U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

99–634 PDF 2016

CRIMINAL JUSTICE REFORM, PART II 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JULY 15, 2015 

Serial No. 114–59 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


emcdonald on DSK9F6TC42PROD with HEARING
(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DeSAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

SEAN MCLAUGHLIN, Staff Director 

DAVID RAPALLO, Minority Staff Director 

SEAN BREBBIA, Senior Counsel 

JACK THORLIN, Counsel 

SHARON CASEY, Deputy Chief Clerk 


emcdonald on DSK9F6TC42PROD with HEARING
(III) 

C O N T E N T S 

Page 

Hearing held on July 15, 2015 ............................................................................... 1 

WITNESSES 

Mr. Kevin Ring, Director of Strategic Initiatives, Families Against Mandatory 

Minimums 

Oral Statement ................................................................................................. 5 

Written Statement ............................................................................................ 9 

Mr. Marc A. Levin Director, Right on Crime and Center for Effective Justice, 

Texas Public Policy Foundation 

Oral Statement ................................................................................................. 21 

Written Statement ............................................................................................ 24 

Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal & Judicial 

Studies, Heritage Foundation 

Oral Statement ................................................................................................. 39 

Written Statement ............................................................................................ 41 

Ms. Liz Ryan, President and CEO, Youth First! Initiative 

Oral Statement ................................................................................................. 55 

Written Statement ............................................................................................ 57 

Mr. Brett L. Tolman, Co-Chair, White Collar Criminal Defense and Corporate 

Compliance Practice Group, Ray Quinney & Nebeker 

Oral Statement ................................................................................................. 69 

Written Statement ............................................................................................ 71 

APPENDIX 

The Sentencing Project: ‘‘Black Lives Matter: Eliminating Racial Inequality 

in the Criminal Justice System’’ ......................................................................... 110 

Human Rights Watch Hearing Statement, Submitted by Ms. Duckworth ......... 111 

ACLU Hearing Statement ...................................................................................... 118 


emcdonald on DSK9F6TC42PROD with HEARING

emcdonald on DSK9F6TC42PROD with HEARING
(1) 

CRIMINAL JUSTICE REFORM, PART II 

Wednesday, July 15, 2015 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 10:04 a.m., in Room 

2154, Rayburn House Office Building, Hon. Jason Chaffetz [chairman of the committee] presiding. 

Present: Representatives Chaffetz, Mica, Jordan, Walberg, Gosar, 

Meadows, DeSantis, Buck, Hice, Russell, Carter, Grothman, Hurd, 

Cummings, Norton, Connolly, Cartwright, Duckworth, Kelly, Lawrence, Lieu, Plaskett, DeSaulnier, and Lujan Grisham. 

Chairman CHAFFETZ. The committee on Oversight and Government Reform will come to order. Without objection, the chair is authorized to declare a recess at any time. 

We thank the panel and those in the audience for joining us. 

This is day two of a criminal justice reform oversight hearing. We 

have had two panels yesterday and a distinguished panel today, 

and we appreciate the time and attention. This is ripe for oversight, but it is even more ripe in time to do something about it. 

This committee is the Oversight and Government Reform Committee. There are a number of things we can do on a bipartisan 

basis to make this part of our society and this part of government 

working better. 

Today, we continue our discussion on criminal justice reform, and 

the committee is devoting, as I said, 2 days on this topic for a very 

important reason: The time to enact meaningful criminal justice reform is now. At a time when gridlock has become the norm, something important happened yesterday. We saw two Senators, two 

House Members, and two Governors, both sides of the aisle in a bipartisan, bicameral way, express the need and desire to actually 

move meaningful criminal justice reform. While the details of their 

proposals varied, the unifying theme we heard was that reform is 

needed and there is no time to waste. 

States are leading the way in innovative reforms in which the 

Federal Government can learn. We were fortunate yesterday to 

hear from Governors Bentley and Markell about the reform efforts 

underway in Alabama and Delaware, and they are not the only 

States. States like Texas and Georgia and others are making meaningful reforms, and have led the way and shown that it can be 

done, and reduce the rate of recidivism. 

As we continue our discussion today, it is time to continue to roll 

up our sleeves. We have the chance to hear from a panel of experts 

who can answer our questions about effective criminal justice reVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
2 

form, and we are looking forward to hearing about specific topics: 

The use of evidence-based risk assessment tools to identify lower 

risk inmates; identifying programs that have demonstrated record 

of reducing recidivism rates for youths inside of prison facilities, 

keeping more juveniles out of prison, and what is going to happen 

to these people when they come out of prison? 

Remember, the vastly expanded number of Federal criminal laws 

and the use of Federal criminal courts in enforcing economic and 

other regulations is something that needs to be addressed. 

We also need to address the ever-increasing Federal prison population and the Bureau of Prisons’ budget. It is 140 percent of capacity. It is consuming nearly one-third of the Department of Justice 

budget. You can’t continue to sustain those numbers. 

We need to also examine reforms that are smart on crime but 

also protect public safety. There are people that have committed 

heinous crimes. That need to pay a punishment, they need to pay 

back a debt to society, but let’s also remember that more than 95 

percent of the people who go to prison, they are coming back out. 

Are they going to be better criminals? Or we actually going to engage in the reform necessary to be the Department of Corrections? 

In fact, a bill that Hakeem Jeffries and I sponsored would rename 

the Federal Bureau of Prisons to the Department of Corrections. 

That is the way it is in all 50 States. In all 50 States, it is the Department of Corrections, but the government, the Federal Government attitude and approach to this is it calls it the Bureau of Prisons. It is time to change the name, change the attitude and the approach, and recognize that we need to engage in reform. 

The prisoners are reentering the community, and too many are 

returning to a life of crime. When we look at a smarter, fairer, and 

more cost-effective way for our criminal justice system to work, we 

must also ensure that our efforts do not jeopardize public safety. 

Indeed, some of the proposals discussed yesterday strike this proper balance. For example, we heard ideas from Senator Cornyn, 

Governor Markell and others about using risk assessments to identify low-risk prisoners. Those prisoners can then be subject to community-based supervision instead of the expensive and counterproductive imprisonment, or maybe it is some combination in between. 

The panel today has this type of expertise and they have seen 

this up close and personal, and that is why this is an important 

hearing today. We look forward to exploring those ideas so we can 

continue to find areas of reform that we agree on while standing 

firm on the policies and strategies that are essential to success. 

We, again, thank the panel. I will now recognize the ranking 

member, the gentleman from Maryland, Mr. Cummings, for 5 minutes. 

Mr. CUMMINGS. Chairman Chaffetz, I want to thank you again, 

as well as all the other members of our committee, for the very productive discussion we are having on how to make significant bipartisan, bicameral lasting improvements to our criminal justice system. I also thank my esteemed colleagues who testified with us 

yesterday with such great passion and eloquence. 

Criminal justice is personal to me. I have seen the problems that 

plague the system through many lenses. As a young boy growing 


emcdonald on DSK9F6TC42PROD with HEARING
3 

up in a poor section of Baltimore, watching my classmates go and 

be carted away to juvenile detention centers, I have seen it through 

that lens. I have seen it during my days as a young lawyer representing criminal defendants, who so often simply were minding 

their business when a police officer came upon them, said something, or in some instances told them to drop their pants in front 

of their girlfriends. It then escalated, and the next thing you know, 

he is charged with resisting arrest, assault on a police officer, disorderly conduct, and then he has a record. 

I have seen them as a State representative, who has deep respect 

for the dedicated police officers that serve our community. I have 

seen them as a Congressman representing a district where finding 

balance between law and order and crime and punishment is a profound concern to my constituents. And this year, I have seen them 

as a citizen of my community, Baltimore, a city where I was born, 

a city where I raised my family, a city where I have lived my whole 

life, and I watched it erupt after the tragic death of Freddie Gray. 

Unfortunately, one lens that has not changed enough is the lens 

of color. I can see things, continue to see African-Americans in this 

country facing daunting economic challenges, disproportionately 

high rates of poverty, and severe unemployment. There are too 

many communities of color that are missing family members, especially fathers, sons, and brothers who are in jail. 

African Americans are incarcerated nearly six times the rate of 

whites. When these men leave prison, they come home to the same 

communities where they struggled to begin with, and so often, 

there is nothing there for them. You see, they have been saddled 

with a record, which bar them from getting grants to go to school, 

bar them from getting certain jobs. In some States, you can’t even 

become a barber once you get a record. At the same time, we tell 

them, go out there and do well, support your family, and there is 

nowhere to go. 

It is not unusual when I go back to my district, which is located 

not too far from the stadiums, for me to hear young men, I hear 

this almost every week, somebody comes up to me and says, Mr. 

Cummings, can you help me find a job? I don’t want to do a crime, 

I just want to do a job. And then they tell me they can’t get a job, 

because no one will employ them. And so when they come back 

from prison or they have a record, they have a big mark on their 

back. 

It is very easy for us to say it doesn’t matter. It does matter, because there are thousands upon thousands upon thousands of 

them, and the number grows every single day. In some cases, they 

lose their driver’s licenses, they are ineligible for occupational licenses, and they have great difficulty finding any kind of employment. 

When they can’t find a job, many return to what they know: 

They commit more crimes, and the cycle starts over and over again. 

A lot of people don’t understand the criminal situation, and I 

kind of got a good view of it one time not long ago when a young 

man was talking about how he had—in my neighborhood, had now 

turned his life around and that he was now on the straight and 

narrow, and he said, I used to have to rob folk. And as I began to 

talk to him more and more, I realized that robbery was the way 


emcdonald on DSK9F6TC42PROD with HEARING
4 

he earned his money. And it is not just one robbery; that is how 

he had to go out day after day after day, just like we go to work. 

That means that there are more victims and more problems. 

Yesterday Senator Booker spoke about the 2.7 million children 

who have incarcerated parents, and the one in nine African American children who have parents behind bars. These kids are more 

likely to be suspended from school and go to prison themselves. 

This is how the cycle continues to the next generation. As I mentioned yesterday, my oldest brother has been a public defender for 

40 years, and he has now seen families with three generations in 

the criminal justice system, grandfathers, sons, and grandsons all 

together. 

Ladies and gentlemen, this is the United States of America. We 

must do better, and we can. We cannot stand by while these alarming disparities and destructive cycles persist generation after generation. We owe it to generations yet unborn to make lasting 

changes that provide opportunities and hope. We should invest in 

reform now so the next generation can escape this cycle of despair. 

As I said yesterday, these hearings are a landmark moment for 

this committee. And Mr. Chairman, I do, I applaud you for what 

you have done, and I applaud your staff for what they have done 

in working with mine. I really appreciate it. 

We have heard about groundbreaking legislative proposals like 

the evidence-based bipartisan State Justice Act, we have learned 

how States are, ‘‘banning the box,’’ and how private sector companies like Wal-Mart and Koch Industries are changing their approaches so those with criminal records are not automatically disqualified from all employment. 

And that leads me to another point. It is not just government 

that has to try to make some changes. Corporations can play a 

major, major role, and we can help them and encourage them to 

do so. Governor Bentley talked yesterday about the importance of 

providing topnotch free kindergarten education for all children in 

Alabama. Governor Markell talked about a women’s prison in Delaware that hosts a culinary festival featuring the work of inmates 

alongside established professional chefs. 

These advancements are happening because we are coming to 

understand that we cannot look at our criminal justice system in 

a vacuum. We need to take a comprehensive approach to criminal 

justice reform. 

As I close, we have a unique moment, a bipartisan momentum 

for true, I mean, true reform, and it is ours to seize. But momentum is nothing without action. I hope that the hearings inspire 

strong action. My Republican colleagues and I disagree about many 

things, but on this issue, on this issue, we have an opportunity to 

reach not only common ground, but higher ground. 

I want to thank the chairman again for holding these hearings, 

and I look forward to hearing from all of our esteemed witnesses, 

and I thank the witnesses for being here. 

And with that, Mr. Chairman, I yield back and I thank you. 

Chairman CHAFFETZ. I thank the gentleman. The passion and 

the belief in his heart on this topic is exuded every time, and I do 

appreciate working with you on this. 


emcdonald on DSK9F6TC42PROD with HEARING
5 

I also—I don’t normally do this, but I do appreciate the audience 

being here. This is a demonstrably younger demographic than we 

normally have in our hearings, and it’s good to see. We don’t have 

nearly enough young people involved and engaged in civics and in 

their government, and on this topic, we need your help, and so we 

appreciate your joining us here today as well. 

I will hold the record open for 5 legislative days for any member 

who would like to submit a written statement, but we’d now like 

to recognize our panel of witnesses. 

I am pleased to welcome Mr. Kevin Ring, Director of Strategic 

Initiatives with Families Against Mandatory Minimums; we have 

Mr. Marc Levin, Director of the Right on Crime and Center for Effective Justice at the Texas Public Policy Foundation; Mr. John 

Malcolm, Director of the Edwin Meese, III, Center for Legal and 

Judicial Studies at the Heritage Foundation; Ms. Liz Ryan, President and CEO of the Youth First! Initiative; and Mr. Brett Tolman, 

cochair of the White Color Criminal Defense and Corporate Compliance Practice Group at Ray Quinney & Nebeker. I would also note 

that Mr. Tolman is from Utah, served as the U.S. Attorney in 

Utah, was deeply involved with Senator Hatch in the Senate Judiciary Committee, and I have leaned on him heavily for perspective 

and insight on this topic, and we appreciate his presence and expertise here as well. 

Pursuant to committee rules, witnesses are to be sworn before 

they testify. So if you will please each rise and raise your right 

hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Thank you. Please be seated. 

And let the record reflect that all the witnesses answered in the 

affirmative. 

In order to allow time for discussion, you are going to see that 

members are coming in and out, we have several hearings going on 

simultaneously, we would appreciate it if you would limit your 

verbal comments to 5 minutes. You will see a red light appear. 

That’s your cue that you have gone overtime. As my colleague, Trey 

Gowdy, likes to say, when you see the yellow light, that means 

speed up, as it does at every stoplight we see in this country. And 

by the time you get to red, you better be stopped, so—but your entire written record will be submitted into the record. 

We’ll now recognize Mr. Ring. You’re now recognized for 5 minutes. Push that button and make sure that microphone’s close, and 

the time is yours. 

WITNESS STATEMENTS 

STATEMENT OF KEVIN RING 

Mr. RING. Can you hear me? 

Chairman CHAFFETZ. Yes. 

Mr. RING. Chairman Chaffetz, Ranking Member Cummings, 

members of the committee, my name is Kevin Ring. I serve as Director of Strategic Initiatives for Families Against Mandatory Minimums. Thank you for the opportunity to testify. 


emcdonald on DSK9F6TC42PROD with HEARING
6 

I should mention, you said there was a young crowd here. The 

youngest is my daughter, who joins us today. My older daughter 

is sleeping off the Taylor Swift concert from last night, so she 

couldn’t make it. 

Chairman CHAFFETZ. Your testimony thus far is entirely truthful, I can tell you that. 

Mr. RING. Given some unique experiences, I have had a lot of 

time over the past 20 years to think about the Federal criminal justice system, and I’ve been able to examine it from wildly different 

perspectives. 

In the 1990s, I worked on Capitol Hill as a staffer, both in the 

House and the Senate. I was a counsel on the Senate Judiciary 

Committee and helped draft some anti-crime legislation, really bad 

anti-crime legislation, I see now. 

I then observed the legislative process from a different perspective as a lobbyist. Ultimately, my work as a lobbyist brought me 

under Federal scrutiny. After two trials and appeals, I was sentenced to serve 20 months in Federal prison. I spent 15–1/2 months 

at the Federal camp in Cumberland, Maryland. I then served 2 

months of home confinement, wearing a GPS monitor, which ended 

just a few weeks ago. 

I began working for FAMM before I was indicted. I continued to 

work there during my trials, and returned as soon as I got home 

from prison. 

I hope to talk about FAMM’s strong support for sentencing reform, especially the Sensenbrenner-Scott Safe Justice Act. But 

first, I wanted to share a few observations from my time in prison. 

I begin with the necessary caveat that I served in only one of the 

BOP’s 122 institutions, but I think my observations go beyond 

there. 

First, I saw little to no rehabilitation in prison. There were few 

useful programs. The institution was either understaffed or uninterested in providing worthwhile programming. Drug treatment, 

trade apprenticeships, GED classes, I was a dog handler, there 

were a few exceptions. Most people worked menial jobs and collected their $0.12 to $0.15 per hour wages. 

If you were not in the Residential Drug Abuse Program, called 

RDAP, you were mostly limited to what were called ACE classes, 

adult continuing education. These were taught by other inmates. 

Offerings at Cumberland included such life-enhancing classes as 

Movie Review, Jeopardy, and Current Events. Most inmates 

skipped these classes but would sign the attendance sheets so the 

administration thought they went. The classes were 1 hour each 

week for 10 weeks, and then when you completed the 10-week session, you got a certificate. Prison officials seemed to know that 

these classes were worthless, but I think it was thought that if we 

went to them, we’d look busy and they’d look better for keeping us 

busy. 

The most glaring deficiency in the area of programming was the 

lack of any cognitive behavioral therapy or anger management 

counseling. I know some people still hold on to myth that criminals, drug and white collar, are rational actors who review the U.S. 

Code and weigh the costs and benefits before breaking the law. The 

fact, however, is that the overwhelming majority of the inmates are 


emcdonald on DSK9F6TC42PROD with HEARING
7 

not just poorly educated, but also have terrible social skills and 

very little impulse control, ability to delay gratification, or risk 

awareness. The result is bad decision-making. 

These, it seemed to me, were the shortcomings that needed to be 

addressed. At Cumberland, however, we had 250 inmates and one 

psychologist. And despite studies from the National Institute of 

Justice showing the effectiveness of cognitive therapy, BOP’s main 

program for this is offered in just two of its 122 institutions. 

There are few other things that are worth mentioning from my 

time, in no particular order. The health care is miserable. The 

waiting list to have a cavity filled is 2 years. If you experience intense enough pain, they’ll pull your tooth. One of my bunkmates, 

a successful businessman, had eight teeth pulled during his 10- 

year sentence. Another fellow inmate was given the wrong blood 

pressure medicine and spent the night on the floor of the TV room 

after fainting. 

I spent 40 consecutive hours in solitary confinement because the 

administration decided to quarantine us when a scabies outbreak 

occurred. Without a book or a piece of paper or pencil to write anything, I thought I was going to lose my mind. I understand now 

why so many people believe that isolation is a dangerous and overused tool. 

I saw over and over how difficult it is for a family to survive the 

incarceration of one of its members. 

Finally, I witnessed how flagrantly the BOP is disregarding the 

Second Chance Act, which was passed by Congress in 2007. Low 

risk, nonviolent inmates are supposed to be able to get up to 12 

months of halfway house time. This provision was designed to save 

taxpayers money and incentivize good behavior. It’s not happening. 

The BOP says the problem is a lack of halfway house beds around 

the country. The GAO looked at the issue and agreed, concluding 

that Congress would need to spend more than half a billion dollars 

more every year just to implement the Second Chance Act’s halfway house provisions. Given this reality, I think members should 

rethink the value of legislative proposals to make inmates eligible 

for more of something they already can’t get. 

My time in prison reaffirmed my belief that the only way Congress can improve public safety while reducing costs is to reform 

Federal sentencing laws, especially mandatory minimum sentences. 

Mind you, I did not get a mandatory minimum sentence. You can’t 

simply try to unclog the drain by giving some people a few days 

off here and there for good behavior and rehabilitation. You need 

to adjust the spigot and manage the inflow. 

The State Justice Act just introduced by Representatives Sensenbrenner and Bobby Scott is a good example of legislation that 

would reduce the flow of inmates in a responsible way. 

I served with some prisoners who received mandatory minimum 

sentences that did not seem disproportionate. I met several others, 

however, who were serving mandatories that far exceeded any notion of a fair sentence. That is the problem with one-size-fits-all 

sentences. Not everyone is the same, and not every crime is the 

same. 

Mr. Chairman, one reason I think that lengthy sentences can be 

so counterproductive is because prison infantalizes people. You 


emcdonald on DSK9F6TC42PROD with HEARING
8 

often hear that it hardens people, but I saw it infantalize people. 

I rarely hear people talk about this. Everything we do and everything we need as prisoners is on campus. Inmates have very few 

responsibilities. Within a couple of years, people start to become institutionalized. They know what it takes to get by day to day in 

prison, but lose touch with what it takes to live outside. 

So while some people absolutely deserve prison time, our goal 

should be to give them as little as necessary to accomplish the purposes of sentencing. If society can get its pound of flesh with a 3- 

or 5-year sentence, go with that instead of 10 years. It’s incredibly 

important to keep in mind that while people are in prison, the 

world does not stop. Technology advances, job markets change, children age and stop seeing their incarcerated loved ones as an authority figure, and spouses and partners bear burdens alone and 

often move on. And while all this is happening, whatever skills a 

prisoner brought to prison start to atrophy, and they don’t gain any 

new skills. So we must be mindful that more than 90 percent of 

prisoners are coming home someday, and we want them to be successful, if not for their sake, for the sake of those who want to live 

in safe communities with less crime. 

In conclusion, we at FAMM appreciate the leadership that you, 

Mr. Chairman and Ranking Member Cummings, have demonstrated in calling for these 2 days of hearings. We will continue 

to help in any way we can to make sure that all this momentum 

does not go to waste, and that we end this process with a meaningful reform bill that takes effect as soon as possible. Thank you. 

[Prepared statement of Mr. Ring follows:] 


emcdonald on DSK9F6TC42PROD with HEARING
9 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 1 here 99634.001
10 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 2 here 99634.002
11 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 3 here 99634.003
12 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 4 here 99634.004
13 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 5 here 99634.005
14 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 6 here 99634.006
15 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 7 here 99634.007
16 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 8 here 99634.008
17 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 9 here 99634.009
18 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 10 here 99634.010
19 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 11 here 99634.011
20 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 12 here 99634.012
21 

Chairman CHAFFETZ. Thank you. 

Mr. Levin, you’re now recognized for 5 minutes. Did I pronounce 

it properly? 

Mr. LEVIN. Yes. 

Chairman CHAFFETZ. Is it Levin? 

Mr. LEVIN. Yes, Chairman. Thank you very much. It’s a pleasure 

to be—— 

Chairman CHAFFETZ. Is your microphone—make sure that button is pushed. 

Mr. LEVIN. Oh. 

Chairman CHAFFETZ. There you go. Thanks. 

STATEMENT OF MARC A. LEVIN 

Mr. LEVIN. It’s a pleasure to be here. I started working on criminal justice reform with the Texas Public Policy Foundation in 2005, 

and then we launched Right on Crime in 2010, our national initiative with signatories to our statement of principles, like Newt Gingrich, J.C. Watts, Grover Norquist, and, of course, our governor, 

Rick Perry, former governor. And we have a phrase in Texas, ‘‘It 

ain’t bragging if it’s true,’’ and since we began our efforts in 2005, 

our crime rate is down 24 percent, and our incarceration rate is 

down 12 percent. But I’ll tell you even more than that, we are seeing that across the country. Over the last several years, according 

to the Pew Center, States that have reduced incarceration have actually had a larger crime rate decline than the rest of the country. 

And we have seen major reforms in States such as Utah this year, 

congratulations, Chairman, but also South Carolina, North Carolina, Georgia, Mississippi, Kansas, Connecticut, the list goes on. 

And so this provides a lot of momentum, I think, for Federal action as well. And we’ve seen reform in a host of areas in States, 

from mandatory minimums, to earned time, to addressing the 

growth of regulatory crimes. In Texas, we adopted the rule of lenity 

this year, which says that if an offense is ambiguous, the benefit 

of the doubt goes to the defendant. We’ve also seen States like Mississippi, Maine, and Colorado safely reduce solitary confinement by 

more than two-thirds. 

So let me talk a little bit about what Federal reforms can take 

place. And we very much urge Congress to take action this year on 

comprehensive reforms, including both front-end and back-end 

change. And the Safe Act is excellent. There’s also many other 

bills, your bill, Chairman Chaffetz, as well as some legislation that 

a working group in the Senate is putting together that will also 

contain front- and back-end reforms. So one of the places to start, 

of course, is sentencing, as Mr. Ring mentioned, and looking at the 

Federal mandatory minimums. 

And once again, particularly as we look at nonviolent offenses, 

some of these mandatory minimums result in excessive prison 

terms that go beyond the nature of the offense, and so drugs is one 

of those examples. 

And so, for example, the problem with many of these mandatory 

minimums is rather than just focusing on kingpins, and we wish 

one more of those was in prison today in Mexico, but they focus on 

small-level drug dealers, low level drug—and even drug users. And 


emcdonald on DSK9F6TC42PROD with HEARING
22 

so, for example, one of the problems is 21 U.S.C. 851, and what 

that says is if a Federal defendant is convicted of as little as 10 

grams of certain drugs and has one or more prior convictions for 

drug offenses, the mandatory minimum is 20 years with a maximum of life in prison; and if there were two prior felony drug offenses that the prosecutor files notice of, life without parole, life in 

Federal prison is mandatory. And these prior offenses could even 

be State offenses that resulted in diversion, a possession of very 

small amounts of drugs. So this is a major problem. 

And so to illustrate my point, we do have a safety valve now, but 

currently, that applies to only 24 percent of all drug Federal mandatory minimum cases, and it applies to only 24 percent of cases, 

even though only 7 percent who are charged with these Federal 

drug mandatory minimums are considered leaders, supervisors, or 

managers. 

Now, in addition to drug cases, there are other problems with 

mandatory minimums. One of those deals with people with a felony 

record who have a gun or even ammunition, and these can result 

in mandatory minimums of 10 to 40 years. There was one particular case of an elderly gentleman in Tennessee who was hunting 

turkey with a rifle, and he wound up getting a 15-year mandatory 

minimum that a Federal judge said was way too harsh. 

Now, turning to the back end, we also see a need for earned time 

provisions. Wisconsin implemented earned time several years ago, 

and they found that those inmates who took advantage of that and 

completed programs had a 17 percent recidivism rate compared to 

28 percent of those who didn’t of similar inmates. 

We need to reduce the more than 12,000 in Federal solitary confinement through disciplinary alternatives, such as withholding 

privileges, a gradual process for earning your way out of solitary, 

and, of course, Stop It, releasing inmates directly from solitary confinement. 

Also, looking at a bill we passed just this year in Texas, nondisclosure, where you can have your record sealed after a number 

of years of living safely in the community crime-free, and be able 

to move on in your life. 

And then, also, we need to address the problem of over-criminalization and over-federalization, and this includes reducing the over 

4,500 Federal statutory offenses, which could be done through a 

military-base style closure commission, consolidating all remaining 

offenses in a unified criminal code. 

We also need to remove authority from Federal agencies to impose criminal penalties by rule that are not directly authorized by 

Congress. We need to adopt a default mens rea provision as Ohio 

did last year, so conduct must be knowing or intentional, if not otherwise specified. And we need the Department of Justice to adopt 

guidelines to focus on Federal prosecutions on those areas where 

the Federal Government has a clear advantage, such as those implicating homeland security, international relations, and crossing 

State lines. 

Finally, let me urge you to address the civil asset forfeiture problem. This has resulted in confiscation of money and property from 

many innocent Americans. And the Fair Act is a great way to start. 

That takes a number of reforms, including making sure there is 


emcdonald on DSK9F6TC42PROD with HEARING
23 

clear and convincing evidence, not just preponderance of the evidence, getting rid of equitable sharing, which States have used to 

circumvent some of their own restrictions on asset forfeiture. And 

also, making sure the property is automatically returned to people 

if they’re not convicted, rather than putting the burden on them to 

hire a lawyer and file a lawsuit. 

So I’ll conclude by just saying we are so grateful to the bipartisan 

leadership that we are seeing on this committee and across Congress, and we’re very encouraged that major reform can happen 

this year. Thank you. 

Chairman CHAFFETZ. Thank you. 

[Prepared statement of Mr. Levin follows:] 


emcdonald on DSK9F6TC42PROD with HEARING
24 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 13 here 99634.013
25 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 14 here 99634.014
26 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 15 here 99634.015
27 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 16 here 99634.016
28 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 17 here 99634.017
29 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 18 here 99634.018
30 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 19 here 99634.019
31 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 20 here 99634.020
32 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 21 here 99634.021
33 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 22 here 99634.022
34 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 23 here 99634.023
35 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 24 here 99634.024
36 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 25 here 99634.025
37 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 26 here 99634.026
38 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 27 here 99634.027
39 

Mr. Malcolm, you’re now recognized for 5 minutes. 

STATEMENT OF JOHN G. MALCOLM 

Mr. MALCOLM. Chairman Chaffetz, Ranking Member Cummings, 

distinguished Members of Congress. As you heard, I am the Directed of the Meese Center for Legal and Judicial Studies at the 

Heritage Foundation, although my remarks today, the views that 

I express, are my own. I also spent a good deal of my career as a 

Federal prosecutor and a criminal defense attorney. 

Sentencing reform, which will be the focus of my remarks today, 

is a very difficult issue. Some believe that too much discretion has 

been removed from judges, and that increased incarceration has led 

to inequities in our society. Others believe that harsh sentences 

have taken some very dangerous people off of the streets, and that 

if such sentences are cut, crime rates may well increase. I understand why people of goodwill disagree passionately about this 

issue. When crime rates soared in the 1960s or 1970s, the idea of 

putting more people in prison for longer periods of time made a lot 

of sense, and to some extent it worked. Crime rates leveled off, and 

since the 1990s, have dropped precipitously. While there are places 

in this country where crimes rates remain staggeringly and persistently high, we are, for the most part, much safer. 

Increased incarceration, especially of violent offenders, certainly 

deserves some of the credit, but how much credit is a matter of debate. While some experts estimate that increased incarceration 

may be responsible for as much as 35 percent of the reduction in 

violent crime, this means that other factors would be responsible 

for the remaining 65 percent or more of that reduction. 

Moreover, incarceration, while necessary, is a very expensive option. Indeed, the costs of incarceration have risen steadily over the 

past 15 years, but perhaps of even greater importance, increased 

incarceration also comes with a human cost. There are now over 2 

million adults behind bars in this country, which impacts not only 

the offender’s prospects, but also that of their family members. Parents who commit crimes may not be the best role models, but they 

are breadwinners and are usually better than having no role model 

at all. Many studies indicate that children with incarcerated parents struggle and often end up turning to crime themselves. 

Today, the Bureau of Prisons constitutes 26 percent of DOJ’s 

budget, and it is projected to grow. That is up from 18 percent in 

2000. This means less money for investigators, prosecutors, victims’ 

services, grants to State and local law enforcement authorities, and 

other priorities. Given this reality, I see each prison cell as very 

valuable real estate that ought to be occupied by those who pose 

the greatest threat to public safety. 

Now, nobody disputes that there are some people who should go 

to prison and never return to society. Most inmates, however, do 

not fall into that category, and approximately 95 percent of them 

will, in fact, eventually return to our communities. 

Congress is currently considering a number of front-end proposals which would reduce the amount of time that certain offenders are sentenced to. Most of these proposals focus on drug offenders and involve reducing mandatory minimum sentences. 


emcdonald on DSK9F6TC42PROD with HEARING
40 

Now, let me be clear, that I believe drug dealing poses a threat 

to public safety. The potential for violence, gang involvement, and 

lethal overdose is inherent in most drug transactions. Nonetheless, 

while drug dealers ought to be punished, I believe the pendulum 

has swung too far. Too many low-level offenders are being locked 

up for 5, 10 and 20 years, when lesser sentences would suffice. 

Front-end reforms could involve reducing the length of mandatory minimum sentences for most drug offenders, expanding the 

number of low-level offenders who qualify for the safety valve, or 

some combination thereof. 

Congress is also considering back-end reform proposals, which 

would enable an offender either to get time off of his or her sentence, or a change in his or her conditions of confinement. I support 

these efforts too. 

Such proposals involve three things: First, expanding prison programs likely to reduce the risk of recidivism, such as educational 

job skills, mental health and substance abuse program; second, encouraging inmates to avail themselves of such programs; and third, 

along with using needs and risk assessment tools, matching inmates with programs based on their needs and providing incentives 

for inmates to complete such programs. This type of reform is important, because huge numbers of inmates have mental health 

problems, substance abuse issues, or both. Both conditions are associated with staggeringly high rates of recidivism, and prison programs addressing these conditions are sparse. Until that changes, 

prisons are likely to remain a revolving door. 

Many offenders, particularly those with only modest records who 

take advantage of such programs, could end up becoming productive, law-abiding members of society. So long as we are realistic 

and methodical in our approach, we should not give up on those 

whose lives can be salvaged. 

Now, in addition to sentencing proposals, Congress is considering 

important proposals related to over-criminalization, mens rea reform, civil asset forfeiture, collateral consequences, and juvenile 

justice, among others. These are all serious issues worthy of serious 

consideration, and I look forward to working with each of you on 

these and other proposals to reform our criminal justice system. 

I thank you for inviting me here today and I look forward to answering any questions you might have. 

[Prepared statement of Mr. Malcolm follows:] 


emcdonald on DSK9F6TC42PROD with HEARING
41 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 28 here 99634.028
42 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 29 here 99634.029
43 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 30 here 99634.030
44 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 31 here 99634.031
45 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 32 here 99634.032
46 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 33 here 99634.033
47 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 34 here 99634.034
48 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 35 here 99634.035
49 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 36 here 99634.036
50 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 37 here 99634.037
51 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 38 here 99634.038
52 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 39 here 99634.039
53 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 40 here 99634.040
54 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 41 here 99634.041
55 

Chairman CHAFFETZ. Thank you. 

Ms. Ryan, you’re now recognized for 5 minutes. 

STATEMENT OF LIZ RYAN 

Ms. RYAN. Thank you, Chairman Chaffetz and Ranking Member 

Cummings. My name is Liz Ryan and I’m President and CEO of 

the Youth First Initiative. 

I’d like to start with a story. Kalief Browder, a 16-year-old boy, 

was arrested in 2010 and accused of stealing a backpack. He was 

automatically charged as an adult. He could not afford to pay the 

$3,000 bail, so he was held at the jail at Rikers Island. He was assigned a public defender, and because of backlogged courts, he was 

at Rikers for 3 years awaiting trial. He was beaten and starved by 

guards. For a year at Rikers, he was placed in solitary confinement. In 2013, the charges were dismissed. After he was released, 

he struggled to go to school. He took his life on June 6, 2015. 

Kalief Browder’s tragic death underscores three of the most 

pressing issues we’re facing in juvenile justice: First, the overuse 

of incarceration of youth. In the United States on any given day, 

there are 80,000 youth in a detention or correctional facility. Like 

Kalief, most of these youth do not pose a serious threat to public 

safety, yet they are exposed to harm while incarcerated, such as 

physical abuse, sexual abuse, restraints, isolation, and solitary confinement. Kalief Browder’s case underscores the youth in adult jails 

in prisons are especially at risk. 

Research shows that placing youth in correctional settings increases the likelihood that youth will reoffend. Yet States and localities spend $6 billion a year to detain and incarcerate youth. By 

contrast, community-based alternatives to incarceration could more 

effectively serve youth and at substantially less cost. 

A second pressing issue is the prosecution of youth in adult 

criminal court. Kalief Browder was one of the estimated 250,000 

young people who are processed in adult courts every year. Contrary to popular perception, the overwhelming majority of youth 

who enter adult criminal court and even those who are ultimately 

convicted are not there for serious violent crimes. For example, a 

Baltimore study showed that nearly three-quarters of the youth 

charged as adults were either transferred back to the juvenile system or had their cases dismissed. The research demonstrates unequivocally that trying and sentencing children in adult court decreases public safety; that is why the overwhelming consensus of 

justice systems stakeholder organizations, as well as the U.S. Attorney General’s Task Force on Children Exposed to Violence, recommend against prosecuting kids in adult court and against placing kids in adult jails and prisons. 

A third issue underscored in Kalief Browder’s case is the pervasive unfairness, inequities, and racial and ethnic disparities in the 

juvenile justice system. Youth of color are treated much more 

harshly than white youth in the justice system, even when charged 

with similar offenses. Youth of color are much more likely to be arrested, formally processed, detained in juvenile detention centers, 

incarcerated in youth prisons, and transferred to adult court than 

white youth. And it’s not because youth of color commit more crime 


emcdonald on DSK9F6TC42PROD with HEARING
56 

than white youth. Results from self-report surveys indicates otherwise. And new research now shows that while youth incarceration 

rates are decreasing, racial and ethnic disparities are on the rise. 

Today, we have a unique opportunity to reform the juvenile justice system, because there’s now a rich body of research on adolescent development and on what works to reduce juvenile delinquency. Public opinion polling shows that the public strongly supports juvenile justice reforms, and in the last decade, States have 

undertaken reforms. Nearly half the States have enacted reforms 

to reduce the automatic prosecution of youth in adult court, increase the age of criminal responsibility, and remove youth from 

adult jails and prisons. Utah and Maryland are among these 

States. 

Another group of States have enacted reforms to close youth prisons and reallocate resources to community-based alternatives to incarceration. These States include Texas, Ohio, California, New 

York, Alabama, and the District of Columbia. 

To build on these State reforms and prevent tragedies such as 

Kalief Browder’s death, Congress could take action. First, accelerate State reforms by supporting States and shifting their resources from incarceration to community-based alternatives; second, reauthorize and strengthen the juvenile justice and Delinquency Prevention Act; third, support States in increasing the age 

of criminal court responsibility to age 18; fourth, provide adequate 

resources for States to enact these reforms; and finally, engage directly impacted youth and their families in these discussions and 

in reforms. 

Thank you for your time and consideration. 

[Prepared statement of Ms. Ryan follows:] 


emcdonald on DSK9F6TC42PROD with HEARING
57 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 42 here 99634.042
58 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 43 here 99634.043
59 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 44 here 99634.044
60 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 45 here 99634.045
61 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 46 here 99634.046
62 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 47 here 99634.047
63 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 48 here 99634.048
64 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 49 here 99634.049
65 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 50 here 99634.050
66 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 51 here 99634.051
67 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 52 here 99634.052
68 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 53 here 99634.053
69 

Chairman CHAFFETZ. Thank you. 

Mr. Tolman, you’re now recognized for 5 minutes. 

STATEMENT OF BRETT TOLMAN 

Mr. TOLMAN. Thank you, Chairman Chaffetz, Ranking Member 

Cummings, and members of the committee. I am the former United 

States Attorney for the District of Utah, a position I held for nearly 

4 years. As U.S. Attorney, I made it a priority to protect children, 

aggressively prosecute fraud, to preserve American Indian heritage, 

and to stem the abuse of illicit and prescription drugs. Prior to my 

service as U.S. attorney, I was an assistant U.S. attorney. A line 

prosecutor in the Federal system, I personally prosecuted hundreds 

of felonies. While I prosecuted mostly violent felonies, I also participated in prosecution of white color criminals, drug traffickers, illegal immigrants, and others. Indeed, in 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 

35 years in Federal prison. 

I am here today because my experience reveals the need for Federal criminal justice reforms that are not only meaningful, but that 

are based on proven reforms carried out in States across this country. These reforms are the result of thoughtful analysis of deficiencies in the administration of justice in the Federal system. 

I am not alone in my support of these reforms. Former Federal 

prosecutors and other government officials have signed policy statements, including former U.S. attorneys, judges, and former government law enforcement officials that support H.R. 759, the Recidivism Risk Reduction Act, which is before the House Judiciary Committee, and the Corrections Act in the Senate. Many of us who 

signed this statement are noted conservatives who were some of 

the most aggressive appointees in pursuing crime. Because of our 

backgrounds as former prosecutors, judges, and other law enforcement officials whose service for this country is focused on law and 

order, we have come to realize the criminal justice system must be 

reformed. 

There are two meaningful ways the justice systems needs to be 

reformed to begin addressing the issues facing us today: First, to 

address a back-end fix that efficiently uses incarceration resources. 

Accordingly, I speak in favor, strongly in favor of H.R. 759 and S. 

467, the Corrections Act. Both bills enjoy broad bipartisan support. 

Though some of the bills differ, the broad prescriptions found in 

both parallel and would begin addressing the issues of overcrowding in our Federal prison systems immediately. These bills 

would better prepare low-risk-of-recidivism inmates back into society. It would help ensure that first-time offenders do not been come 

repeat offenders. It is my opinion these bills are the most likely of 

any proposal to date to not only have such an impact, but to have 

an immediate impact. 

Recidivism in our criminal system is endemic. Most of the low 

level, nonviolent offenders in our prisons are not rehabilitated during their incarceration, and too often return to prison. 

Another result is a prison budget that is consuming an ever-increasing percentage of the DOJ’s budget. The overall cost of detainVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
70 

ing Federal offenders consumes nearly 30 percent of the DOJ budget. 

During my tenure as U.S. attorney, many U.S. attorneys’ offices 

I observed were unable to hire additional prosecutors and were 

forced to abandon law enforcement obligations and long-time partnerships. The number one complaint I heard from chiefs of police 

and sheriffs across my State was the absence and loss of Federal 

partnerships on important programs they were working. 

In 2009, California using a three-judge panel, issued rulings that 

required tens of thousands of inmates to be released, with no 

thought to rehabilitation or reduction of recidivism. Rather than 

addressing its prison issues through careful and deliberate means, 

California spent years in court battling to reduce its prison population. Time, effort, money spent on these court battles would have 

undoubtedly been better spent reducing its prison population in a 

safe, deliberate manner, as other States have done. 

In contrast, several dates, many of which are among the most 

conservative in the Nation, have moved in recent years to implement similar legislation found in H.R. 759 and S. 467, States including Texas, Rhode Island, Ohio, Georgia, North and South Carolina, and Utah. 

In Texas, similar legislation led to the closure of three prisons 

and a savings of nearly $3 billion, all while reducing the risk of recidivism from 26 percent to 4 percent in one case study. 

Finally, the other change that is much-needed reform is addressing the expansion of the Federal criminal code and Federal regulations and the associated disappearance of mens rea. Some estimates put the number of Federal regulations carrying criminal 

penalties over 300,000. It is simply beyond the capacity of any person, or even any organization to keep abreast of the number of regulations. 

With the explosion of the regulatory state, the mens rea requirement is all the more important. Throwing people in prison who not 

only lack the intent traditionally required for incarceration, but 

who often pose very little risk to society, and have a similarly low 

risk of recidivism, only serves to exacerbate the challenges of an already expensive and crowded system. 

As a former law enforcement official, I know firsthand that our 

current system is far too costly. It does not focus limited resources 

on the most crucial areas of enforcement and does not prepare inmates, especially low level offenders, to return to life outside the 

prison. These problems can be addressed by legislation currently in 

Congress. 

I urge Members of Congress to act quickly before the problem becomes an emergency that must be addressed by drastic, reactionary, emergency measures instead of deliberate, careful measures designed to protect the public. Thank you. 

[Prepared statement of Mr. Tolman follows:] 


emcdonald on DSK9F6TC42PROD with HEARING
71 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 54 here 99634.054
72 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 55 here 99634.055
73 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 56 here 99634.056
74 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 57 here 99634.057
75 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 58 here 99634.058
76 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 59 here 99634.059
77 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 60 here 99634.060
78 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 61 here 99634.061
79 

Chairman CHAFFETZ. Thank you all for your testimonies. We’ll 

now transition to the point where we ask some questions. And 

we’re going to first recognize the gentleman from Michigan, Mr. 

Walberg, for 5 minutes. 

Mr. WALBERG. Thank you, Mr. Chairman. And thank you as well 

for these hearings. 

As former vice chair of the corrections committee in Michigan’s 

legislature, and during a time when I saw Michigan go from, if I 

recollect, 17 prisons to 36 prisons, rapid expansion, with no resultant success in dealing with crime in the State of Michigan, and efforts, on my part at the time, to speak to the need for alternatives 

to incarceration. And, in fact, being a parent of a junior higher son, 

who was brutally beaten along with his friend, by three teenagers 

on a bike path, fortunately my son didn’t lose his eye. But going 

to the courtroom, and my wife and I offering to the judge an alternative to incarceration, namely, working on our farm scraping and 

painting a barn alongside of their victim, my son, and myself, in 

July in Michigan, and subsequently experiencing the reality of 

what it means to commit a crime and see the victim as human, and 

to experience my wife’s good home cooking alongside, I believe 

would have had a better impact upon those three young men. 

Then ultimately the judge rejecting that and sentencing them to 

incarceration in a juvenile facility. And if memory serves me correct as well, two of those three offenders went on to offend again. 

Now, I don’t know whether our alternative would have been—it 

would have had a better impact, I bet it would have, but I’ll never 

know, because it wasn’t allowed. 

So I appreciate your testimony. We have to go to what works, but 

also what’s reasonable and what we should understand that makes 

common sense. 

I’d love to ask more questions along that line, but I do want to 

go to Mr. Levin and also Mr. Malcolm, since, Mr. Levin, you 

brought up the issue of the Fair Act earlier this year. Senator Paul 

and I introduced H.R. 540, the Fair Act, to address many of the 

abuses that occur within the Federal civil asset forfeiture process, 

designed to be a good tool, we understand that, but it hasn’t 

worked the way it should. It’s become a tool for abuse as well, at 

least my contention. So I’d like to ask you, Mr. Levin, to expand 

on what you started at the final point of your testimony. 

What do you believe needs to be done at the Federal level to reform this process of civil asset forfeiture, and how does forfeiture 

reform fit the larger criminal justice reform effort? And, Mr. Malcolm, I’d like to you to respond as well. 

Mr. LEVIN. Well, thank you. And thank you for your time 

about—— 

Chairman CHAFFETZ. The mic, if you can hit the button. 

Mr. LEVIN. Oh. Thank you very much, Congressman Walberg, 

and thank you for bringing that story about what happened in 

Michigan to the forefront here, and I really appreciate your commitment to this issue. 

The Fair Act is, I think, a great proposal to address some of the 

abuses with civil asset forfeiture. And just so people understand, 

there’s criminal forfeiture, but civil asset forfeiture is where people’s money and property is taken before they’ve been convicted of 


emcdonald on DSK9F6TC42PROD with HEARING
80 

any offense, and in many instances, they’re never actually charged. 

And there have been a few cases recently where Federal authorities, sometimes working with State authorities, just found a guy on 

a train, an Amtrak train going from Chicago to Los Angeles and 

took the thousands of dollars he happened to have that he was 

going to use to make a music video, and there’s—he’s never been 

charged with anything, they didn’t find any drugs, there was no— 

and he’s still waiting to get the money back many, many months 

later. 

So the Fair Act would abolish equitable sharing, which is a 

mechanism that States and the Federal Government collaborate. 

And the way, unfortunately—the good news is a number of States 

have put certain restrictions on civil asset forfeiture. New Mexico 

actually got rid of it this year. But by using the equitable sharing 

doctrine, the States are able to circumvent their own restrictions 

and get a piece of whatever funds are seized and then the Feds get 

part of it. So it’s created kind of a mechanism for abuse and getting 

around State law restrictions. 

The Fair Act would also raise the burden from preponderance of 

the evidence to clear and convincing evidence before property can 

be kept by the Feds, and then it also reforms the structuring law, 

which has, in some instances, tripped up innocent people who just 

made a series of deposits from their business for legitimate reason. 

It reinvigorates the innocent owner defense. We’ve seen cases 

where a hotel owner faced losing their property because there was 

prostitution, or there was drug activities there, but they didn’t 

know about it. So this would make sure that there actually is a 

knowledge requirement. 

And then also matching the severity of seizure with a crime, 

which recognizes that just because you’re smoking pot on your 

front porch, you shouldn’t lose your home; and making sure people, 

indigent people who confront civil asset forfeiture can have a lawyer provided if they can’t afford an attorney. The only circumstance 

where they’re entitled to that now is if it’s their home that’s being 

seized. And finally, the Fair Act also has reporting so that we can 

know in how many cases there was actually a conviction. 

The bottom line is, as you said, Congressman Walberg, this is a 

well-intentioned policy that was designed to take money and assets 

from, like, drug cartels before they could hide them and so forth, 

and so that is a legitimate goal, but it has gone too far and we do 

need to have reasonable restrictions to ensure that innocent people 

aren’t tripped up. 

And so, finally, I think it does relate to many of these other 

issues in the sense that, first of all, like the growth in regulatory 

crimes, it’s part and parcel of the over-federalism—over-federalization of crime, over-criminalization. And just as we’ve seen the 

growth of the Federal Government in so many areas, this is just 

another area, and it does, I think, also implicate just our constitutional rights and the need to protect those, so—thank you. 

Chairman CHAFFETZ. I thank the gentleman. And I would ask 

the panelists, members only have 5 minutes, so we’ve got to be—— 

Mr. LEVIN. Oh, I’m sorry. 

Chairman CHAFFETZ. —careful and a little tighter on those. 

And—— 


emcdonald on DSK9F6TC42PROD with HEARING
81 

Mr. WALBERG. Mr. Chairman, I may have talked too long myself. 

Chairman CHAFFETZ. No. Go ahead. Go ahead. 

Mr. MALCOLM. I’ll be brief, since Mr. Levin answered much of 

them. 

Civil asset forfeiture, of course, did have good intentions to deprive bad guys of their ill-gotten gains in facilitating property, and 

we have, at Heritage, commented on your proposal and on the Fair 

Act. 

I would also note that one of the things that’s unfair about the 

forfeiture process is a lot of it never takes place in front of a judge, 

but is handled administratively with rather Byzantine and harshlyenforced rules that often end up hurting property owners. Raising 

the standards, reforming innocent donor defense, I concur with 

what Mr. Levin has said. 

Perhaps the biggest thing is that, look, law enforcement agencies 

need to be adequately funded to do the vital work that they do. 

However, civil asset forfeiture provides too great a profit incentive, 

a direct profit incentive for them that can end up warping priorities. It also allows them to basically fund their own budgets without the oversight that comes from transparency, that comes from 

the appropriations process. And so while I fully believe that law enforcement ought to be adequately, indeed generously funded, having that direct incentive through civil asset forfeiture has had a 

warping perspective. 

Mr. WALBERG. Thank you. 

Chairman CHAFFETZ. Thank you. Thank the gentleman. 

I now recognize the gentleman from Pennsylvania, Mr. Cartwright, for 5 minutes. 

Mr. CARTWRIGHT. Thank you, Mr. Chairman. Mr. Chairman, on 

February 25, 2013, about a month and a half after I was first 

sworn into this office, Correctional Officer Eric Williams of Nanticoke, Pennsylvania, was working at the U.S. Penitentiary, high 

risk penitentiary in Canaan, Pennsylvania. He was excited about 

the job, a 34-year old young man, his mom and dad were proud of 

him, he was devoted to his friends and his family. That day at 

Canaan, he was working alone watching 130 angry and dangerous 

prisoners, when Jesse Kanui attacked him savagely and violently. 

I won’t go into the details, because the Williams family are listening to this. Eric Williams died 2 years after starting at Canaan, 

and it was because of overcrowding and understaffing. 

Prisons across the United States are operating at levels far beyond capacity, putting both guards and inmates in danger. In a 

2014 memorandum, the Department of Justice inspector general 

found, ‘‘Prison overcrowding presents the most significant threat to 

the safety and security of BOP staff and inmates.’’ The same OIG 

report found that prisons remain significantly overcrowded and 

face a number of safety and security issues. While there is a downward trend in the Federal prison population, as of June 2014, Federal prisons were operating at a 33 percent overcapacity. This is 

dangerous. The BOP’s long-range capacity plan projects prison 

overcrowding to be at 38 percent overcapacity by fiscal year 2018, 

higher than it is today. 


emcdonald on DSK9F6TC42PROD with HEARING
82 

Now, Mr. Malcolm, what do we have to do to ensure that the 

Federal prison population does not creep up to 38 percent overcapacity? 

Mr. MALCOLM. Well, I would note, Congressman, that for the 

first time this past year, there was a small downtick in the Federal 

inmate population. Of course, overcapacity is not unique to the 

Federal system; indeed, there are probably greater overcapacity 

issues in the States. 

I believe that some of the proposals that we’ve talked about 

today, both front-end reform limiting the amount of time that certain offenders are sentenced to and also spending some money that 

we currently spend building new prisons and spend money to house 

people would be better spent providing the kinds of programs that 

would make it less likely that people would recidivate once they 

are released, and that way you can help reduce the overcrowding 

problem that exists and use those prison cells for the people that 

pose the greatest threat to public safety. 

Mr. CARTWRIGHT. All right. Thank you. 

And, Mr. Tolman, as a former U.S. attorney, you know, Eric Williams died that night. You believe that one of the solutions to the 

problem of overcrowding and understaffing is to take a look at 

over-criminalization by examining the proliferation of Federal 

criminal laws? Is that correct? Can you explain how it would help? 

Mr. TOLMAN. There are two things that would help immediately. 

One, those 130 that were in that facility that he was supervising, 

of those, there is a significant portion that are at low risk of recidivism, that are there because of expansion of the Federal criminal 

code, that could be in prerelease custody—oh, sorry. Could be sentenced to alternative, then released custody such as before home 

confinement for $4,000 a year as opposed to $30,000. That would 

make an immediate budget impact. And the proliferation of the 

Federal code has put people in those beds that create the inability 

of a single individual to observe 130, and that tragedy occurred because of that. 

Mr. CARTWRIGHT. I want to follow up with you, Mr. Tolman. I 

come from northeastern Pennsylvania, the middle district of Pennsylvania where a U.S. District Judge, Richard P. Conaboy, still sits. 

In ’1994 through ’1998, he sat as the chair of the U.S. Sentencing 

Commission. And he often talked to us, the lawyers practicing before him, about the hamstringing nature of the Federal sentencing 

guidelines and how it took discretion away from Federal judges. 

Do you agree that it makes sense to repose wide discretion to the 

sentencing capabilities of Federal judges? 

Mr. TOLMAN. I do agree. Federal judges should have discretion. 

Not every case is the same. A one-size-fit-all is not going to work 

when it comes to sentencing people to long prison sentences. 

Mr. CARTWRIGHT. Thank you. I yield back. 

Chairman CHAFFETZ. The chair now recognizes the gentleman 

from Wisconsin, Mr. Grothman, for 5 minutes. 

Mr. GROTHMAN. I’m very sympathetic to this topic, but I think 

some of the testimony is a little bit, kind of you’re all on the same 

page. I want you to respond, as some people might think the other 

thing. 


emcdonald on DSK9F6TC42PROD with HEARING
83 

Our homicide rate in this country has dropped, I believe, by over 

half in the last 30 years. Arguably, one could say that, you know, 

if the homicide rate had been what it was 30 years ago, another, 

maybe 8,000 or 9,000 people would be murdered every year, which 

is not nothing. 

Given that the homicide rate has dropped like a stone at the 

same time the prison population is going up, I would have thought 

the increase in the prison population ought to get at least a little 

bit of credit for that. 

I’ll ask—don’t want to pick out of the mix here. John Malcolm, 

don’t you think that the increase in raising the penalties has a little bit to do with all the lives that have been saved as the murder 

rate drops? Would you give it a little bit credit? 

Mr. MALCOLM. Yes, absolutely. I said in both written and oral 

testimony, Congressman, and in my written testimony, that, for instance, well-respected criminologist like University of Chicago Steven Levitt says that increasing incarceration responsible for probably 25 percent of the reductions in violent crime, University Texas 

at Austin’s William Feldman puts it at 35 percent. Those are not 

insignificant numbers. However, that still leaves a very, very large 

percentage that—where the reductions responsible for other factors. 

I would also note, although times can change, Mr. Levin noted 

that according to Pew Charitable Trusts, the 10 States that reduce 

incarceration levels the most over the past 5 years experienced 

larger drops in crime, 13 percent, compared to the 10 States that 

increased incarceration the most which was only an 8 percent reduction in crime. There are anomalies of course. All I’m saying is 

that while incarceration is indeed necessary and indeed important, 

it may not be the only—it is certainly not the only and may not 

even be the best way of reducing violent crime. 

Mr. GROTHMAN. Okay. Cause and effect, except they are only on 

the grounds that one would think if crime goes up here, incarceration should go up, because as crime goes up, you would be putting 

more people in prison. The next question I have for Mr. Ring, who 

recently got out of prison. I’m not sure how much it costs to house 

an individual prisoner in the Federal prison system, but I know in 

the State of Wisconsin, it is over $30,000 a year. Do you have any 

suggestions for waste or that sort of thing or how we could cut the 

costs there, or maybe by cutting the cost, free up money for more 

job-training programs in this sort of thing. Were there any observations of waste that you saw? 

Mr. RING. There were. And this is something that has really 

struck me that in the prison system, most people who find waste, 

fraud, and abuse in every area of government somehow think the 

Bureau of Prisons is run so efficiently, and it’s not. There was a 

lot of waste and abuse, and there was some outright fraud, some 

of which I know the inspector general is looking at, and that should 

occur. Otherwise, I think the way you can cut costs is for the lowest level of non violent offenders—I was at the prison camp, so 

these were supposedly the best of the best, and people who started 

at a medium or secure facility moved their way to the camp. But 

there were people at the camp who were 70 years old, or were disVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
84 

abled in some way. You could have cut costs by letting some of 

these people get to home confinement or to halfway houses. 

But I agree with what everyone has said, that money has to be 

put back into the prison to sort of treat the people who do need 

help. But there’s plenty of waste there and overspending. And I 

think that has to be addressed. And I’m glad this committee is 

looking at it. 

Mr. GROTHMAN. In general, I hate mandatory minimums. Nevertheless in my district, I assume it is not unique around the country, there’s been a shocking increase in heroin deaths. Number of 

deaths just beyond belief. And despite the huge increase in deaths, 

the judges, some judges continue to treat it as no big deal. I was 

thinking, I’m not sure how many of these are Federal crimes, of introducing a bill making sale of heroin a mandatory minimum. I 

was wondering if you have any alternative as to how to deal with 

the explosion of heroin overdoses we are seeing in this country. 

Mr. MALCOLM. Who do you want to answer that question? 

Mr. GROTHMAN. Well, it was kind of one of those game shows you 

see on TV, whoever bangs the buzzer first. 

Mr. WALBERG. [presiding.] The gentleman’s time is almost expired, so answer as quickly as possible here. 

Mr. LEVIN. Well, certainly for those who have an addiction, the 

great news is there is more and more treatments that are very effective, non-narcotic injections that people can take to block the receptors in the brain. Obviously, people that are dealing, especially 

large amounts of heroin are already subject to lengthy Federal sentences. 

I did want to ask, address your issue on the murder rate to say, 

New York City, the role of policing is incredible, what was done 

under Giuliani. The murder rate in New York City fell by over 80 

percent. It did not fall nearly as much in Chicago and other large 

cities. So I think that shows you some excellent policing practices 

such as broken windows policing, data CompStat and having police 

at the right place at the right time, you can actually prevent a lot 

of crimes. 

Mr. WALBERG. I thank the gentleman. The gentleman’s time has 

expired. I now recognize the gentlelady who represents my hometown in Illinois, Ms. Kelly. 

Ms. KELLY. Thank you, Mr. Chair, and thank you to the witnesses. 

Our criminal justice system has different effects on unique populations as you have raised. The sentencing project published a report this year examining the ways people of color are disproportionately affected by the criminal justice system. Mr. Chairman, I 

would like to enter this report into the record. 

Mr. WALBERG. Without objection. 

Ms. KELLY. That report explains, ‘‘Once arrested, people of color 

are also likely to be charged more harshly than Whites. Once 

charged, they are more likely to be convicted, and once convicted 

they are more likely to face stiff sentences, all after accounting for 

relevant legal differences such as crime severity and criminal history.’’ 

Ms. Ryan, can you describe some of the racial disparities you’ve 

seen in the juvenile justice system? 


emcdonald on DSK9F6TC42PROD with HEARING
85 

Ms. RYAN. Thank you, Congresswoman. There are disparities at 

every step in the process, so young people of color are more likely 

to be arrested, more likely to be formerly processed instead of getting diversion, more likely to be prosecuted, much more likely to 

be incarcerated, and much more likely to be transferred to adult 

criminal court. And this is well-documented, the Federal Juvenile 

Justice and Delinquency Prevention Act has required all States to 

collect data on this, so we see this in almost every single State. 

Ms. KELLY. Also, if my son was here, he would say much more 

likely to just be stopped in general. 

Ms. RYAN. Absolutely. 

Ms. KELLY. According to testimony, the American Civil Liberties 

Union submitted to the Inter-American Commission on Human 

Rights in 2014, sentences imposed on Black males in the U.S. Federal system are 20 percent longer than those imposed on White 

males convicted of similar crimes. That testimony also highlighted 

that nationwide, about 77 percent of juvenile offenders serving life 

without parole sentences are Black and Latino. 

Ms. Ryan, how are these disparities reflective of those we see in 

systems overall? 

Ms. RYAN. These disparities are very reflective of what we see. 

I visit facilities all the time, and you see young people of color in 

these facilities. And what we see in terms of the disparities of kids 

being in adult criminal court, that’s where the highest level of disparities are. At the point at which kids are transferred to adult 

court or prosecuted in adult criminal court, and certainly they are 

subjected to life without parole and other sanctions that adults face 

in those circumstances. 

Ms. KELLY. Mr. Levin, I see you shaking your head. Did you 

want to add anything? 

Mr. LEVIN. Oh, no, I certainly would agree that this the data certainly shows that there are disparities. I think one of the ways we 

often think about it is, particularly in the area of drugs, and this 

goes back to what I was saying about policing, I think it is very 

important to have the police in the neighborhoods where the most 

crime is. But we need a different type of policing. And so one of 

the challenges is, of course, if a youth or other person has drugs 

on them, they are more likely to get caught if they are in an area 

where there is more police. Yet, we need the police in those areas 

that have high violent crime, which are, in many cases, areas that 

have large minority populations. So the challenge then is to change 

the type of policing that we are doing. 

We have people like David Kennedy with the National Network 

for Safe Communities, we are doing call-ins, Operation Ceasefire in 

Cincinnati, High Point North Carolina, these have had great impact by working with ministers, grandmothers, bringing the community together, getting people out of gangs, giving them positive 

opportunities. 

Once someone is, for example in New York City now, if they do 

find marijuana on someone, they are typically given—they go to a 

desk—they get a cita—they are brought to a police office, it is a 

desk appearance. They don’t go to jail. So there are better ways to 

deal with it, and that can help reduce some of the disparities hanVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
86 

dling things in a reasonable manner, particularly when they are 

very low-level offenses. 

Ms. KELLY. Mr. Ring, your organization, Families Against Mandatory Minimums, has called for policymakers to further reduce 

the disparities in sentencing between crack and powder cocaine; it 

also calls for existing reductions to be made retroactive. Why might 

it be important to further reduce the disparity in sentencing and 

have that disparity reduction apply retroactively to people who 

were incarcerated prior to the change? 

Mr. RING. Quite simply, Congress, when it passed the First Sentencing Act and made the change in the crack law to lower the disparity between crack and powder cocaine, it admitted a goof. You 

had Members who were around then saying we didn’t know what 

we were doing, we just pulled numbers out of the air, and we 

passed this disparity. Mind you, the Reagan administration asked 

for 20-to-1 disparity, and it was the Congress that moved it to 100- 

to-1. So there was sort of a pox on everybody’s House there. So 

Congress passed the law, made the change, but it didn’t make it 

retroactive. 

So now you have people serving decades for—decades-long sentences that Congress admits were a mistake. So until you make it 

retroactive—I know the President is trying to do some of this piecemeal through commutations, but Congress really should act and 

get all of those people fairer sentences, because it is the height of 

injustice for them to serve those when they know anybody sentenced today is going to get a much lower sentence. 

Ms. KELLY. My time is up. My colleague is running a tight ship. 

Mr. WALBERG. I thank the gentlelady. And I recognize now the 

gentleman from North Carolina, Mr. Meadows. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Ms. Ryan, you were indicating that people of color, I guess, are 

incarcerated at a much higher rate, that’s what your study shows. 

Ms. RYAN. There have been studies that have been done in all 

of the States, showing that young people of color at every stage in 

the process, so arrest, formally processing in the system instead of 

being diverted out of the system, detention, conviction, incarceration and transferred to adult court. 

Mr. MEADOWS. So in your analysis, where would you say the 

problem is? Is it at the law enforcement side, the prosecuting side 

or judicial side? I mean, obviously, you’re saying that the problem 

is everywhere, so are you indicating that it’s all law enforcement 

prosecutors and the judges that are being biased this way? 

Ms. RYAN. Well, what we’re seeing, the study showed that there 

is bias in the system by all of these stakeholders. And so law enforcement tend to over-police and process young people of color formerly, whereas White youth are not processed in the same way. 

They have a different justice system. Simply put, we have two justice systems: We have one for White people who have means and 

one for young people of color who do not. 

Mr. MEADOWS. So your contention then is that from the judicial 

side of things is that judges are making disproportionate sentencing based on their purview. Would that be your contention? 

Ms. RYAN. Yes. 


emcdonald on DSK9F6TC42PROD with HEARING
87 

Mr. MEADOWS. All right. So Mr. Tolman, let me come to you 

then, because what Ms. Ryan is saying is that judges have great 

latitude, and according to what you just shared with Mr. Cartwright is that you think that judges should have greater latitude. 

Would that not exacerbate the problem that Ms. Ryan has just—— 

Mr. TOLMAN. I appreciate the question. Congressman, I would 

answer it a little bit differently than Ms. Ryan would. Judges—I 

don’t believe that judges, in this day and age, are largely driven 

by a bias in their sentencing, but instead, you see as a result of 

minorities achieving higher sentences most often come as a result 

of they are arrested more often, their records look worse. When 

they get before a judge, they have usually gone through several 

proceedings that they may not otherwise have gone through, and 

then judges feel that they are tied. And in the Federal—— 

Mr. MEADOWS. But they are not tied. You were just saying that 

they should have discretion. I guess what I’m saying is, I’m here, 

I love my law enforcement officers, I love my U.S. attorneys, and 

I’m perplexed because what some of them say is that we need to 

prosecute more, and we need to arrest more, and that they arrest 

people and they get out of jail free and they go another way. So 

I’m very perplexed, Mr. Tolman, because if we’re going to give our 

judges more discretion, would that not give the probability of sentencing that was not uniform or fair? 

Mr. TOLMAN. I don’t believe so. 

Mr. MEADOWS. Okay. So I assumed you would go that way. So 

let me take you to a U.S. attorney situation in my district where 

they were charged with felonies, they pleaded them down to misdemeanors where they went before a magistrate judge, and then 

ended up—I’ve got a constituent who is going to jail for 23 months 

for hunting with a spotlight of which nothing was shot, and a hunting license that had expired for 24 hours. He’s going to jail for 23 

months. That was the discretion of a Federal judge. So how can we 

say that more latitude with our judges would promote fairer sentences? 

Mr. TOLMAN. First of all, I don’t think judges feel they have discretion now. The sentencing guidelines, while not mandatory, are 

certainly still pervasively controlling what the judges do. In those 

instances where an individual has an offense, there are very distinct recommendations that come as a result of the sentencing 

guidelines. 

Mr. MEADOWS. Well, those were maximum—in this particular 

case, a maximum of 6 months, but they stacked misdemeanors so 

that he went to jail for a longer period than what you would think 

a normal misdemeanor would have. Do you think that’s fair? 

Mr. TOLMAN. I don’t know the case. 

Mr. MEADOWS. Well, do you—— 

Mr. TOLMAN. At first blush, I do not believe that that would be 

a fair sentence. 

Mr. MEADOWS. I agree. 

Mr. TOLMAN. It is the point that we are trying to emphasize that 

the Federal system is filled with more of those than there are of 

Al Capones. And because of that, they are taking bed space that 

is required for those that are more serious. 


emcdonald on DSK9F6TC42PROD with HEARING
88 

Now the mandatory minimums have added to that the emphasize on guideline ranges that are out of sync with what should be 

the punishment are creating that. And so, I guess I agree with you 

and say that it will take a lot more time with true discretion and 

statutes that don’t promote over-punishment before judges start to 

sentence more properly tied to what the seriousness of the offense 

is. 

Mr. MEADOWS. I thank the chairman. I yield back. 

Chairman CHAFFETZ. [Presiding.] I thank the gentleman. I now 

recognize the gentlewoman from Michigan, Ms. Lawrence, for 5 

minutes. 

Mrs. LAWRENCE. Thank you. This is a discussion that’s near and 

dear to my heart. I am a representative, I represent Detroit, and 

also have some of the most wealthiest communities, not only in 

Michigan, but in the country. 

I just want to give some statistics. It is estimated that 2.7 million 

children under the age of 18 have a parent in prison or jail. That 

means 1 in 28 children in the United States has a mother, or father, or both in a lock-up. Recent statistics shows that the United 

States holds 25 percent of the world’s prison population, while 

we’re only 5 percent of the world’s population or people. 

Most inmates are parents of children 18 years of age—of children 

under 18 years of age. Two-thirds of incarcerated parents, twothirds, are nonviolent offenders, often locked up for minor drug-related charges. They make up the majority of the parents who are 

in prison, and they and their children are the ones the criminal 

justice reform would most affect. The lack of parental contact engagement during imprisonment hurts those children, it has been 

proven psychologically and socially. 

So I have two questions, first to Ms. Ryan. What is the impact, 

according to the studies that you’ve looked at, to the educational 

social development of children growing up with a parent in prison? 

Ms. RYAN. I can’t speak to all the studies, but a vast majority 

of them have shown that those young people are further behind in 

school than their classmates, and that there is an increased likelihood that those young people who have a parent in prison could 

end up in the criminal justice system as a result. 

Mrs. LAWRENCE. My ranking member yesterday, in his opening 

comments, referred to three generations serving time in prison. It’s 

a statistic that I think our criminal justice system owns some responsibility. 

Mr. Ring, you personally experienced this as a parent. I would 

like to hear your comments. And what could be done—if you could 

speak in a positive way, what do you think we can do to help the 

relationship between children and their parents during incarceration, and what are we doing right and what should we stop doing? 

Mr. RING. Well, there’s a couple of things, it’s the hardest part 

of being in prison currently for everyone. I am thankful that I had 

a shorter sentence relative to most. I saw people in the visiting 

room after months past where you could see the relationships were 

falling apart, the kids weren’t running to the parents anymore. 

And it’s really hard when you leave that visiting room to go back 

on to the compound, and your kids are losing their relationship 

with you, so it is very hard. 


emcdonald on DSK9F6TC42PROD with HEARING
89 

I think the prisons aren’t as cognizant of that as they should be. 

They pay lip service to it, but there are things like the 500-mile 

rule, which is you’re supposed to be placed in a facility that’s within 500 miles, but that’s as the cock crows rule. It doesn’t mean 

driving miles. So we have people from Rhode Island who are at 

Cumberland, Maryland. They almost never got to see their kids. 

Other things, like when I got there, I was devastated to not have 

my daughters with me, I asked if we could sort of put together a 

fatherhood caucus, because they had AA and NA. I said, could we 

get a fatherhood support group so that the older guys could tell the 

newer guys how to stay in touch, how to space out your phone minutes, that sort of thing. We only had one therapist, and so she 

didn’t even respond to that inquiry.. 

So I think there are things that can be done. And I think as part 

of the programming, that should be part of it, because in some 

cases you have strong relationships that wither, other cases you 

don’t have strong relationships, but it is a great time to reinforce 

the people who are there. This should be your responsibility when 

you go out. 

Mrs. LAWRENCE. I agree with you. There is a responsibility in 

our criminal justice system to recognize the impact on those who 

are not incarcerated, the families. If we truly want to break the 

chain and reduce the amount of people that we imprison, along 

with all the other reforms, this must be a critical part of it. And 

I yield back my time. Thank you. 

Chairman CHAFFETZ. I now recognize the gentleman from Oklahoma, Mr. Russell, for 5 minutes. 

Mr. RUSSELL. Well, I appreciate not only all of the fantastic information as put forth here, but the scope of the problem and the 

fact that in a bipartisan nature we recognize that this is a national 

problem, regardless of politics or party. 

I want to address an area that I have not heard addressed much. 

Senator Booker, in his testimony yesterday, mentioned upwards of 

97 percent, I believe, of all adjudication of justices done by plea. 

And I don’t know the accuracy of this. I don’t have the data, but 

it brings out a major point. A person receives a charge, and he gets 

publicity. Consequently, his employer fires him over the publicity. 

Then they have an inability to make bail because they don’t have 

work, and then they can’t obtain the best counsel because they 

can’t afford it. The counsel that they do obtain then, in a deal with 

the prosecutor, is suggested to make the plea, or roll the dice with 

the jury on an exponentially higher outcome of sentence. Faced 

with this duress, what we potentially see, and I would argue actually see, is the locking up of innocent people. 

How do we address that? Because we’ve not seen or heard anything along that line, and I welcome input from anyone on that 

issue? 

Mr. TOLMAN. I’ll volunteer very quickly that the promulgation of 

disproportionate penalties and some mandatory minimums that are 

so extreme that you have that very, very scenario that you described is driving that. And yet, if you were to make punishment 

more commensurate, and not punish an individual for going to trial 

to test the evidence against them, I think you would have a system 

that is intrinsically more fair, and that’s part of the reform that 


emcdonald on DSK9F6TC42PROD with HEARING
90 

has to happen on the front end, but for those that are in that system, that are the 97 percent that did it, we better have immediate 

back-end reform right now, or else they will continue to serve those 

very long, disproportionate sentences. 

Mr. MALCOLM. Congressman, my colleague, Mr. Tolman during 

his testimony, talked about mens rea reform and the importance 

for adequate mens rea. I think that’s also a part of this. There are 

a fair number of crimes, particularly regulatory crimes, but also 

statutory crimes, where in order to convict somebody, you do not 

have to prove that there was any knowledge or intent to violate the 

law or even as somebody engaged in something that is intrinsically 

morally blameworthy, and the fact that Federal prosecutors have 

the pressure and say, look, I don’t have to prove what you knew 

about the law, intended to violate the law. I just have to prove that 

you did the act that resulted in the crime, even if it was a mistake 

or a complete accident. Therefore, you’re facing a very heavy penalty, unless you decide to plea bargain. That’s also part of the answer to this. 

Mr. LEVIN. It is an excellent point that you make and that you 

ask about and there is data showing people that day-in-jail pretrial, before their trial, end up with longer sentences and are more 

likely to go to prison. So some States, like Colorado and New Jersey, have adopted bail reform measures to ensure people who are 

low risk can get out pretrial, even if they can’t afford a bail bond 

through pretrial supervision and a personal bond. It is kind of like 

being on probation, so they are held accountable to make sure they 

appear, but just because they don’t have resources doesn’t mean 

they are not able to get out. 

And then also, strengthening, of course, indigent counsel and 

showing that there is quality representation. We have a pilot program in Texas going on kind of like school choice where clients can 

choose their counsel from a list of qualified attorneys. 

Mr. RING. I would just say as somebody who was prosecuted, the 

leader of this conspiracy that I was a part of what was sentenced 

to 4 years, 4–1/2 years, and I came later and I had been cooperating for a couple of years. When the government came to me they 

basically said if you cooperate and implicate these people, you’ll see 

what you will get, which is no time. If you don’t, the range I was 

looking at was 19 to 25 years of prison. And I had real law and 

order, salt of the Earth people, friends who believed in my innocence as I did, which is why I went to trial, so you just gotta take 

the deal, you have to take it for your kids. I said, you don’t think 

I’m guilty. They said it doesn’t matter, you can’t do that. You see 

that a lot. 

And I don’t know how anyone who thinks that there aren’t innocent people in jail don’t believe that people take those deals. You 

see the statistics. When the Innocence Project exonerates people 

with DNA in these rape cases, half of those people pled guilty. So 

you know it happens, and it’s a problem, and it’s a problem because 

there’s not enough discretion for judges to counterbalance. I was 

lucky that my offense did not carry a mandatory minimum. That 

would be tougher. At least I knew I can have a judge who was 

going to hear the evidence. It’s more proof to why you need to have 

more balance in the system. 


emcdonald on DSK9F6TC42PROD with HEARING
91 

Mr. RUSSELL. Thank you, Mr. Chairman. I yield back my time. 

Chairman CHAFFETZ. Thank you. I now recognize the gentleman 

from Virginia, Mr. Connolly. 

Mr. CONNOLLY. I want to thank you, Mr. Chairman, and especially you, Mr. Cummings, for these remarkable hearings. Yesterday and today, profoundly thought provoking, something that 

hasn’t had the kind of scrutiny it needs. The American system of 

justice from soup to nuts is, in many places, broken. And the word 

‘‘justice’’ is in all lower cases. You just mentioned one, Mr. Ring, 

and I know my friend from Oklahoma brought it up yesterday with 

our two governors, plea bargaining was supposed to be an efficiency. It has now become a tool that incarcerates people who are 

innocent, not all, innocent and guilt are irrelevant sometimes to 

the process. That isn’t justice, that’s a perversion of justice. You’re 

quite right, people then have to weigh the gamble, take the lesser 

of two evils, even though I’m innocent, because the risk of going to 

trial and losing is too great. The fact that prosecutors who may believe you’re innocent, nonetheless pursue that is a perversion of 

justice and shame on them. 

Sometimes prosecutors get into the habit—I know, Mr. Tolman, 

you might recognize this—where what’s important is a scalp on the 

wall, irrespective again of innocence or guilt. I’m gambling I can 

win this one, that’s all that matters, that’s the evidence. Not about 

whether—what about the innocence of the person in front of me? 

Not everybody, of course not, but it happens all too often, and there 

are so many other things. 

But I want to ask you about two in particular. One has to do 

your story, Ms. Ryan, solitary confinement for a youth, it seems to 

me that that would be ought to be a practice normally that is very 

infrequent, and only with manifest behavior that is otherwise completely uncontrollable, danger to himself, herself or others, and for 

limited periods of time. You described a tragic story of a young 

man who ultimately committed suicide, presumably not unrelated 

to his very unjust incarceration in terms of what he was being 

charged with, and it was a failure of the criminal justice system 

to get around to him because he had to languish in Rikers. How 

often out of solitary confinement be a tool in the prison setting for 

young people? 

Ms. RYAN. That’s a great question. In Kalief Browder’s case, he 

was charged with a crime, so he was pending trial, and he was 

being abused by guards. They placed him in solitary confinement, 

so this is pending trial. We know that it is used often in the adult 

system for children in the form of protecting these children, and it 

is profoundly harmful to those young people to their development. 

It is also used unfortunately in the judicial justice system, and 

there are all kinds of euphemisms for solitary confinement. 

I had an argument with a Department of Corrections head here 

in the District one time because he called it a time out, and I called 

it 5 days in the hole is solitary confinement. Unfortunately, we 

don’t know how often it is used, and that’s something that Congress could fix by requiring States to provide data. 

Mr. CONNOLLY. The fact that we would subject a young person 

to solitary confinement for his or her protection, of course, tells us 

a lot about the personal environment that we would need to do 


emcdonald on DSK9F6TC42PROD with HEARING
92 

that, understanding that there are consequences that flow from 

doing that, the isolation and so forth. 

I’m running out of time, so I want to ask one more question of 

you, Mr. Tolman. Washington Post just did an interesting series on 

power parole boards, not trained, often political appointees, capricious decisionmaking, God only knows whether—there was nothing 

systematic and analytical about how we look at your case and arrive at a just decision. Your experience, and if you’d comment on 

that in the remaining 27 seconds. 

Mr. TOLMAN. Thank you. There is no parole in the Federal system, but there is a need for that role if it was administered fairly, 

which is why the bill that has been introduced, H.R. 759, would actually take that out of the discretionary. What it would do is it 

would say we are going to assess the risk of recidivism and reassess the inmate as they go and let them earn time into home confinement. So you take the parole board of out of that and some of 

those problems that came from it. 

Mr. CONNOLLY. Thank you. 

Chairman CHAFFETZ. I would note to the gentleman from Virginia, Mr. Connolly, that please have a look at the—Cedric Richmond has a piece of legislation that I cosponsored, we introduced 

it, that deals with solitary confinement requires a study in reporting so we have these types of statistics, because you just worry, 

there are horror stories out there and we never hear about them, 

and this piece of legislation is part of a package that we are encouraging. 

Mr. CONNOLLY. I thank the chair, I most certainly will. I also 

want to say one hopeful thing about this process you and the ranking member have gotten underway here, but in terms of the broader conversation, too, that’s hopeful to me is actually on the right, 

on the left, Republicans and Democrats, we’re all actually beginning to reexamine what we thought was taken care of from top to 

bottom. And I think that’s a really healthy sign, so hopefully we 

will continue to look at issues like solitary confinement, but also, 

the broader issues that challenge American justice. Again, I thank 

you, Mr. Chaffetz, and you, Mr. Cummings, for leading us down 

this path. 

Chairman CHAFFETZ. Thank you. I now recognize the gentleman 

from Georgia, Mr. Hice, for 5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. I likewise want to give a 

sincere thank you, Mr. Chairman to you and to our witnesses for 

this tremendously important hearing. I typically don’t do this, but 

I do want to take just a moment and just share a little of a personal experience with all of this, because it really hits home just 

from the last couple of months with me. I’m from Georgia, and, of 

course, Georgia has been known in the past as being extremely 

tough on crime, and frankly, that toughness over the years has not 

worked, it has cost the State tons of money, and our jails have been 

filled to the brim. And under the leadership of our current Governor, Governor Deal, he has taken this issue on personally, actually campaigned on this issue as well. 

And as a result, Georgia has been, as you know, has been mentioned here in the last couple of days, on the forefront of impleVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00096 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
93 

menting some critical, momentous, front-end and back-end reforms 

to our criminal justice system and we are seeing incredible results. 

One of the programs, or at least part of it involve some of these 

non violent offenders, particularly who have drug problems, to be 

able to participate in court-supervised rehabilitation programs that 

involve a great deal of accountability. It is an 18 to 2-year—18- 

month to 2-year program. There’s, as I mention, a lot of accountability, these people get jobs, they do do community service, they 

have regular drug tests, they are involved in evidence, program evidence-based treatment programs, that involve both the faith-based 

community as well as others. And there’s consequences if any of 

this stuff lapses. The consequences are not just designed for arbitrary punishment, but they are designed to get people back on 

their feet so that they can live a drug-free life. 

And just last May, I had the distinct privilege of speaking at one 

of the graduation ceremonies. I have heard of this program in 

Georgia for several years, but I had the first hands-on experience 

speaking at one of these graduation ceremonies. And I tell you, I 

was moved to the core. In fact, there was not a dry eye in the place 

as one of these individuals after the other after the other gave testimony of what their life was and what it has become, and what 

these programs have meant. And then family members and friends 

also testified as well. At the end of this program, these people had 

literally 2 years under their belt drug free, as they’ve been in the 

workforce, all these kind of things. It was incredibly moving. 

One of the statistics that came up, I believe it was yesterday 

with the recidivism issue, as I think most of our prisons see people, 

once they are released, back in prison within 2 years. I mentioned 

results in Georgia, we are seeing through many of these drug 

court-type things across the Nation. For that matter, the recidivism 

rate is 25 percent; in Georgia, it is even less; in Barrow County, 

where I spoke a couple of months ago, it is significantly lower than 

even 25 percent. 

So I guess all of this is just—I’m so grateful that we’re having 

this hearing, and again, just send sincere thanks to each of you for 

being on the front line of what you’re trying to do, and for, chairman, your leadership in bringing this forward. 

Mr. Levin, let me just ask you, I am sure you have dealt with 

this, I apologize for coming in late myself, but what alternatives to 

prison do you see? I’m sure you’re looking at Georgia and Texas, 

some of these other places, but to reduce recidivism, get these people’s lives straightened out? 

Mr. LEVIN. You hit the nail on the head, Congressman, drug 

courts, the Hawaii Hope Court, which is a similar model but it is 

more targeted just towards weekend jail for those who fail a drug 

test. And then, even actually some of those who can’t acquit to that 

and ultimately go into the drug court where they get more significant treatment. 

Mental health courts, veterans courts. And other alternatives, including electronic monitoring, various mental health treatment programs, both inpatient and outpatient, for people with that problem. 

So house arrest has been mentioned. So there is a whole host of 

alternatives. And I think one of the things we ought to look at is 

enabling the Federal system through perhaps, you know, the FedVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00097 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
94 

eral system could compensate the State, but to be able to place individuals whether in a halfway house or one of the other programs 

that is actually run by a State or non profit, rather than—it is very 

hard from the Federal Government, particularly in places where 

there may not be that many Federal offenders, to try and reinvent 

the wheel of everything States are doing, so why not have a way 

for the Federal Government to partner with States and nonprofits 

and use some of the same programs. 

Mr. HICE. Excellent. I’m out of time, but again, I hope this committee continues to look a cost effective ways of turning lives 

around as opposed to just punishment, and I thank you. 

Chairman CHAFFETZ. Thank you. Georgia has done some very 

significant things. We have tried very hard to get the Governor of 

Georgia to come join us, but through scheduling on both ends, that 

we were unable to do it. But Georgia has really helped lead the 

way and they should be thanked for that. 

I now recognize the gentlewoman from Illinois, Ms. Duckworth, 

for 5 minutes. 

Ms. DUCKWORTH. Thank you, Mr. Chairman. I’m so glad that 

we’re having this much-needed debate in our country, and especially in this committee, on need for reforming our criminal justice 

system. I really want to go back to the discussion on drug offenses 

and mandatory minimum sentencing. 

Mr. Chairman, I have in front of me a statement offered to this 

committee, to this hearing from Human Rights Watch that echoes 

many of these concerns. I would like this entered into the record. 

Chairman CHAFFETZ. Without objection, so ordered. 

Ms. DUCKWORTH. Thank you. Regarding prosecution and mandatory minimums, Human Rights Watch explains that, ‘‘mandatory 

drug sentencing laws has given prosecutors too much power. They 

are able to strong-arm drug defendants by offering them a choice, 

significantly shorter prison terms if they plead guilty, and excessively severe sentences if they go to trial.’’ Coerced pleas and disproportionately harsh sentences should not be part of the Federal 

criminal justice system. And my colleague from Oklahoma began 

this discussion on that already. I would like to further this sort of 

power relationship. 

Mr. Ring, you said that prosecutors in your case initially asked 

for a 20- to 27-year sentence, that seemed incredibly excessive for 

a non violent offense. I have to wonder, you came into the system 

as someone highly—fairly highly educated, a lot of experience, not 

easily intimidated, I would think, and I just wonder what your experience was in term of facing that potential mandatory minimum, 

and then thinking about the folks you saw when you were in prison. And if you think about someone whose entire life experience begins with stop and frisk, and unnecessary police stops, and a law 

enforcement system, while we have great law enforcement officers, 

but a system that is skewed, especially toward minorities, what 

that does to the power relationship between the prosecutor and the 

defendant? 

Mr. RING. Thank you. Let me just say I try to always make clear 

that my case is definitely unique. I’m a congressional staffer, I’m 

a lawyer, I worked for sentencing reform. I knew a lot of these 

issues, and so it was certainly a different situation. The reason I 


emcdonald on DSK9F6TC42PROD with HEARING
95 

usually raise it, it’s just because I want to show how much power 

the prosecutors have without mandatory minimum. Because they 

were able to threaten that sentence because the guidelines are still 

so high too, and the guidelines are usually driven by the 

mandatories. So when you lifted the drug mandatory minimum, the 

white collar folks on the commission said we have to lift these up, 

too, to make them have parity. So the guidelines are high too. 

The people I saw in prison look nothing like me. I mean, I hope 

it is clear, and I don’t think everyone knows, there is no Club Fed. 

I was definitely a minority in the prison, most people are brown 

and Black. And that’s another problem in terms of getting programming to such a disparate group of people. But these folks 

faced mandatory minimums, they didn’t know anything. They knew 

nothing about sentencing laws. It is such a—the divorce between 

what members or politicians think is going to deter a criminal as 

if they are listening—if you pass a 5-year mandatory minimum, the 

next year, they are going to, oh, I’m not going to do that anymore 

because they just stiffened the penalties. There is no idea. 

Most of these guys made stupid mistakes without any idea of 

what the punishment was. They just didn’t think they were going 

to get caught. So you can make the severity off the charts. You can 

do a life sentences for jaywalking. It is not going to stop it. So it 

is a problem. These people don’t know, there is a lot of bad 

lawyering. Some of these people had really terrible representation. 

And so the people who can’t afford it—and I don’t know anybody 

who can afford to go to trial today—it is a huge problem, and so 

I think that’s why you see so many lower level people who have 

no resources just cave to the system. 

Ms. DUCKWORTH. Thank you. Mr. Tolman, with your experience 

as a defense attorney, have you seen defendants discouraged from 

exercising their right to a trial? I want you to speak to this power 

relationship, because it seems like the way this is set up, it just 

gives excessive power to the prosecutors and that you have a defendant from a community where they see all their buddies or their 

friends who get stopped and frisked and minor drug offenses end 

up in jail for long periods of time, I would think that that power 

relationship is just excessive. 

Mr. TOLMAN. It is extreme power, we could—as Federal prosecutor, I could control what the sentence would ultimately be because of our ability to wield the particular statutes we wanted because of the guideline ranges, because of enhancements we could 

apply, and we control the ability to also go down from those guideline ranges. It influenced me as a defense attorney so that my practice currently, I tell many of my clients, we need to be successful 

prior to you being charged, or we need to be cooperating in a way, 

or we need to show the government that we are going to be very 

different than just an individual that they prosecute and goes to 

trial. I cannot, in good conscience, advise any of my clients at this 

point to go to trial, because their resources and the evidence and 

the penalties present incredible obstacles to exercising your constitutional rights. 

Ms. DUCKWORTH. Thank you. I’m out of time, Mr. Chairman. 

Chairman CHAFFETZ. Thank you. I now recognize the gentleman 

from California, Mr. Lieu, for 5 minutes. 


emcdonald on DSK9F6TC42PROD with HEARING
96 

Mr. LIEU. Thank you, Chairman Chaffetz and Ranking Member 

Cummings, for these hearings on criminal justice reform. My first 

question is to the entire panel. Do any of you believe that it is wise 

to spend even $1 of precious taxpayer resources to arrest, prosecute 

and lock people up for marijuana crimes, especially when multiple 

States have legalized marijuana? Okay, I take that as a no. Thank 

you. 

I would like to focus on recidivism. 

Mr. LEVIN. Yeah, obviously, there are people that—if you’re dealing in huge amounts of marijuana as part of a cartel or something, 

but I think it has certainly been encouraging to see, even in States, 

we can debate whether it should be legalized or not, but certainly, 

even in States that haven’t legalized, they are diverting people. In 

Houston now, they are bringing them to the police station, they can 

do 8 hours of drug education or community service, so bringing 

small marijuana offenders to jail is, I think, a wasteful use of 

human resources. 

Mr. MALCOLM. If I could also quickly jump in. I think that very, 

very few small marijuana possessors are prosecuted Federally. I do 

think that there are Federal laws that are way overreaching, perhaps in this area too, but I’m not a big fan of unequal enforcement 

to Federal laws. If you’re going to have them, I believe that they 

should be equally enforced. 

Mr. LIEU. I’d like to talk about recidivism. Mr. Tolman, you had 

testified that within 3 years of release, nearly 67.8 percent of prisoners are rearrested, and then within 5 years, 76.6 percent are rearrested. I dealt with this when I was in California State legislature, we had a massive prison overcrowding problem. When you 

looked at the facts, it wasn’t that California had longer prison sentences, we are about the middle in most States. But you get a massive recidivism rate, and we are locking people up for nonviolent 

offenses in prison. 

So I’d like to turn to Mr. Ring, and I listened and read your testimony, and it is a stunning indictment for the lack of rehabilitation 

program for the Bureau of Prisons. And I think you testified that 

you saw little to no real rehabilitation in prison, that most inmates 

get classes, will sign their names to the attendance list during the 

week so the administration thought they went, and that the most 

glaring deficiency was the lack of any kind of cognitive therapy or 

anger management counseling. 

Then your conclusion seems to be sort of odd, because you go 

from that and you conclude that, I think the only way Congress can 

improve public safety while reducing cost is to reform sentencing 

laws, especially mandatory minimum sentences. I fully support 

you, but I would have thought you would have said the important 

thing to do is reduce recidivism, and that means increasing rehabilitation programs, making sure that people don’t recidivate. Because if you don’t do that, what will happen is, and you reduce sentencing laws, instead of having a person serve two longer sentences, they’ll serve four shorter ones. I don’t think you do very 

much to reduce prison overcrowding and reduce incarceration. I’m 

just very curious how you go from the first part of your testimony 

to that conclusion, rather than saying we should focus on recidivism reduction. 


emcdonald on DSK9F6TC42PROD with HEARING
97 

Mr. RING. Okay, that’s a fair question. I never—I’d always hear 

the term ‘‘warehouse,’’ that prisoners were warehoused in Federal 

prisons or in prison, and I didn’t know what that meant until I got 

there. You are just sitting there and there is nothing happening, 

so you are just looking at the clock and you are waiting to go home. 

There is no programming or anything like that so you find ways 

to make yourself busy. 

As I said, if you had any skills, they atrophy, and you don’t gain 

any new ones. So to me, being there itself is a complete waste, and 

letting people get back into their lives before they lose touch. People say what’s an app? They are going to come out and have no 

idea what the world is like when they get out. So to me, the thing 

that you can do immediately is right-size some of these sentences. 

But it would be a mistake to think I don’t think you have to do 

both. You absolutely, while they are there, however long they are 

going to be there, have programming. And one thing I think the 

problem is that if we just said let’s increase programming across 

the board in Federal and State prison, that’s a lot of money. We 

are going to have to own up to the fact that they are going to take 

a lot of resources to have the kind of programming that you want, 

and I think you have got to couple that by getting some savings 

from sentencing reform. 

Mr. LIEU. Thank you. When I was in California State legislature 

and touching your point about having programs that deal with 

anger management and behavior therapy, I got an increase in 

funding to arts and corrections programs. And arts and corrections 

programs have been shown to reduce recidivism. It actually, in fact, 

teaches anger management and behavior therapy in a different sort 

of way. Nonprofit actors came, run by Tim Robbins and others who 

were doing it for free for quite a while and then scaled them up. 

It seems like we should do this in our Federal prisons, in addition 

to getting rid of mandatory sentences. It is my belief that we need 

to really reduce the recidivism rate if we actually really want to reduce the overall prison population. 

With that, I yield back. 

Chairman CHAFFETZ. I think the gentleman. I now recognize the 

gentlewoman from the District of Columbia, Ms. Norton, for 5 minutes. 

Ms. NORTON. Thank you. I want to thank you and the ranking 

member for focusing on what is a really a rising bipartisan issue 

in Congress, I’m pleased to say. Mr. Lieu asked a question I was 

obligated to ask. I take it none of you would say it makes much 

sense and do not find prosecutors thinking it makes much sense to 

prosecute people for lower amounts of—for possession of lower 

amounts of marijuana. Is that the case? 

Mr. MALCOLM. I gave the answer that I gave before. I think that 

it makes a very compelling argument, that there shouldn’t be a violation of Federal law. But as a general matter, I believe the Federal laws, if they exist, should be enforced evenly and that—— 

Ms. NORTON. Well, so let me take you to the next answer, the 

harm that is done is not that there is any prosecutor in his right 

mind has so little crime that he goes after low level marijuana possession. The harm that is done is the arrest record. And what we 

find is throughout the United States, overwhelmingly the only, virVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00101 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
98 

tually the only residents, here in the District of Columbia, 90 percent, of those who get arrest records for possession of small 

amounts of marijuana are people of color. 

For a young man, especially of color, this is a bar for the rest of 

his life. Leave aside that it’s marijuana, leave aside that it’s not a 

conviction. What would you do, up front, about arrest records for 

low level offenders like this who are possessing for their own habit. 

By the way, this is a college town, half of those, the marijuana 

rate, smoking rate is the same for people of color and White people. 

We’ve got five or six universities in here. I don’t remember seeing 

anybody get arrested. 

Mr. LEVIN. I think citation certainly is a way to give someone— 

in Florida, they are doing juvenile and adult civil citation, so giving 

someone a citation certainly can address it rather than arrest 

them. And then the other issue—— 

Ms. NORTON. That citation, I take it, wouldn’t be on his record, 

so the employer would say, well, you got a drug arrest, that’s 

enough for me. 

Mr. LEVIN. Provided probably that they complete whatever, they 

show up in court, they do whatever they are supposed to address 

the citation. The other thing is enabling people to get records 

sealed, if they do have a record, and we passed legislation in Texas 

to allow nondisclosure, so that way you can say on an employment 

application you haven’t been convicted because you obtained an 

order of nondisclosure. 

Ms. NORTON. Thank you. Senator Booker was here, and testified 

about the REDEEM Act. Very important juvenile expungement 

automatic. People, as it were, earned their way out of jail, simply 

by paying their time. Then they faced the problem of additional 

earnings. Have you thought about a way to earn your way to 

expungement or sealing of your record. For all we’re doing, black 

boxes and the rest, when you see choices between people who have 

no record and people who do—whatever the merits of the people 

who have something of a record, that is a black mark. Is there a 

way, have you thought about a way for a person to actually earn 

expungement of that record? 

Mr. LEVIN. Sure, and I wanted to distinguish in Texas, 

expunction is reserved generally if you are innocent, if you are acquitted, or the case is dismissed. But nondisclosure is a bit different, because the records aren’t destroyed but law enforcement 

can still see them, prosecutors, certain licensing agencies, things 

like doctors, things that are very sensitive. But if you have a nondisclosure, which you can get, even if you are guilty, that means 

you have your records sealed after a certain number of years of living crime free, you can say, when you apply for jobs, that you 

haven’t been convicted. Likewise, when you apply to rent an apartment. And we have also, by the way, passed legislation in Texas 

to say employers and landlords can’t be sued for hiring and renting 

to ex offenders. 

Ms. NORTON. Doesn’t something of that kind serve as a kind of 

incentive not to commit more crimes? Has it been shown in any 

way? Is there any evidence that could then be used in other States? 

Mr. LEVIN. Absolutely. Minnesota and Indiana passed good ceiling laws in the last couple of years. And I will also tell you the eviVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00102 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
99 

dence shows if someone has been living crime free for 5 or 6 years 

in the community, they are no more likely to commit an offense 

than someone who never had a criminal record. So there is no 

value to these old records being publicly accessible. 

Ms. NORTON. I can’t say enough about incentives for people not 

to recidivate. Thank you very much, Mr. Chairman. 

Chairman CHAFFETZ. I thank the gentlewoman. 

We will now recognize the gentleman from Missouri, Mr. Clay. 

Mr. CLAY. Thank you, Mr. Chairman. And let me thank the witnesses for appearing today. The work that you do in the area of 

criminal justice reform is of vital importance. I’m eager to learn 

from your expertise. 

On Friday, it was announced that President Obama as part of 

his plan to reform the criminal justice system, will be the first sitting President in history to visit a Federal prison, which will take 

place tomorrow. This unprecedented action prompted me to wonder 

whether those of us in Congress should consider doing the same? 

And as a bit of background in my days in the Missouri State legislature, I was the chairman of our prison committee, so I’ve visited 

numerous State prisons, I have not visited a Federal prison. I 

would like to throw that question out to anyone on the panel on 

what you think the redeeming benefit would be of a Member of 

Congress going to visit Federal prison, let’s start with Ms. Ryan. 

Ms. RYAN. I think that would be great, because I think that you 

would be highlighting some of these issues in a very personal way. 

I would encourage you to go to the BOP facility in Lewisburg, 

Pennsylvania. That is one of the most abusive and heinous places 

in the Bureau of Prisons. Young people who are incarcerated there 

in their late teens and early 20s are subjected to very harsh and 

punitive actions by guards and placed in solitary confinement. So 

if you’re going to pick one place, I hope you’ll start there. 

Mr. CLAY. How about the family members that go to visit? How 

are they treated? 

Ms. RYAN. I’m not as familiar with how the family members are 

treated, but the stories that we get through letters and calls usually come from the family members. They often will share information, but what they tell us is that if they show up and they’re wearing the wrong thing or they’ve got—they came at, you know, a couple minutes late, they’re not allowed in, and that’s really difficult. 

And I think the point that Kevin made about families being very, 

very far from where inmates are held is also another huge issue. 

Mr. LEVIN. Can I add? 

Mr. CLAY. Yes. 

Mr. LEVIN. I just got from back from touring prisons in Germany, 

and one of the interesting things we saw is probation officers come 

into the prison a month or two in advance to help that inmate start 

looking for a job and identify housing even before they start supervising them after they’re released, which they actually do supervise 

them. And I’ll also tell you our chair of the Senate Criminal Justice 

Committee in Texas, John Whitmire, he not only visits prisons, but 

he shows up unannounced. 

Mr. CLAY. Mr. Ring. 

Mr. RING. Please go and please show up unannounced. If you say 

you’re coming, the whole dog-and-pony show will get put on for 


emcdonald on DSK9F6TC42PROD with HEARING
100 

you. When we’re on the inside, all of a sudden we get new shower 

curtains that the mold is gone, and everybody’s working real hard 

and looking busy, and it’s really—it’s Potemkin Village. There’s no 

reason to go if you’re going to go that way, but I urge you to go. 

Mr. CLAY. What—— 

Mr. TOLMAN. Let me—if I might—— 

Mr. CLAY. Yeah. Go ahead. 

Mr. TOLMAN. If I might add, when I was congressional staffer, 

I accompanied Senators to Guantanamo Bay, in which they were 

going to reveal to us their methods of interrogation. It was far different than we would later learn occurred in those interrogations. 

And so I echo the unannounced visits, but I would say, more importantly, require reporting. Get into the actual data that shows you 

what is going on and dig through the data that’s going on in those 

prisons. 

Mr. CLAY. And what do you think would surprise a Member of 

Congress most if we made an unannounced visit to a prison? Mr. 

Ring? 

Mr. RING. I would just say the lack of the sort of concern. I think 

that people are pretty much—and, again, I was in a camp, but we 

only had a couple guards. I mean, we could walk out the fence if 

we wanted to. I mean, there was a level of trust because we were 

considered the least risk, but just how little there is going on in 

terms of programming, activity, like sort of, I don’t know, beneficial 

activity, anything along those lines, just—I think people say, well, 

it’s good, it’s boring. That doesn’t sound bad. I’d like to be bored. 

But it’s sort of a mind-wasting boredom. And if there’s nothing productive to do with your time, I think people turn even more antisocial than they were when they get there, which is part of the 

problem. 

Mr. CLAY. So there’s no real effort toward rehabilitation, then, in 

our Federal system? 

Mr. RING. That was my experience, and I think it’s a product not 

only of—part of it is a product of budget. I mean, I don’t think— 

I don’t know if they know the programs. I don’t see a lot of evaluation of the effectiveness of the programs they are running. As Mr. 

Tolman said, get reporting on this stuff. If we’re going to fund more 

programs, see what works and doesn’t work, and be willing to go 

a different direction. 

Mr. CLAY. I think my time is up. 

Chairman CHAFFETZ. I thank the gentleman. 

People on my Facebook page think I should probably—think I 

should be there a little more often for a longer period of time, yeah. 

So, yeah, maybe we should just announce that we’re coming and 

we don’t need to actually show up, and get some new curtains, so— 

that was a good line of questioning. 

All right. We’ll go to the gentlewoman from New Mexico, Ms. 

Lujan Grisham, for 5 minutes. 

Ms. LUJAN GRISHAM. Thank you, Mr. Chairman, for this important hearing. And I want to thank the panel. And I really want to, 

again, as we’re focusing on recidivism so that we are looking at 

what populations ought to be incarcerated and for what reasons, 

and what we do about that in this country as we look at broadbased criminal justice reform, I hope this is a stepping off place to 


emcdonald on DSK9F6TC42PROD with HEARING
101 

do that. I think it’s really important to recognize that our criminal 

justice system is a place where, in my opinion, we are warehousing 

a mental health population. Given today in this country, we’ve got 

almost 8–1/2 million Americans who have both a mental health-diagnosed disorder and a substance abuse issue; these co-occurring 

issues we know unfortunately go hand in hand, given the lack of 

resources for this population. 

And we also know that as a result of that substance abuse issue, 

that we are not only holding and then treating those behavior 

health issues, the fact that we don’t deal with them on the front 

end, we’re dealing with them in jails, we don’t deal with them on 

the back end either, so once you serve your time and you’re out, 

we aren’t doing anything to resolve those drug addiction and the 

issues associated with having a mental illness. And until this country does something about behavioral health issues, I fear that we 

can make lots of adjustments to the criminal justice system, but we 

are still going to have it as a de facto environment for institutional 

care for this population. 

Given that, and given that we know that the resources we could 

make lots of discussions—we should have lots of discussions, but 

in New Mexico, we pay higher than the national average, I think 

it’s $30,000 a year for an inmate, we pay $34,000, and yet we pay 

$7,300 annually on public education for a student. So I think about 

my State where we’re having so many issues, if we were reversing 

those investments. And when I was a Bernalillo County commissioner, we would have loved to reinvest those resources, because we 

just don’t have them in the criminal justice system. 

You started to explore in looking at incentives in the conversation earlier in the hearing. What else are States doing to try to address the behavioral health issues? For example, New Mexico is 

just now working on Medicaid enrollment while you are serving 

time, so as you come out, we’ve got an insurance program to make 

sure that you’re getting access. That’s not, in and of itself, garnering productive access, but it’s a step in the right direction. Are 

there other measures that we can look at that would be best practices to begin to deal with, on the front end and the back end, behavioral health issues for this population? 

Mr. MALCOLM. Congresswoman, it’s a very important point. I 

mean, ever since we had the deinstitutionalization movement in 

the ’1960s and ’1970s, a lot of people who used to be treated involuntarily are now in the streets, in our communities, and there are 

inadequate amounts of money that are spent on outpatient, you 

know, behavioral and mental health services for those people, and 

a number of them, of course, end up committing crimes, and that 

poses a real problem for the safety and security of those who are 

in prisons, since dealing with people who have mental and behavioral issues is a very different type of problem than the—your 

standard inmate that doesn’t have these problems. 

States can address these with things like mental health courts, 

veterans courts, since our returning veterans suffer from emotional 

disorders that are unique to the experiences that they have had, 

that try to get them the help on the front end. 

Ms. LUJAN GRISHAM. And I don’t mean to interrupt you. You’re 

on the right track, I totally agree, but these are also States, parVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00105 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
102 

ticularly with the mental health courts that have a behavioral 

health system, including mandated outpatient treatment programs 

which New York launched early and other States have struggled to 

get the sort of civil rights aspect of that correct, but if you have 

also best practices that marry those behavior—whole services with 

those systems, I’d be really interested in the States that are doing 

the best at that, since 80 percent of this population gets back in 

the criminal justice system, and clear that they’re not getting what 

they need once they’ve been released. 

Mr. MALCOLM. Well, you know, my colleague, Mr. Levin, could 

better address what each State is doing. I would say that States 

are not uniform and that there are—you know, different States 

have different environments, and perhaps should adapt the solutions that work best for them. So for instance, there’s been a reference made to the Hawaii Hope Program, which is tied to methamphetamine, while other similar programs in the Dakotas, for instance, the 24/7 Program, address alcohol problems, which are the 

large problems in those States. Each State has to adapt their programs to their conditions, and they should study those results rigorously and share them with other States, who may be able to replicate those results. 

Ms. LUJAN GRISHAM. Thank you. My time has expired, but Mr. 

Chairman, perhaps we could get a list of those and think about 

whether there’s a Federal, so you can create some uniformity and 

really create the right kind of environment for reform. 

Chairman CHAFFETZ. I thank the gentlewoman. 

I now recognize the gentleman from California, Mr. DeSaulnier, 

for 5 minutes. 

Mr. DESAULNIER. Thank you, Mr. Chairman. I first want to 

thank you and the ranking member. I frequently say that as a 

freshman, we have a lot of surreal moments. This is one of those 

surreal moments in this committee that I, having served a lot of 

time in politics in California and been in the State legislature and 

having chaired the Budget Subcommittee when we were told by the 

Federal courts that we needed to remove 45,000 of our inmates in 

the California Department of Corrections, and I was given the assignment only because no one else in the legislature was dumb 

enough to do it. 

So I remember, during that period, visiting State prisons and I 

remember standing outside of San Quentin, which was next to my 

congressional district, and the warden is now retired that was 

there then, but he was a tough old ranger, had been the warden 

at San Quentin twice, and a long time at Pelican Bay, and we were 

standing outside on the San Francisco Bay and he said, You know, 

if you told most of your constituents that what we’re doing is making them less safe by doing what we do when we incarcerate these 

individuals, it would change the political dynamic quite a bit. And 

he said this in the tone of somebody who had spent 35 years at the 

Department of Corrections starting as a line officer. 

So my question, maybe Mr. Levin first and Mr. Malcolm, is, we 

spent a lot of time in those hearings with Washington State, who 

had the Institute for Public Policy, which was an MOU between 

their legislature and the administration, and Cleveland State University, and they started on evidence-based practices 20 years ago 


emcdonald on DSK9F6TC42PROD with HEARING
103 

in Washington State about, we’re going to depoliticize a lot of this. 

The legislature’s still going to make the decisions, so they’re not off 

the hook, but we’re going to give them enough evidence-based research that gives the public the confidence that these are the right 

investments to make so that you’re not driven by being afraid of 

being Willie Horton’d in a primary or general election. 

So how do we do that at the Federal level, or maybe we’re right 

on the cusp of doing that, that we rely enough on evidence-based 

research that we do what’s the best investment from a policy 

standpoint to make sure that the public is, in fact, safe at the lowest possible cast? Mr. Levin? 

Mr. LEVIN. Well, that’s a great question. And we’ve used the 

work of the Washington State Institute for Public Policy, their costbenefit analysis and matrix of programs that reduce recidivism, 

and you can kind of look at the other step in that is to match the 

right program with the right offender with a risk-and-needs assessment. 

And obviously at the Federal level, you have things like the General Accounting Office that provide objective information. Maybe 

there’s a way to expand their role in evaluating. I think having an 

independent outside the Federal Bureau of Prisons to evaluate 

whether programs are effective or not in reducing recidivism, which 

programs we may need more of. And you have to do it in an objective manner, because you have to look at who’s going into the program, what is their risk level. You don’t want to just have an incentive to put the lowest risk people in a program to show results. 

You actually want programs to really intervene with those who 

would otherwise be at the highest risk of recidivism. 

And I just—your anecdote about the San Quentin warden really 

rang a bell with me, and as well as the things that you said, Kevin, 

because, you know, I was talking to some people with the Prison 

Entrepreneurship Program, where they go in with executives and 

help inmates develop business plans. But they said, when some of 

these inmates come out, they first go to—their first meal in a restaurant, they just stare at the menu, because they can’t figure out 

what to order, because they haven’t had to make any choices this 

whole time they were in prison. And as I was in Germany, I saw, 

for example, they had communal kitchens. They would pick out ingredients and make some of their own meals. That’s just one can 

example of many where they did take on more responsibility. And 

they have in statute there that the prison should be as much as 

possible like general society so these people are prepared to live 

when they return. 

Mr. MALCOLM. I would say, Congressman, that States and the 

Federal Government should obviously do everything they can to 

avoid what happened in California, being forced to release large 

numbers of prisoners through the Plata decision. And, look, with 

respect to avoiding Willie Hortons, there are a lot of very brave 

governors in red States, blue States, and purple States that have 

touched the third rail of running the risk of being soft on crime. 

Governor Deal was referred to, but you could also refer to former 

Governor Perry and Governor Haley and, you know, the Governors 

who appeared here yesterday to testify before you. And they are, 

you know, taking a methodical approach. 


emcdonald on DSK9F6TC42PROD with HEARING
104 

I would say that bringing in best practices, that whatever it is 

you do, it has to be measured, it has to be constantly reevaluated, 

and it must be statistically valid and scientifically sound, or else 

you are just putting a Band-Aid and making it seem as if you are 

doing something that will ultimately not result in reductions of recidivism and will not enhance public safety. 

Mr. DESAULNIER. And I will just say we have a very visible case 

right now, an unfortunate murder on the waterfront in San Francisco, and it’s become so politicized. It would be nice to be able to 

have an organization, and this involves—because it involves immigration and Federal authorities, that could go in and do a forensic, 

sort of like the chemical industry does, just do a forensic root cause 

of what—why did this happen and what do we do to fix it? And 

I’m unaware of something in this field that would be able to do, 

for instance, in the case of Catherine Steinle, who was a 32-yearold, unfortunately murdered by someone who was here illegally, 

and now it’s—it’s cut off this storm of politics unfortunately around 

this great tragedy as opposed to what did the—what did the immigration folks do that they should have done correctly, what did the 

Federal Bureau of Prisons do that they should have done correctly, 

and what do sanctuary cities have to do with this, and a less dispassionate, more forensic evidence-based research so we could fix 

it, because you have to wonder how many of those situations—how 

many people have been deported five times, got back in the country, and there but for the grace of God we would have had another 

tragedy like that. 

With that, I would yield back. 

Chairman CHAFFETZ. Thank the gentleman. 

Mr. Cummings and I have a few more questions, and then we’ll 

be at the halfway point. We’re getting near the end here. 

I now recognize Mr. Cummings, the ranking member, for 5 minutes. 

Mr. CUMMINGS. Thank you very much. 

Your testimony has been extremely helpful. I think one of the 

things that I’m most concerned about, and I just want to get your 

opinions on this. I’ve often said that there are transformative moments in our lives when you know that all the stars are aligned, 

you see the problem clearly, and you know that if you don’t correct 

it at that moment, it only gets worse. What do you all see? I mean, 

you see the Congress and the Senate seem to be coming together, 

and you see—I mean, would you agree with me that if we can’t get 

it done now, it’s going to be kind of hard to get it done? Mr. 

Tolman? 

Mr. TOLMAN. I wholeheartedly agree. I’m worried about that, because there are a lot of dynamics and politics does get in the way, 

but you’re correct. I believe that we’re now seeing the problem. 

We’re looking back and we’re seeing a culture of punishment that 

we had hoped would root out criminal trends, but instead, what 

that culture of punishment has resulted in is problems that are far 

more difficult to take care of, and now is the time, or else we will 

be, similar to California, having missed our legislative opportunities to fix it. 

Mr. CUMMINGS. Anybody else? 


emcdonald on DSK9F6TC42PROD with HEARING
105 

Mr. LEVIN. Well, I mean, I think you’re absolutely right. We’ve 

seen kind of—you know, you described, and we’ve described all 

these different States where legislators have come together. Some 

of these States have passed reforms unanimously, in other States 

it’s been a few votes short of unanimous, and so it is fairly rare. 

And obviously, we’ve seen so many bills in Congress with kind of 

unlikely cosponsors. So I believe that people who say that nothing 

can get done in Washington, I think we have a great chance to 

prove them wrong this year. 

Mr. CUMMINGS. Ms. Ryan, you know, you talked about 

Lewisburg. I remember visiting Lewisburg to see an inmate years 

ago, many years ago. It’s interesting that that prison could earn 

such a reputation, but apparently a lot has changed. You know, it 

seems to me if I were running an institution and it had—and I 

know—and I’m sure the Bureau of Prisons is looking in on this 

now, I hope so anyway, you know, and I had a prison like that that 

has that kind of rep, I mean, what does it take to reverse that 

other than, I mean, the spot visits or—and what are the questions 

that one asks? I mean, what can we do to correct that kind of situation? We are—we are elected by the people to make—and this 

committee is to make sure that government operates properly. And 

it would be, I think, legislative malpractice if we did not do what 

was appropriate, assuming that we know what to do. And so, what 

advice would you give us? 

Ms. RYAN. I think there’s a number of things that you can do. 

And I think it’s great that this is an oversight committee, because 

that’s really what’s needed for the Federal Bureau of Prisons, is 

much more vociferous oversight. And the point of having surprise 

inspections is really true. I think if they know you’re coming, 

they’re going to put on a show. 

And the other piece that you have to be concerned about is retaliation against anyone who’s incarcerated there. So you can’t just 

talk to a couple people here and there and you can’t do it in the 

presence of guards. You have to talk to everybody, you have to stay 

for a couple days. And doing that takes a lot of time and energy. 

I would encourage you to establish an independent oversight board 

of the Bureau of Prisons that has this kind of function. And that 

I would encourage you to have directly-affected family members as 

members of that board, because you will learn a lot more from the 

families who have loved ones in these institutions. And then I 

think, ultimately, we have to stop investing in things that don’t 

work. I mean, all of this talk about investment in what works is 

great, but we continue to invest in things that don’t work, like trying kids in adult court, putting people in institutions where they’re 

subjected to inhumane confinement. We know solitary confinement 

is harsh and punitive. We should stop doing that. So those would 

be the things I would start with. 

Mr. LEVIN. Can I also just add, one thing that came up earlier, 

with regard to people pleading to things that they didn’t actually 

do, I think the open vial policy, which we’ve adopted in Texas, it’s 

also in the Safe Act, is very important. That allows the defense to 

see exculpatory evidence, to have transparency. And obviously, 

there’s things that need to be redacted dealing with victims and 

homeland security, but in general, there ought to be—and the reaVerDate Sep 11 2014 02:55 Jul 27, 2016 Jkt 059006 PO 00000 Frm 00109 Fmt 6633 Sfmt 6633 Z:\HGOVREF\99634.TXT 99634

emcdonald on DSK9F6TC42PROD with HEARING
106 

son this came about in Texas, it’s called the Michael Morton Act, 

because this man served 26 years in prison, he didn’t kill his wife, 

he never committed any crime, and he helped then pass this legislation. 

Mr. CUMMINGS. You know, Mr. Ring, I can’t help but think about 

what you said about family. As a father of two beautiful daughters 

myself, I know it has to be difficult. And you admit that you had 

it easier than most people. People in my neighborhood, they go to 

hard time, they have hard time. You know, it’s painful. 

I was sitting here and I was thinking about marijuana. I’ve got 

people in my neighborhood serving 2, 3, 4 years for marijuana, 

then they turn on the television and they’re buying it in Colorado. 

What kind of justice system is that? You know, and going back to, 

I think you said it, folks aren’t—you know, they’re not looking at 

the penalties and all that, but they do know one thing, when they 

turn on the television, they see people sitting in a bar with dollar 

bills buying marijuana, and they’ve got cousins sitting in jail. They 

don’t understand that. 

And I’m just wondering, how do—how do we deal with the family 

thing? I mean—because we heard a lot of testimony about people 

who have—adults who have children, there’s millions of them, that 

are finding it very difficult. So what—I mean, what do you have 

to say about that? And what’s your organization doing to deal with 

that? I mean, you know, I’ve often said that, Mr. Ring, out of our 

pain quite often comes our passion to do our purpose: pain, passion, 

purpose. And, you know, I’m sure that you saw a lot—you felt a 

lot of pain. You just got a sample of the pain that a lot of other 

people are going through. And I’m not trying to minimize it, don’t 

get me wrong, but can you give me some—help me with that? 

Mr. RING. Yeah. I was always cognizant of how good I had it. I 

had a shorter sentence. You learn not to talk about your sentence 

if you had a shorter one. I lived with bunkmates who had 15 years, 

10 years. I remember one time a guy saying to me—you know, it 

was getting short and he started—he started losing his mind a little bit because he was getting nervous, and we had a talk one time. 

Actually, I was going through a bad time and he was counseling 

me, and he said, you don’t know my life. He said, you’re just dying 

to get back to your neighborhood and to your kids and your house 

and your job. 

They’re all waiting for you. He goes, I’m going to go back to my 

neighborhood, and all my old friends are going to want to get me 

back in the game, because they drug runners, and he was deathly 

afraid of that. He was one of those people you meet that was so 

institutionalized, I do think there was a big chunk of him that 

thought he was better off there, because he had been there for 8 

years, his wife was taking care of the kids, they were there without 

him. He almost knew that that status quo worked, and he could 

live in prison. He was so scared about going out. That’s a terrible 

situation if we come to that point where he thinks he’s better off 

in jail. 

In terms—there’s no policy, I think, that fixes that. I think you 

can do a better job of keeping people closer together and programs 

that work on parenting, and—but I think it’s a cultural thing. I 

think we’re very vengeful people. I think that even people who 


emcdonald on DSK9F6TC42PROD with HEARING
107 

have, you know, minor convictions, when they go for a job application, people look at you funny. I know a lot of people who—you 

know, again, it wasn’t my experience, but didn’t get jobs. If it’s 

down to you and somebody else, you’re tossed out. 

So I think it’s bigger, broader, cultural. I think in the same way 

you’ve seen other movements, normalized different sort of things in 

our country, what we did with smoking, what we did with gay 

rights, other things. With prisoners, there has to be a sense that 

you’re coming back, we want you back, and we’re going to welcome 

you in society in a way that makes you productive, because it’s in 

our interest too, but that is not something you can legislate, I don’t 

think. 

Mr. CUMMINGS. You know, one of the things I—you know, it’s 

amazing how as you’re on earth for a while you do so many things, 

and one of the things that I—you know, had different jobs, and one 

of the things—two things I did, was when I first came out of law 

school, I taught in a prison, in the Maryland Penitentiary for 2 

years, as a matter of fact. Just an ad hoc, you know, just a little 

course on, of all things, criminal justice. And it’s interesting that 

later on, I hired some folk who had gotten out of prison who I had 

taught. 

And I noticed something very interesting, that I think prison 

does something to people, because I think because they’re told 

when to sit, when to go to the bathroom, whatever, it’s some—I 

mean, maybe not for you, but for people that have been there a 

long time, they have no concept of, some of them, no time, of responsibility, of a lot of things that—and I don’t know that people 

know that prison does have—it’s more than just locking up the 

body; it also quite often, and you were alluding to that, affects the 

mind. I know people who have come out after many years, and they 

don’t even want to come out of their house, they don’t even want 

to come out of their house, because they—it’s—they become so conditioned. 

Would you—I mean, any of you want to comment on that? I had 

a whole other line of questions, but I’m kind of—but I do—— 

Mr. TOLMAN. I had a conversation with a Federal judge fairly recently that has sentenced some significant sentences, and he said 

to me in a moment of candor, you know what prosecutors have forgotten? And I said, no. And he said, how long 2 years actually is. 

Because the sentences you seek as a prosecutor often—you think 

of 2 years as a minimal sentence, and perhaps a failure in your 

case. You think of 8 and 10, and these numbers become almost 

badges of—of an acceptance in the community that you’re in as a 

prosecutor. And this judge said—you know, who’s been on the 

bench a while, he said, we’ve forgotten how long 2 years is. 

Mr. CUMMINGS. Wow. 

Mr. Chairman, just one other thing. I don’t know if we got this 

in the record. The ACLU written testimony, American Civil Liberties Union, House Oversight, dated July 15. I’d like to have that 

submitted. 

Chairman CHAFFETZ. Without objection, so ordered. 

Mr. CUMMINGS. I yield back. 


emcdonald on DSK9F6TC42PROD with HEARING
108 

Chairman CHAFFETZ. This has been a very productive 2 days. 

We’ve had three good panels, good quality discussion, we’ve talked 

about a whole variety of topics. 

If there are additional materials, additional statements that you 

would like us to review that could inform us, we’d appreciate that, 

everything from drug rehabilitation, I think the point made about 

the mental health issues and how we’re not assessing those, not 

dealing with those in so many of these people who have mental 

health problems are ending up in our system and dealing with law 

enforcement on a regular basis. Very interested in Texas and what 

they’re doing with the sort of client choice. There could be nothing 

worse than to know or feel you’re innocent, or at least you want 

a good quality trial, and you get assigned a public defender who’s 

not up to the case and doesn’t seem to care about you. You ought 

to have some choice. I just believe in that type of principle. It’s 

probably true in this instance as well. 

I’m intrigued by this oversight of the Bureau of Prisons, because 

we are only as good as the information we get. And we get spread 

very thin. The inspector general, in this case, I think, does a good 

job, but even they are spread thin on this issue. 

And one thing that I would like to be addressed, and if you can 

follow up with me on, and we haven’t really talked about this, but 

there are victims’ rights. You know, there are victims on a lot of 

these crimes. Not everybody in prison is innocent. There are a lot 

of people that have been harmed. And I think we—to complete the 

circle to totally tackle this in a thoughtful way, I think we also 

need to address victims’ rights. 

And if you have additional thoughts or perspectives on that, we 

haven’t really heard that in the last 3 days, but that too, in the 

completeness—the fullness of the discussion and trying to get this 

right, we but get very few opportunities to address these things. 

Hopefully I would encourage, I’ve been a participant, I’ve worked 

hand in glove across the aisle and in a bicameral way to get legislation passed, and then it won’t be addressed for a long time, and so 

we have but one chance, and I want to get it right. Whether it’s 

a series of bills or a bill, I do hope we come together and that we 

can push this. And I think you’ve seen a broad bipartisan support; 

not just one or two people, very broad bipartisan support. We need 

to keep that momentum going. 

So we thank you all today for your expertise, what you’ve given 

to your country, your patriotism, and we thank you. This committee stands adjourned. 

[Whereupon, at 12:31 p.m., the committee was adjourned.] 


emcdonald on DSK9F6TC42PROD with HEARING
(109) 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD


emcdonald on DSK9F6TC42PROD with HEARING
110 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 62 here 99634.062
111 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 63 here 99634.063
112 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 64 here 99634.064
113 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 65 here 99634.065
114 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 66 here 99634.066
115 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 67 here 99634.067
116 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 68 here 99634.068
117 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 69 here 99634.069
118 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 70 here 99634.070
119 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 71 here 99634.071
120 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 72 here 99634.072
121 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 73 here 99634.073
122 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 74 here 99634.074
123 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 75 here 99634.075
124 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 76 here 99634.076
125 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 77 here 99634.077
126 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 78 here 99634.078
127 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 79 here 99634.079
128 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 80 here 99634.080
129 

Æ 


emcdonald on DSK9F6TC42PROD with HEARINGInsert offset folio 81 here 99634.081