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S. HRG. 112–946 

RISING PRISON COSTS: RESTRICTING BUDGETS 

AND CRIME PREVENTION OPTIONS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

AUGUST 1, 2012 

Serial No. J–112–92 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

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

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, 

prepared statement .......................................................................................... 40 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 38 

WITNESSES 

Witness List ............................................................................................................. 21 

Davis, Edward F., Police Commissioner, Boston Police Department, Boston, 

Massachusetts ...................................................................................................... 4 

prepared statement .......................................................................................... 22 

Sedgwick, Jeffrey Leigh, Ph.D., Managing Partner and Co-Founder, Keswick 

Advisors, LLC, Richmond, Virginia .................................................................... 6 

prepared statement .......................................................................................... 25 

Tolman, Brett L., Shareholder, Ray Quinney and Nebeker, PC, Salt Lake 

City, Utah ............................................................................................................. 8 

prepared statement .......................................................................................... 32 

QUESTIONS 

Questions submitted to Edward F. Davis by: 

Senator Grassley .............................................................................................. 49 

Senator Klobuchar ............................................................................................ 46 

Questions submitted to Jeffrey Leigh Sedgwick by: 

Senator Grassley .............................................................................................. 50 

Senator Klobuchar ............................................................................................ 47 

Senator Leahy ................................................................................................... 43 

Questions submitted to Brett L. Tolman by: 

Senator Grassley .............................................................................................. 52 

Senator Klobuchar ............................................................................................ 48 

Senator Leahy ................................................................................................... 45 

ANSWERS 

Responses of Edward F. Davis to questions submitted by Senators Grassley 

and Klobuchar ...................................................................................................... 53 

Responses of Jeffrey Leigh Sedgwick to questions submitted by Senators 

Grassley, Klobuchar, and Leahy ......................................................................... 58 

[NOTE: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Brett L. Tolman.] 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Bar Association (ABA), Wm. T. Robinson, III, President, statement . 105 

American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington Legislative Office, and Jennifer Bellamy, Legislative Counsel, statement ...................................................................................................................... 109 

Boston Police Department, City of Boston, Massachusetts, report ..................... 134 
Page

IV 

Council of Prison Locals, American Federation of Government Employees 

(AFGE), AFL-CIO, Dale Deshotel, President, statement .................................. 118 

Families Against Mandatory Minimums (FAMM), Julie Stewart, President, 

statement .............................................................................................................. 144 

Justice Strategies et al., August 8, 2012, statement ............................................ 148 

New York Times, The, ‘‘Sensible Sentences for Nonviolent Offenders,’’ June 14, 

2012, editorial ....................................................................................................... 151 

Pew Charitable Trusts, Public Safety Performance Project of the Pew Center 

on the States, Adam Gelb, Director, statement ................................................. 113 

Sentencing Project, The, Marc Mauer, Executive Director, statement ............... 156 

Texas Public Policy Foundation: PolicyPerspective, Marc Levin, Esq., Director, 

Center for Effective Justice, ‘‘The Role of Risk Assessment in Enhancing 

Public Safety and Efficiency in Texas Corrections,’’ July 2010, article ........... 75 

Texas Public Policy Foundation: PolicyPerspective, Marc Levin, Esq., Director, 

Center for Effective Justice, ‘‘Unlocking the Key Elements of the Adult 

Corrections Budget,’’ May 2011, article .............................................................. 91 

Texas Public Policy Foundation: The Texas Model, Marc Levin, Esq., Director, 

Center for Effective Justice, ‘‘Adult Corrections Reform: Lower Crime, 

Lower Costs,’’ September 2011, article ............................................................... 103 

United States Department of Justice, Charles E. Samuels, Jr., Director, Federal Bureau of Prisons, statement ...................................................................... 137 

United States Sentencing Commission, Patti B. Saris, Chair, statement .......... 152 

Vera Institute of Justice, Michael Jacobson, President and Director, statement ...................................................................................................................... 163 
(1) 

RISING PRISON COSTS: RESTRICTING 

BUDGETS AND CRIME PREVENTION OPTIONS 

WEDNESDAY, AUGUST 1, 2012 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Grassley, Hatch, and Lee. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Today the Judiciary Committee considers the 

important issue of prison costs. We find more and more people incarcerated for longer and longer, but what I am hearing from Governors of both parties and certainly seeing at the Federal level is 

that Federal, State, and local budgets are facing enormous strains, 

which in turn takes money away from budgets that we might use 

to prevent crimes in the first place. So, again, the idea of do we 

have correctional officers or do we have police officers? 

At a time when our economy has been struggling to recover from 

the worst recession in 75 years, everybody’s budget is strained, 

Federal and State, and we have to check whether the money is 

being wisely spent with overincarceration or whether we should 

spend elsewhere. There is mounting evidence that building more 

prisons and locking people up for longer and longer—especially 

nonviolent offenders—is not the best use of taxpayer money. In 

fact, it is an ineffective way of keeping our communities safe. 

Between 1970 and 2010, the number of people incarcerated grew 

by 700 percent. If you look at the prisons throughout the whole 

world, about a quarter of the prisoners are locked up here in the 

United States. I put that in perspective because we have about 5 

percent of the world’s population; we have almost 25 percent of the 

people locked up. There are 1.6 million people in State and Federal 

prisons, and more than 700,000 are in local jails. Seven hundred 

thousand is more than the population of my State of Vermont. We 

incarcerate about one in every 100 adults. 

At the Federal level, over the last 5 years, our prison budget has 

grown by nearly $2 billion. In 2007, we spent approximately $5.1 

billion on Federal prisons. This year, the Federal Bureau of Prisons 

requested over $6.8 billion. To do that, we will have to spend less 

money for Federal law enforcement, less aid to State and local law 

enforcement, less funding for crime prevention programs, and less 
2 

funding for prisoner reentry programs. As we spend more money 

to keep people locked up, we have less to spend on the kinds of programs that evidence has shown works to keep crime rates down. 

In the States, the problem is also acute. We have seen the U.S. 

Supreme Court affirm a mandate that California release thousands 

of prisoners to alleviate unconstitutional overcrowding. We have 

seen police departments reduce the rolls of officers on the beat. We 

have seen successful crime prevention programs shutting their 

doors. 

In my State of Vermont, massive increases in prison costs 

prompted action. Between 1998 and 2008, the prison population 

had grown by 86 percent, and the projection was it would continue 

to grow. From 1996 to 2008, spending on prisons almost tripled, 

from $48 million a year to $130 million a year. Keep in mind this 

is a State of 650,000 people. With massive additional increases projected, the State instituted sentencing reforms that reduced the 

number of prisoners and saved $18.3 million in corrections costs— 

$6 million of which was put into programs to keep people from 

committing the crimes in the first place. And recidivism dropped by 

9 percent. Our violent crime rate dropped 5 percent between 2008 

and 2010 while the changes were taking place. The property crime 

rate dropped 10 percent over the same period of time. The reforms 

not only save money, they keep communities safer. It is probably 

one of the reasons why Vermont has one of the two or three lowest 

crime rates in the country. 

Several other States, including very conservative ones, have 

adopted sentencing reforms and other policy changes. Texas has reduced its prison population by steering nonviolent drug offenders 

to treatment rather than prisons. They saw their crime rate drop 

by more than 8 percent, but they also saved $2 billion. 

So this is a bipartisan issue. Sentencing reform works. Taxpayer 

dollars can be used more efficiently to prevent crime rather than 

just build more prisons. 

The U.S. Justice Department seems to finally be recognizing the 

perils of continuing the current trend. I will put that in the record. 

I think sometimes Congress has moved in too often the wrong direction—I know I made some mistakes in some of these votes—by 

imposing new mandatory minimum sentences unsupported by evidence while failing to reauthorize crucial programs like the Second 

Chance Act. 

So there are ways we can save billions of dollars and make the 

justice system safer. As I said, I will put my full statement in the 

record. 

[The prepared statement of Chairman Patrick J. Leahy appears 

as a submission for the record.] 

Chairman LEAHY. I want to yield to my long-time friend and 

partner here, the Senator from Utah, Senator Hatch. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. 

Chairman LEAHY. The senior Senator. 

Senator HATCH. Thank you, Mr. Chairman. I appreciate you and 

your leadership. 
3 

Good morning to everybody. We are here to discuss a rather important but delicate issue surrounding the rising costs of prisons. 

The Federal prison population is growing. Over the last 15 years, 

the Bureau of Prisons’ budget has increased from 15 percent to 24 

percent, almost one-quarter of the total Justice Department budget. 

If we do not start to address the issue, it could result in reductions 

in the budget of Federal law enforcement agencies and pose threats 

to public safety. 

However, it is critical that we approach this issue carefully and 

reasonably and responsibly. The safety of the American public is of 

paramount concern, as far as I am concerned. This hearing is a 

good start to exploring viable and responsible solutions to these rising costs, and I look forward to future hearings and continued discussion on the issue, and I intend to work with our Chairman to 

resolve these problems. 

I am happy to have Brett Tolman here this morning, as well as 

the other witnesses who are here. We respect you. Brett is Utahan. 

He is a graduate of BYU Law School and a former Hatch staffer. 

Brett worked for us on the Committee back in 2003 and 2004 as 

Counsel on the Senate Judiciary Committee, and in 2004 he became Chief Counsel for Crime and Terrorism on this Committee. 

He went on to proudly serve as a U.S. Attorney in Utah from 2006 

to 2009, and we are proud of him. Brett has a unique perspective 

as he has experience in this area from both the policy standpoint 

as well as his experience as a U.S. Attorney prosecuting cases. 

I want to apologize to the witnesses this morning because I will 

have to leave pretty quickly because I have a Finance Committee 

hearing that is going to start momentarily, but I wanted to be 

present for the start of this hearing to convey my interest in this 

serious and important issue. 

I am just very pleased to be a member of this Committee. This 

Committee does an awful lot of important work in this country, and 

we just really appreciate the time that you witnesses have taken 

to come and help us to understand these issues better. We are very 

grateful to you, and I will certainly pay pretty strict attention to 

whatever your remarks are today. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Well, thank you, Senator Hatch. Thank you for 

what you said about Mr. Tolman. I did tell him when he came in 

here that he was one person that did not need somebody to tell him 

how to find the room or where to go. 

Senator HATCH. That is right. 

Chairman LEAHY. And he is probably unique among witnesses. 

He has the distinction that both you and I have voted for him. 

Senator HATCH. That is right. Now, that is a real tribute to you. 

[Laughter.] 

Senator HATCH. Let me just say this. I am going to ask unanimous consent that a statement by Senator Grassley be placed in 

the record. 

Chairman LEAHY. Of course. 

Senator HATCH. Thank you, Mr. Chairman. 

[The prepared statement of Ranking Member Chuck Grassley appears as a submission for the record.] 
4 

Chairman LEAHY. We have a lot of Utah here. We have Senator 

Lee, also from Utah. Mr. Tolman was confirmed before Senator Lee 

was in the Senate. 

Our first witness is Edward Davis, Commissioner of the Boston 

Police Department since 2006. Obviously that is an area I watch. 

I remember even as a young prosecutor going there and meeting 

with the district attorney of Suffolk County and talking about what 

was going on in Boston. In this capacity, Commissioner Davis has 

emphasized community policing and predictive policing through initiatives like the Safe Street Teams and Operation Ceasefire to reduce gang violence. He had served earlier as superintendent of police in Lowell, Massachusetts, for 12 years, received numerous 

awards, including the National Leadership Award in 2002 from the 

Police Executive Research Forum. He is a founding member of the 

Massachusetts Major City Chiefs. He has an undergraduate degree 

from New Hampshire College in Manchester, New Hampshire, a 

master’s degree in criminal justice from Anna Maria College in 

Paxton, Massachusetts. 

Commissioner, we are delighted to have you here. 

Please go ahead, sir. 

STATEMENT OF EDWARD F. DAVIS, POLICE COMMISSIONER, 

BOSTON POLICE DEPARTMENT, BOSTON, MASSACHUSETTS 

Mr. DAVIS. Good morning, Mr. Chairman and Senator Hatch and 

Senator Lee. It is an honor to be here and to discuss these very 

important matters. Again, my name is Edward Davis. I am the police commissioner in Boston. 

Drug abuse still plagues our Nation. In 2010, an estimated 22.6 

million Americans aged 12 or older reported being current illicit 

drug users, and drug-related crime continues to rise at a strong 

and steady pace. 

From a criminal justice standpoint, I believe that arresting our 

way out of this problem is not the solution. Addiction and profit are 

huge motivating factors, making the threat of long-term incarceration alone not enough to prevent recidivism. 

In Boston, we use a strategic approach to decrease overall crime. 

In urban communities across the United States, there are a small 

number of people committing a disproportionate amount of crime. 

Starting in 2006, we carefully targeted these individuals, and our 

overall crime rate dropped 30 percent at the end of 2011 over those 

years, with a projection of an even greater decrease in the year 

2012. Not only did our crime rate decrease, but so did our arrest 

rate by 35 percent during the same time period—contradicting the 

theory that arrest and prosecution alone can solve the problem of 

crime and violence on our streets. 

I have been a police officer for 33 years. I come from a family 

of police officers. For many years, I was very fortunate to lead a 

regional unit that investigated organized crime and narcotics while 

working closely with our partners from the Massachusetts State 

Police and Drug Enforcement Administration. I even did cases in 

Burlington, Vermont, Senator. 

I did this during a time when harsh penalties were being fully 

implemented during the Nation’s War on Drugs. I, along with 

every narcotics officer across the Nation during those years, faith-
5 

fully arrested and assisted in the prosecution of thousands of drug 

users and suppliers. 

I witnessed the terrible price of drug abuse and what it does to 

individuals, families, and society. And I learned that this method 

of mass arrest and strict prosecution alone will not work. 

Arrest is a vital tool but not the key. Incarceration temporarily 

keeps drug users and dealers off our streets, but does little to impact recidivism, as evidenced in a recent Georgia study that found 

that the 2-year recidivism rate among drug-court participants was 

7 percent, compared with 15 percent for those on probation alone 

and 29 percent for drug users who simply served time in State 

prison. 

To be successful in reducing the crimes that are fueled by drug 

abuse, a strategic, thoughtful approach is needed. Our focus must 

be on the right people, those who are committing the large number 

of drug and violent offenses. 

This is an effort that requires rich partnerships, including other 

law enforcement agencies, but also health and human service agencies and community stakeholders like businessmen and educators. 

In Boston, we have a long history of valuing partnerships. We 

work closely with the Department of Probation to monitor Boston’s 

most violent probationers with GPS ankle bracelets. GPS have 

proven to be a valuable tool in helping our investigators identify 

suspects and witnesses as well as to rule them out, increasing the 

certainty and swiftness of punishment. GPS mandated post release 

for drug offenders can be critical in reducing the recidivism rate by 

allowing enforcement of stay-away orders as well as helping to alleviate the financial burden of incarceration. 

We have come to realize that arrest can be more than an enforcement component of this problem. It can also be useful in encouraging if not forcing treatment alternatives. Programs like HOPE— 

Hawaii’s Opportunity Probation with Enforcement—in Hawaii 

make it clear that a public health response to drug abuse will free 

up beds in our Nation’s prisons—beds that can be better utilized 

for those who are serving time for violent criminal activity. Results 

from a 1-year followup evaluation of probationer outcomes found 

that only 21 percent of HOPE participants had been re-arrested 

versus 47 percent of those who did not participate in the program. 

As a Police Commissioner of a large city in this country, I, along 

with my colleagues, must focus our resources, our precious resources, and those of the judicial system on those individuals who 

commit violent crime. 

Punishment should target those who cause injury to others and 

those who commit crimes with weapons of any kind. 

Last year individuals randomly sprayed a Boston neighborhood 

with fire from an AK47. Our laws currently are not equipped to 

deal with this type of mayhem. And certainly the example foremost 

in our minds is the recent tragedy in Aurora, Colorado, bringing 

this problem to the public’s attention once more. 

A stricter focus on violent offenders is critical to drive down unacceptable levels of homicides in our cities. These are the people 

that we should be incarcerating. Strong laws on those who use 

weapons of any sort in perpetrating crimes should also be the priority of our Government. 
6 

It is not a secret that our prisons are overcrowded and cost us 

billions of dollars a year. The U.S. incarcerates some 2.3 million 

people at an estimated annual price tag of about $70 billion. 

We need to continue our focus on taking violent offenders off our 

streets while creating a comprehensive response to drug offenders—one that encourages treatment and effective supervision when 

they are released. 

By creating a balanced pragmatic approach between enforcement 

and prevention, we can effectively impact recidivism rates and reduce the unwieldy costs of incarceration. 

Thank you. 

[The prepared statement of Edward F. Davis appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Commissioner. 

What I am going to do is take testimony from each of the witnesses, and then we will open it up for questions. 

The next witness is Jeffrey Sedgwick, who is managing director 

at Keswick Advisors, which he co-founded in 2009. Prior to that he 

was appointed by President Bush to serve as Assistant Attorney 

General for the Office of Justice Programs, where he served from 

2008 to 2009—another person both Senator Hatch and I voted for. 

In this capacity, he oversaw the activities of offices including the 

Bureau of Justice Assistance, the Bureau of Justice Statistics, and 

the Office of Victims of Crime. From 2006 to 2008, he served as Director of the Bureau of Justice Statistics. Before that, he spent 30 

years as a professor at the University of Massachusetts. He earned 

his undergraduate degree from Kenyon College and his master’s 

and Ph.D. from the University of Virginia. 

Dr. Sedgwick, please go ahead, sir. 

STATEMENT OF JEFFREY LEIGH SEDGWICK, PH.D., MANAGING 

PARTNER AND CO-FOUNDER, KESWICK ADVISORS, LLC, 

RICHMOND, VIRGINIA 

Mr. SEDGWICK. Thank you, Chairman Leahy, Senator Hatch, 

Senator Lee. 

We are all facing an unpleasant reality. We live in an austere fiscal environment that shows no sign of lifting in the near future. As 

a result, the criminal justice community is at a crossroads where 

it must make public safety expenditures more intelligently and 

more productively or else see the dramatic progress in reducing 

crime rates over the past 20 years eroded. 

This is a quote from Assistant Attorney General Lanny Breuer 

speaking last month to the National District Attorneys Association 

summer conference. I could not agree with him more on the problem. I doubt if anyone in this room disagrees. However, I believe 

he has oversimplified the tradeoffs in public safety that we need to 

consider in order to make good decisions. 

According to Breuer, we must recognize that a criminal justice 

system that spends disproportionately on prisons at the expense of 

policing, prosecutions, and recidivism-reducing programs is unlikely to be maximizing public safety. This suggests quite strongly 

that maximizing public safety is the result of a proportionate sharing of public safety spending among components of the criminal 

justice system. But proportionate to what? 
7 

This framing of the tradeoffs strikes me as a very incomplete 

view of the problem for it casts the components of the criminal justice system as rivals for shares of a fixed or, even worse, diminishing budget. A more comprehensive view of the problem would 

cast the issue somewhat differently. As a first step, the budget of 

the criminal justice system should be large enough and no larger 

that it minimizes the total social costs of crime, including not only 

public expenditures on public safety but also the costs of victimization, tangible and intangible, to the public. 

As a second step, the allocation of funds among components of 

the criminal justice system should be guided by their demonstrated 

effectiveness in reducing crime. It is all too tempting to look first 

to the correctional system as a source of savings in a period of austerity. We have heard it said that the United States, along with the 

former Soviet Union and South Africa, is the most punitive country 

in terms of incarceration or prison. But this characterization is too 

simple. 

For example, the probability of conviction per offense is lower in 

the United States than in most industrialized nations. One reason 

for this may be the relatively high rate of plea bargaining and 

charge reduction that occurs in our criminal justice system. Also, 

the probability of being sentenced to incarceration given conviction 

is not noticeably higher for the United States than for other industrialized countries. Thus, a more nuanced view is that the United 

States is no more likely than any other industrialized democracy 

to resort to imprisonment for violent offenses. Rather, our high incarceration rate is the result of our comparatively high violent 

crime rate. Indeed, the United States reacts to violent crime in 

roughly the same manner as other industrialized democracies. It 

just has more of it. 

In April of this year, CBS aired a segment on its weekly news 

program ‘‘Sunday Morning’’ entitled, ‘‘The cost of a nation of incarceration.’’ The unmistakable implication was that the United 

States incarcerates too many at too high a cost. But just how large 

and costly is the prison population? As we have already heard, 

there were 2.2 million adults incarcerated in U.S. Federal and 

State prisons and county jails at the end of 2010, approximately 1 

percent of the U.S. resident population. A recent report of the Vera 

Institute calculated the average cost per inmate of incarceration for 

a sample of 40 States at $31,286 per person. Hence, one could estimate the total cost of incarceration nationwide in 2010 as $70.9 billion. This is surely a significant sum, but is it either disproportionate in relative terms or too large in absolute terms? 

If we look at it on a per capita basis, the total cost per resident 

of the United States for public safety is $633, allocated $279 per 

person on police protection, $129 on courts, prosecution, and public 

defenders, and $225 on corrections. Whether that is too much or 

too little or disproportionately allocated would depend on the benefit each of those dollars achieves. 

Now, what do we know about those benefits? To be brief, we 

have had an experience in the United States during the decade of 

1990’s with a very large decrease in crime in the United States. 

And we know quite a bit from research what caused it. We know 

that demography had something to do with it. We know that the 
8 

economy had something to do with it. We know particularly from 

the case of New York City that intelligent policing of the sort that 

Commissioner Davis just spoke about had a lot to do with it. But 

we also know from research that between 10 and 27 percent of the 

decrease that we saw in crime in the decade of the 1990’s was due 

to incarceration. The value of that decrease in the crime rate was 

approximately $180 billion annually. So I think as we talk about 

the value of incarceration and whether or not too much or too little 

is being spent, we need to frame it in terms of what was bought 

with those dollars we invested. Thank you. 

[The prepared statement of Jeffrey Leigh Sedgwick appears as a 

submission for the record.] 

Chairman LEAHY. Thank you very much. 

Brett Tolman, a shareholder, of course, at Ray Quinney & 

Nebeker, where he is co-chair of the firm’s white-collar criminal defense and corporate compliance practice groups, has been praised 

by both Senator Hatch and me, and before we embarrass him further, we will ask him to please go ahead. 

Mr. Tolman, welcome back to the Committee. 

STATEMENT OF BRETT L. TOLMAN, SHAREHOLDER, RAY 

QUINNEY AND NEBEKER, PC, SALT LAKE CITY, UTAH 

Mr. TOLMAN. Thank you, Mr. Chairman, Senator Lee. I appreciate this opportunity—— 

Chairman LEAHY. Is your machine on? 

Mr. TOLMAN. Thank you. I am out of practice. 

Chairman LEAHY. As Senator Thurmond used to say, ‘‘Turn on 

your machine.’’ 

[Laughter.] 

Mr. TOLMAN. Thank you, Mr. Chairman and Senator Lee. I appreciate the opportunity to be here and testify today. 

Prior to my service in the U.S. Senate and prior to being the 

United States Attorney in Utah, I served in perhaps one of my 

more beloved capacities, and that was an Assistant United States 

Attorney alongside with Senator Lee in the U.S. Attorney’s Office. 

As a line prosecutor in the Federal system, I personally prosecuted 

hundreds of felonies. While I prosecuted mostly violent felonies, I 

participated in the prosecution of white-collar criminals, drug traffickers, and others. Indeed, in my nearly a decade with the Department of Justice, I was responsible for the prosecution of individuals 

currently serving long prison sentences—some as long as 30-plus 

years in Federal prison. 

As I sit here testifying before this Committee, I am honored to 

have served in such a remarkable institution as the Department of 

Justice. However, my years of service also instructed me as to the 

great deficiencies in the Federal criminal justice system. The current one-size-fits-all approach and the warehousing of prisoners is 

proving to not only be dangerous to public safety but an 

unthoughtful misuse of precious taxpayer dollars. Experts across 

the political spectrum are finding themselves in agreement that the 

current growth of, and costs associated with, the Federal corrections system is unsustainable. 

The Committee has addressed many of the statistics that are 

plaguing the financial crisis associated. I will not go into great de-
9 

tail. It is interesting, though, from the 1940’s and the incarceration 

of 24,000 Federal inmates to the near quarter of a million inmates 

currently being incarcerated is growth that was perhaps not anticipated, nor was it prepared for. 

Meanwhile, BOP costs are growing at an alarming and 

unsustainable rate. From 1998 to 2012, the budget has increased 

113 percent, from $3 billion to nearly $7 billion. 

The BOP budget continues to swallow an increasing amount of 

the Department of Justice budget. You have heard reference to 

over the last 15 years, the enacted budget has increased from 15 

percent to 24 percent of the Department of Justice’s budget. 

During my tenure as U.S. Attorney, which included roughly a 

year as a member of the Attorney General’s Advisory Committee, 

I observed the budget become the absolute center of focus of the 

Department of Justice and its U.S. Attorneys. More significantly, 

in individual U.S. Attorney’s Offices across the country, lack of 

funding is increasingly the reason behind failed or abandoned law 

enforcement obligations and partnerships. 

I recently received a phone call from the police chief in West Valley City who indicated his frustration with the U.S. Attorney’s Office no longer partnering with him on important task forces that 

they had formed. This is due solely to budget. 

Over the last dozen years, Congress and the Department of Justice have been so focused on prosecuting and punishing crime—emphasizing zero tolerance and tough Federal sentences—that there 

has been an absolute failure to recognize that without an equal 

focus on recidivism reduction, the tough sentencing laws of the 

Federal criminal justice system may well be the downfall of a once 

proud and effective agency. 

Anyone who has worked with me personally or observed my tenure as a Federal prosecutor would not identify me as soft on crime. 

As United States Attorney, I was noted as being one of the more 

aggressive appointees when it came to pursuing crime. I personally 

participated in the prosecution of Brian David Mitchell, the kidnapper of Elizabeth Smart. In my own family, we have been affected by crime, having my older sister, who was kidnapped and 

raped when she was in college. My father was a peace officer in Los 

Angeles. We have well endured the impact of crime in my personal 

family. 

Notwithstanding, I can indicate to Congress that the Federal 

criminal justice system is not the shining example of the fairness 

in the administration of justice that it should or could be. Budgets 

for the U.S. Attorney’s Offices are being squeezed due to the rapid 

growth of the BOP budget. Further, the Federal system has neither 

been thoughtful nor conscientious in its punishment of those it convicts. 

However, the States have provided us a model and a test case. 

Texas, often criticized for its harsh criminal punishments, is a 

shining example. It was slated to open seven to eight new prisons 

in the mid-2000’s. Instead, Texas allocated $240 million for additional diversion and treatment capacity. The end result of both 

hard and tough law enforcement policies and recidivism focus was 

an unprecedented decrease in recidivism, a savings of nearly $2 billion, and a system that informs us in the Federal system that if 
10 

we will not use a one-size-fits-all approach but instead categorize 

our Federal inmates according to their risk of recidivism and then 

allow for them to earn time rather than just simply expanding good 

time, as many proposals currently propose to do, this thoughtful 

approach will result in a decrease in crime rates, a decrease in recidivism, and an increase in budget flexibility for prosecutors. 

Thank you. 

[The prepared statement of Brett L. Tolman appears as a submission for the record.] 

Chairman LEAHY. Well, thank you very much, Mr. Tolman, and 

I appreciate your personal experience in this area, although I regret that part of that involved the attack on your sister. 

Mr. TOLMAN. Thank you. 

Chairman LEAHY. Commissioner Davis, as one who used to be in 

law enforcement, I feel that we should keep our streets safe. You 

are charged with keeping the streets safe in Boston. But you also 

said that you do not find incarcerating nonviolent offenders to be 

the most effective way to reduce crime and reduce recidivism. What 

are some of the more effective ways? 

Mr. DAVIS. Well, the most important thing really is swift and certain punishment, not length of punishment. Making sure that a 

person who is prone to commit violent crime or narcotics crime understands that ramifications are coming quickly and certainty is 

really the most important thing. 

We do a lot of different programs in the Boston Police Department. Operation Night Light, for instance, is a partnership with 

our probation people in Massachusetts. We go out to the homes of 

individuals we have identified as most likely to shoot or be shot, 

and it is a small universe. It is only 250 or so people in the whole 

city of Boston. But we are constantly staying on those individuals 

and letting them know that if they do not get out of that life, there 

are going to be ramifications to it. So we offer them hope through 

different programs, but we also deliver a very stern message that 

if they pick up a gun, they are going to jail. 

Chairman LEAHY. Thank you. 

Mr. Tolman, you mentioned you served as U.S. Attorney in the 

District of Utah under President Bush, and you served on the Attorney General’s Advisory Committee. Am I correct that you find 

there has been a tradeoff between the rising prison costs and the 

ability to have programs that might reduce crime? 

Mr. TOLMAN. That is accurate. Mr. Chairman, the U.S. Attorney’s Offices in particular are now very focused on budget in ways 

that they have not previously been. There are partnerships with 

State authorities that are breaking down and falling by the wayside that were very important partnerships based on the lack of 

ability to be flexible enough to assist. That concerns me because 

there are Federal laws that are very important. 

I agree with the commissioner when he indicates that swift punishment—I would add that long punishment is often appropriate as 

well. I personally was involved in the prosecution of the kidnapper 

of Elizabeth Smart while I was U.S. Attorney, and I cannot in good 

conscience say that anything less than the many years he received 

is appropriate punishment. But if we do not focus on recidivism for 

those individuals that are likely to be rehabilitated, we will con-
11 

tinue to warehouse a greater proportion than we are capable of 

being able to deter through our prosecutions. 

Chairman LEAHY. I was talking to somebody earlier today. The 

example I used is you have somebody in a white-collar position, a 

stockbroker or something like that in New York City, buys $250 

worth of drugs. If they are caught, they are probably going to get 

community service and a lecture and so on, and a fine. You have 

a kid who is a minority living in one of the slum areas and has 

$250 worth of drugs—the same amount—they are probably going 

to spend a few years in jail. And they are going to come out unemployable and probably have learned things in jail that they never 

would have learned otherwise. 

Am I overstating that? 

Mr. TOLMAN. No, that is not an overstatement. There have been, 

however, test programs such as Texas and even some of the faithbased rehabilitation and recidivism reduction efforts that were 

going on in the Federal system that have been able to reveal to us 

that you can impact those while they are incarcerated so that they 

are not just a revolving door, as the commissioner indicates, and 

continuing to commit crime. 

Chairman LEAHY. Thank you. 

Dr. Sedgwick, I have represented my State for several decades, 

and before that I was a prosecutor for 8 years. I was very much 

of a hands-on prosecutor. I went to crime scenes. I tried a lot of 

my own cases, argued a lot of my appeals. I argued for tough sentences when we had violent criminals. And you have talked about 

violent offenders, and I think for violent offenses—we talked about 

the kidnapping case from Utah that shocked the whole Nation. Everybody agrees on the serious penalty there. 

But I also hear from somebody like Commissioner Davis who has 

a finite amount of money, has to protect a city, knows that there 

are pressures on his budget because of prison costs. And he says 

that for nonviolent offenders, simply imprisoning them for long 

terms does not help reduce recidivism. 

Do you think there are alternatives for nonviolent offenders that 

could actually save the taxpayers money and lower recidivism? 

Mr. SEDGWICK. In answering your question, let me think back to 

an article that was written several years ago by James Q. Wilson, 

who argued that if you look at the American prison population, it 

is really made up of two separate components, so it is not a homogeneous population. 

One part of the American prison population are violent offenders 

who have done particularly horrific things, like kidnapping and 

rape. And they may never commit another crime like that again. 

Their likelihood of recidivism is very low, but we lock them up precisely because of the seriousness of what they did, and justice demands that they serve a sentence. 

The other component of the criminal justice system and the prison population in the United States are people who commit less serious crimes but commit them at very high rates, over and over 

and over again. 

The notion that the prison population in the United States is 

composed of people who have committed a property crime, a non-
12 

violent crime, one or two, and are sentenced to a long period is just 

simply not supported by the evidence. 

Chairman LEAHY. What about States that have mandatory minimums for drug cases? 

Mr. SEDGWICK. I think you would have to look at—first of all, 

you would have to look at how those laws are administered. Given 

the prevalence of plea bargaining in the United States, my guess 

is that you are going to find very few cases of a young person with 

a single drug offense that winds up getting sentenced to a very 

long period of time, in part because, quite frankly, prosecutors 

know that is a bad use of resources. 

Chairman LEAHY. We can give you a few examples, but go ahead. 

Mr. SEDGWICK. Well, my point was simply going to be I could not 

agree more with the notion that, to the extent that such cases 

exist, that is a misuse of resources. One caveat, though. You 

brought up the issue of, you know, a non-minority youth with a 

drug offense versus a minority youth. I think one of the things that 

we want to pay attention to—and this gets to an issue that Commissioner Davis raised—we make a big mistake in dealing with 

drugs when we treat all drugs as if they are the same and they 

have the same influence on the criminal justice system. There is 

a tremendous difference in terms of the effect on crime among, for 

example, marijuana, opiates, and drugs like methamphetamine or 

cocaine or crack. 

Chairman LEAHY. My point was not the two youngsters. My 

point was—and you know and I know—the well-connected person 

on Wall Street—or wherever else—who has bought $250 worth of 

drugs is going to be treated a heck of a lot differently than a minority in an inner city area who bought $250 worth of drugs, no matter what the drugs are. We are talking about $250 worth of drugs. 

And the treatment is going to be remarkably different. I think that 

it would be hard to argue that, but feel free if you want. 

Mr. SEDGWICK. We can have that discussion another time if you 

would like. 

Chairman LEAHY. All right. Senator Grassley? 

Senator GRASSLEY. Since I was not polite enough to be here to 

listen to all of you, it was because I was at the Agriculture Committee meeting. 

Chairman LEAHY. Where I was supposed to be. 

Senator GRASSLEY. Yes, okay. Yes, he is a member of the Committee. 

Mr. Sedgwick, GAO examined the cost-effectiveness of the Second Chance Act pilot program designed to place elderly, low-risk 

inmates in community correction. GAO reported that the Bureau of 

Prisons determined the program cost the Government an average 

of $4.50 more each day per inmate than leaving them in prison. 

GAO said that the Bureau of Prisons may have miscalculated this 

cost, but I think that really is not the relevant point. Even if Bureau of Prison is wrong, it still shows that we do not know enough 

about the value of such programs. 

I have serious questions about the wisdom of expanding this program based upon cost savings. I am also concerned about other 

grant programs created by the Second Chance Act that would fund 

nongovernmental organizations to assist released prisoners. So far, 
13 

there is little evidence that they work, and recent IG reports suggest many grant programs have accountability and compliance 

problems. 

Mr. Sedgwick, do you think that we should expand pilot programs if we do not know whether they are working? 

Mr. SEDGWICK. The simple answer is no. If we do not know that 

they work, I do not see why we should be investing large amounts 

of money in them. 

Senator GRASSLEY. I think my second question would—you lead 

into my second question with your answer. As a former head of 

these justice programs, you know about these grant programs. How 

can we in Congress determine whether these programs are working 

or not? 

Mr. SEDGWICK. Well, thank you for that question because that is 

the exactly where I was about to go. During my tenure as the Assistant Attorney General and the head of Office of Justice Programs, we put in place an Office of Audit Assessment and Management precisely to increase the amount of attention that was paid 

to rigorous evaluation of all of our grant programs. There are certainly grant programs that underlie the types of cooperative relationships that Mr. Tolman talked about and we see on the ground 

in Boston that have led to very effective cooperation between the 

community, Federal law enforcement, State and local law enforcement, and have had some tremendous results. 

The difficulty is it is easy to find particular programs that appear to be working in a particular setting. It is very hard to find 

programs that you can scale up to a nationwide implementation 

that continue to have demonstrated impacts. 

I recall visiting Boston in 2006 as part of the Attorney General’s 

18-city tour when we were looking at the purported crime increase 

in 2005 and had the opportunity to talk to a group of community 

leaders in Boston about what had worked in Boston to hold down 

the rates of violence. And they were quite clear about the fact that, 

to the extent that those programs worked—and they worked quite 

well in Boston—they are resource intensive and they are quite 

fragile; that is, they depend on stable working relationships and 

trust among partners that are resource intensive. It is not clear 

that those kinds of programs can be, you know, run up to scale nationwide, implemented and have the same effectiveness that they 

have had in particular communities like Boston. 

It is certainly worth trying them, but I have to say at this point, 

as someone who used to oversee the grant programs, we do not 

know as much about what works as we should and can know. I do 

not think we are in a place now, if you said to me, ‘‘Can you give 

me five or six programs, diversion programs, that we could use that 

would deal with offenders in alternatives to incarceration? ’’ I would 

be able to come up with four or five programs that we could implement tomorrow that would have a dramatic impact on recidivism 

rates. 

Senator GRASSLEY. Let me ask, a short lead-in and then just one 

question that I would like to have all of you give a short answer 

to. Mr. Tolman testified about these recent proposals of good time 

calculation and earned time credit are kind of a one-size-fits-all approach and, therefore, not effective. Assistant Attorney General 
14 

Breuer recently advocated in a speech both of these policies as 

ways to deal with increasing costs of prisons. He advocated so. Focusing these savings on new policing, prosecution, and recidivismreducing programs. So I have got several questions, but just one 

here that you can answer shortly. Do you agree with Mr. Breuer 

and the administration that simply letting Federal prisoners out of 

prison early by recalculating good time credit alone is a sufficient 

way to deal with increasing costs of Federal prisons? We will start 

with you, Mr. Davis, and then the other two of you, and then I will 

yield my time. 

Mr. DAVIS. Well, thank you, Senator. No, simply letting people 

out of jail early is not going to solve the problem. What is happening in Boston, though, is there are too many violent offenders 

with too many assaultive cases, too many gun possession cases, 

who are out on the street simply due to the fact that beds are 

taken by individuals who are in on minimum mandatory. And it is 

my estimation, after working in the drug field for many years, that 

a system that bases minimum mandatory sentences on 14 grams 

or 28 grams is missing the big picture. I want to put kingpins in 

jail for a long time, but there are a lot of people getting caught up 

in the dragnet, and it is affecting our relationship with inner-city 

communities. 

Senator GRASSLEY. Mr. Sedgwick. 

Mr. SEDGWICK. I could not agree more with the commissioner 

and would just add this: that I think a policy initiative that ramps 

up release rates or releases a cohort of individuals in a very short 

timeframe is a huge mistake, in part because you simply do not 

have time to do the pre-release programming that these individuals 

need in order to be successful once they are sent back to the community. Releasing someone from prison without prior preparation 

is imposing a cost on the community that that person is sent back 

to. 

Senator GRASSLEY. Okay. Mr. Tolman. 

Mr. TOLMAN. Thank you, Senator Grassley. The States have really provided the answer to that question, which I think is the most 

poignant question relative to this issue, and those States that decided to do just as you indicated, to simply address an increase in 

good time, are not experiencing the reduction in crime rate, the recidivism reduction of those States that determined that they would 

not just expand good time. And that really is the problem with the 

Second Chance Act. It simply seeks to expand good time without 

addressing that not every inmate incarcerated is the same. And so 

that one-size-fits-all is just that. It is an attempt to try to make a 

very easy policy to reach, supply the benefit we are all looking for, 

and Texas proved that in order to do that, you cannot just expand 

good time. You have to actually make the inmate go through programs, work for it, and you have to assess which ones are willing— 

you are willing to take the risk to actually transfer to something 

different than lockdown incarceration. 

Chairman LEAHY. Senator Lee. 

Senator LEE. Dr. Sedgwick, I thought you made an interesting 

point and you had some compelling evidence for your point that the 

fact that we have a higher incarceration rate in the United States 

generally does not necessarily mean that we are just tougher on 
15 

people. It may just mean that we have more people committing 

crimes. I wanted to ask you about that in the context of some of 

the statistics that Mr. Tolman gave us and present the question to 

you in a slightly different way. 

As Mr. Tolman has pointed out, in 1998, we were spending about $3.1 billion a year through the Bureau of Prisons, and at the time 

that was about 15 percent of the Department of Justice’s overall 

budget. In 2012, that number has more than doubled. It has increased by about 113 percent. It is up to about $6.6 billion, 24 percent. In 2013, it is expected to jump to 25 percent of all spending 

through the Department of Justice. 

Does that mean that during that 15-year period between 1998 

and now we really have had that many more Federal crimes being 

committed? Or does that perhaps say something differently about 

how crimes are being prosecuted? 

Mr. SEDGWICK. That is a really good question. I think it is a combination of two things. One is it is a kind of cumulative effect of 

lengthening sentences, which was a strategy that was pursued beginning in the second half of the 1980’s nationwide at all levels of 

Government in response to a rapidly increasing crime rate. It is 

worth noting—and I have not heard anybody refer to this yet, but 

if you look at the latest report on prison populations from the Bureau of Justice Statistics, one of the things that is absolutely striking, the opening graphic shows prison populations in the United 

States over the past 20 years and shows them steadily going up. 

Superimposed over that is a graph that says what is the percentage change from year to year in prison populations, and it is steadily going down. 

In fact, in the last 2 years, the total population of persons under 

custodial supervision in the United States has fallen. That is exactly what you would expect if you look at a period where you have 

had crime go up, then start to go down, and over that period of 

time you have a fixed—or a given sentence length, you are going 

to see prison populations in the United States, if we do nothing, 

they are going to start to fall. Okay? Because the crime rate has 

been falling, we are adding fewer people to the prison population 

every year. Now, that is an aggregate figure for the United States. 

The case for the Federal Government is a little bit different because there have been policy decisions made at the Federal level 

to move certain types of offenders—and who they are changes from 

year to year as, you know, priorities change—and cases from State 

and local jurisdiction to Federal jurisdiction. 

Senator LEE. And that in turn can—— 

Mr. SEDGWICK. And what that will do is that will rapidly increase the Federal prison population. Okay? 

Senator LEE. Thank you. That is helpful. And with that, I am 

going to switch some of my questions to Mr. Tolman. 

By the way, Mr. Chairman, Mr. Tolman and I have been friends 

since law school, and we even clerked together during our first year 

out of law school for a U.S. district judge named Dee Benson in 

Utah, and then we were at the U.S. Attorney’s Office together. So 

we have a long history of reviewing each other’s bench memos and 

draft opinions and briefs. I was in the appellate section when he 

was in the violent crimes section. I always enjoyed taking Tolman’s 
16 

cases on appeal. They were very easy to defend because the record 

was always chock full of really good evidence, and once in a while 

I got to see Brett’s unique sense of humor within the pages of the 

transcript. And I thought to myself, ‘‘There is no way the court of 

appeals is grasping the fact that he is intending to be funny right 

here.’’ 

Chairman LEAHY. This certainly will not come out of any time 

to you, Senator Lee, but as you talk about this, it makes this member of the Committee nostalgic for the days of being a prosecutor. 

And I know in some prosecutors’ offices—actually when I graduated from law school, and one of them was eager to get me to 

come to it, I did not, I went back to Vermont—but they would put 

a lot of the new lawyers immediately into the appellate division because they learned how they would have to defend mistakes made 

in the trial division. Then they would put them in the trial division. 

Apparently you did not have to defend mistakes of Mr. Tolman. 

Senator LEE. I did from others, just not from him. 

Chairman LEAHY. And I well remember his work on this Committee, and I expect that it would have been enjoyable to work with 

him. So that is on my time, not on yours. Please go ahead, sir. 

Senator LEE. Thank you. Thank you. 

Mr. Tolman, in light of what Dr. Sedgwick said, I would like you 

to sort of relate that to your experience as a prosecutor, as a Federal prosecutor. Did you see a lot of shifting between 1998, which 

was about the time that you and I were clerking in the Federal 

court, up and through now, have you seen a shift, have you seen 

more cases that could have been prosecuted as State crimes, and 

in previous decades perhaps would have been, have you seen more 

of those shift over to Federal prosecution? 

Mr. TOLMAN. Thank you, Senator. And just for the record, I 

think I have a pretty good track record on appeal on my cases because you were in the appellate section. I have always conceded 

that Senator Lee’s legal brain is significantly larger than mine. But 

I appreciated him in that position. 

That truly is my experience, and I will tell you, the Al Capone 

prosecution in its day was unique, but it is far more unique in this 

day and age. The prosecutions today are—and I could rattle off for 

you the many prosecutions from Rubashkin in Iowa, an individual 

serving a 27-year sentence with no criminal history and no actual 

victim of fraud. 

Senator LEE. This is a rabbi who has nine children. 

Mr. TOLMAN. That is right. You know, rather than the Pablo 

Escobars that we thought would be prosecuted, it is the Weldon 

Angelos, you know, the street corner dime marijuana dealer that 

brings a firearm to the corner because he is concerned about his 

safety, never uses it, never brandishes it, and is facing 30-plus 

mandatory years. 

Now, long sentences—— 

Senator LEE. Just because he happened to bring a gun to a crime 

that would otherwise have been a State offense punishable perhaps—— 

Mr. TOLMAN. That is exactly right. 

Senator LEE [continuing]. With little or no prison time. 
17 

Mr. TOLMAN. That is exactly right. And the Federal push to prosecute more and more crimes that were traditionally State crimes 

has been enormous—enormous—from firearms cases to the drug 

cases, and part of that is out of a frustration of not being able to 

prosecute the major kingpins in drug investigations. 

Senator LEE. How does that end up—and, Mr. Chairman, if I 

could have just another couple minutes? Thank you. How does that 

end up impacting the Department of Justice’s ability to do other 

things that it needs to do? In other words, as it takes more and 

more cases Federal and takes more and more of them Federal in 

ways that result in these very lengthy sentences, how does that impact their ability to do what they need to do? 

Mr. TOLMAN. If anyone observed the mortgage fraud arena, there 

were some very large pieces missing. Where are the prosecutions 

of the underwriters, the large lending institutions that were participants in the mortgage fraud? Why are they not there? Because 

there is an inability to divert the necessary resources to battle at 

that level. It is much easier to grab the individual from the corner 

that is distributing small amounts of cocaine or other drugs than 

it is to invest that significant time it takes to bring down what 

really should be the targets of the Federal criminal justice system. 

Those are the large targets that States would have a problem 

bringing down. 

So I agree with you wholeheartedly that it hamstrings the Department of Justice and the U.S. Attorney’s Offices, this enormous 

push to prosecute those State cases. 

Senator LEE. To prosecute them federally. 

Mr. TOLMAN. Yes. 

Senator LEE. Historically, you know, these kinds of offenses that 

would have been prosecuted by States would have resulted in convictions within the State penal system, and so the State itself 

would have some impact, would feel some impact from what it was 

doing. But with these newer pushes to move things along federally, 

you often have task forces consisting of both State and local and 

Federal law enforcement officers working together to push things 

into the Federal criminal justice system so that the State gets kind 

of a double benefit. 

Mr. TOLMAN. Yes. 

Senator LEE. It gets the imprisonment and perhaps a more 

lengthy prison sentence, which a lot of the people involved want to 

see for one reason or another, and the State does not have to pay 

for it. 

Mr. TOLMAN. That is right. 

Senator LEE. Doesn’t that create kind of a free-rider problem 

that we can expect to continue to result in the continued expansion 

of this kind of problem? 

Mr. TOLMAN. That is accurate, and it will continue to expand. 

Texas’ response to this large body of inmates—and keep in mind 

those incarcerated in Texas are nearly 200,000 individuals. In the 

Federal system, it is a little over 200,000. So we are talking about 

the same population of inmates, roughly. And for them to see such 

a drastic reduction in their crime rate and their recidivism rate, 

you have to ask yourself, What is it they are doing? They are recognizing that not every inmate is the same, and now the Federal sys-
18 

tem has to do that. Not every inmate that is in there is the same. 

It is more populated now with the same types of individuals that 

are prosecuted in the State than it ever has before. And so with 

that, there must be a system to assess those individuals differently 

than the Brian David Mitchell kidnapper or the Pablo Escobar or 

the Al Capone. They have to be assessed differently in terms of 

being able to earn transfers earlier or have the benefits of working 

while in prison. Otherwise, that old adage that the costs of incarceration which will always exceed the cost of investigating and 

prosecuting will continue to bury the Federal system. 

Senator LEE. In order to change that, we are going to need a 

change in policy, probably a change in legislation. 

Mr. TOLMAN. Yes, absolutely. 

Senator LEE. Thank you. 

Chairman LEAHY. Might I also say—and I think Senator Lee’s 

questions are excellent here, and I am concerned that we get into 

a position—and I have seen it in the past—where we get too worried about the statistics, how many arrests and convictions do we 

have. The arrest and conviction of an Escobar can be a drug crime 

arrest and conviction or some kid peddling something can be a 

drug crime conviction. 

I recall once when I was one of the officers the National DAs Association, we met with then-Director J. Edgar Hoover who was 

making a big point to us that the Congress may complain about his 

budget—actually, he had such control over the Congress there 

never were any complaints. But he said by last year, my budget 

was X number of dollars, but the FBI in just one year, we recovered twice X, or whatever the numbers were in property for the 

American taxpayers. Well, I recall that very well. We would have 

a sheriff who might find a stolen car that is now practically a junk 

heap, and almost immediately the local FBI office would be there 

and say, ‘‘We will take over from here. That car cost $8,000 new. 

Okay. We recovered $8,000 worth of property.’’ And I worry that 

we get into these same kinds of things here. I worry, of course, 

about the cost to the taxpayer. But I also worry about the human 

costs that we put too much emphasis on the wrong things. You 

might have a task force spend 3 years to go after a real drug kingpin, and their statistics show one drug arrest. Or they go off a 

whole lot of minor ones and said, gee, we had real success, we got 

300. I would rather get that drug kingpin. 

Or, Commissioner Davis, you go arrest everybody or you can put 

your people out there to say, hey, guys, we are kind of keeping an 

eye on you, careful what you are doing. And I remember when you 

first started some of those programs, and as you know, there was 

a lot of press in New England about that. You also had some 

naysayers when you first started, and they became some of your 

biggest backers. 

Last, we had a reference to the Second Chance program. That 

was, of course, championed by President Bush, and I agreed with 

him on that. I think we have a lot of studies that say it has been 

very positive and helped on recidivism. One of the reasons we have 

hearings is to find which things work and which do not. But I 

think that just as I urged the prosecutors in my office, I am more 

interested in what was the nature of the case, the quality of the 
19 

case. I will judge how well we are doing based on that, not by the 

number of cases. It is too easy to inflate statistics if you do not care 

what the costs are down the way. 

Gentlemen, I apologize for the voice and the allergies causing it, 

but I thank you all for being here. Senator Lee, did you have anything further? 

Senator LEE. No. Thank you. 

Chairman LEAHY. Then we will keep the record open for the rest 

of the day, and I thank you all for being here. 

[Whereupon, at 11:11 a.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 

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A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF EDWARD F. DAVIS
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PREPARED STATEMENT OF JEFFREY LEIGH SEDGWICK
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PREPARED STATEMENT OF BRETT L. TOLMAN
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PREPARED STATEMENT OF CHAIRMAN PATRICK J. LEAHY
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PREPARED STATEMENT OF RANKING MEMBER CHUCK GRASSLEY
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QUESTIONS SUBMITTED TO JEFFREY LEIGH SEDGWICK BY SENATOR LEAHY
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QUESTIONS SUBMITTED TO BRETT L. TOLMAN BY SENATOR LEAHY

[NOTE: At the time of printing, after several attempts to obtain responses to the written questions, 

the Committee had not received any communication from Brett L. Tolman.] 
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QUESTIONS SUBMITTED TO EDWARD F. DAVIS BY SENATOR KLOBUCHAR
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QUESTIONS SUBMITTED TO JEFFREY LEIGH SEDGWICK BY SENATOR KLOBUCHAR
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QUESTIONS SUBMITTED TO BRETT L. TOLMAN BY SENATOR KLOBUCHAR

[NOTE: At the time of printing, after several attempts to obtain responses to the written questions, 

the Committee had not received any communication from Brett L. Tolman.] 
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QUESTIONS SUBMITTED TO EDWARD F. DAVIS BY SENATOR GRASSLEY
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QUESTIONS SUBMITTED TO JEFFREY LEIGH SEDGWICK BY SENATOR GRASSLEY
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QUESTIONS SUBMITTED TO BRETT L. TOLMAN BY SENATOR GRASSLEY

[NOTE: At the time of printing, after several attempts to obtain responses to the written questions, 

the Committee had not received any communication from Brett L. Tolman.] 
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RESPONSES OF EDWARD F. DAVIS TO QUESTIONS SUBMITTED

BY SENATORS GRASSLEY AND KLOBUCHAR
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RESPONSES OF JEFFREY LEIGH SEDGWICK TO QUESTIONS SUBMITTED

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