it will surprise anyone to hear me say default mens rea is at least as important as provisions included in this bill at request of senators who are not even members of this committee and with those comments i'd like to ask a question or two of general mukasey. general mukasey, you have written about the need for robust criminal intent requirements. in fact, you've called on congress to pass a statute "requiring proof of guilty knowledge in any criminal prosecution unless congress has legislated specifically to the
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contrary." could you please explain the need for a default mens rea statute? what such a statute would do and also what it would not do? >> sure. i think that the need becomes especially pressing when you consider the number of criminal statutes that exist. i think many people aren't aware of exactly how many criminal laws we have. when you combine the criminal statutes that are in title xviii, title xxi and scattered elsewhere throughout the federal code with regulations it was my understooding that the library of congress was unable to come up with an accurate statement of how many criminal laws we have. we add that-to-that the fact many of them do not have mens rea requirements and it is a -- it's a mine field throughout for people trying to obey the law. this would not prevent the enactment of statutes in the public safety area where standards have to be very high
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where you're talking about the possibility of mass effect of behavior. it would not prevent the enactment of laws in dealing with food and drugs and things of that kind and possibly lowering the intent requirement but as to other crimes -- and you've spoken on this, i know, and we've -- we're all familiar with the examples -- the fellow out here who was working at a vet runs batted in veterans facility and hosed down waste into a drain because that's what he was told to do, found out he was pollute ago navigable river because it went into the potomac and had to plead guilty to a felony as a result. that's ridiculous. so you have to have some sensible standard and an across-the-board mens rea requirement, other than in cases where there is a public safety element involved where congress
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has already legislated that the standard is lower a law of that kind would be enormously valuable. >> we're certainly happy to have you here. some individuals have expressed concern the default mens rea is somehow an effort to unwind the regulatory state or make regulatory enforcement more difficult. could you please respond to those concerns and in your answer could you also please explain the difference between default mens rea and other proposals that are, in fact, targeted at cutting back regulation such as the proposal in the safe justice act to sunset criminal regulations after five years? >> well, default mens rea is precisely what it says, which is that in the absence of a standard set by congress, the standard is conventional mens rea, unlawfully, willfully and knowingly. it would not prevent congress from setting a different standard in those areas of activity where it felt it was necessary and where there was a considered judgment made that it was necessary.
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nor would it set aside regulations that imposed civil penalties and other savpgss. the only thing, as you pointed out in your remarks, the only thing we're dealing with are situations where people are potentially being deprived of their freedom plus whether they're deprived of their freedom or not that they're being tarred as criminaled and i think mens rea requirement is necessary. >> thank you, senator sessions -- let me just add that i don't see how we can have this bill and reduce the injustices that currently seem to exist without a mens rea provision. i don't see how you can. senator sessions? >> thank you. well, this is all important and i thank you, all of you, excellent witnesses and you've added something to this discussion it is clear that rl
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research shows, going to matt deleasy before our committee, that releasing just 1% of the current federal prison population will result in approximately 32,850 additional murders, reapes, robberies, aggravated assault, thefts, incidents of arson. now i don't know if that's accurate or not. that's what he testified to, professor, before us. so if you have 11% reduction in the population, that could be 361,000. then there are costs, when your car is burglarized. well, you have to call the insurance and the police and take time off from work, testify at a trial and all these things are ramifications of crime that are important. we're on the right track. i mean we've been on the right track to reduce the surge in crime we saw in the late '80s and senator hatch was one of the
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architects of the effort that paid off, i believe. now i do believe that we've exaggerated the number of people who are serving long sentences for minoroffenses. my experience is contrary to that. not that it hasn't happened and a lot of things have happened since, miss campbell, you were incarcerated. i mean, a lot of things have happened to reduce that. according to the bureau of prison, mr. cook, i believe 50% of the federal prisons -- prisoners serve less than -- from one to ten years sentences. 50% of the people in there. first, isn't it true that deputy
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attorney general yates can tell the prosecutors not to prosecute small cases if that's what the policy is of the department of justice and focus on larger cases? so if we have people being convicted today for cases inappropriate for federal court because they're too small that can be handled by a policy of the attorney general, can it not? >> it can, sir. >> and, in fact, it's already being dictated to some degree in extreme passion, i would think. >> it has, and, of course, the statistics reflect that. i think both the bureau of prison statistics, sentencing commission statistics as well as the judicial administration all of those statistics reflect a steep decline in the prosecution of drug offenses in the federal system. >> one of the things that senator hatch was saying is the five year mandatory minimum for
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carrying a gun during an offense, crime and the possession of a firearm after conviction of a felony have fallen under the obama administration steadily which is one reason i'm not too impressed with the idea of more laws to impact lawful people who want to maintain a firearm. we've seen a decline in existing gun law prosecutions, rather significant numbers, actually. so all of you, thank you. is senator cornyn, i do think -- and i believe you mentioned miss mcdonnel that the ability of having people in prison begin to work before they are released has real potential. maybe mr. tolman you mentioned it. i do think that can work. my observation over the years of attempts to have education and other kind of character-building programs in prison before they
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are released doesn't seem to have much benefit. do you agree with that, miss mcdonald? >> it's hard to find a current or a released prisoner who has not been offered programs galore. they do exist in prisons but i think work gives a sense of self-esteem and is the best training for reentry that we've got. the risk assessment, the cognitive therapy, that's already being done and i'm afraid that the judgment that was reached in the 1970s which is that it's very hard to find a therapeutic program that reduces recidivism significantly remains the case, and that's by the justice department's own evaluations. but work is something that we have not tried. >> mr. mile mentioned incremental improvements. senator cornyn mentioned 9% or maybe one program 19%
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improvement. well, that's enough. show me a program that has a 19% improvement rate, i'm interested. the only problem is, i've never seen a new program that the first few years the data always looks great and as time goes by they haven't proved to be able to maintain that success. but it's worth considering and thank you senator cornyn and all of you for your work. >> senator cornyn? >> one thing strikes me as true, it's for people who don't want to change, they never will change. but there are people in prison, ms. campbell may be an example of that, who ha, if given an opportunity, to reduce their level of confinement by dealing with their underlying issues, whether it's drugs, alcohol, mental health issues, work skills, general education can earn a lower level of
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confinement, perhaps halfway house, perhaps in-house confinement which is the goal, as you know, mr. tolman, of the corrections act. it provides those incentives for people who have the desire to turn their lives around. but for those who don't, i agree, no -- we can't design enough programs because none of them will work if somebody hasn't made the decision in their own mind that they want to turn their life around and take advantage of that. mr. deroche, what's your experience been with the prison fellowship? >> thank you, senator. for all the senators, in the testimony that i submitted there is citations of some of these results that are through time and senator cornyn one of them is a study that was done by the texas policy council of the interchange freedom program that started in 1998 in texas that shows i think that senator
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sessions points to significant numbers. we've seen that through the iowa department of corrections, the minnesota department of corrections. these things are available. i do think they should be expanded. i think they should be available to people. the mention i make in my testimony was i said i had a drinking problem, i had to enter a recover for alcoholism because alcohol was my solution. i think too often we think the person -- the crime they're doing is their problem. it's not, it's their solution. so we need to go in when people have the willingness and we work at prison fellowship even if someone is never going to leave prison that says i'm going to live my life differently for the rest of my time here and make that transformation worth something. because it's available and it's been demonstrated time and again and by studies throughout this country that people can, when they have the willingness, change their behavior and character and that faith plays an important role in that, senator. i think that can be demonstrated
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right in facilities in texas. >> judge mukasey, we've been talking about mandatory minimums and the length of those sentences but could you comment. is it the certainty of punishment or the length of the sentence that provides deterrence in your view? >> they both do, obviously but i think it's certainly that's far more of a deterrent. once you get beyond five years i think a lot of people who are involved in the criminal justice system are involved because they don't think in segments longer than five years and it's usually a lot shorter than that, sometimes not longer than five minutes. but the certainty of punishment is a major deterrence and that's one reason why i think the guideline system before "booker" was more effective and why i think mandatory minimums to some
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extent ought to be retained. >> mr. chairman, i'd like to make one last point and then thank the panel and that is that it seems like we've been through a sing of a pendulum here from the time back when -- the last time we took a systemic view of our criminal justice system and realized crime was rampant and something else needed to happen and so the incarceration rates went up, mandatory minimums, the stacking that's been described here. is but the reason why that was done, i think, was at least in part the sense that people who commit the same offense tried in different courts could end up with vastly different sentences, which is not what i would call equal justice under the law. so we've seen a swinging of the pent lum and maybe it's time to look at -- and i believe this legislation does -- look at the mandatory minimums with regard to non-violent offensers but we
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do need to do both. we need to have the certainty of punishment as deterrence and we also need to make sure that people who commit the same acts are treated similarly and not dissimilarly. i don't know how we aspire to a system of equal justice under the law where people receive such wildly disparate punishments for the same crime, which has been the goal of some of the mandatory minimum policies. so i think we need to be very careful and appreciate this great panel. you've made us all think and question some of our assumptions and i hope you'll thank there with us as we work through this process not only on this committee but through the senate and also with the house and eventually to the president so thank you very much. >> thank you, senator. you're absolutely right. i was here when we did the mandatory minimums and we are tired of some of the courts that didn't enforce the law and didn't give sentences the way
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they should have and that's what happened. now i think most of us feel it's gone way to far and we have to find some way to resolve that. that's one reason for this bill. senator, you'll be the last witness -- last senator. >> thank you, mr. chairman. i want to echo and agree with and build on what senator cornyn said just a minute ago with one clarification which is that i don't think we should see this bill as something that's going reverse a pendulum. i think by and large the american people feel good about the direction of our criminal justice system in the sense that no one is calling for a return to the system that we had prior to 30 years. no one that i'm aware of that's involved in this effort on this bill is saying let's go back to what we have before. that's not what this is about nor would it be fair to say this bill starts to push the pendulum back in that it swings in only one direction. that's not true, either. we're making adjustments in this
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legislation to the existing framework. in some cases those adjustments might result in some shorter sentences. in other cases, those adjustments might result in larger sentences. in fact, we do create some new minimum mandatory penalties and in some cases we extend the statutory maximum. so this is not a reversal, this is an adjustment that is made necessary by what we've seen in recent years, that it's occurred to us that in some instances -- not every instance -- but in some instances we overpunish crime and that's not always a good thing. overpunishing crime generally results in a waste not only of money but of human lives. and we want to avoid that wherever we can. judge mukasey, i was wondering if i could ask you a question. you've spoken about the important role congress plays in setting the limits of punishment on the top end and bottom end. setting the top range and bottom range. if we as a congress can agree, if we can get to the point where most of the senators and most members of the house agree that
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certain penalties under current law are greater than necessary and if we decide to reduce those penalties, wouldn't it also be appropriate in that circumstance to make those reductions available not only to those who will go through the system in the future but also those who have already been sentenced? >> it may or may not depending on the case. i think many of those cases, particularly those that ended in pleas rather than trials are the result of a negotiation involving both charges and length of sentence such that you would not necessarily want to come in after the fact and beside that that bargain doesn't make sense anymore. >> and that's why we wouldn't want to make them automatic? >> correct. >> we would make sure they would apply on a case-by-case basis so that it would occur in a subsequent proceeding in front of our article i sentencing judge? >> article iii i think. >> sorry, article iii sentencing
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judge. >> because there are article i judges. >> that would be a big problem if we were talking about putting this authority into article i judges. [ laughter ] didn't even know there was such a thing. >> i think that also lodging the responsibility in the individual districts is important because they are the people who, a, are familiar with the case and, b, will have to put up with the consequences so that part of it is very important and i spoke the attorney general about this on friday and i -- the deputy testified here today that that's going to be their policy so i think that's all to the good. >> thank you, judge mukasey. mr. tolman, you were asked some questions about the mens rea component. i want to be clear. this has long been a concern of mine and for the last several years, ever since i came to the united states senate, i've been very concerned about the overcriminalization trend generally and about the mens rea problem in particular. in the sense that we've got so
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many federal crimes on the books that when we ask groups like the congressional research service -- who pays people to research things like this, when we ask them how many federal crimes there are on the books -- they can't tell us. so one of the thing this is bill does is to identified the number of crimes out there. we have to first get a handle on the number of crimes out there and as we do that, i think we'll find ourselves in a better and better position to address the mens rea problem. not every federal crime on the books has an absence of a mens rea requirement or has some kind of inadequate mens rea provision. mr. tolman, based on your understanding of the bill, the crimes that are addressed in this bill are not the crimes that we're talking about, are they? >> no. >> they're not the crimes that lack a mens rea requirement? >> that's correct. they have mens rea and with respect to the mens rea issue, it is a worthwhile endeavor and i would love to work with
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senator hatch going forward. it appears as though it's an appropriate vehicle to follow the current legislation and the reason is is this legislation will identify what those crimes a are. some estimate over 30,000 potentially. there needs to be an -- as careful an analysis of those crimes and the appropriate mens rea to apply that may not there in applying the current legislation to this legislation. it is, however, something that should be on the near future of this congress to address the mens rea issue and i would be happy to work with the congress in doing that. >> but there's certainly no reason to delay this legislation for that. and, in fact, you would argue we do the opposite? >> well, having worked here, i -- certainly this hearing is
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evidence of the fact that members of congress can get along on both sides of the aisle and propose a bill together still. it's evidence that members of congress work past 5:00 but i also know that sometimes adding bills that are very well supported to an existing negotiated package, that would be my concern, senator hatch and others, that adding the mens rea element at this point may disrupt the ability to pass this legislation which is, frankly, hangs on a very thin precipice on whether it will succeed or fail. >> well, i'll just add it may pass without my support if we don't do something about mens rea because i think it's essential to any criminal action and, by the way, it could come into play in these matters as well. i think you'd have to admit that. >> i have learned to never underestimate you, senator hatch, and your ability in the
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senate. i do appreciate that it is a significant issue that the senator has highlighted, you are absolutely right to highlight that and i would really look forward to working with this congress on that issue. >> we appreciate your comments. we appreciate every one of you for being here and we're sorry it's so late and had to be at this particular time. i had to make it back from utah so i could be here. we want to thank each and every one of you for your testimony. it's been very important to all of us up here. with that, we'll we says until further notice.
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coming up live in just under 30 minutes from now, the commission on security and cooperation in europe will examine the reasons for the current refugee crisis in europe and possible responses. you can see that discussion live starting at 2:00 p.m. eastern here on c-span 3.
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and the hill is reporting today that senator john mccain, chair of the senate arms services committee, is recommending that president obama establish a no-fly zone in syria to protect refugees and those the u.s. have trained and are supporting against isis. hillary clinton made that recommendation last tuesday during the first democratic debate, setting herself apart from other less hawkish candidates. she also said she supported the establishment of such zones to gain leverage on russian president vladimir putin who began an air strike campaign in syria last month to shore up ally president bashar al assad. clinton is one of several obama cabinet officials who've recently recommended establishing no-fly zones in syria. again, that article from "the hill." and while we wait to take you that event from the helsinki commission at 2:00, a portion of a panel discussion from yesterday also looking at the refugee crisis in europe. >> a time for us that overall
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displacement into world war ii. bringing in 60 million people displaced or as refugees and fortunately i have to say it's 16 million refugees at this point of which a quarter of those are out of the syrian conflict alone. 4.1 million. in many ways we're seeing the international community dealing with the biggest crisis with refugees in decades depending on how you look at it since world war ii. so it's a really an enormous at trophy of humanitarian issues and comes at a time when we're seeing very other -- as you mentioned, large refugee emergencies, whether that's in central african republic, in yemen, in central america, in sudan. so it's already coming at a time
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when the system has been extremely taxed already. and then there's dimensions i think that we've seen with the syrian crisis that, you know, there's 7.6 million internally displaced as well. having to be assisted by the international community. you're really looking at, again, in a situation where half of the country's population is either displaced or refugees and even a larger number are needing some sort of international assistance with over 12 million. so it's one of the things that for us we talk about the numbers they become almost unimaginably big. they're hard to talk to because you lose people in the numbers. at the same time, i think there's been an unprecedented and good international response to this, whether it's through funding and as we'll be talking about later on resettlement and other kind of humanitarian movements. but it's still an emergency and i think that for myself i've been in refugee work a while
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going back to the vietnamese era and usually emergencies have curve to them. they sort of begin to slack off at some point and we're now in the third year and there's no slacking. what we see is a metamorphosis of emergency changing into different players, more refugees from different locations and different causes spilling into neighboring countries like iraq where we've seen three million internally displaced as well. so it's a huge emergency and finally coupled with what we've seen since in the last two months the pictures of people migrating into europe, for europe it's another unprecedented since world war ii find of emergency so i don't know if i said the word big and large enough and huge in those but i think that all of us
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whether it's international organizations, countries and for refugees -- we're in the mid-s of something that's been beyond what most of just experienced? >> can you talk about how this compares to crises your other organizations have responded to? >> sure, every refugee flow is unique. what's interesting to note about the syrians is the that since the beginning of the conflict the u.s. has only welcomed about 1900 syrians. so given the huge numbers that were mentioned, 4.1 syrians worldwide, we really have not opened the doors in the u.s. yet to syrians arriving here. and some of the other crises we've responded to, such as kosovo, the response of bringing individuals to the u.s. was more immediate so when we resettled
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people, they had fresh trauma, violence they have just experienced. many syrians now are being told the wait they face in the camps in turkey or lebanon could be three or four years so we're seeing a highly traumatized population, almost all syrian families have experienced a death, a husband, a brother, a child but they're not able to find that immediate protection that they need. that's one big difference. a comparison would be to central america where we've heard interviewed of young men leaving syria who have said "my choice was stay here or die or get on a boat and face the possibility of death there." with central american children being interviewed we also hear the same story. "i can either stay here, face death at the hands of a gang or i can take a risk and try to find safety in costa rica, maybe
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mexico, maybe the u.s. but the choice is the same, is death in my home country or possible death on the journey to safety. so although there are some differences on scale in what's happening in syria, we see similarities and levels of trauma as well as a desperation to find safety among all refugees populations. >> is it possible larry or kelly to talk about the demographics of the population you're seeing in the refugee community coming out of syria? >> well, at large the demographics would be as far as jender it's about a 50-50 split that you look to each of the countries, the major countries receiving which would be turkey, lebanon, iran, jordan and egypt as far as age i was looking that up. what we have is about a 50-50 split. 50% would be 18 and under and 50% over.
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there's a relatively small number of elderly, maybe and that would be people my age and older as it's defined so only about 3% are making it out as refugees so i think that that's a little bit of a difference in other populations but in the sense we see a lot of women and children is common to many refugee situations. some of the migration happening to europe is a little bit more male, is little bit younger and partly because it's risky. and i would think the motivation for people to move is running out of resources in in n the host countries have who've done this -- i would say unprecedented job of receiving refugees. if you go to lebanon and see one out of three people is a
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refugee. >> that's astounding. >> in the u.s., that would be hosting 100 million people from neighboring countries and having children being in schools and using public resources,ette. despite the fact that countries aren't signatories in the formal sense of the ref see why convention they've maintained generally open borders but at the moment you'll see borders closing and as borders and options close people go on the move. i also go to the thing i think on demographics is these are people who were relatively well off, a lot of people who were middle-class and had resources when they left and they've run through them so i think the situation is changing and the level of desperation is changing and the international community can -- we're only funded at about 40% for the syrian appeal. that means food ration cuts by
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world food programme. it means other kind of educational supplements, kids staying in schools so there is also that curve is where we're seeing changes in the way the population looks and certain people heading out because they're running out of options is that your view similarly? >> it is, it is. >> can we talk before we switch into the security implications, can you talk about countries in europe and the region who are take manager refugees, what the numbers are and what burden that is bringing to those nations? any of you? i could start with larry again. >> we've had four resettlement formal program. there's 30 countries involved as big as the united states to my
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favori favorite liechtenstein. but other countries outside of the region who have made opportunities available and that's on one side but there's a much larger number of people directly in europe. we're seeing arrivals of 6,000 people per day, over 500,000 asylum applications in europe since the start and the countries bearing the biggest brunt at this point and taking a good responsibility would be countries like germany, sweden you see countries such as norway, recent announcements by uk for multiyear commit mement. so we've seen a response from many countries. i think there are ones we'd like
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to see do more. there will also be an intereuropean relocation plan. at least that's been put forward by the european union which will also, again, involve multiple members. at the same time we've seen certain countries putting up fences. as some of my colleagues have described, a new iron curtain coming down in certain locations in europe to block the flow of refugees. >> you mentioned germany. germany has promised to take hundreds of thousands of refugees but then germany has been criticized by some members of the german press for that being a threat to german culture. is hungarian officials are talking about the threat of terrorism is related to this. lorenzo, is this a fair concern? >> no. it's not a fair concern. it is a fair concern in the sense that security is important. it's a fair concern in the sense that integration is important. but to, i think, view the refugee flow in -- through a lens purely of security that
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there are -- you hear there are terrorists embedded, extremists embedded in these refugee flows is a mistake. it is a major issue. it has become a major issue of integration and inclusion as to whether or not the europe of the future is and particularly the new europe, countries that you mentioned, central and east european countries, are they going to be open? are they going to integrate populations that, frankly, don't look like them or may not have the same religion? in addition to the humanitarian questions that have been raised and the security challenges that are certainly present i think one of the silver linings in this, but one of the positive outcomes could be that europe is now grabbing with and will decide whether it is open to immigration or closed.
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so we have seen leadership from germany and france and other countries but we've also seen a rise in far right movements and far right political parties grabbing more and more seats. switzerland, for example, most recently. and we've also seen violence against you mentioned germany, the mayor elect of munich was stabbed because of his -- presumably because of her open views on immigration so i think you're seeing a lot of reactions, lots of negative reactions but we're happy that europe is grappling with these issues and could emerge unified, could emerge in a position to speak with one voice and that's what we're seeing today. we've seen romania, we've seen croatia who initially sort of wavered but they're talking about resolving it as opposed to
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other countries like hungary and so forth who are just putting up barbed fences. >> lorenzo, your thoughts? >> i would echo abner's comments. from a security point of view of course the debate gets very heated, very politicized. we've seen statements not just from hungarian officials but throughout europe and certain political forces trying to exploit the terrorist threat in europe which is real but not necessarily linked to the refugee crisis and i think if we just look at the facts, the evidence, we really see that that link -- i'm not saying it doesn't exist completely because anecdotally we can find examples, of course, when we have such large numbers it's statistically impossible that everybody l l not be linked to -- you cannot find at least one or two people linked to terrorism but if we look at the numbers, the events of the last few years, we don't see that
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link. let's start with the u.s. we talked about europe but i think there's a u.s. aspect. we just concluded as a center a study of the 17 individuals who. not one of them is a refugee. these are people arrested within the last year and a half, indiei indicted for links to isis. 40% of them are actually born in the u.s. the vast majority of them are people who are born in the u.s. you can argue there's a few of them that are somali descen descendants. if you look at europe, more or less the same dynamics. if you look at the attacks perpetrated in europe with a syria link over the last two years, all of them perpetrated by people who are european citizens, or have long-lived in europe. have no links to syria.
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not having gone there to fight as foreign fighters. so, so far what we have seen is home grown terrorism threat in a lot of western countries. not so much an important terrorism threat coming from syrian refugees. obviously, we have seen a few cases here and there. i think most of them have to be decided by courts. we have a case in italy, for example. we're talking about other refugees. we're talking about coming from libya. a couple of cases in bulgaria and czech republic. all of them need to be adjudicated in the courts, so we'll see exactly what the evidence is. but we're talking about anecdotal. if we look at the big numbers, the 5,000 individuals who have gone from europe to fight, they are european citizens. second, third generation european citizens, or a large number of converts. 20%, 25% of converts. so really, the link is sort of disproven by facts.
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>> there are many officials who are attempting to cite things as fact. one such fact goes to the demographic question. that a large number of the people who are coming from syria into europe are primarily men of, for lack of a better description, fighting age, if you will. is that something that you -- you attributed it to a couple moments ago just the difficulty of the journey. do you share that view as well? >> it's likely. obviously we do see the majority of men -- i think half of them are women. so it tends to be younger people, i think for a variety of reasons, it is a difficult journey. even more if you take the southern route from libya to tunisia. so obviously, i think that's why younger people are tempted and older people do not. i think that's the history of immigration in general. younger people, for obvious reasons, attempt it.
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i understand the concerns. i am not saying because in the past -- and by past, i mean recent past, we have not seen a terrorist threat coming from people who come as refugees. i am concerned by the fact that it's very good for the triage, thousands of thousands of people that come in every day. it's difficult to vet them. and it's pretty clear that some of the people have been fighting and they have been involved in the conflict. the stories can range from people who -- and again, very few examples of people who were involved in terrorist groups like isis, and comingtrators to something. so we have seen cases of people who are, for example, pictured with a machine gun in syria, and then come in as refugees. european media have been full of
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people like that. of course, each needs to be vetted. what group are they fighting with? why did they leave? you can't blame certain individuals who fight in a certain part of syria. it doesn't make them a terrorist. at the same time, it would be naive not to check for what is possible, the background of these individuals. i think that's the big challenge there. >> you have something to add? >> one thing to add. it's a humanitarian challenge. it's a security challenge. there's also a propaganda war going on. and our own recent report from homeland security committee on foreign fighters points to isis out there on social media talking about imbedding their people in these refugee posts. i mean, if we accept what isis is saying as the truth, let's take a closer look. let's really vet, let's really think about this, and not just fall prey to what i view as isis
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propaganda. i mean, of course it's in their interest to make us not want -- make europe not want, make the u.s. not want to take these refugees. it fuels the narrative. it fuels the narrative of the west doesn't want you, stay away, join the jihad, etc., etc. so we sort of accept these conventional thoughts as a given, but it really does require when you're making major policy decisions, allocating resources, large parts of europe don't have. you really do have to dig and understand what is happening. >> i'm sorry, go ahead? >> i think another thing that's often lost is -- i certainly think all the agencies are dealing with this, in hr included. any military activity, etc., is something that we're interested in. and there is mandatory conscription in syria, into the syrian army itself. so there's a lot about the terrorist organization.
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i think sometimes we're on guard as well, because many people in the syrian military as well, where they weren't. they avoided it because there's lots of ways to try to not be in the syrian military. sometimes i agree very much in the sense that perhaps that the people dealing with the issue are naive. and people are not looking for issues. in interviewing cases, particularly when you get to resettlement, which is a highly individualized thing, or applying for asylum, where you spent a lot of time with the individual. this is going to be a big part of every interview. particularly if you are a male and of this age. and there is country of origin information. there are resources that you go to. experts who follow these issues. and when things are unclear, i would say the process stops until they're clear.
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i think that's very -- we also covered the caribbean and other regions and i also see all of the -- we have some syrians that rb in t are in the caribbean. a great deal of time is spent exploring people's -- you know, what did you do? what was your military history? what was your situation? what intersections may you have had with the conflict, whether it's a combatant, whether it's a supporter, etc. one of the things i'd love to dispel is that there's a big split between those who are concerned about humanitarian agencies. everyone in the humanitarian field knows that if you don't have security, you will lose confidence in the system. and general public companies will lose confidence. i think that's something we can't afford. that's why governments -- other
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ios are on the lookout, are looking at these issues. i can tell you there's extensive paperwork and individuals that we have ways of looking into cases as best we can. the other thing i would say is, like most systems of security, it depends on multiple layers. there's never a single layer when you get on the airplane. not a single layer when you cross the border. any kind of security approach. and there has to be a dove tailing of the humanitarian issues that we're looking at. and as well as security. and i think everybody, at least that i've worked with on various things, is committed to making those things work together. >> can you make that a bit of a fuller picture for us? how many agencies are involved when you're dealing with a security check on a particular refugee?
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>> we're often the first stop for any refugees. we'll also be dealing with countries, particularly in turkey, where the turkish government takes on a much bigger role in registration, particularly with syrians. we do have contacts with other governments ongoing, so if there are security issues that we should be aware of, governments will often be reporting those back to us. there's a limit to what governments can say to us because there are sources and information flows. at the same time, we work with experts in the field. papers on specific issues. we have quite a lengthy paper of particular triggers that might come up in cases that for us would move cases over to people who would do more extensive interviewing. cases where i'd be put on hold. i'll leave it to kelly. >> we're going to break away from this event about refugees and take you to a live event
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examining the recent refugee crisis in europe. this is the helsinki commission. live coverage getting under way on c-span3. >> has become the biggest refugee crisis in europe since world war ii. at least 250,000 people have been killed in syria's civil war. many of them civilians. the security forces of syrian dictator bashir al assad, security forces have been responsible for many of these killings, targeting neighborhoods with barrel bombs and shooting civilians point-blank. isis has committed genocide, mass atrocities and war crimes against christians and other minorities in likewise shia muslims who reject its ideology and brutality. fleeing for safety, more than four million syrians are refugees. the largest refugee population in the world. and another 7.6 milln

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