Speech By Congressman Robert C. (Bobby) Scott
Subcommittee on Crime, Terrorism and Homeland Security
U.S. House Judiciary Committee
To the 14th Annual International Community Corrections Association (ICCA) Research Conference Norfolk, VA
October 9, 2006
Thank you, Dan, for that kind introduction. I am pleased to join President Marshall, executive director Browning and all of you in this opening plenary session for the 14th Annual International Community Corrections Association (ICCA) Research Conference. This conference focuses on something I work hard to promote in the Congress - research and evidence based strategies that actually work to reduce crime. Your conference schedule reflects an impressive list of experts and workshops on evidenced based approaches to addressing some of the most challenging and promising issues confronting community corrections today. I am also pleased to see your theme for this session -- "Coming Home: Creating a Second Chance that Will Work "-- and the fact that you are piloting several evidenced programs in Virginia. While this issue is receiving considerable attention in the Congress and the Department of Justice, unfortunately, far too much of crime policy and funding at the federal level is applied to approaches which have little to do with what this session and your conference are all about.
As the Ranking Democratic Member of the U.S. House Judiciary Subcommittee on Crime, I get to participate, first hand, in the development of crime policy in the Congress. However, my success in promoting research and evidenced based approaches has been limited because, when we talk about crime in Congress, more often than not, what we are actually dealing with is the politics of crime. I learned a long time ago that when it comes to crime policy you have a choice: you can reduce crime or you can play politics, but you can't do both. You can either do what has been proven to actually work to reduce crime, or you can play the sound byte-based, politics as usual game and create slogans that make it sound like you are reducing crime, but which actually do nothing, or waste money, or worse, even increase crime.
The politics of crime focuses on "tough on crime' slogans and sound bytes that just sound good for the 10 seconds it takes to say them. These slogans and sound bytes appeal to emotion: "mandatory minimum sentences', "3 strikes, you're out", "abolish parole", or even "life without parole", and "truth-in-sentencing" . Better yet, the death penalty - and no appeals - putem to death whether they are guilty or not - somebody has to pay for the crime - and "no cable TV in the prisons": you can just imagine the cable guy coming in to disconnect the cable and all of a sudden, the crime rate goes down. And "no Pell grants for prisoners!" - nice sound byte - we codified it - but we know that those who were receiving the Pell grants were so much less likely to return to prison that we had been saving more than we were spending - so, nice vote getting sound byte, but codifying it results in more crime and wasted money. And if it rhymes, it's even better crime policy: " ya do the adult CRIME, ya do the adult TIME".
Of course, one of the worst, but most powerful, political sound bytes of all times relating to crime policy is the slogan "nothing works". From that foundation, these other politically charged slogans and sound bytes began to emerge and be codified. The fact is that there are approaches that work and I am pleased to see a conference in Virginia focused on those approaches.
Virtually all of the politically charged slogans and sound bytes have been studied, and it turns out that all have been found to do virtually nothing to reduce crime. For example, the Federal Judicial Conference has studied mandatory minimums and has written the House Judiciary Committee over a dozen times in the last ten years urging us not to adopt mandatory minimum sentences, stating that they distort attempts at enforcing an orderly and proportionate sentencing regimen in the federal system, and they "violate common sense" by requiring vastly different defendants to get identical sentences, simply because they technically violated the same section of the criminal code. The U.S. Sentencing Commission has also studied mandatory minimum sentences and found them to be discriminatory against minorities in their application. And the prestigious Rand Corporation has studied the impact of mandatory minimum sentences on reducing cocaine use and found that they simply waste money.
And when you combine the impact of mandatory minimums with the abolition of parole -- which I will say more about a little later -- you find that we have adopted a policy that concludes that the best time to make the decision on releasing a prisoner is when the law is passed by the legislature. Not at a parole hearing where you can consider the seriousness of the offense, the remorse of the defendant, whether he has improved himself in prison with education, how he has behaved for the past few years, and whether he has appropriate plans, if he is released. No, and apparently the best time may not be at the trial, where the judge has just seen the evidence in that particular case, and evaluated the defendant's role and seriousness of the crime and the continuing danger to society. No, the release decision is made by the legislature based solely on the code section violated. We know that the technical code section is not always an appropriate gauge for the seriousness of the individual's role in a crime. Recently we had a hearing in which the supporter of mandatory minimums tried to justify the same sentence for a 19 year old who had consensual sex with his 15 year old girlfriend, as for a 50 year old who had sex with a 12 year old - because they had both violated the same code section - 18 U.S.C. 2243(a) -- prohibiting sex with a minor more than 4 years younger. That's what the Judicial Council meant when it said mandatory minimums often "violate common sense".
"Three strikes, you're out" is a well known crime slogan that sounds good, but has nothing to do with sound policy. In 1995, we asked the supporters of that slogan to document cases in which a federal defendant had been sentenced three separate times for violent offenses, and then came out of prison after completing the third sentence and committed another crime. We are still waiting for the answer. We were also told that without the new law, a third strike defendant would probably serve 30 years without the possibility of parole, a sentence which would place the defendant well past the time he would likely pose any threat to society. And since many teenagers are having babies, 30 years from now some of today's Head Start aged children will be grandparents before three strikes has an effect. But during the 1994 Congressional campaign season, we were told by pollsters that the number one political sound bite was "three strikes and you're out" - it beat anything you could say about health care or social security or the environment or anything else. In fact the debate was not on the issue of money wasted on geriatric patients who couldn't get up and down the cell block without a walker, but the debate was on the question of whether there would be three strikes or two strikes. "Two strikes, you're out" is not even good baseball, let alone good crime policy.
With regard to passing more death penalties to show how tough you are on crime, it is well known that the death penalty has no effect on the murder rate or other crimes, that it wastes money, that it discriminates against minorities, that it is applied to innocent people through mistake and misconduct, and that it is applied in a totally arbitrary manner. The quality of the lawyer you have is more of a factor in death penalty cases than the crime itself. There may be reasons to support the death penalty, but reduction of crime cannot be one of them. But to show how tough we are on crime, we have cut off appeals in death row cases to the point that now, under the "Effective Death Penalty Act", if all you have is evidence that you are probably innocent, you do not have grounds for a new trial - your evidence has to be clear and convincing evidence of innocence, a higher standard than just probably innocent. I guess the idea behind "The Effective Death Penalty Act" was that we didn't want to clog up our courts hearing the cases of people who are probably innocent, because that would be inconsistent with an "effective" death penalty.
And studies of the little slogan "you do the adult crime, you do the adult time" have revealed interesting results: first, for those effected by new legislation, and I say that because virtually every state already tries juveniles as adults for the most heinous crimes, so you are talking about those who are not now being tried as adults, but would be if you passed a new law, for those effected by the legislation, the adult time is usually shorter than the juvenile time. That's because juvenile offenses, referred to as "status offenses", such as under-aged drinking, curfew violations, and truancy are considered for disposition in juvenile court, but are not prior criminal offenses in adult court. So in juvenile court, the judge who sees a burglary offense and a long rap sheet, including numerous prior offenses of under-aged drinking, truancy and curfew violations, may very well send the child away for a few months, but the adult court judge only sees a first offender - what do first offense non-violent burglars get in your state - mostly probation. The adult court time is shorter. And there is no question that in the final analysis, those affected by the codification of that rhyming slogan will be more likely to commit a new offense, and that offense is more likely to be violent after disposition in adult court. That of course is a result of the fact that the juvenile court judge can order counseling, psychological services, even family services, while the adult court judge has to chose between letting the defendant walk out of court on probation, or locking him up with murderers, rapists and drug dealers, in a setting in which the juvenile is many times more likely to be the victim of assault, including sexual assault, while in jail. So it is no surprise which process is more likely to result in new crimes, nor should it be a surprise that those crimes are more likely to be violent.
The very worst of the sound bytes of this whole era of dismantling sound criminal justice policies was the sound byte "abolish parole". In 1993, Virginians elected a candidate for Governor who promised to, and did, abolish parole. The substitute for parole was a policy called "truth-in-sentencing". There is a deception in the title "truth-in-sentencing" - I like to call it "half truth-in-sentencing", because the half truth is no one gets out early, but the whole truth is that you can't hold people longer, either. "Truth-in-sentencing" was implemented by changing a nominal 10-year sentence in which some got out as early as 1.5 years and the average time served was about 2.5 years, but some actually served the whole 10 years to a sentence structure where we doubled the average time served by imposing the same five years on everyone: "you get 5 years and you serve 5 years". But after the emotion of the sound byte subsides, you might notice what we did: the lowest risk prisoners went from 1.5 years to 5 years - more than triple the time for the lowest risk prisoners; the average prisoner's sentence went from 2.5 years to 5 years - he will serve twice the time; while incredibly the Willie Hortons who could not make parole, and would have served all ten years, get out in half the time - they serve the same five years that everyone else would, because under a no parole policy, you can not hold anyone longer.
A study of the proposal released by the supporters of the legislation showed that if it operated as envisioned by proponents, over a ten year period, it would reduce violent recidivism, which included misdemeanor assaults, by 2.2%. Since we are playing politics, it is appropriate to note that 2.2% is within the margin of error of a political poll. That analysis involved counting as reductions in violent crimes those crimes that would have been committed during the time offenders would have been on parole. It did not take into account the fact that crimes would still be committed by people AFTER they completed their sentences, which means many such crimes would actually only be delayed, not saved. Nor did the proposal consider whether violent crime could likely increase as a direct result of not having the incentive of parole - since you need to convince the parole board to release you, there is an incentive to get education and job training, and to prepare a plan to demonstrate that, if released, you have somewhere to go and something to do. Under a no parole policy, there is no incentive for offenders to take those actions which reduce the chance that they will commit new crimes. Also, you also have to consider the additional crimes the worst criminals will commit, because they were let out earlier than they would have been under a parole policy, because they would not have made parole.
Remember, they started with a crime reduction of 2.2% - if you add in crimes which may have been delayed, but not avoided, and new crimes committed by those who were not prepared for release because they had no parole plan, nor did they get an education while in prison, and add in those new crimes committed by the Willie Hortons of the world who actually serve significantly shorter sentences under no parole, it becomes unclear whether crime will go down, or up, as a direct result of the elimination of parole. Yet, due to the popularity of the sound byte of "abolish parole", the legislature overwhelmingly adopted the proposal.
And now we see the same kind of emotion based approach being used in the current terrorism debate - instead of evidence and research-based approaches, we are adopting policies which violate long-standing settled law by allowing torture, wire tapping without a warrant, taking away the writ of habeas corpus, using secret evidence that a defendant can't refute. Secret evidence - now that's a weird idea of a trial - just image how the trial is conducted - the prosecutor stands up and announces: "Your Honor, we have secret evidence that the defendant is guilty we rest our case!" And anyone who challenges these approaches runs the risk of being branded as unpatriotic. Here is what then Attorney General John Ashcroft said in prepared remarks at a hearing on the USA PATRIOT Act: "To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil." Now exactly what kind of evidence-based discussion do you expect to have after that?
There is an old adage that "if you don't change directions, you will end up where you are headed". That's exactly what has resulted from applying all those emotion-based approaches as opposed to evidenced-based approaches. As a result of the codification of all of these tough on crime, politically-charge sound bytes, the U.S. has become the world's worst incarcerator. The average incarceration rate around the world is about 100 prisoners for every 100,000 citizens. For example, the rate per 100,000 for Australia is 126, Canada - 107, England/Wales - 144, France - 88, and Japan - 62. Russia which had previously rivaled the U.S., now has a rate of 594 per 100,000. South Africa is next at 335 and Israel is 209. All of the rest are under 200. The current U.S. incarceration rate is 738 per 100,000 residents - over 7 times the international average! And for inner cities, rates exceeding 3,000 per 100,000 are commonplace.
The real tragedy with all of this focus on ineffective and counterproductive sound bytes is that we actually know how to reduce crime. All credible studies show that effective crime reduction occurs when a continuum of services is available for the community, beginning with teenage pregnancy prevention to reduce the number of children born into dysfunctional families and prenatal care to reduce mental retardation and learning disabilities, followed by parental training for teen parents, Head Start, quality education, recreational programs, drop out prevention programs, summer jobs, job training and guaranteed college scholarships.
Head Start programs, for example, have been studied and have demonstrated their effectiveness: those with the Head Start opportunity have higher high school graduation rates, lower teen pregnancy rates and lower involvement in crime.
The Education and Workforce Committee heard testimony last week about the studies of the Nurse Family Partnership program in which nurses help families with newborns. Eighteen years later, police records reflected that those children had been arrested at a rate of 1/3 of the rate of similar children who were not in the program.
Similarly, Job Corps programs deter crime: about 75% of Job Corps participants move on to a job or full-time study; they earn about 15% more than those who do not participate in the program; and, not surprisingly, Job Corps participants are about one-third less likely to be arrested than non-participants.
The Drug Courts program has been studied; offenders who were sent to jail for drug violations were compared to similar violators sent to drug Court. A year after completion of the jail sentence or the Drug Court program, those sent to jail had a 68% recidivism rate, 6 times higher than the 11% recidivism rate of those sent to Drug Court.
We don't have to waste time explaining the importance of education and job training when we look at the correlation between crime and lack of education and training. Less than half of Virginia prisoners (48%) have high school educations upon entry. And one study conducted some years ago showed that 75% of the inmates serving life sentences in Virginia had reading achievement levels of 4th grade or lower.
Incredibly, early childhood education and job training programs not only reduce crime, they save money. Studies of the Head Start program, for example, estimate that about $3 is saved for every $1 spent on the program by reducing future costs of remedial education, welfare, and crime. And studies of Job Corps estimate that $1.45 in future expenditures on participants (mostly crime and welfare) are avoided for ever $1.00 spent on the program. And the Nurse Family Partnership program saved $3 for every dollar invested in that program.
Even education incentive programs have been proven to reduce crime. A Rand Commission study showed that high school graduation incentive programs - just pay children to graduate from high school - save 250 crimes for every $1 million spent while it costs 5 times that amount in incarceration to save that many crimes in the same period.
We know prevention programs work and save money. We also know that, evidence based rehabilitation and treatment programs have been shown to reduce crime, as well, and save more money than they cost. For example, a study of the Drug Court treatment program showed an average cost of $25,000 for those sent to jail compared to an average of $1,600 for those sent to the program. Drug rehabilitation programs, in general, have been shown to save between $7 and $10 in reduced crime and health care expenses for every dollar spent.
But rather than invest in these proven crime reduction measures that work, Virginia chose to go down the costly and wasteful path of abolishing parole. They estimated the cost of abolishing parole was $2.2 billion in construction costs and about a billion in annual operations costs. Let's just do a quick budget with that kind of money - there are 11 Congressional districts in Virginia, so that's about $200 million construction and about $90 million operating expenses per Congressional district of 600,000 people. So for a city around 100,000, you're talking about more than $30 million construction and $15 million operating. Let's see what you could do with that money in a small city:
30 $1 million Boys and Girls Clubs or family resource centers $30M
Operating: 30 clubs or centers@$200,000/yr . ................6M
1,000 summer jobs @ $1,000 .1M
1,000 summer camp scholarships @$1,000 1M
4,000 after school programs @$250 .1M
2,000 college scholarships@$2,000 4M
Services for 200 juveniles@$10,000/year 2M
Or - you can spend the same amount of money codifying a slogan without knowing whether you are reducing or increasing crime. Given the impact of imprisonment on families and dependents, and the negative impact on the ability of offenders to get jobs, vote and otherwise participant in society, and considering it might actually increase rather than decrease crime, abolishing parole would be a dubious idea, even if it were free. When we see the cost of it compared to the crime reduction value of proven programs that could have been funded with this money, it is a truly a tragic case of sound byte policies trumping what works.
You would think that with all these examples of fallacies and failures, the Congress and the states would have seen the error in their ways and have moved back toward sensible crime policy on all fronts. Unfortunately, that has not been the case. For example, the House recently passed an anti-gang bill chock full of all the bankrupt criminal justice policies I have just discussed. The major provisions for new gang crimes: the death penalty if someone dies, even if it is accidental; mandatory minimum sentences, including a 10 year mandatory for a fist fight in which no one is seriously injured; and more juveniles to be tried as adults. No funds for after school programs or dropout prevention. You can tell from the nickname of the bill - the "gang busters" bill - what it is all about. And yes, it passed the house with an overwhelming margin.
Although the Congress has not stopped pursuing and passing unfair, ineffective, money-wasting crime bills like "gang busters", there is one ray of light seeping through in the area of prisoner re-entry programming. There is finally some recognition of the impact of years of increased incarceration. This year, alone, there will be close to 700,000 offenders returning to communities from federal and state prisoners, and many of them will be leaving after spending an extended period on mandatory or truth-in-sentencing sentences. Department of Justice studies reflect that over 2/3 of those releases will recidivate within 3 years of release. In 1980, the figure was around 200,000 a year. In recognition of this growing problem, a bi-partisan group of Congressmen, in both the House and the Senate have been working on developing offender reentry programs that work. H.R 1704, the "Second Chance Act: Community Safety Through Recidivism Prevention," reauthorizes and funds state and local offender reentry grant programs, establishes a local reentry court system and comprehensive and continuous state and local reentry task forces, and it recognizes the inseparable connection between effective drug treatment and successful reentry. The bill is totally bi-partisan and supported by the entire gamut of reentry programming advocates. The bill recognizes what you see and know from your every day experiences in working in community corrections and what this conference recognizes - that there are prisoner reentry programs that work - and they are the key to sustained public safety.
You may have heard of a snag that arose in the development of the bill. Supporters of the Bush Administration's so-called faith based initiative have tried to interject language to instill that initiative in the law. Those of us against bogging the legislation down with the debate that initiative generates, including many leaders in the faith based community, have been successful in keeping it out, and the legislation, which was stalled, is now progressing nicely without it. But because it has the potential of again derailing the bill, let's take a moment to get a little truth on the table regarding the President's faith-based initiative.
Faith-based groups have been sponsoring federally funded programs for decades without any such initiative - Catholic Charities, Lutheran Family Services, Jewish Community Services, the Salvation Army and other religiously sponsored organizations are examples. So when someone says there are barriers to faith based groups sponsoring federally funded programs, you need to ask "what barriers".
Second, we can just dismiss the idea that a religious organization might get federal funds to convert prisoners to their religion - that might reduce crime, but you will never be able to do that so long as the Establishment Clause remains in the Constitution. There is no controversy about that - although some would like to use the money for religious purposes, or would like to look the other way as some sponsors use the money for religious purposes, there is a clear consensus that only secular programs will be funded with federal money.
So what are the barriers they keep talking about? There are two: first, since 1965, if you take federal money, you cannot discriminate in employment with the federal money. If you insist on discriminating, there is a barrier preventing you from getting federal funding. The faith-based initiative removes that initiative, and allows discrimination in employment.
The fact is that any program, which can be funded under the faith-based initiative, could have been funded without any initiative, if the sponsoring organization would agree to comply with employment anti-discrimination policies that have been the law of the land since 1965. Many of us just do not want to go back to the days when people were denied employment opportunities solely because of race or religion, and some of us are unlikely to support any legislation, no matter how otherwise worthy, which allows employment discrimination with federal funds.
The second barrier may occur, if there is competition for funding, because the best qualified proposal will get funded; if you are not the best qualified, a barrier exists preventing you from getting federal funding. The faith-based initiative apparently removes that barrier - if there was any question on that point, it was cleared up when I offered an amendment in the Judiciary Committee on the Faith-Based legislation which would have required funding decisions to be based on objective merit - my amendment was defeated by the supporters of the faith-based initiative.
Fortunately, the Judiciary Committee supported the bi-partisan compromise Second Chance Act and defeated efforts by one member to insert faith-based language into the bill as a poison pill to defeat the bill. Even the promoters and supporters of the President's initiative were against this and were helpful in having the Committee vote against 21 attempts to amend the bill by this one member.
Some of the issues involved in the debate over the faith-based initiative will be decided in the courts, but in the meantime, there is an uneasy truce between those supporting more government funding of reentry programs and those who want to allow discrimination in employment. The truce is simply that we don't mention the initiative - we provide for funding of non-profit organizations, and whatever the law allows, that's who will get funded - we do not insult many of the supporters of the legislation by specifically allowing for discriminatory employment practices, although we frankly do not expect this administration to enforce anti-discriminatory policies that have been the law of the land since 1965. With that understanding, we still hope to pass comprehensive reentry legislation. There was a strenuous effort to attach it to one of the major funding bills such as the Defense Authorization bill or the Port Security funding bill, but we were not able to get it done. The primary problem was there were also efforts to attach to it several controversial provisions such as the "gangbuster's" bill and provisions restricting the right of habeas corpus in death penalty cases. So, because there was a big fight over adding these provisions to 2nd Chance, rather than allow all of the bills, the decision was made to allow none of them. There will be another effort to pass 2nd Chance in the "lame duck" session after the election, if we can avoid the same fight. But even if it does not pass then, it will be taken back up in the next Congress and will likely pass.
The reentry legislation is the second bi-partisan, comprehensive, soundly based correctional policy that has developed in the Congress in recent years, the other being the bi-partisan, comprehensive juvenile justice legislation that passed the Congress 4 years ago. The juvenile justice legislation was developed in much the same way as the Second Chance legislationbased on the involvement and expertise of the entire gamut of experts and advocates in the field. Following expert advice, the juvenile crime bill was focused on prevention and early intervention. However, I hope the re-entry legislation fares better in actually getting funding than the juvenile justice legislation has been. While it is always better to have good legislation as opposed to bad legislation on the books, adequate funding is crucial, if we are to have a real impact on reducing recidivism through reentry programming.
I am encouraged by what states and communities are already doing in the field to address the challenges of reentry. California recently reported that fewer than 40% of state inmates released in 2003 were back behind bars in a follow up study. That's down significantly from previous recidivism reports. Officials there attribute the improved recidivism rates to expanded parolee and prisoner programs, and better community services for ex-convicts. And there is a comprehensive focus on reentry in the federal system, which also has a 40% recidivism rate. This is what the bill is aimed at achieving at the state and local level by funding programs that work, such as those you will discuss at this conference.
Comprehensive, evidence-based prisoner reentry programming, starting at the time an offender enters prison and following through a reasonable period after his return to the community, makes sense. It makes sense not because of a desire to coddle criminals, but because it means that you and I, and everybody else, are less likely to be a victim of crime from recidivism.
When I consider how Congress and our state legislatures have built today's criminal justice systems on political sound bytes and emotional pandering, I am reminded of the story about the retiring carpenter whose boss asked him to stay long enough to complete one more home. The carpenter reluctantly agreed, but his heart was not in it. He really didn't want to put in the time and attention necessary to ensure a well built house. So, he took shortcuts and used cheap, shoddy materials. When he finally finished the house and turned the keys over to his boss, the boss handed them back to him and said "this is your house - my gift to you and your family for your many years of loyal and faithful service". Oh how he now wished he had built the house the way he should have, because now he had to live in the house he had built. And I think this is how the Congress and state legislatures are now feeling as a growing horde of hundreds of thousands of prisoners are coming out of prison having served long terms without incentives to improve themselves such as parole and good conduct credits, and limited rehabilitation programs. These prisoners are no better prepared to lead a law-abiding life than when they went in, and in all too many cases, even less prepared.
So, I am hopeful that the federal re-entry bill and what's happening at the state level reflect a turning point away from the mindless, emotion-based and reactionary approach to crime policy, toward a thoughtful, proven approach. I believe the pendulum is swinging back our way. And so, I encourage you to keep up the good work on sound correctional policies. Thank you and much success on the remainder of your conference.