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Hearing Of The Crime And Drugs Subcommittee Of The Senate Judiciary Committee - Exploring The National Criminal Justice Commission Act


Location: Washington, DC

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SEN. SPECTER: Good afternoon, ladies and gentlemen. The hour of 3:00 having arrived, we will proceed with this hearing before the Subcommittee on Crime and Drugs of the Committee on the Judiciary.

Today we have a very important hearing to explore the legislation introduced by Senator Webb on the National Criminal of Justice Commission to take up a great many topics of great importance. The Commission is structured to take up a comparison of the United States incarceration policies with those of other, similar political systems, including Western Europe and Japan.

Take up the cost of incarceration policies, including those associated with gangs and drugs. The impact of gang activity in our country. Drug policy and its impact on incarceration crimes, sentencing and re-entry. Policies regarding mental illness. The historic role of the military as it impacts on these criminal law issues, and any other subjects which they commission my team appropriate.

Our criminal justice system continues to be one of perplexing complexity, in terms of how we deal with it. A tremendous amount of violent crime, a tremendous amount of drug-related crime are very, very heavy. Statistics on incarceration. My work in the field has been extensive, and have long believed that if we approached the criminal justice system with two principle objectives that a great deal could be done to restrain it.

With respect to career criminals who commit 70 percent of the crimes, separating them from society. With respect to the others who are going to be released, have realistic policies of rehabilitation; detoxification, literacy training, job training, re-entry. And we have an enormous problem on recidivism, which has a very high cost on property damage, and an even higher cost on human suffering.

Senator Webb approached me sometime ago, a few months ago, and told me about his ideas, and asked if I would co-sponsor his legislation, and I did so gladly. He was looking for bipartisanships -- bipartisan support. I'm sorry I can't give that particular quality to him. But I can give him considerable support on the merits.

Senator Webb came to the Senate with his election in 2006 with an extraordinary record. A graduate of the Naval Academy in 1968. A law degree from Georgetown in 1975. Commended for his excellence at the Naval Academy. Chose the Marine Corps, finished first in a class of 243 at the Marine Corps Officers' Basic Training in Quantico. Served in Vietnam in heavy combat, and two Purple Hearts. Heavily decorated with the Navy Cross and the Silver Star Medal. Two Bronze Medals. He served as Secretary of the Navy. So he has an extraordinary background coming to the position of United States Senator from Virginia.

Senator Webb, we look forward to your testimony. And I put that in the plural, because as I stated to you earlier, you could either sit here and testify or you could sit there. You can sit there, and then come up here and join me as we move to the next panels of witnesses. The floor is yours.

SEN. WEBB: Thank you, Mr. Chairman, and I would like to take about five minutes and just explain a little bit about my concerns in this area. And I would begin by thanking you for being originally my lead Republican cosponsor on this measure. And also for your leadership in calling this hearing, and helping to move the legislation forward. Also, Ranking Member Graham, was an original sponsor on the bill. I think we have nine members of the Judiciary Committee who are sponsors on this legislation. I know full well your work in this area over many, many years and appreciate your support in this endeavor. And I look forward to continuing to work with this Subcommittee and also the full committee, and hopefully to move this legislation this year. And to get to the business of the commission that we're attempting to form here.

Mr. Chairman, we find ourselves, as a nation, in the midst of a profound, deeply corrosive crisis that we have largely been ignoring at our peril. The national disgrace of our present criminal justice system does not present us with the horrifying immediacy of the 9/11 attacks on the Twin Towers and the Pentagon, which in the end rallied our nation to combat international terrorism. It is not as visibly threatening as the recent crash in our economy.

But the disintegration of this system, day by day, year by year, and the movement toward mass incarceration, with very little attention being paid to clear standards of prison administration or meaningful avenues of re-entry for those who have served their time, is dramatically affecting millions of lives in this country. It's draining billions of dollars from our economy. It's destroying notions of neighborhood and family in hundreds, if not thousands of communities across the country. And most importantly, it is not making our country a safer or a fairer place.

I believe it is in the interest of every American, in every community across this land, that we thoroughly re-examine our entire criminal justice system in a way that allows us to interconnect all of its different aspects when it comes to finding proper approaches and solutions to each different component part. I'm convinced that the most appropriate way to conduct this examination is through a presidential level commission, tasked to bring forth specific findings and recommendations for the Congress to consider and, where appropriate, to act.

This particular piece of legislation is a product of long years of thought, research, and reflection on my parts as an attorney, as a writer, including time as a journalist 25 years ago, where I examined the Japanese prison system for a cover story for Parade Magazine, and finally as a government official.

In the Senate, I'm grateful that Senator Schumer and the Joint Economic Committee allowed us the venue of that committee to conduct hearings over the past two years on the impact of mass incarceration and of drugs policy. I also appreciate working with the George Mason University Law School to put together a comprehensive symposium that brought people from across the country in to talk about our drugs policy. And also collaborating with a number of other institutions working on such issues, including the Brookings Institution.

Once we start examining -- started examining this issue over the past two years, people from all across the country reached out to us, people from every political and philosophical perspective that comes into play and from all walks of life.

And since I introduced the National Criminal Justice Commission Act two months ago, we've seen an even greater outpouring of interest in and support for this approach. My office, just in the past two months, has engaged with more than 100 organizations, representing prosecutors, judges, defense lawyers, former offenders, advocacy groups, think tanks, victims rights organizations, academics, prisoners, and law enforcement officials. And in the Senate, I am very grateful at this point that 28 of my colleagues have joined me on the bill. As I said, I believe nine from the Judiciary Committee.

The goal of this legislation is to establish a national commission to examine and reshape America's entire criminal justice system, the first such effort in many, many years.

Mr. Chairman, you laid out the areas that we believe should be focused on. I won't reiterate them here. I have a full statement that I would ask to be submitted for the record at this point, if I may.

And I would like to say that we worked along with staff on this Committee to bring a panel today that I think is truly extraordinary in its breath and in its depth of understanding. And it would be a great benefit for every American to consider what they're about to hear from this panel.

And again, I appreciate you having moved this legislation as quickly as you have, and called this hearing. And it is my earnest hope that we can enact this legislation by the end of this year.

Thank you, Mr. Chairman.

SEN. SPECTER: Senator Webb, thank you for that opening statement. And I've already applauded your work in the initiation of the legislation, and joined even it. And I believe it's going to receive a wide spread of support. And I can assure you that as Chairman of this Subcommittee, I'll move it promptly, and will press to have it moved by the full committee. And pressed to have it considered by the full Senate and try to get it done.

And I think from an advantage point of mid-June, it's -- it can be done. And a lot of work needs to be done in this field, and this Commission is a very, very good projection point. It's not a starting point. It's a projection point.

Let me welcome the arrival of Senator Durbin. And again, express my thanks to him for yielding to me the gavel. He had been Chairman of this --

SEN. WEBB: I thank the Chair, and looking forward very much to the testimony you're going to receive from this panel. Thank you, Mr. Chairman.

SEN. SPECTER: Senator Durbin, you've arrived just in time to question the witness. (Laughter.) Senator Durbin, in lieu of questioning the witness, he is now fidgety. (Laughter.) Would you care to make an opening statement?

SEN. DURBIN: I'll just make a brief statement. Thank you, Mr. Chairman, for this subcommittee hearing. When I handed the baton over, it was with the request that you honor my commitment to Senator Webb for this hearing. And Senator Specter quickly said, "But I'm already a co-sponsor of his bill." (Laughs) And I said, "Well, then I think we're going to do quite well here."

I had an occasion a few weeks ago -- we have an annual dinner with Justices of the Supreme Court, and I had an occasion to sit with one. And I won't name names. And I said, "Now, if you were to pick a topic for the Crime Subcommittee of Judiciary, what would you pick, having given your life to law and being the Highest Court in the Land. He said, "You've got to do something about our correction system."

If you set out to design a system, you would never come up with what we have today. And I think it is a challenge to all of us to come with a sensible way to keep America safe, yet to treat prisoners humanely, and to do our very best to make sure that no additional crimes are committed. Recidivism means another crime and another victim, and we have to make certain that our system, as Senator Webb has led us into this conversation, really addresses so many aspects that need to be considered.

I talked to Senator Specter about one -- a particular concern to me, and that is the question of mental illness and incarceration, both sides. The mentally ill who go into prison, how they are treated, if they are treated. And what happens in a prison that may aggravate or create mental illness. Dr. Atul Gawande wrote a recent article in The New Yorker about the impact of solitary confinement on people who are in prison, most of whom are likely to be released, and what physiological condition they go back into the world.

It's time for an honest appraisal, and I think Senator Webb's proposal for a presidential look at this issue is long overdo. A commission that will take a look at every aspect of it. Give us sound advice, and I hope that we have the political courage to follow it.

Thank you, Mr. Chairman.

SEN. SPECTER: Thank you, Senator Durbin.

We'll now call our panel, Chief Bratton, Professor Ogletree, Mr. Brian Walsh, Mr. Pat Nolan.

We've been joined by the Distinguished Ranking Member of the Subcommittee, Senator Lindsey Graham. Senator Graham, would you care to make an opening statement?

SEN. GRAHAM: Thank you, Mr. Chairman. Very quickly, I understand that Senator Webb testified. I regret I was not here when he was testifying.

I've joined forces with him and other senators to take a good heart look at this. And I want to applaud Senator Webb for bringing this to our attention. This is something he's been passionate about for a long time. I think -- you know, it's not about being tough on crime. It's just being smart as a nation. And we have a lot of people in jail in this country, more than most, and we've got to figure out, you know, who needs to be there, and are there other ways when it comes to some prisoners. And I believe there are alternatives out there available. And make sure that our criminal justice system is not overburdened, overloaded with people that could maybe survive in some alternative system.

So I welcome this hearing, and thank you for holding it, Mr. Chairman.

SEN. SPECTER: Thank you very much, Senator Graham.

Our first witness is Chief of Police of Los Angeles, William J. Bratton. Also served as Chief of Police in New York City, and in Boston. He comes to this witness table with a very, very extensive experience in law enforcement.

And during his tenure in the Los Angeles Police Department, Part 1 crimes have been reduced by 33 percent, and homicides have decreased by 41 percent. In New York City, he was Commissioner, working with Mayor Giuliani's policy reforms, and they -- he made the COMPSTAT crime tracking system. He has a Bachelor of Science in Law Enforcement from Boston State University. A graduate of the FBI Executive Institute. And is about to receive a very unusual title, Honorary Commander of the Most Excellent Order of the British Empire, one step below knighthood. And I'm sure it's just a stepping stone. (Laughter.)

Thank you for joining Chief Bratton, and we look forward to your testimony.

MR. BRATTON: Senator Specter and distinguished members of the Subcommittee, in my capacity as President of the Major Cities Chiefs Association and Chief of the Los Angeles --

SEN. SPECTER: Is your microphone on?

MR. BRATTON: Excuse me. My apologies, sir.

Senator Specter and distinguished members of the Subcommittee, my capacity as President of the Major Cities Chiefs Association and Chief of the Los Angeles Police Department, I'm pleased to be able to contribute to the discussion and debate on what I view as some of the most important issues facing our society today.

The most important message that I want to leave with you is that we must focus on preventing crime before it occurs, rather than respond to it after it does. This has been the focus of my entire career, from a rookie cop in Boston to now Chief of the Los Angeles Police Department. One of the great failures of The President's Commission on Law Enforcement and Administration and Justice was the acceptance of the widely held belief at that time that police should focus their professionalization efforts on the response to crime and not the prevention of it.

They mistakenly believed that the so-called societal causes of crime; racism, poverty, demographics, the economy, to name a few, were beyond the control and influence of the police. They were wrong. Those causes of crime are, in fact, simply influences that can be significantly impacted by enlightened and progressive policing. The main cause of crime, human behavior, certainly is something that is a principal responsibility and obligation of the police to influence. The challenge in our democratic society is always to police constitutionally, consistently and compassionately.

The main criminal justice concerns in 1965 seemed to revolve around the hostile relationship between police and the African American community, organized crime, a dearth of research, problems with a growing juvenile justice system, gun control, drugs, individual rights of the accused, police discretion, civil unrest, and a broken and isolated corrections system struggling to balance rehabilitation and custody issues. Does it sound familiar? Here we are 40 years later.

The supervised population at the time was quoted as hovering around one million people. That number has now swollen to an estimated seven million.

While we failed to effectively address the tremendous increase in crime and violence of the 70s and 80s, we finally started to get it right in the 90s. Young police leaders were encouraged and financed in their pursuit of education, and I am the product of an LEA Grant in the 70s. And that exposure led to the change in the way we do business. We had been focused on a failed reactive philosophy, emphasizing random patrol, rapid response, and reactive investigations.

In the late 80s we began to move to a community policing model characterized by prevention, problem-solving and partnership. We turned the system on its head, and we were successful in driving significant crime reduction through accountability, measuring what matters, partnership with the community, and policing strategies that emphasized problem-solving and broken windows-quality of life initiatives.

We developed COMPSTAT in New York with its emphasis on accountability and use of timely accurate intelligence to police smarter, putting cops on the dots. The results, as reflected by the dramatic crime declines of that period continue to this day in New York, Los Angeles, and many other major American cities.

The main criminal justice concerns for policymakers today revolve around the threat posed by gangs, rather than traditional organized crime, continued problems with the corrections system in general and with the seemingly intractable problems of mass incarceration, a fractured and unrealistic national drug policy and a lack of protection of the individual rights and treatment of the mentally ill.

George Kelling has noted, "The jailing and imprisonment of the mentally ill is a national disgrace that, once again, puts police in the position of having to do something about a problem created by bad 1960s ideology, poor legislation, poor social practice and the failure of the mental health community to meet their responsibilities."

The Obama Administration's new drug czar, Gil Kerlikowski, has said that he wants to banish the idea that the U.S. is fighting a war on drugs, and shift to a position favoring treatment over incarceration in trying to reduce illicit drug use. I agree with Gil, and will go a step further by suggesting that strong enforcement and effective prevention and treatment programs are not mutually exclusive. They actually go hand-in-hand. It is possible to promote a responsible enforcement agenda without driving incarceration rates through the roof.

This bill recognizes what cops know, what the experience of the past 40 years has shown, that we cannot arrest our way out of our gang and drug crime problem. We recognize that arrest is necessary to put hardened criminals away. However, we will fall far short of our overall goal if this is all we do.

Our problems are systemic, widespread, and growing and only a singularly focused blue ribbon commission comprised of informed practitioners, scholars, policymakers and civil rights activists can adequately address the calculated formation of intervention and prevention strategies.

America's system of justice is overworked and overcrowded. It is undermanned, underfinanced, and very often misunderstood. It needs more information and more knowledge. It needs more technical resources. It needs more coordination among its many parts. It needs more public support. It needs the help of community programs and institutions in dealing with offenders and potential offenders. It needs above all, the willingness to reexamine old ways of doing things, to reform itself, to experiment, to run risks. It needs vision.

This was true when it was penned 42 years ago by the President's Commission, and I think we can all agree that it still holds true even more so today.

Thank you, sir.

SEN. SPECTER: Thank you very much, Chief Bratton.

Our next witness is Professor Charles J. Ogletree, the Jesse Climenko Professor of Law and Director of the Charles Hamilton Houston Institute for Race and Justice at the Harvard Law School. Professor Ogletree edited a book released in January entitled "When Law Fails: Making Sense of Miscarriages of Justice." He was recently presented with a 2009 Spirit of Excellence Award from the ABA Commission on Racial & Ethnic Diversity, and serves as Deputy Director of the D.C. Public Defender System. Bachelors and MA in Political Science from Stanford, and a law degree from Harvard.

Welcome Professor Ogletree, and the floor is yours.

MR. OGLETREE: Thank you so much, Senator Specter and Senators Durbin and Graham. I'm very happy to be here today to speak on behalf of the Charles Hamilton Houston Institute for Race and Justice.

I just want to say a quick paraphrase. It was 42 years ago in a room like this that President Lyndon Johnson said about Thurgood Marshall. It was the right time, the right place, the right person, the right thing to do. His words 42 years ago ring true today, because it is the right time to look at the criminal justice system and reform it. It's the right place, the Senate or Congress. And the right people. This body of Congress can make that happen. And it's the right thing to do.

Because the one thing that we've learned in the course of examining our criminal justice system over many, many decades is that it has been a failure. And I hope that one major thing we can achieve is to retire the phrase, "a war on crime," and replace it with the phrase, "being smart on crime." Because before the war, we've been unsuccessful.

We have too many people in prison, more than any other developed nation. Too many of them are black and brown and young. We have too much money being spent on punishment, and not enough on treatment and early intervention. And finally, we have not looked at real alternatives to the criminal justice system.

I have repaired an extensive report with data and research that I hope will be part of the record, that will be considered as well.

And also, this is a propitious time to think about this, because you have never had, in my view, so many people on the same side in this issue. I remember in most of career, feeling like I'm crying out in the wilderness as the only one talking about repairing the criminal justice system.

As I look at this table today, there are people with extensive experience who have come to the sensible view that what we are doing now is just not working. It's not working in terms of making safety a priority or thinking about alternatives so that people won't find themselves a criminal justice system.

And the other important thing is that -- Senator Durbin mentioned a member of the U.S. Supreme Court we had talked with. It's not difficult to figure out who that person might be. And that person is now the law, and it's not just a he. (Laughs) There aren't many shes there, but the reality is that there are a number of people who have -- who everyday apply our criminal justice system, and it's very difficult.

I saw yesterday, a dear of mine, Paul Friedman, a former prosecutor -- a tough prosecutor, who's on the Federal District Court in Washington, D.C., on his own volition, reacting to another Federal Court Judge, decided to impose a one-on-one penalty for crack-cocaine and powder cocaine. Because his point was there's no sensible reason for me to do anything differently when I realize that what I've been doing for many years is just wrong. And that's the judiciary taking it into its own hands.

At the same time, it's very important to think about the idea of a commission that has as its goal to figure out a system that is smart and creative and progressive and forward-looking. And the most important thing that I hope you'll hear over and over and over again with our testimony today, and I say it extensively in my report, it's the cost-effective way to doing it. You can be smart on crime and save a lot of money.

And we see that now when we think about the way that we're treating those who are mentally ill, treating those who are in poverty and undereducated, and they become the father for our criminal justice system.

And finally, I want to say this in terms of the challenges that we face today. Bill Bratton is a terrific police officer. I've known from his days in Boston and New York and Los Angeles. And the one thing that he's always done is to stand up and fight crime, but also insist on fairness. And the fairness means it let's you just come up with a policy that makes sense, not just for police officers, who have to everyday put on their uniform and defend all of us, but we also have the tools to make sure, as Senator Specter says, focus on the most serious and important crimes and to make sure we don't have our jails full of people, who are largely nonviolent and drug users, and that money becomes absorbent.

The final point I want to make here -- and I'll be happy to answer questions later on, is that we, at the Institute, approach this issue with the idea to provide information to those who are trying to solve this problem. And when we look at one particular problem, the problem with gangs -- we wrote a report, and more than a year ago, called "No More Children Left Behind Bars," -- I'd like to submit that as part of the record, that became the impetuous for Congressman Bobby Scott's new proposed bill, the Youth PROMISE Act.

And our goal was to look at whether or not treatment and prevention should be a priority, rather than simply punishment. And it is. It's cost-effective. It's effective in many, many ways. And I think it's the best way to go. Ultimately, as we know -- we've heard said before in the words of Ohio Governor, Ted Strickland, he said quote, "You don't have to be soft on crime to be smart in dealing with criminals."

If we're driven by being smart and creative, we can solve this problem. Thank you.

SEN. SPECTER: Thank you, Professor Ogletree. The report you referenced will be made a part of the record without objection. And we'll also move all of the testimony and all of the reports into the record without objection.

Our next witness is Mr. Brian W. Walsh, Senior Research Fellow, Center for Legal and Judicial Studies at The Heritage Foundation from where he works on criminal law, and also on national security and civil liberties. He has recently released research on the so-called COPS Program, Federal Hate Crimes Legislation, and Public Corruption Prosecutions. Had been an associate with Kirkland & Ellis. A Bachelor of Science in Physics from the University of Colorado, and a law degree from Regent University School of Law.

We appreciate your coming in today, Mr. Walsh, and the time is yours.

MR. WALSH: Thank you, Chairman Specter and Ranking Member Graham, for giving me this opportunity to address the National Criminal -- thank you -- the National Criminal Justice Commission Act of 2009.

And as you said, criminal justice reform is a central focus of my research and reform work at the Heritage Foundation. I'll just note briefly that my views are my own, and not those of The Heritage Foundation.

I commend and am encouraged by Senator Webb's attempts today to overcome the political and ideological boundaries that have caused many of the problems in our criminal justice systems. And I appreciate the Senator's efforts to reach out across those same boundaries, seeking input to help improve and shake the act.

Over the past three years, we've worked with hundreds of individuals and scores of organizations across the political spectrum in an attempt to build consensus for principled, non-partisan criminal justice reform. And my colleagues, allies, and I have gathered substantial evidence that the criminal justice system is in great need of principled reform, particularly at the federal level. And it comes a consensus that this reform should not be driven by partisan politics.

We've heard a little bit already about the problem of being considered soft on crime and how difficult it is for legislative bodies to go against that stream. And while I think improvements are needed to S. 714 to make it sufficiently principled and non-partisan to garner widespread support, it does include positive provisions, and in particular, the commission could undertake to identify just, effective alternatives to our incarceration for some categories of first-time non-violent offenders and explore and report on the successes and failures that the states have encountered with drug courts for non-violent offenders charged with possessions of small amounts of drugs, and study effective programs for easing offenders' entry back into society after they are released from incarceration.

For the remainder of my time, I'll focus on the needed improvements to the bill, and the goal of each improvement and each recommendation is to help ensure that the commission would investigate and report in a principled and non-partisan manner and that its findings and recommendations would be considered useful and authoritative by Americans across political and ideological boundaries.

First, the composition of the commission should be modified to ensure that members of the commission adequately represent: one, the diversity of views, backgrounds, and expertise needed to address all of the criminal justice issues covered by the commission; two, the interests of the 50 states in protecting their sovereignty over criminal justice operations, a core state responsibility; and, three, the criminal justice interests and expertise of the executive branch. I've made further recommendations about that in my written statement.

Second, the Act includes unstated assumptions that are not necessarily well-founded. One such assumption is that incarceration rates need to decrease across the board. Section 6 of the Act would direct the commission to make recommendations to reduce the overall incarceration rate. While it may be true that some prison sentences are longer than necessary to fulfill the needs of justice, a directive to decrease the overall incarceration rate strongly suggests that all prison sentences are too long. This is simply not borne out by the best available evidence and doesn't take into account the recidivism problem, particularly with violent offenders, and the need to make sure that those who have committed violent crimes and are at high risk to recidivate are actually kept incarcerated where they're incapacitated from committing further crimes.

I've made similar recommendations about the drug policy that many in -- the recent public discourse on national drug policy has been dominated by those who are broadly opposed to enforcement and often favor drug decriminalization. The Act itself appears to be premised on assumptions about drug enforcement policy that are not entirely well founded. Nothing in the Act mentions, for example, the success that the states and the federal government have had in the fight against drug abuse, and my written statement briefly addresses the destructive effects of family drug abuse on children and the correlation between the criminal history of incarcerated offenders and their own history of drug abuse and dependence.

Although such facts do not justify all current drug policy, this information about the national fight against drug abuse should be granted its full weight by the commission in order for its drug policy recommendations to be granted the type of weight and authority that we would hope that they would warrant.

Finally, I just want to address that my greatest concern with the Act as currently written is that it does not guide the commission to address many of the faceted problems of overcriminalization which includes federalizing crimes that should remain under the jurisdiction of state and local law enforcement, criminalizing conduct that no one would know is criminal, unless they both scoured and understood tens of thousands of pages of statutory and regulatory law, and eliminating the intrinsic safeguard requiring proof beyond a reasonable doubt of criminal intent which formerly protected from criminal punishment Americans who never intended to violate the law.

Working with the coalition across political and ideological spectrum, we came to substantial consensus before the November elections about a proposal for both hearings and reform proposals, in the House in particular, and we hope that we'll continue to be able to address those things in a principled, non-partisan manner.

The overall goal, again, of all of these recommendations is to make sure that the commission's work is widely respected and understood to be something that is not favoring a particular group or class of offenders, but all those Americans who could be subjected and have been subjected to criminal penalties. Our organization, working in concert with others, have catalogued a number of examples of stories of those who acted in ways that none of us would necessarily perceive as being criminal and yet found themselves in federal prison or state prison for substantial prison sentences.

With that, I look forward to your questions and thank you again.

SEN. SPECTER: Thank you, Mr. Walsh.

Our final witness is Mr. Pat Nolan, vice president of the Prison Fellowship, who comes to the witness table with a really extraordinary record. He heads the Justice Fellowship, the wing of Prison Fellowship that seeks to reform the criminal justice system based on the Bible's principles of restorative justice. He served in the California State Assembly for 15 years and was the Republican leader for four years.

He began his work on criminal justice reform, as noted in his volunteered information in his resume, after serving 29 months in federal custody for accepting campaign contributions that turned out to be part of an FBI sting. His -- he authored a book released by Prison Fellowship on the role of the church entitled "When Prisoners Return," a bachelor's degree in political science and a law degree from the University of Southern California.

Thank you for coming in, Mr. Nolan. You present an extraordinary diversity of experience for the benefit of this subcommittee. You may proceed.

MR. NOLAN: It's an honor to be included on this panel and to have a chance to address you.

We strongly support Senator Webb's proposal for a national commission on criminal justice.

As you pointed out, I was a very active on criminal issues in the California legislature, especially on victims' rights. I was an original sponsor of the victim's bill of rights and received the victim's advocate award from Parents of Murdered Children.

But, as you pointed out, my life took an unexpected turn, and after I was convicted of racketeering for a campaign contribution, I went to federal prison and served in federal custody for 29 months. What I saw inside prison really troubled me. Little is being done to prepare the inmates for their return to society, and the skills that the inmates learn to survive inside prison made them more dangerous after they were released.

My role at Prison Fellowship is to work with government officials to try to fix our broken criminal justice system. It's taken me to 35 states where I've worked with governors, attorneys general, secretaries or directors of corrections, and legislators to try to change the system.

I serve on the National Prison Rape Elimination Commission, and I was a member of the Commission on Safety and Abuse in America's Prisons. I was appointed by Governor Schwarzenegger to his strike team on rehabilitation, and I currently serve on Virginia's task force on alternatives to incarceration.

I tell you all this because this work has given me a chance to see up close what's going on in our prisons, and, frankly, it's not working. They're in crisis.

First, I'd like to make three very important points. The first is that our justice system needs to keep us safe. That's the priority, and that will result in fewer victims. And, secondly, we need prisons. There are some people that are so dangerous, they need to be incapacitated and separated from society, some of them for the rest of their lives. The third is that the crisis in prisons wasn't created by corrections officials. There are dedicated corrections officers in law enforcement that are merely trying to implement the policies that they didn't make.

The report on the Commission on Safety and Abuse in America's Prisons put it well. Many of the biggest so-called prison problems are created outside the gates of the correctional facility. Congress and state legislatures have passed laws that dramatically increase prisoner populations without providing the funding or even the encouragement to confine individuals in safe and productive environments where they can be appropriately punished and, for the vast majority who are released, emerge better citizens than when they entered.

Our current policies have resulted in overcrowded prisons where inmates are exposed to the horrors of violence, including rape, infectious disease, separation from their family and friends, and despair. Most offenders are idle in prison, warehoused with little preparation to make better choices when they return to the free world. When they leave prison, they'll have great difficulty getting a job, and it's very likely that the first incarceration won't be their last.

The Pew Center on the States has chronicled the magnitude of the prison system and the challenges it faces. Two-point-three million Americans behind bars at this very moment, one out of every 100 adult Americans, and including those that are under correctional supervision, another five million, that comes to one in every 31 adults is either in prison or being supervised on release.

The cost to the taxpayers is a whopping $68 billion. On average, corrections rating are eating up $1 out of every 15 discretionary dollars of the states, and the spending on corrections last year was the fastest-growing item in state budgets. We just can't sustain this continued growth of prisons. Corrections budgets are literally eating up state budgets, siphoning off money that could go for roads, schools, and hospitals.

But the dilemma we face is: How do we spend less on corrections while keeping our people safe? My work in the states has shown me that there are several that are doing a terrific job of that and that Senator Webb's legislation could be helpful to the others in doing the same thing.

Most social scientists agree that the drop in crime -- some allege that it's only due to the mass incarceration. In reality, the experts agree about a quarter of it is. The rest is a variety of factors, many of which Chief Bratton has already talked about.

As I said before, we need prisons, but not for everyone that commits a crime.

Prisons are meant for people we're afraid of, but we fill them with people we're just mad at. Check-kiters could be safely punished in the community while holding down a real job, repaying their victims, supporting their families, and paying taxes.

A drug addict who supports his habit with petty offenses needs to have his addiction treated. Sending him to prison where less than 20 percent of the addicts get any treatment doesn't change the inmate. When he's released, he'll still be an addict. Our object should be to get him off drugs. Spending $30,000 a year to hold him in prison without any drug treatment is just plain wasteful.

We can learn a lot from New York City under the strong leadership of Chief Bratton. Most people are aware that the crime rate dropped dramatically in New York, far more than most other large cities. For instance, the murders in New York dropped from 2,600 in 1990 to 800 in 2007 -- from 2,600 to 800. That's an astounding fact. And, also, the one crime statistic that can't be fudged are bodies in the morgue. That was a real drop there.

What isn't well known is that drop in crime occurred while New York was cutting its prison population, making better decisions about who they put in prison and for how long. They looked at the tipping point where sentences don't buy any more public safety, and that's really our object. How do we get the most public safety for the dollars that we have? Sadly, I don't think we're getting the bang for our buck from our corrections spending.

Several states have succeeded in separating the dangerous from low-risk offenders, and the results are impressive. They've shown it's possible to cut the cost of prisons while keeping the public safe. Last year, Texas, not exactly a soft-on-crime state, made sweeping reforms in their prison system. They reserved expensive prison beds for the dangerous offenders and treat the rest in community facilities, and they've taken the plans for building more prisons off the table, saving hundreds of millions.

SEN. SPECTER: Mr. Nolan, how much more time would you like?

MR. NOLAN: Okay. I have three quick things that I think are really important that the commission take up. The first is: Treat the non-dangerous mentally ill in community treatments.

The police don't want to arrest these folks. They do what they call mercy bookings because they're on the street, but there are no beds to put them in. It's so much cheaper to keep them in a community treatment facility. It's about $29 a day versus $65 or so that it costs to keep them in prison.

It also makes management of prisons impossible -- or jails. How does a mentally ill person follow the orders?

The second thing is...

SEN. SPECTER: Mr. Nolan, how much -- how much more time would you like?

MR. NOLAN: It will be like two minutes.


MR. NOLAN: The second thing is: Have swift and certain sanctions for probation and parole violations. Now a vast number of prisoners going to prison are for parole violations, some of them serious, but a lot of them technical violations. They missed their appointment with the probation officer, they failed to report certain income, or they had a dirty UA. Sending them back to prison at a cost of $30,000 a year isn't a way to handle it.

The Pew Center has studied a program in Hawaii by former federal prosecutor, now Judge Steven Alm, that brings them in. If they have a dirty UA, they go straight to jail, but not for years, for 24 hours, to hit them up the side of the head. Some of these are knuckleheads that just can't follow the rules, and this is a way they say, "We're serious about it. Get back in drug treatment. Get back meeting your parole officer."

The results have been dramatic in that they have 85 percent fewer missed appointments and 91 percent fewer positive drug tests. So it's working, and it's saving the taxpayers a bundle.

The third thing is: Match the parole supervision to the risk. Now a lot of states have every parolee being supervised. Instead, it should be focused on those that are a danger.

And then the last is a really ridiculous policy that limits mentors that work with prisoners inside prison from staying in touch with them when they get out, and most of the states have this policy, and it interrupts the very good relationships of the volunteers that are helping these inmates change their lives. It cuts them off from the very people that could protect them. It's just astounding that the states would have that.

These are the type of issues that the commission can address. The states desperately need the help looking at these things. They're so busy coping with the number of new prisoners that come in from these long sentences and the stronger crimes, that they can't look at these themselves. The commission can do that.

I thank you so much, Mr. Chairman, and Senator Webb and the other co-sponsors for (curing ?) the bill.

SEN. SPECTER: Thank you, Mr. Nolan.

Chief Bratton, you commented about preventing crime, and you have the unusual system of CompStat. I think this should be a good forum to explain that. Other chiefs may be listening to what we say here. Exactly how did it work and describe its success rate.

MR. BRATTON: The success in New York which is fairly well known, which is now continuing in Los Angeles with many fewer police resources, is based on a system of timely, accurate intelligence, The idea that gathering up your crime information, both serious as well as minor, broken windows, every day analyzing it, and as quickly as possible putting your police officers, whether in New York City with a lot of cops -- I could cover all my dots all the time -- or in Los Angeles -- I have to prioritize where do I put my very small number of cops, on what dots. The very act of staying on top of your crime information really allows you to rapidly respond to emerging patterns and trends and stop it in the second or third event rather than the 15th or 20th.

And then what we're also focused on is relentless follow-up, the idea that the federal government in particular and to a lesser extent state and cities are like one-eyed Cyclops, to quote my friend David Essman from Providence, that we look at an issue, we think we solve it, and we move on, and like the carousel, we never come back to it again. In policing, we stay on crime all the time. It never goes away, so we never go away.

So the CompStat model is very simplistic, if you will, but it works. But what fuels it is the idea: Better to prevent the crime than expand resources, not just police resources, but societal resources. So the statistics that the gentleman to my left referenced in New York City was not widely known, was during the Giuliani time, my time as his commissioner. We purposely increased incarceration rates for a period of time to get the attention of the public and the criminal element, both serious and minor, and the prison population rose from 18,000 to 22,000, the capacity of Rikers Island. Right now, Rikers Island houses around 11,000 inmates. There's almost as many corrections officers on Rikers Island as there are prisoners.

What happened? Police controlled behavior, both quality of life, broken windows, as well as more serious crime, CompStat, to such an extent, we changed behavior. So the failed philosophy of the last presidential crime commission that pointed police in the wrong direction for 30 years was that you the police -- society will figure out what to do about the causes of crime. You go work on the results of it. Well, we did that for 30 years, and we saw the results. Crime went through the roof, peaking in 1990, with huge increases, particularly fueled by crack.

Good news was that in the '80s and the '90s, American police and -- working with political leadership, yourself included, we got the crime bill of the '90s, the first comprehensive omnibus crime bill, and we changed America.

Violent crime went down 40 percent; overall crime, 30 percent, and but for 9/11 -- we've sucked up so many resources that had been focused on traditional crime -- we would have kept it going down at an even more dramatic rate.

And so the idea now going forward with the new commission is that certainly incarceration is a critical area, but if that's all you focus on, if you don't focus on police practices, if you don't focus on probation and parole practices, you're effectively going to end up 30 years from now where we were in the '90s as we celebrate --

(Cross talk.)

SEN. SPECTER: -- crime bill was effective?

MR. BRATTON: I'm sorry, sir.

SEN. SPECTER: Do you think the federal legislation in 1994, the crime bill, was effective?

MR. BRATTON: It was effective in some respects. I'm an example of that. Most of American police leadership today, my predecessor and my two successors in the Boston Police Department, for example -- we all received educations in the '70s as young police officers and sergeants entering the police business where we were exposed by going to college daytime and at nighttime working as police officers. We didn't get wrapped up in the blue cocoon of that era which was all about hook 'em and book 'em. We understood that -- the first book I ever read for a professional exam was Herman Goldstein. It's "Policing a Free Society." We ended up more progressive.

The leadership of American policing today, which created CompStat, quality of life policing, problem-solving policing, focus on prevention, and within five years, sir, we'll be into predictive policing. The next era is we will be able to predict with great certainty where crime is going to occur and be more focused on preventing it.

It's coming about the focus back then had some good results. It provided leadership within policing that benefited the policing system and allowed us to also appreciate that it's not all about us, it's about what part we play in the larger system. We are one element, only one element, but I would argue we're one of the most effective if we get it right.

SEN. SPECTER: Professor Olgetree, you emphasize the treatment aspect. We call it a correctional system, but we all know it doesn't correct. Tremendous cost of recidivism. One of the factors which has been so difficult is to get sufficient public support to make the system correctional on the steps of detoxification or literacy training or job training. What suggestion would you make to how you get sufficient public support to get the funding to do it?

MR. OGLETREE: Senator Specter, I think this is an idea where the public would actually support the idea of what I would call a sane criminal justice policy, if the public understood something as simple as the collateral consequences of punishment.

You don't only go to jail when you commit a crime in most cases, put aside minor crimes. You lose your right to vote, you lose your right to hold a license, you can't get a job, you can't travel, and you can't live in certain communities and, therefore, the only thing you do is return to crime. And so the community is punished a second time because we haven't thought carefully about what to do with this person once they've served their time.

A couple of sensible things are going on with the mayor I know in Oakland, the former member of this Congress, Ron Dellums, and with the mayor I know in Newark, Cory Booker. Both of them are making contact with corrections officials before people are released to get a sense of where they're going to go, what treatment they need.

It's a form of a second chance, but the idea is that I don't want my community impacted by someone being released today who I know can't get a job, doesn't have a license, doesn't have a place to live. They'll be committing crimes within 48 to 72 hours. So reaching those people before they're released and working with corrections is one thing.

The second thing is to think about our policies that disenfranchise people in terms of working. I let the public know that we're not saying that we're going to give the best and most expensive jobs, the most revenue-generating jobs to criminals. That's not the right idea. But the idea now is that someone who has a record can't get a job cutting grass or painting a fence, okay, not a child care center, not in certain sensitive areas, not in national security, fine, but the kinds of work that they could do where they would be taxpaying wage-earning citizens is important.

I recall the line from Chief Justice Earl Warren's position in Brown. Brown had a lot of interesting things to say, but one thing he said -- the most important thing was education. He said the very foundation of education is that it creates citizenship. People consider themselves citizens which makes a big difference.

And what I would suggest that we'd have to do and this commission could do very effectively is to figure out a way that people -- back in the old system, you had both a time of punishment, but also a time of treatment and release -- and that we would make sure that we have a sane policy that enforces that.

SEN. SPECTER: Professor Ogletree, in terms of attacking the underlying causes of crime, we talk about education, rehabilitation, realistic rehabilitation, job training. During your tenure in this field, do you think we've made any progress in the last three decades on --

MR. OGLETREE: We have.

SEN. SPECTER: -- the underlying causes of crime?

MR. OGLETREE: To be fair, we have because what we've done is to get people on their own initiative with their own resources to come up with creative alternatives for education.

If you look at what is being done right in New York with the Harlem Enterprise Zone, this has taken a community that would otherwise be viewed as crime, drugs, violence, but, in fact, Jeffries has taken this community and said, "You know, this is our community. We have to clean it up. We have to respect it," and so people from parents to children are invested in it in some way that makes an enormous amount of difference.

At the same time, James Bell in Oakland has the Burns Institute which works with young people to make sure that we're very careful about things like expulsion and suspension because, when kids are out of school, all they do is commit crime. All of our laws that talk about curfews at 9:00 - the crime's happening -- as Chief Bratton will tell you, it's 3:00 to 6:00, these latch-key kids who don't have anyone supervising them.

And the third example that's a pretty significant one that is resource serious, but Chief Bratton will tell you, in Boston, what we had was the voluntary efforts of clergy not meeting kids at the church, but going out in the streets of Boston, in Dorchester, Mattapan, and Roxbury, at midnight and talking to them and taking them to have some coffee, and so they had something to do, and the TenPoint Coalition of the Black Minister Alliance -- what I'm saying is that the community can address crime.

It shouldn't be a burden just on police, just on the criminal justice system, but we have to use the resources that are already there, and if we can replicate examples of the TenPoint Coalition and Boston -- Black Minister Alliance in communities across this nation -- ministers, retired teachers, senior citizens, all of us have an interest on crime prevention, and we do that by telling children we love them, they do have some future, we can help them, and it doesn't cost the government money.

The idea is to make the community responsible for its own, but do that in a sense that gives the community some power to make sure that children have some alternatives, other than the idea that all they can do is hang out in the streets because they can't get a job, they can't go to school, and they don't have many ideas of success within their homes.

SEN. SPECTER: How important do you think mentoring is on that kind of community support?

MR. OGLETREE: It's critical. It's absolutely essential.

You know that President Barack Obama and his wife, Michelle Obama, were my students, and I think about both of them. People see them and what they've done today, but Barack Obama is a guy whose father was largely absent from his life. His mother was pregnant as a teenager. He was moved around not the country, but around the world as a young kid. And yet he had mentors who kept him in check, who made him get away from bad influences, and led him to see that his life could be different. And the same thing with Michelle, a father who was a working-class guy who had multiple sclerosis, but he took care of his children.

I think mentoring is perhaps the most significant single factor. And here's the point that we forget about. It's the problem that we don't appreciate the fact that mentoring has nothing to do with race and gender, that if we think because I'm white, I can't mentor a black kid from Harlem or I can't mentor an Hispanic kid from Houston, we're wrong, and if we don't see it as our problem and our children and our community, that's the problem.

Mentoring should be a global effort by everyone, that everyone can contribute, and that makes an enormous amount of difference for these children, to see somebody who loves them, who will spend some time with them, and it's cost-effective because it lets people like senior citizens let kids know what it means to read a book, to think about a job, and to be self-sufficient.

SEN. SPECTER: Senator Klobuchar?

SEN. KLOBUCHAR: Thank you very much, Mr. Chairman.

Thank you to our witnesses.

Before I had this job, I spent eight years as a prosecutor in Hennepin County, heading up that office, and I saw firsthand how the criminal justice system can work well, and then some of the issues that we have with it as well.

I will tell you that my experience -- Minnesota has a lower incarceration rate than most states. We use probation more. We hang sentences over people's heads. We have a functioning drug court that has been improved and has some merit to it, I would say.

But we also have focused in recent years strongly on tough sentences against felons who commit gun crimes and things like that. So I will say that despite many people who completely decry our criminal justice system, I think there have been some improvements in recent years.

I can tell you that I come from a city that was once called Murderopolis in the mid-1980s, and because of some tougher sentences, but also some more work on drug rehabilitation in our county, we actually saw vast improvements, a very strong decrease in the amount of murders. So no one is calling us Murderopolis anymore.

So I have interest in trying to make improvements, but also wanting to make sure that we don't -- that while we fix what is broken, that we're not going to hurt the good that has come out of some of the tougher sentences for certain crimes as we go ahead.

I had questions, first of all, for you, Mr. Bratton. I think we met once at a prosecutors' conference where I heard you speak back then, many years ago, but I know community policing -- you're a fan of community policing. I also think we could build on that with community prosecution. We did some of that in our county that was very successful. I do want to talk about whether you think this commission should also be looking into community policing.

MR. BRATTON: Community policing is, in fact, being quite frank with you, what saved America in the 1990s. The federal government entering into the partnership with state and local agencies, for the first time in an effective way. The Omnibus Crime Bill, some meaningful gun regulation; but its support of the concept of community policing, the emphasis on partnership, community, criminal justice system partnership within the system, prosecutors working with police, working with probation, parole, judges, et cetera; and the return to the focus on prevention of crime.

What we focused on in the '70s and '80s was, as I was talking about earlier, was the response -- response time, arrests rates, conviction rates, all important, but that's part of it. The totality of it is how do we prevent it in the first place? How do we prevent people from becoming drug addicts? How do we prevent people from being incarcerated?

And in the '90s, we learned a lot -- the New York experience, Comstat was a tool to facilitate community policy. We resourced appropriately on the police side of the house in that we had a lot of police -- 100,000 more than we have now. We also built a lot more prisons, but in the building of the prisons, when we fill them up and it's the police that put them there; we in fact compounded the problem rather than as policing was doing, reducing the problem in terms of the reduction of violence. Too many people in jail that don't need to be there, many who could be in treatment centers.

Certainly the homeless, what has come to be known as the homeless, the majority of whom are in fact having mental issues. That half-man (ph) population in prison should not be there. They're only there because there is no place else to house them. Those half-men in the '60s and '70s were in other forms of prison, they call them mental institutions. We literally dumped them from one place into another. And along the way a lot of them became the homeless populations we see in the streets.

So effectively, let's -- your point, your point that we not throw everything out but examine what has been working, what is continuing to work, and what can we add to it. And let's get rid of what is not -- and there is a lot that is not working.

SEN. KLOBUCHAR: Mr. Nolan, appreciate your work. For many years, I visited -- I think 10 years a woman who is incarcerated in Minnesota before I was the chief prosecutor. It got a little more difficult then. But she had killed a pimp and -- her pimp and I got a sense of the population. I went there about once a month and saw her and got to know some of the other inmates in the facility.

And I will say that one of the things I noticed that there were some people there with severe mental illness. One of the things that you suggested, that Mr. Bratton just mentioned, was to provide funding for providing more community-health facilities where non-dangerous, mentally-ill people -- I know we worked with a mental health court for awhile when I was a prosecutor to take some of the, you know, urinating in public cases; and some of the cases that were non- violent. And tried to make sure that these people were taking medication, and working with them. And we had some success with that.

Could you talk a little bit about this idea of having a place that's different from the prison for people who are mentally ill to be incarcerated or to get treatment?

MR. NOLAN: Yes, first of all it's wonderful you've gone and visited the woman in prison. As I said, it's a lonely time. And anybody that wants to turn their life around having somebody that comes and shows love for them and cares about them, gives them hope. So thank you.

The mentally-ill population, as Chief Bratton said, we closed our mental hospitals, but didn't build the community facilities that were promised to take care of them. So they end up on the street and the mercy bookings of the police, they end up in jail. The idea is to get them in a stable environment. Oftentimes they're off their medications. And if they're on their medications, getting three squares a day, they're totally functioning people.


MR. NOLAN: They're not a danger to anybody. L.A.P.D. and L.A.S.O. have -- the sheriff's office have a great program -- crisis intervention teams that are trained, especially trained officers that go out when a mentally-ill person is found in front of Denny's worshiping the news rack or whatever, but it's a public nuisance. What it does is free up the patrol officer to continue doing his work. These are especially trained and they try to diffuse the situation.

And then, they've worked out contracts with local mental health facilities.

They get first call on the beds. And that's what the need is. They needed a bed that can give them acute care that they need to stabilize them; and then they can go to a regular mental health facility. The problem is they don't have enough money.

So I don't know about L.A.P.D., but L. A. S. O. has it one shift, eight hours out of the 24. And they've had to choose, you know, the times they have that special team just during eight hours. And the problem is people don't act out during set times of the day. And if they had 24-hour coverage, it would be much better.

The second thing is that they have a bed to put them. There is a -- I'll give you a quick story of an incident that shows how absurd this situation is. A deputy before this program arrested a mentally- ill person. Again, they were causing disturbance. He took them to county hospital.

The L. A. County Hospital refused to accept him; and said take him to jail. The deputy said this man is not a criminal, he's sick, he belongs here. The hospital said get off the property; we're going to arrest you for trespass if you stay here. And tried to arrest the deputy for trying to get the guy the treatment he needed. It became a big -- the watch commander, the sheriffs and the commander at the hospital got involved and they diffused the situation.

But that's how absurd this situation is. You had a deputy that knew this man didn't belong in jail. Also, the mentally ill are horribly abused in prison. They're taken advantage of and then sometimes they also act out and abuse people.

And the last thing is it just makes management impossible. Jails and prisons run on order and, you know, following set patterns. That's how they control the population. By definition, a mentally-ill person can't follow the rules. So they end up in detention, you know, solitary confinement which exacerbates their mental illness.

SEN. KLOBUCHAR: Are you familiar with the mental illness court that they had in Milwaukee where they actually had a -- they have a place that people go; and they take their medication with sentences hovering over their heads. And I think it was an interesting model to look at again, for lower-level offenders.

MR. NOLAN: That's exactly. There are some mentally ill that need to be -- Charlie Manson needs to be locked up, but a lot of folks aren't.

SEN. KLOBUCHAR: Thank you. All right, I'll come back.

All right, the other thing, Mr. Walsh, I want to thank you also for being here. And I appreciated your testimony where -- I don't know if you said it today, but in the written testimony where you talked about how state and local governments are responsible for 96 percent of those individuals that are either incarcerated or on parole. And as we look at this commission and the setting up of a commission, I'm very concerned that those -- the people that are paying for 96 percent of this have a voice. Because I can tell you what my impression was that being on the front line, managing an office of 400 people is that the people in Washington love to put mandates down on us and put it in their brochures. And then, we got stuck with all the work without any funding.

So could you talk a little bit about helping local governments have a voice with this commission?

MR. WALSH: Yes, thank you. I thank you for your interest in this too. You know the principle which I mentioned in my written statement is often called the Principle of Subsidiarty, which is that those government officials who are closest to the affected populations are typically in the best position, like you were as a prosecutor in Hennepin County, to know what the needs and the priorities should be for that particular community.

So often when drug policy is made or other policy is made at the Washington level, it doesn't necessarily reflect the values and the interests and the priorities of the local community. So those persons who are ending up being incarcerated or mental health perhaps issues that are being dealt with at the population in that local community, is being dictated by very broad and not necessarily very nuanced policy that's being made in Washington.

So those who are on the ground, as I've learned in other experiences that I had including doing Katrina relief where I was involved in getting the private sector on the ground very quickly right after the hurricanes hit. One of the things you learn is that the government officials who are closest to the situation are the ones who understand what is happening on the ground. They recognize it. It's very difficult for anyone in Washington to really see those nuances.

So from that standpoint, I think one of the things that the commission really needs is to have a robust representation from the states. It's good that the commission right now has two members who would be appointed -- one by the chairman of the Democratic Governors Association, the other by the chairman of the Republican Governors Association. But it would be helpful to have language in the statute, which specifically states that those interests need to be taken into account. And whether those members are appointed by Congress or, as I also recommend, that some of them be appointed by the executive branch. That those be people who are staunch proponents of the state and local law enforcement officials who right now are 91 percent of all the law enforcement officials across the nation.

So those are some of the ways that I think we can do it. But part of it is just elevating the discourse and making sure that we recognize that the states really do have the huge burden. One percent of the arrests, I think, in 2003 were made by federal officials. Ninety-nine percent of the arrests were made by state and local officials.

That's something that gets lost in the national publications, the national media. It's important that we continue to bring that issue to the fore because otherwise, we end up with some of the guidance that we were given even -- I hate to say it, but through the Sentencing Reform Act from the federal government, which suggests that this is the best way necessarily to do sentencing.

And a lot of the states will follow that in sometimes lock step or rote especially if there is money attached to it. So from that standpoint, I think it makes a lot of sense to get the communities that Professor Ogletree was talking about well engaged. And to have them well represented and their voices from the very beginning of the process -- community leaders, ministers, others talking about what they're really seeing and how to make sure that what we plan actually works.

SEN. KLOBUCHAR: Right. Then, the other thing you commented about was just the sentencing and how there are sentences that we should look at changing. And we had a good hearing here on the crack- power disparity. I support changing that; and I think a number of the other senators do as well.

But I'm concerned -- I'll be honest with this, I saw in our state, some major improvement when it came to -- especially some of those federal gun laws that went on the books that allowed for some of the worst criminals with guns. It allowed that to be up to the federal level. I think that was very helpful in many cases for us even when they didn't go to the federal level. The fact that those sentences were out there it gave us some leverage to enforce the laws on the state basis. I think some of the changes in sexual assault law has been helpful. I think some of the changes in domestic abuse laws and those longer sentences have been helpful.

So some of the rhetoric surrounding this bill -- that the entire system is broken; when in fact we have made strides in many areas does bother me. And it is not to say that we don't need changes to the criminal laws, we do. And I come at it with these eight years of experience of seeing the good side of using rehabilitation and having programs that work. But I also come at it as someone that has seen also the benefits of having some of the strengths of a strong criminal justice system with those sticks out there.

Do you want comment briefly on that?

MR. WALSH: Yes, I would. I think you're right. In the gun crime in particular there is an instance where the -- I hate to say it again, but there is a tenuous connection to interstate commerce in many instances for those federal crimes. That doesn't mean that the states can't put in place the same type of laws; because they have wide latitude to criminalize gun possession in similar circumstances.

Now the issue becomes is there funding available and is there a mandate available.

So one of the ways that we've -- and I think part of what the commission needs to do is to recognize that the average person has gotten to the place where they do begin to look to Washington for all of the solutions. And to recognize that the state capital is often the place where those crimes can be put into place, those offenses can be put into place.

And then also look at how is money being allocated. Some of the costs savings measures that have been mentioned here could be reallocated for like gun enforcement, as an example. And the benefit being that there is again a more nuanced approach; and it's more tuned to the gun offenders in that particular state, that locality, whatever it is. And not necessarily as harsh as some of the cases I saw when I clerked, for example, in the federal court system where they were basically -- an offender had a single shell casing or a few shell casings in a residence where he was staying. Not even his shell casing -- it was undisputed. But he either knew that they were there or had constructive possession of them -- ended up spending time in prison because that supposedly was sufficient to show that he had a connection.

So there is an instance where at the state level those types of stories I think have a greater impact on the electorate. And they can begin to retune the policy. But I think mental illness as an example; it is good for Washington to lead in terms of understanding what best practices are, doing the thorough investigations; and then, bringing everyone to the table to begin to discuss it very openly.

SEN. KLOBUCHAR: Yes, and I always just think about the effects that these changes will have. And I think there are some very good things we can do here, but I always remember it's not going to be on the gated communities. It's not going to be where a lot of my colleagues live. It's going to be the effect of these policies good and bad in the criminal justice system, affect people they know in the Fallwell (ph) neighborhood in north Minneapolis where they can't -- they depend on us to make sure we're making the right decisions here.

I just want to end because the chairman has been so nice to let me go on here; with Mr. -- Professor Ogletree. Thank you very much for your work and I was very interested in your focus on patrol officers, we call them probation in our state -- of better monitoring using those compliance tools. We found that to be tremendously effective and a good use of resources. And they sometimes get left behind where someone as long as they are monitored -- and it has been a big help to know, to use some of that sentence hanging over their head and to have probation officers, especially if they are willing to be out in the community.

Do you want to expand on that some more?

MR. OGLETREE: I agree. When I was practicing here one of the great things was the great Probation and Parole Division, not with guns, but with the idea that -- help people get jobs, make sure that they kept their appointments, made sure that they were treating their families respectful. And it created a real partnership because you were in the halfway house, right. You were out of jail, but if you didn't follow my rules strictly, you went back to jail. And that was an important lever over their head.

And I think we need a lot of those, not just the idea of probation and parole officers and others, social workers and people in the community. But as I said earlier, we need the community to be invested in some reasonable way. Here is the one thing that I would slightly disagree with both the inferences in yours and Mr. Walsh's. Here's the problem everybody has their own idea of how much to add to punishment.

And so, you may want to do it on guns, someone else on sex offense, someone else on the elderly. And what happens is you get a 24 year old who gets a sentence not of eight years, but of 30 years. And he comes out 54 years old, doesn't have a high school diploma, doesn't have a job, doesn't have a license. And then, he goes out because he can't work, he doesn't have a place to stay, and three weeks later he's back. And you say what happened? Well no one did anything to prepare him for the life that he's going to experience.

And my sense is that we've got to think of not just the role of prosecutors and defense lawyers and police, but who are the problem solvers? No one has that role in the criminal justice system. No one has to say my job is to solve the problem. My job is to resolve the problem, and my job is to do it in a smart and creative way.

It is being done by Chief Bratton and others in police now when they are more creative about it. It's being done by judges, as I mentioned earlier, who are looking at the disparities between two penalties and saying well let me do what I think makes the most sense -- and still be punitive, 130 months is still a lot of time as opposed to 160, but no one is walking free.

But I think the real goal here is to figure out can we have some group of people who can step back and say our job is to solve this problem in a cost effective way. And if we can't punish everyone as severely as we'd like, how can we make them accountable. And my sense is you've got to get a job, you've got to go to work. You've got to earn a salary; you've got to pay your taxes. You've got to respect the community.

I mean, there are a whole series of things that we think that can be done and we've seen that happen. I should say if you look at the testimonies, the submission virtually every single program that I mention in here is an organic one. Some community person said I want to do this for these kids. And then, they got a little bit of money, and then they got a little state money, and then they got some federal money.

And so it wasn't -- it was somebody locally who couldn't go to the mayor, or the governor or the city council or the legislature, but somebody in Washington said that's a very good idea with Youth Build. That's a very good idea with LA's Best when kids are in school and staying off the streets. And so, my sense is that the federal government shouldn't tell the local government what to do.

But it seems to me the federal government should find ways to support creative programs and it's a competition. You don't get it just because you're there; you have to prove to me that you're doing something that makes a substantive difference in the quality of life. Not just for those who are in the criminal justice system, but for those who are fearful of walking down the streets, of shopping in a supermarket, or living in a neighborhood. That's what we have to do to have a comprehensive and sane; and I would say smart and creative criminal justice policy.

SEN. KLOBUCHAR: Very good. And I hope you didn't believe that I was against looking at this because I come from a state, which I didn't always like to say, has the lowest incarceration rate in the country but pretty much so. We use probation all the time to -- in very positive ways. And I think a lot can be learned from that especially at the federal level.

But one thing you mentioned, that I think is really important to note is that no one -- a lot of times politicians don't want to pretend people are going to get out. And some offenders should never get out, do never get out. But many offenders do get out and I think the willingness to focus on that part of the time, what education they get when they're in prison. No one wants to think they're getting out, but they are. And so the more we can do to equip them with those skills and to help them get jobs when they get out.

We have a great program in the Twin Cities called Twin Cities Rise that has actual members. And this is one of these things that bugs me with programs, because a lot of times you have no idea what works and what doesn't. And I think that we really need to have a focus on that as well, but they have the numbers to show that they are willing to take people in, train them and get them out there in the work force. And certainly, at this difficult time in the economy, it's even harder for ex-inmates to come out and get jobs. And so, I appreciate that focus and it must be a focus of this commission.

MR. OGLETREE: I should also say that you know Kathy Ricklin (ph), who was the co-chair with me of the Juvenile Justice Section of the Criminal Justice Section at ABA. And we've been doing this very much -- and Donald Lewis, who was a classmate of mine, the new dean of Hamline.

SEN. KLOBUCHAR: In Minnesota, yes.

MR. OGLETREE: All of us have been talking about how do we do something for children. That is, that we can't save everybody, but if we can prevent something early that makes an enormous amount of difference. And Minnesota is one of those states that we've seen as a model intervening in people's lives at an early point and staying there until the problem is solved. That has made a tremendous difference in the recidivism rate and the crime rate.

SEN. KLOBUCHAR: Thank you. And I do think the other thing that made some difference because we were called Murderapolis (ph), was that we had some tough sentences --


SEN. KLOBUCHAR: -- that we were able to use. And I think the key is how to have it be a chisel and not a hammer in trying to get to the right place. And we're never going to be perfect, but I do -- maybe because I had to play that voice in our state for so long, we have been called the Land of not just 10,000 lakes, but 10,000 treatment centers. So I have -- believe that it is important to have both. And I appreciate the work that you've all done. Thank you very much.

SEN. SPECTER: Thank you, Senator Klobuchar.

We will make a part of the record the letters, statements and reports from the Rand Corporation, Human Rights Launch, National Association of Criminal Defense Lawyers, Council of Prison Locals, AFGE, AFL-CIO, Federal CURE, Inc., Criminon International, Goodwill Industries International, Russell Simmons, Kings County DA Charles Hahn (ph), Families Against Mandatory Minimums.

We thank you all very much. Chief Bratton, Professor Ogletree, Mr. Walsh and Mr. Nolan, that concludes our hearing.

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