Lawfare's Quinta Jurecic on what's next for the January 6th Committee and the steps Congress can take to safeguard American democracy.
Some 2.2 million people — nearly 1 in 100 adults — are in U.S. prisons, the highest incarceration rate of any Western nation. President Barack Obama has made the issue a priority. Last month, he granted clemency to 46 men and women facing decades of prison time for nonviolent drug offenses. The recent push for criminal justice reform has proven to be a rare point of bipartisan cooperation: Leaders on both sides of the aisle have agreed it’s time to tackle America’s bloated prison system in the U.S. and to amend sentencing laws. But the way forward is less clear; many people say new proposals don’t go far enough. We look at different plans for criminal justice reform.
- Stephen Saltzburg Law professor, George Washington University; former chair, ABA Criminal Justice Section
- Molly Gill Government affairs counsel, FAMM (Families Against Mandatory Minimums)
- Josh Gerstein Senior reporter focused on legal and national security issues, POLITICO
- Anthony Papa Artist-in-residence, the Drug Policy Alliance; author, "15 to Life: How I Painted My Way to Freedom"; granted clemency in New York State in 1997 after serving 12 years for a non-violent drug offense
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. For decades, activists have called for changes to sentencing laws in the U.S., especially those surrounding drug offenses to address the ballooning prison population. Now, President Obama has made criminal justice reform a top priority and there's bipartisan support, including from the Koch brothers.
MS. DIANE REHMHere to talk about the latest proposals and what it will take to make real change, Stephen Saltzburg of the George Washington University, Molly Gill of Families Against Mandatory Minimums and Josh Gerstein of Politico. As always, I welcome your calls, your comments, 800-433-8850. You emails to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. And welcome to all of you.
MR. STEPHEN SALTZBURGHi, Diane. Great to be here.
MS. MOLLY GILLThanks for having us.
MR. JOSH GERSTEINGood morning.
REHMStephen Saltzburg, how did we come to be the highest incarcerating nation in the Western world?
SALTZBURGWell, it wasn't always this way. We had rising crime rates starting in the late '60s, particularly in the 1970s and the response, by both the federal government in the lead and a lot of the states, was tough on crime. So we did several things. Number one, we enacted a lot of mandatory minimum sentences for drug crimes and gun crimes and sometimes other things. Number two, we did away with parole so that we had a truth in sentencing campaign, which meant that people, once they went to prison, they served their full time.
SALTZBURGAnd we had increased penalties for a lot of offenses. And the combination of things was we had people -- more people going to prison for much longer and that just was exacerbated over time. We continued to do that.
REHMSo what was the mandatory minimum sentencing supposed to do?
SALTZBURGMandatory minimum sentences were supposed to do two fundamental things. Number one, take discretion away from judges. There was a perception among a lot of legislators you couldn't trust judges. They were giving people probation. They were light on certain crimes and so took away their discretion and number two, and this is what prosecutors wanted, mandatory minimum sentences are a club that prosecutors can wield to encourage people to plead guilty to avoid mandatory minimums.
REHMAnd to you, Molly Gill, who were the kinds of people who got sentenced, caught up in this system?
GILLSure. Well, I think Congress originally intended these laws to apply to the major kingpins and leaders of big drug organizations. But actually, they've applied to everybody in the organization whether you're a mule or a courier, whether you're the person standing on a street corner selling a small amount of drugs and they apply regardless of any kind of relevant facts or circumstances, such as whether this is your first offense, whether you're committing the crime because you, yourself, are addicted to drugs. whether you're being coerced to commit the crime, whether you actually aren't really that involved at all and you're just sort of dating someone who happens to be selling drugs.
REHMTell us about Mandy Martinson.
GILLI'm so glad you asked. Mandy is a first time offender. She was sort of your traditional Iowa corn-fed girl and, you know, valedictorian of her high school and went to college. She got out of an abusive relationship and what had been experimental drug use at parties turned into a full blown drug addiction as she was struggling to deal with some of the trauma from that relationship. She started dating a man who was selling drugs, who was on parole from selling -- a previous conviction for selling drugs.
GILLHe moved in with her. A month later, the police showed up. He kept his drugs and his guns in her house so she was arrested along with him. She was held accountable for them. She got 10 years for the drugs, plus an additional five years for the guns. She's doing a 15-year mandatory minimum prison sentence, had never had an arrest in her life before. And even went out and got drug treatment and completed it successfully, before she was sentenced and had obtained sobriety.
GILLAnd the judge said, I don't want to do this. This makes no sense, but I still have to send you to prison for 15 years. The boyfriend, as often happens, had good information about the drug trade so he traded that information to prosecutors and ended up with a 12 year sentence.
REHMIs she still in jail?
GILLShe is. And she will be out in 2017.
REHMWow. Josh Gerstein, we've seen lots of talk and perhaps even bipartisan support on sentencing reform, prison reform. Where is it all coming from and why?
GERSTEINWell, it's been a pretty remarkable change in the conversation on this issue, if we think about back to the 1990s when being tough on crime and sort of the entire -- I want to call it Bill Clinton-centrist movement of Democrats was seen, in large part, as combating the perception that they were being easy on criminals. And now, it's a very different environment. Crime rates are way down and there's more tightness with the budgets around the government to make it difficult as the bills for keeping these millions of people in prison have to be paid.
GERSTEINAnd the most recent development that has really affected the political conversation is the entry of the Koch brothers into this discussion, along with the Tea Party movement, I would say, on the Republican side, really changing the debate. I don't know, in the end, how strong legislation will be that will change some of these mandatory minimums, but there's no question that there's a much more robust discussion on both sides of the political aisle about how there can be changes to mandatory minimums, to sentencing policies, how to make prisons more rehabilitative in a way that you just -- it was considered political poison to be talking even about these issues 20 years ago.
REHMDo I understand that federal prisons consume 30 percent of the federal justice system budget?
GERSTEINThat's right. And I think the number -- they've sort of capped off the number of prisoners or that's leveled off, but the percentage of the federal justice department budget devoted to prisons continues to rise and the concern inside the justice department is that eventually it would consume the money that needs to be spend on the FBI and the people that actually enforce the laws. All the money would be going to keeping people in prison, which just doesn't seem functional.
REHMAnd what about Democrats here? You've had Bill Clinton come out and say he went too far on the sentencing, but what about Vice President Joe Biden, for example?
GERSTEINWell, Biden's an interesting figure because he was sort of synonymous with the Democrats tough on crime effort. Things were referred to in the 1990s as the Biden crime bill. There's probably no democrat that worked more closely with law enforcement, with police during the '90s and all the way through to the current era. He has said that he sort of got off the train on mandatory minimums many years ago, but there's no question that a lot of the funding that was directed to states and local governments was pushing them in the direction of building more prisons and being more strict.
GERSTEINBut the Democrat side debate has definitely shifted, although I'm not sure completely. You still hear things from time to time from folks like Dianne Feinstein and others who still seem to see some value in at least some aspects of mandatory minimum sentencing.
REHMSo Molly, what's happening in Congress right now?
GILLWell, we've got two bills, one in each house of Congress that seem to have at least some chance of moving forward. In the Senate, the sentencing reform bill is the smarter sentencing act. That's a bill sponsored by Mike Lee and Dick Durbin. Right now, we are hearing reports from the Senate that there's discussions in the Senate judiciary committee to combine some kind of sentencing reform that probably will not look a whole like the smarter sentencing acts reforms with what they're calling prison reforms or back end reforms.
GILLThese are reforms that let people earn time off their sentences for completing programming once they're already in prison. And Senator Chuck Grassley who's the chairman of the committee is trying to combine those two ideas into some package that he has announced he'll put forward in September. Over in the House, we have a much broader, more ambitious bill from Republican Jim Sensenbrenner and Democrat Bobby Scott called the Safe Justice Act.
GILLIt has 40 bipartisan co-sponsors. It's a comprehensive bill that deals with everything from having too many regulations that carry criminal penalties to what we do with people once they're out of prison and on supervised release. And it would take our mandatory minimum drug laws back to Congress' original intent, which is they would only apply to the very top level drug kingpins of major organizations so that would be a big step forward.
REHMAnd how would it affect those people in prison now who were sentenced under those laws?
GILLWell, the Safe Justice Act has many parts of it that would be retroactive and would allow people to go back and get shorter sentences through a court procedure. It wouldn't be an automatic, you know, you get 10 years off and go home kind of thing, but the Senate is much more reticent to do anything retroactive. There's really only one portion of the reform on the table that would be retroactive and that has to do with changes to crack cocaine sentencing laws in 2010.
GILLBack then, there was a big difference between crack and powder cocaine sentencing laws. Very little crack cocaine and a huge amount of powder cocaine got you the same sentence. You've done shows on that. The bill was called the Fair Sentencing Act. that would be retroactive.
REHMMolly Gill, she's with Families Against Mandatory Minimums. Stephen Saltzburg, he's professor of law at George Washington University and Josh Gerstein of Politico. When we come back, we'll talk more, take your calls. Stay with us.
REHMAnd welcome back. Here with me, as we talk about changes in attitude toward minimum mandatory sentencing, Josh Gerstein of Politico, Molly Gill of Mandatory -- Families Against Mandatory Minimums, and Stephen Saltzburg, professor of law at George Washington University. Some -- several listeners, including Scott, say, if crime is down, as the panel has said, didn't harsher sentencing have something to do with that? Stephen Saltzburg.
SALTZBURGI think everybody who has looked at this would agree that harsher sentences did have some impact on decreasing the crime rate. Criminologists say it's somewhere, maybe 20 to 25 percent. But if you look carefully at the statistics, you would see that some states had drops in crime rate that were greater than other states and those states didn't have harsh sentences. And so one of the things that -- two things that really happened: The federal government has been a laggard here. It's been very slow to come around. The states had a problem. They couldn't afford to put more people in prison and to build more prisons. They have to balance their budget. That was one of the things.
SALTZBURGBut the second thing was elected district attorneys. They are somewhere in the neighborhood of 2,500 or 2,700. In the '70s, they couldn't get elected running -- if they weren't running on tough-on-crime. I mean, that's what they ran on. And then there was a sea change, when the realized that putting more people in prison wasn't necessarily making their community safer, because these people came out and weren't prepared to reenter their communities and do ordinary jobs. So prosecutors began to change how they measured success. Instead of measuring success by conviction rates, they measured success by whether their communities were safer.
SALTZBURGAnd so you look at, who created drug courts? Who created veterans courts? It was led by prosecutors. And these prosecutors really came to be believers that we needed diversion programs. Get people out of the criminal justice system. Get them into treatment. And you had dramatic changes...
SALTZBURG...in the reduction of crime in many major cities. Just to show you how slow the Justice Department was, back in 2004, the ABA -- the American Bar Association -- had proposals that basically said, let's change how we're doing criminal justice, much as we're making the changes today. The Justice Department wouldn't talk to the American Bar Association and, in fact, sent the associate attorney general to the annual meeting to oppose the major recommendations that were being put before the governing body of the American Bar Association. The states jumped on the bandwagon and, finally, the federal government, because it can't now afford it anymore, has finally come around and recognized it's not working.
GILLWell, I just wanted to address Scott's question as well and to say that the idea that incarceration reduces crime -- if that is always true, then the opposite should be true. If we lower incarceration, crime should go back up, right? And actually that's not the reality. Thirty states have reformed or eliminated their mandatory minimum sentencing laws in the last 10 years. And in those states, across the board, crime has continued to drop. So we can scale back and eliminate our mandatory minimum sentences and continue to have high levels of public safety. In fact, I would argue, it's absolutely essential that we do that.
GILLBecause when we are wasting money locking up nonviolent drug offenders, it's money we can't be spending on things that we know, in fact, deter crime, which is the swiftness and certainty of getting caught. Things like having police on the streets where people know, if I commit a crime, that cop is going to see me and I'm going to get arrested.
REHMBut surely, Josh, there are arguments against moving forward.
GERSTEINWell, there are certainly people who have stood by the notion of mandatory minimums -- that they're necessary. You've had federal assistant U.S. attorneys, prosecutors at the federal level, saying that they need these tough sentences in order to get plea bargains, in order to do their business. Something on the order of, in the federal system, I think it's about 90 percent of cases don't go to trial. They result in plea bargains of some sort. And the prosecutors like to have this weapon to wield over defendants to say, well, if you don't play ball with us, you run the risk of 15, 20 or 25 years in prison.
GERSTEINIt's not a unanimous view among prosecutors. And Eric Holder, a couple of years ago, changed the rules when he was attorney general to make it less likely that these kinds of mandatory minimums would be imposed on people or sought by prosecutors. And some prosecutors say they've been able to do plea bargains regardless. Most people are not interested in going to prison for 25 years or even for 10 years. And they're not -- most people are not really interested in rolling the dice between those two things and they'll try to come to some kind of agreement, if they're inclined to do that.
REHMHere is an email from Ruth in Ann Arbor, Mich. She says, "I live here in Ann Arbor, where student drug use is common and ignored. Too many go to prison and way too many people of color are in prison. We define crime not by the act but by the actor." Stephen.
SALTZBURGIt's unfortunately true. When we look at our prison and jail populations, almost two-thirds of those populations are minorities. The great bulk of those are African-American and Hispanic, others, some others. And what we know is that drug laws don't get enforced on college campuses the way they do on streets. And one of the things we've come to realize is, if a police force is going to measure success by the number of arrests that they make, then they're going to always arrest people out of the open-air drug markets. It's so simple. You don't need to be a detective to do that. But you really have to work, if you want to deal with drugs in affluent communities, like Northwest Washington.
SALTZBURGAnd the police don't want to do that work because it's a lot easier to deal with people who are out there on the street. And as a result, we saw the crack cocaine sentences go through the roof, even though the percentage of defendants who were convicted was above 90 percent African-American. And they were no more dangerous than the white defendants dealing with powder cocaine. And we're still feeling the effects of that in criminal justice.
GERSTEINDiane, I also wanted to say that even some of the reform efforts do raise questions about racial justice. One of the big things I think Stephen mentioned, in Pennsylvania, they were trying to use formulas and big data to figure out who might reoffend and who can safely be released. One of the challenges with that is, when you feed all the data into these formulas, you tend to look at things like education level and maybe the family structure somebody came from. What happens, if you put all that data in the computer, and the computer says, basically, release the white prisoners and keep the black and Hispanic prisoners in jail. I don't anyone's going to tolerate that outcome.
GERSTEINSo one of the challenges -- as the Senate and others try to work through legislation that would try to, you know, pare back the prison population or release people early, take advantage of research and data -- is how do you do that in a way that's still fair to the prison population and upholds our values as Americans on the racial front?
REHMAnd now joining us by phone from New York City, Anthony Papa of the Drug Policy Alliance. He's the author of "15 to Life: How I painted My Way to Freedom." Tony, welcome to you.
MR. ANTHONY PAPAThank you for having me on your show.
REHMTell us your story. How did you end up in prison on drug charges?
PAPAWell, in 1985, I made the biggest mistake in my life. I got involved with drug activity. I bowled on a team in Yonkers, N.Y. I kept coming late to the league and a guy on my team said, "What's wrong?" I said, "My car keeps breaking down. Why don't you fix it? I have no money." He said, "Well, you want to make some money?" So then, I found out he was dealing drugs in the bowling alleys of Westchester County. And he asked me if I wanted to make some fast $500. I said, "No." A couple of months later, things were bad. Christmas time was coming around. I had to pay the rent. I got desperate. When you get desperate, you do stupid things. He asked again. I said, "Yes, I'll do it."
PAPAI took the envelope, brought it from the Bronx to Mount Vernon, N.Y. Walk into a police sting operation where 20 cops came out of nowhere, placed me under arrest. I did everything I could do wrong and I wound up with two 15 to life sentences for a first-time nonviolent drug offense under the Rockefeller Drug Laws, which mandate mandatory minimum sentencing. And I went to Sing Sing Prison. There, I was lost. I didn't know what I was going to do, until one day I discovered my talent as an artist from another prisoner who taught me how to paint. About three years later, I was sitting in my cell one night, picked up a mirror, looked in the mirror. I saw an individual who was going to spend the most productive years of his life in a cage.
PAPAAnd I painted this self portrait titled "15 to Life." Seven years later, wound up a deal with the Museum of American Art...
PAPA...where I got a lot of publicity of my case. And two years later, Governor George Pataki granted me executive clemency.
REHMSo once you got out, what did you do?
PAPAOh, I became an activist. I wanted to save those I left behind. I started a group with another individual, Randy Credico of the William Kunstler Fund, and we started a group called Mothers of the New York Disappeared, based on the Argentine Madres de Plaza de Mayo. And we had our first rally on May 25, 1998 where, with about 20 of us former prisoners, mothers of those incarcerated, started a rally on our 50th Street, New York City, near Rockefeller Center, holding signs of loved ones. And we attracted (word?) of New York press. And we turned to each other and said, "This is how we're going to change the drug laws in New York, by putting a human face on the issue."
PAPA"You know, forget the data, the numbers and let's put a face on this issue." So we got members of the organization, this 10-year-old girl who looked like Shirley Temple, she started speaking. Her mother was doing 20 to life. She was a drug addict. But instead of giving her treatment, they gave her a 20-year sentence. So there we started producing a lot of publicity, a lot of media on the issue. And politicians -- who were afraid to get involved because the issue was a hot potato -- if one of them would have come forward and supported the, you know, change in the laws, they would have lost their job. But we managed to change public opinion...
PAPA...where 80 percent of New Yorkers wanted to change the laws. And then, basically, they were not afraid. They came out and joined us. And that's how the laws were eventually reformed in New York.
REHMSo, Tony, what do you see at this moment? Do you think we are at an historical turning point?
PAPAI definitely think so. I've been involved with this issue, with Drug Policy Alliance, the organization I work for. We look for -- envision new drug policies grounded in science, compassion and health and human rights. So this is right on point with what we've been advocating for many years. And Obama has stepped up to the place, in my view, wanting to do away with mass incarceration. And him granting clemencies recently was a big deal. I hope that governors of states follow President Obama and use their pardoning powers more. And I hope this bipartisan legislation that you've been talking about on the show passes and the Smarter Sentencing Act comes into effect and hopefully do away with mandatory minimum sentencing.
PAPABecause that has broken our criminal justice system.
REHMTony, do you think we're making people worse if we put them into prison?
PAPADefinitely. I mean, I spent -- I wound up spending 12 years of a 15-to-life sentence. In prison, once you're in there, I mean, it's a school breeding contempt, criminal -- you learn how to be a criminal. You only become worse, spending an enormous amount of time in prison. I know, I worked in the law library in prison. So I handled a lot of cases dealing with drugs. 93 percent were black and Latinos in New York State. Out of the 100 cases I saw, I never saw a kingpin in prison, only low-level, non-violent drug offenders. That's who I dealt with. And these people -- maybe they were wrong, but they tried to, you know, juggle drugs, trying to support their families and maybe not in a small way, but they tried.
PAPAThey were human beings that made mistakes. But because of mandatory minimum sentencing, judges had no ability to give them a break. Like in my case, I was sentenced to two 15-to-life sentences. The judge gave me a break by giving me only one 15-to-life sentence. But he was handcuffed. He knew I wasn't a drug dealer. I was just a mule moving a package. But because of mandatory minimum sentencing, the judge looked only at the weight of the drugs and not my participation in the case.
REHMAnthony Papa of the Drug Policy Alliance. He's the author of "15 to Life." Tony Papa, thanks for joining us.
REHMAnd you're listening to "The Diane Rehm Show." How typical is Anthony Papa's case?
GILLVery typical. I mean, I shared the story of Mandy Martinson. You can read lots of other stories like hers and like Tony's at FAMM's website, which is www.famm.org. And it is something that we see. I mean, we intended these laws for kingpins. In fact, the person who's most likely to get them is not a kingpin, it's not a major supplier. It's a street-level drug seller. And the idea that we are locking up hordes of violent kingpins and violent drug offenders and that these people are violent offenders is just not true. Half of them had no record at all. Only 16 percent of all federal cases each year involve guns. Less than 1 percent involve any actual real violence against another person or even threats of violence against another person.
REHMSo we hear, today, and we've been hearing for the last couple of weeks, about the rise in heroin use. Now how might that -- especially in Chicago -- how might that affect thinking about changing these laws, Stephen?
SALTZBURGWell, if we are smart, it shouldn't change the way we approach criminal justice. What we know is that it's just the drugs that change over time. There's always a drug of choice. It's methamphetamine now, it's heroin now, it's this. The problem is that drug us, it's a health issue. We need to deal with the heroin problem that we have -- and it's real problem -- yes, by prosecuting kingpins, if we can get our hands on them but not by putting low-level offenders in prison for 15 years to life. We need to have treatment. And we need to have law enforcement as well but we need to have it proportional.
REHMMust be tough to get a hold of those kingpins.
GERSTEINI think it can be. Those are the hardest people to find. The street-level dealers, as Molly was suggesting, are the easiest people to find. But I do think in Congress, I have heard in the Senate, that some of the discussion about the pending sentencing legislation has gotten mixed together with concern about a growing heroin use in other parts of the country. As Steve was suggesting, methamphetamine is the thing that's of great concern. And so there is still some reluctance, although the discussion has changed among some members of Congress to really softening, or being portrayed as softening the laws on drugs at a time when they're seen as a crisis in those two particular areas.
REHMJosh Gerstein, senior reporter focused on legal and national security issues for Politico. You're calls when we come back. Stay with us.
REHMAnd before we go to the phones, Molly, I know you wanted to jump in on the heroin question.
GILLWell, I just think it's so important to emphasize and remember that this, you know, quote-unquote heroin epidemic that we're having has happened entirely while we have had these mandatory minimum drug sentencing laws on the book. So mandatory minimum sentences don't stop drug epidemics. They don't decrease the number of overdoses. They don't decrease drug abuse. We've tried this for 30 years. How much longer are we going to keep doing something that doesn't work?
REHMAnd what's happening in Iowa on October 1?
GILLWell, on October 1, there's going to be a group of various organizations from the right and left getting together to have a criminal justice summit. And they're going to be discussing the fact that Iowa, for example, has the worst racial disparity in its prison system in the entire country.
REHMWhat about in its population?
GILLWell, I mean, Iowa has a very small minority population, very large minority prison population. So that's where the disparity comes from. And they're going to be addressing sort of that issue. The governor's already expressed some interest in doing something at the state level. Iowa, like the federal government, has very bad mandatory minimum drug sentencing laws. And then of course the campaign season is going to be heating up, and a lot of these presidential candidates, you know, Ted Cruz, Rand Paul, they're both candidates and some of the biggest supporters of the Senate efforts to reform mandatory minimum sentencing laws.
GILLChris Christie has called this a pro-life issue and has been emphasizing drug treatment rather than incarceration. I think it's an issue that we're going to be hearing about a lot in Iowa over the next year.
REHMHere's an email from Judy in New Church, Virginia. She says, while bipartisan support for prison sentencing reform is great, my paranoid part worries penalties for banking and corporate malfeasance will get a pass. How much would these laws benefit the poor and vulnerable versus protecting the wealthy white-collar criminals. Josh?
GERSTEINI don't think that's a totally paranoid fear because some of the support for this sentencing reform effort and criminal justice reform effort on the right, among Republicans, does derive from a concern about the federal government being too big for its britches, about over-criminalization, as they call it, which is another word for prosecutors being too aggressive in going after certain kinds of white-collar crime, of securities crimes, perhaps, maybe banking crimes.
GERSTEINThe Koch brothers became interested in this because some of their employees and their company was prosecuted for environmental violations in a way that they thought was unfair. So there is that thread of interest in this subject. Senator Grassley's people have said that he believes that white collar sentences should be even tougher. So as I was talking earlier about some of the racial issues that are involved here, one of the concerns is how are white collar crimes treated in all this.
GERSTEINThere are some Republicans that would love to see some of those crimes taken off the books altogether or sentences reduced for those crimes. And others are watching very closely to make sure that if that happens that sentences for drug crimes and maybe even for other types of violent crimes or crimes against people move up and down in a relatively proportionate way.
REHMStephen, do you want to add to that?
SALTZBURGI think there is reason for concern, but the caller should know that white collar sentences are at a historic high. I mean, white collar offenders are not getting passes. The reality is that we do over-criminalize things, and we need to take a look both in the business community and at the low levels. We ought to be taking, we ought to be taking minor conduct that we now criminalize and make it a civil infraction. And we ought to tell policy, you know, don't arrest everybody. Give them citations because every time a police officer arrests someone, he or she is off the street for four hours processing that person.
SALTZBURGIf they just issued citations, the streets would be safer, communities would be safer, and individuals wouldn't spend time being booked who don't need to be booked. So at the very lowest level, we could do better, and we could decriminalize some of the regulatory things that we now put in the criminal sphere that don't need to be there.
REHMAll right, let's open the phones first to Corvallis, Oregon. Kirk, you're on the air. Go right ahead.
KIRKYes, thanks for taking my call, Diane.
KIRKI'd like to broaden this topic. Unfortunately, it's a huge topic as it is. But the other side of it is when people get out, they're being followed around by their records because our new computer technology is just not - it's unrelenting. I've got a friend who has had a 12-year-old drug charge. It wasn't all that major. He didn't -- actually did time in prison, but he wishes he was getting there now because he can't get work. Everyone does criminal background checks now for everything right down to burger-flipping, and he can't get work.
SALTZBURGThis is a major problem. The American Bar Association has addressed it by creating a website called abacollateralconsequences.org. It's available free to everybody, and it lists 46,000 collateral consequences of criminal convictions.
REHMSay that website again, please.
GERSTEINAnd Diane, there's a broader effort with maybe a little catchier name called Ban the Box, which is what criminal justice reformers have been pushing, the box being the box on many job applications saying have you ever been convicted of a crime. And that's often one of the first questions applicants are asked. If they're being honest, and if their records can be easily checked, they mark the box, and a lot of times their applications are pushed off to the side immediately or thrown away.
GERSTEINAnd this effort, which has been undertaken by a lot of state and local governments, by a number of major companies, which we've discussed the Koch brothers several times, they've agreed to also go along with don't ask people right off the bat have you ever been convicted of a crime. You know, if it's a sensitive job, you can ask them that later in the process, and the White House has also gotten behind this effort. I don't know that it's really been implemented across the federal government, but they've expressed a willingness to do this, to say why does that have to be one of the first questions you ask people. Shouldn't we make it easier for folks that are coming out of prison to get employed and to get gainful work rather than run the risk of them having no employment and falling back into some kind of life of criminal activity.
REHMDo you -- do we have any idea about recidivism among those who have been given mandatory minimum sentences, Stephen?
SALTZBURGI -- the data that we have suggests that the recidivism rate is high, too high, for people coming out of prison whether they had mandatory minimum sentences or not. There's virtually no statistical difference.
REHMI mean, here you heard from Tony Papa, who clearly made a success of his life after prison, but for many who get involved in the prison system, once it happens, what happens?
GILLWell, they have difficulty finding jobs when they come out.
GILLAnd one argument that I've been making a lot lately is just that I think just reducing sentence length in general increases the odds that people will succeed when they get out. I mean, we have forgotten in this country how long 10 years is. Ten years is a child growing up without a father. How are you supposed to rebuild that bridge when you get out? Ten years is the difference between a pager and an iPhone. How are you supposed to catch up with technology?
GILLIn 10 years, job markets change. Any skills you took into prison with you, they're going to atrophy while you're there. Prisons right now are not very rehabilitative places. They don't have a lot of educational programs. They don't have job training. They are not preparing people for the world that they're going to face in five or 10 years when they come out.
GILLSo if we can get the same public safety benefit for less time, we're going to help those people automatically coming back home.
REHMLet's go to Morristown, Tennessee. Thomas, you're on the air.
THOMASThank you, Diane, for taking my call.
THOMASI agree with you and your panel 1,000 percent. As a college graduate, class of 2007, ETSU, I am stunned. I am stunned by the record number of Americans behind bars. I never thought in my lifetime, as a veteran of the United States Air Force, that I would live to see the day that America would pass Russia and China. What kind of police state, Republican-run country has this turned into? I am thoroughly disgusted with kids being turned into criminals over a joint.
THOMASIn Tennessee, they go laugh all the way to the bank while the injustice system here turns its back on college students.
REHMDo you want to comment, Josh?
GERSTEINWell, I see this, the mention of marijuana, and we've seen marijuana reform decriminalization, legalization efforts succeed in Oregon, Colorado, here in the District of Columbia. And I do think that's part of the sea change in attitudes about how these matters should be handled. You had a number of places move from criminal prosecution, like Steve was talking about, of marijuana, at least at the low level, to dealing with it as a citation matter so people don't end up with arrest records.
GERSTEINAnd I do think part of the sea change politically is driven by folks that think that the way marijuana has been treated for the last 20 years is just out of control and ridiculous, and then they start looking more broadly at some of the other issues of the drug system, the drug treatment system, the drug criminalization system, and then more broadly at the criminal justice system. And that's how I think a lot of the reformers have gotten into this discussion.
REHMNow here's an email from Michael, who says Tony Papa's art, his book and the movement are all attributable to his prison experience. Isn't he an example of how this system is succeeding?
GILLWell, I think Tony Papa would like his success with a lower cost than 12 years of his life. That's my answer to that.
REHMI certainly understand that. Let's go to Tom in Frederick, Maryland. You're on the air, sir, go right ahead.
TOMHi, thank you for taking my call, Diane.
TOMI just wanted to say I don't agree with the premise of this show. I think that it's been good that we've taken these dangerous criminals off the street. It's really lowered the crime level. And I don't think it should be changed. I think we should keep them in prison where they belong. Thank you.
REHMAll right, thanks for your call. And Stephen, do you want to comment?
SALTZBURGI don't think that anybody would wish that dangerous offenders, people who are causing serious harm, that they should be free. I once heard Bill Bratton say, when he was out in Los Angeles as police chief, he said there are 2,000 to 3,000 sociopaths who are responsible for almost all the violent crime in Los Angeles. And he said, if we could put them away, we'd be a much safer community. And I think that's what we are trying to do. We're trying to identify those who are dangerous and impose appropriate sentences, which in some instances is life, and to take minor offenders and not spend unnecessary money, as Molly was saying, locking them up because Tony Papa is the exception.
SALTZBURGHe's not the rule. Most of the people coming out of prison don't have that kind of success. And he would be the first to say that.
GILLWell, I think it's also notable to emphasize how modest the reforms are that we are talking about. The sentencing reform that they're considering in the Senate, everyone is still going to go to prison. This is not a get-out-of-jail-free card. They're not even talking about doing away with mandatory minimums. They want to keep them.
GILLSo they are just talking about not requiring so much prison time at so high a cost, which hopefully will enable the Department of Justice to send some of that money to things like the FBI and, you know, fighting terrorism, fighting hackers, fighting cybercrime, fighting people who really do frighten us.
REHMAnd you're listening to the Diane Rehm Show. Josh, you wanted to add something?
GERSTEINYeah, Molly was mentioning sort of modest reform efforts, and I'd say I'd have to put President Obama's clemency effort into that group. I mean, it was announced with much fanfare almost two years ago that the Justice Department and the White House were going to make this effort to try to cut sentences for people that were serving overly long drug sentences in particular, more than 10 years, people who had spent more than 10 years in prison, perhaps had 15-, 20-, 25-year sentences.
GERSTEINWe're now a year and a half or so into that effort. The president has done about 80 commutations total during that period. Only a handful really come out of this new initiative. Molly and Steve can probably tell us more about what the private sector has been trying to do to find volunteer lawyers for people and so forth, but I think the jury is really still out on that part of this effort. Eighty out of, you know, a couple hundred thousand federal prisoners, 35,000 federal prisoners responding to a survey and saying I want an attorney to help me seek clemency, there's still a lot of questions out there about whether in the 16 months or so President Obama has left in office, that part of this reform effort is really going to be able to pay off in a way that leads to a meaningful number of clemency grants of people having their sentences reduced, or whether that's just going to end up being a symbolic effort that's supposed to jump-start legislation and other things that are done on a broader basis.
REHMIn the meantime, are more for-profit prisons being built, Stephen?
SALTZBURGI think there's a trend now against building for-profit prisons. I mean, actually there's a trend now towards reducing the number of prisons overall. The -- I mean, for a long time, prisons were a source of employment, and in some communities, we built them because they wanted to have jobs. And now that particularly in the States, when we realize how much it costs, we've been cutting back. And it turns out that privately run prisons end up raising a whole host of issues that a lot of states no longer want to confront.
SALTZBURGWhether or not they treat people -- whether they respect constitutional rights. Even though people are locked up, they have some rights. Whether they are as conscientious as providing health care and services to prisoners. Now, you can argue it both ways, but there's a real concern that for-profit by definition means less concerned for prisoners.
REHMSo realistically, what do you expect to happen? I'll start with you, Molly.
GILLWell, I think everything is in place to see some kind of sentencing and prison reform package come out in Congress this fall. Whether that passes both houses, whether that is something the president wants to sign, I think the proof is going to be in the pudding and also whether that goes anywhere near to what we need to do to reduce our federal prison population and costs and really address the injustices.
GILLI mean, how about a Mandy Martinson test, for starters? Is there any reform that is going to pass the Mandy Martinson test and help people like her?
GERSTEINI think we'll see some type of legislation come through because I think there seems to be a political will to do it. I think the question is really going to be retrospectively, does it help people that are currently in prison serving long sentences. Does the president's initiative do that? And a lot of people are saying that actually a Supreme Court ruling from June that changed the way some sentencing may have to be handled and may lead to a lot of resentencing of people that were caught up in sort of three strikes or career criminal laws, that that may wind up having a more dramatic impact on federal prisoners who are behind bars right now than any of these other legislative or executive clemency efforts.
REHMAnd very briefly, Stephen, what do you expect?
SALTZBURGI expect that they're right. I agree with Molly and Josh. The one thing we don't know is what highly publicized crime is going to happen, and the moment it hits the front pages, will that in fact abort reform? It often does.
REHMStephen Saltzburg, Molly Gill, Josh Gerstein, thank you all so much.
REHMAnd thanks, all, for listening. I'm Diane Rehm.
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