Mandatory Minimum Sentencing

MS. SUSAN PAGE

10:06:56
Thanks for joining us. I'm Susan Page of USA Today, sitting in for Diane Rehm. She's visiting WCBU in Peoria, Ill. Between 1970 and 2010, the number of people is prison grew by sevenfold. Almost half are there because of drugs. Senators Patrick Leahy and Rand Paul have introduced legislation to give judges more flexibility in sentencing than the mandatory minimums established during the war on drugs in the '80s. Joining me in the studio to discuss the effects of sentencing laws are Julie Stewart of Families Against Mandatory Minimums. Welcome to "The Diane Rehm Show."

MS. JULIE STEWART

10:07:35
Thank you.

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10:07:36
And Scott Burns, of the National District Attorneys Association, welcome.

MR. SCOTT BURNS

10:07:40
Good morning.

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10:07:41
And joining us from a studio at WABE in Atlanta is Adam Gelb of the Public Safety Performance Project at the Pew Center on the States. Adam Gelb, welcome to "The Diane Rehm Show."

MR. ADAM GELB

10:07:51
Good morning, Susan. Good morning.

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10:07:54
We invite our listeners to join our conversation. Later in this hour, you can call our toll-free number, 1-800-433-8850, send us an email at drshow@wamu.org, or find us on Facebook or in Twitter. Well, Adam, to start with you, what does the public think? What does your research show the public thinks about the sentencing policy in America and especially these mandatory minimums that have been the law now for a couple of decades?

GELB

10:08:24
All right. There is a conventional wisdom out there still, I think, Susan, that is -- says that people just want to lock up offenders and put them behind bars for as long as possible, throw away the key, and that's just not what we're finding. We've teamed up with one of the top Republican and top Democratic pollsters in the country and done extensive polling over the last couple of years, and that's not where the public is.

GELB

10:08:48
People actually are sick and tired of the revolving door, and they want it to stop. And in question after question, you put this to people in lots of different ways and different scenarios, and what they're saying is, yes, we'd like to see violent and career criminals behind bars for a long time. But building more and more prisons to house lower risk, nonviolent inmates for longer and longer sentences simply is not the best way to reduce crime.

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10:09:14
And, you know, on many of these public policy issues, we see a big divide between different demographic groups like Republicans and Democrats. And I wonder, do you see that kind of divide on this issue?

GELB

10:09:26
We don't. It's actually something that's really stunned our pollsters. There's very little difference in opinions between Republicans, Democrats and independents of these questions. I'd like to just read one here quickly. We asked people whether they agree or not with the following statement: It does not matter whether a nonviolent offender is in prison for 18 or 24 or 34 months.

GELB

10:09:50
What really matters is that the system does a better job of making sure that when an offender does get out, he's less likely to commit another crime. And we're seeing 87 percent of the public in agreement with that statement. Ninety percent of Democrats, 87 percent of independents and 85 percent of Republicans are in accord with this statement. They're not looking to just keep people in prison longer and longer.

GELB

10:10:16
They understand at this point, we're not going to build our way out of this problem, and they realized people are going to get out. And they want them to just stop committing crime, and they want the system to focus on that and shift some of the spending, the $50 billion that states are spending on corrections each year and shift some of that into more effective approaches to stop the revolving door.

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10:10:38
Well, Julie Stewart, we've seen this dramatic increase in the U.S. prison population since these mandatory minimum sentences came into existence. Tell us about that. How big is the increase, and to what degree is it the result of drug offenses?

STEWART

10:10:55
Well, the increase has been tremendous in the federal system in 1980. There were about 24,000 people in prison. And today, there are 219,000. More than half of them are in for drug offenses, mostly low-level drug offenses. And in the state and federal prison population combined in 1980, there were 330,000 people in prison. Today, there are 1.6 million in prisons in both state and federal prisons. And about 20, 25 percent of those are drug offenders.

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10:11:24
So of 100 Americans, how many are in prison?

STEWART

10:11:28
Well, it depends on your race, but about -- I mean, it really does, and it's a little bit frightening because black men, ages 20 to 34, one in nine are in prison which is stunning. It's one in 106 for white men. But basically it's one in every 100 adults who's behind bars.

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10:11:47
And how does that compare with other industrialized nations around the world?

STEWART

10:11:52
Well, we incarcerate more people thank any other country in the world. We are the -- we have the world's fifth largest, you know, population and 25th largest prison population.

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10:12:03
So, Scott Burns, you were deputy director of the White House Office of National Drug Control Policy from 2002 to 2009. Tell us about what concerns led to these mandatory minimum laws that were passed in the 1980s.

BURNS

10:12:20
Well, for the past 30 years, there was a time in this country when you couldn't walk safely in every major city in the country. And people were demanding that something be done, and we did something as a criminal justice system, as a country. And here we are, in 2013, homicides are down 50 percent over the last 20 years, rapes and robberies, burglaries, violent crime had been reduced 30 to 40 percent. And the reality is -- and you just have to say it -- we locked up bad people, and we locked them up for a long time.

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10:12:54
And do you believe that the mandatory minimums are the cause or a major cause of the decline in the violent crime rate?

BURNS

10:13:01
I think sentences -- you have to understand that the federal prosecutors of the federal system only does about 3 percent of the criminal prosecutions in this country. Ninety-seven percent over 10 million felony cases are handled by some 40,000 state and local prosecutors. So the minimum mandatory sentences in respective states and on the federal level, I think, have contributed to a reduction in crime.

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10:13:27
And, you know, there was a -- the -- famously the kind of crack epidemic in the 1980s that was one of the factors behind the big federal law being passed. Does that still, I mean, does that still apply? Is that still a factor that makes this makes sense to some law enforcement officials?

BURNS

10:13:50
Well, the crack powder disparity issue was frankly brought by Charles Rangel in the black caucus some 25, 30 years ago because they were sick and tired of what was going on in the inner city, and they wanted crack cocaine to go away. I think President Reagan proposed the 50-to-1 disparity. Congress insisted on 100-to-1, and we enforce the law.

BURNS

10:14:16
And then 30 years later, when crack use and distribution has gone down, people are saying, well, you've targeted young African-American males in inner cities. You're locking them up at unbelievable rate. And the prosecutors say that the problem is solved, and that's the law.

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10:14:34
Adam Gelb, talking about -- you talked about public opinion today on these issues. Do you know to what degree the public opinion on this particular issue has changed since the 1980s?

GELB

10:14:45
It's a great question. Unfortunately, there wasn't a whole lot of polling back then on some of the specific issues. This was really just an article of faith as Mr. Burns says. Everybody across the political spectrum was onboard with stiffening penalties across the board for violent offenses and drug offenses alike.

GELB

10:15:05
So -- but what we can tell and try to discern is that the public is at this point ready for change and realizing that government -- that prisons are a government spending program, and, just like any other government spending program, whether it's in health or education, those programs increasingly put through the ringer and made to prove their worth and show return on investment, that the dollars spent here are producing good value for the public.

GELB

10:15:33
That has sort of been -- the criminal justice system has been exempt from that kind of analysis. And more and more what we're seeing is, particularly at the state level -- I think the federal government and Congress trails well behind the states on this -- is leaders from both parties say, hey, this is -- there's no sort of free check for the courts here anymore. We need to see some evidence that continually increasing penalties and making people who are spending 12 years behind bars, make them spend 15 and so on.

GELB

10:16:03
Where's the -- we can see the extra cost for that, and it's high, $30,000 a year per inmate per cell. So you're going to ask the public to pay another $100,000 to keep somebody behind bars for another three years. I'd like to see the benefit. And the research on this question, Susan, is pretty clear, which is that there's very little evidence for a large number of offenders that these longer sentences actually do anything to reduce recidivism and in many cases that they actually even do anything to reduce crime in that additional period for which people are being held at great cost.

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10:16:40
Well, so you dispute Scott's point that this is really a success story, that the decline in the violent crime rate isn't at least in part a result of these mandatory minimum sentences.

GELB

10:16:50
Not really. I think it's a matter of difference, none more than that. You have to -- if you look at this question honestly and you look at the research, you have to give incarceration credit for some of the crime drop that we've seen since the height of the war on drugs to the late '80s and the yearly '90s. The research puts the credit to -- for incarceration at about 25, 30 percent of the crime drop.

GELB

10:17:15
The flip side of that, of course, right, is that the remaining three-quarters percent of the crime drop has come from other things, and most of other things and other strategies -- some of the criminal justice system, some not -- most of them cost a lot less than a prison cell for a nonviolent offender.

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10:17:33
Julie Stewart, what do you think?

STEWART

10:17:35
I think it's really dicey to prove causation between one policy decision and crime rates. And I agree with Adam and Scott Burns that, you know, certainly incarcerating a certain number of people is probably going to reduce your prison -- your crime rate. But -- and so you take a rapist off the street. The likelihood of that rapist terrorizing the community is much lower.

STEWART

10:17:56
But you take a drug offender off the street, and there's probably another drug offender waiting to take his or her place. So I think it's -- there are a lot of factors that go into crime drop -- crime rate drops. And historically, crime has gone up and down. We're excited that it's finally dropping, and we hope that it continues that way.

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10:18:13
Julie Stewart, she's president and founder of Families Against Mandatory Minimums. And we're also joined this hour by Scott Burns, executive director of the National District Attorneys Association. He was deputy director of the White House Office of National Drug Control Policy from 2002 to 2009.

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10:18:28
And Adam Gelb joins us from a studio at WABE in Atlanta. He's director of the Public Safety Performance Project at the Pew Research Center on the States. We're going to take a short break. When we come back, we'll take your calls, 1-800-433-8850. We'll also read some of your emails. You can email us at drshow@wamu.org. Stay with us.

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10:20:06
Welcome back. I'm Susan Page of USA Today, sitting in for Diane Rehm. And we're talking this hour about the debate over mandatory minimum sentences and some of the effects from the laws that were passed in the 1980s. Joining us, Julie Stewart, Scott Burns and from Atlanta, Adam Gelb. Julie, I know that you got involved in this issue because of the experience of your brother. Tell us about him.

STEWART

10:20:28
Well, my brother was growing marijuana in a garage in Washington State in 1990, and he was growing it with two friends. And they were basically treading water with their lives. I don't condone what he was doing at all. But he called me at work -- I was working at the Cato Institute at the time -- and told me he was in prison, and I couldn't believe it. And I thought, well, you are so stupid, and then I thought, well, it's only marijuana so, you know, you won't be punished too much.

STEWART

10:20:55
And I come to find out that he was being prosecuted federally, and he ended up getting a five-year prison sentence without parole 'cause there's no parole anymore in the federal system. And I think that what bothered me the most -- because certainly he was guilty, and I don't have any qualms with him getting arrested, even going to prison. But what really shocked me was when the federal judge who'd been on the bench for 25 years said to my brother in sentencing, I don't have any choice.

STEWART

10:21:18
I have to give you this 20 -- five-year sentence. My hands are tied by these laws that Congress passed in 1986, these mandatory sentencing laws. And that was a real eye-opener for me and made me think something is terribly wrong when our federal judges who we trust to sentence people of very complicated crimes, all kinds of stuff, are not allowed to sentence drug offenders.

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10:21:40
And what's happening with your brother now?

STEWART

10:21:42
He did his time. He got out. He moved to Washington, D.C. and worked with me for three years at FAMM and now lives in Virginia and is married and has two kids. And so his life is seemingly as normal as it can be, but he will always carry that felony record. He can't vote. He can't carry a gun. He tried to become a realtor when he got out. Virginia wouldn't license him. There are hundreds of barriers to re-employment once you get out of prison.

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10:22:06
Scott Burns, does that seem like a suitable punishment to you for her brother's conviction?

BURNS

10:22:12
Yes. It's difficult to talk about specific cases without, you know, knowing the facts. I don't know it he had five tons of marijuana or a joint.

STEWART

10:22:20
No.

BURNS

10:22:21
I know Julie and Adam continue to talk about our prisons are full of low-level drug offenders. Now, I just have to make this point: The last time we looked at it at the White House under the direction of John Walter, who was the drug czar then, in the federal system, less than 1 percent were there for a possession of a drug offense.

BURNS

10:22:40
And the average amount was over 100 pounds, and those had been a plea bargained down from several thousand pounds. In the state system -- and if there are prosecutors or defense attorneys or judges out there listening, they will shake their head in agreement -- it is hard to earn your way into a state prison cell.

BURNS

10:22:58
Fifty percent are there for violent crime, 30 percent are recidivists, about 20 percent are drug offenders, and, honestly, day in, day out, people going into courtroom trying to do justice in each individual case. And you really, really have to continue to violate. Should we have four strikes, you're out? Should we have five strikes, you're out? At what point do we lock people up who insist on committing crime?

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10:23:25
Julie, what do you think?

STEWART

10:23:27
Well, I think that there are plenty of people who belong in prison, and I have absolutely no qualms about that. I have two young daughters. I want to be safe. I think everybody in America wants to be safe. I think the question is, how many people do we really need to have in prison to be safe? And more importantly for our purposes, who should decide what their punishment should be?

STEWART

10:23:46
And when mandatory sentences exist, the judge has no control, just like in my brother's case. And so people are getting sentenced to periods of time that legislators have deemed are the appropriate sentence when they've never laid eyes on the defendant. They know nothing about him or her.

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10:24:00
So, Scott, under the federal law, what are the exceptions? In what cases do the judges have some leeway in imposing sentences?

STEWART

10:24:08
Well, the only way they really can is if they provide cooperating information to the government if they can turn someone else in. And there are many cases where people have had tried to turn some other drug offender, and then they don't know anybody. So they can't get out from under the mandatory minimum. And in drug cases since 1994, judges have been able to use a limited safety valve, which means that if the defendant meets certain criteria, the judge can go below the mandatory minimum. He still will get prison time, the person, but not as much.

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10:24:40
All right. Let's go to the phones and let some of our listeners join this conversation. We'll go to Bill, who's calling us from Birmingham, Ala. Bill, you're on "The Diane Rehm Show."

BILL

10:24:49
Hi. How are you today?

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10:24:50
Good.

BILL

10:24:52
Listen, I was wondering if -- all about counties and areas where the judicial system is so corrupt and laws are handed out and punishment is handed out according to your social status or your bank accounts. It's quite prevalent in St. Clair County, Ala.

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10:25:16
All right. Bill, thanks for your call. So is -- does -- mandatory minimums, do they provide some protections against judges, the sort Bill is mentioning that might be swayed by, you know, and for your considerations?

GELB

10:25:30
Yeah. I think what happened is judges in the state system get elected, judges in the federal system are appointed, and in states and communities across the country, people were getting tired of those that committed violent crime or major level drug dealers slinging meth and cocaine in various parts of the country getting light sentences. And so what is the reaction? They passed laws saying no. This is the appropriate sentence. And the judges don't like it, obviously, but that's the reaction of the public and the elected representatives to those light sentences.

STEWART

10:26:08
But the good-old-boy system exists with the prosecutors, too. I mean, in Bill's call, I mean, it's going on behind closed doors, too. The prosecutors are cutting the deals as to how they're going to charge the defendant, whether they play golf with the guys' father. So there's a lot of discretion, but it's not necessarily at the judge's hands.

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10:26:27
Adam, do have you a sense of this, the degree to which this mandatory minimums keep -- prevent some of the old boys' network that might provide for abuses? Adam, are you there?

GELB

10:26:42
Yes.

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10:26:43
Yes.

GELB

10:26:44
Yes. It's obviously something that's going to differ from courtroom to courtroom at a personal level across the country. I think the -- there are a couple of issues here. One is that mandatory minimums were designed for a couple of purposes. One, to try to establish some certainty in sentencing and, particularly, in the federal system to establish that certainty in the form of uniformity across the states and reduce some of the wild variations that similar offenders were getting from one state to the next.

GELB

10:27:16
But, really, what was underlying this all was the notion that offenders just needed to do longer terms behind bars. Mr. Burns referenced a minute ago this notion that people are saying prisons are full of low-level, nonviolent drug offenders, and, in fact, that is not the case and that's not the argument. The argument has become whether or not prisons should be subject to the same and sentencing subject to the same principles that all other government spending programs should be, which is, are they providing return on investment?

GELB

10:27:53
And what we're seeing in states across the country, Susan, from Texas and South Carolina, to Ohio and Pennsylvania, from Georgia to Oregon and South Dakota, is legislators, governors from both parties taking a hard look at the laws that were passed in the '80s and the '90s in particular and seeing what the cost has been and taking a hard look and analysis at whether or not they've been worth it.

GELB

10:28:20
And each of those states, we're seeing substantial progress in terms of looking at which offenders need to be in prison and for how long, and how can the laws and policies be changed to make sure that prisons are, in fact, being concentrated on those violent and career criminals that need to be there?

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10:28:39
And lots of attention these days to problems with the deficit and the national debt. And I wonder, what's been the effect on state and federal spending because of the mandatory minimum sentences that have gone into effect?

GELB

10:28:54
So it's hard to pull out specific costs just for mandatory sentencing. But we did at Pew last year one of the only studies that's been done to look at the cost of the increase in time served, generally. And what we found was that offenders released from state prison in 2009 served an average of nine months longer behind bars than offenders released in 1990.

GELB

10:29:21
So over that 20-year period, offenders were serving an additional nine months longer. For each of those, the cost was $23,000 more, and you multiply that across all the states. And the increase in time served cost states just in 2009 an additional $10 billion. And that's -- and it's those kind of figures and the fact that we got to a point where one in 100 adults are behind bars.

GELB

10:29:48
One in 31 adults were under some form of correctional supervision that has helped and sparked political leaders, again from both sides of the aisle, to say, time out. Let's look at this. Let's make sure we've got enough prison space for those violent repeat offenders that Mr. Burns referenced. But what can we do about nonviolent offenders and particularly offenders who have not actually committed new crimes but are screwing up on probation or parole?

GELB

10:30:17
They are committing technical violations often, which do include drug use and saying, you know, we can just continue to cycle these people back and forth, in and out of prison, but that has not been working. We tried it for the last 20 years. We're paying through the teeth for it. But we now know, through research, much better ways to interrupt and break that cycle that cost a lot less.

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10:30:41
So, Scott Burns, $10 billion in extra spending in 2009. Does that seem like a smart investment to you?

BURNS

10:30:47
It's a smart investment if people are safe. You know, I have to say that there are groups that represent offenders. There are groups that talk about the cost of crime, how much we have to pay to keep our community safe. But, you know, prosecutors have their own constituency. I was a prosecutor for 16 years, and I can tell you that victims are the people we talk about.

BURNS

10:31:11
We take people that have been hurt, discarded, sometimes thrown in the trash, sexually assaulted, defrauded, beaten. That's our client. And ask one of them or a family member -- and we deal with this in a case-by-case basis -- put a price tag on that. How much should we spend and then limit it before we don't prosecute somebody for a violent crime and send him to prison for a long time?

GELB

10:31:42
Susan...

STEWART

10:31:42
Interestingly, you just described a lot of the women that are in prison today that we hear from who were very much under the influence of their abusive spouses or boyfriends and get caught up in the conspiracies and end up getting the 10- or 15- or 20-year sentence, often more than the boyfriend's 'cause they didn't have any information to trade for a reduced sentence.

STEWART

10:32:02
But I would also just add one thing that Byrne Grants -- which supply money to the states for law enforcement courts, crime prevention, substance abuse treatment -- that has been cut by about 40 percent since 2009. And under the current sequester, there's another 5 percent cut this year and a predicted 5 percent cut for the next nine years. So that money that could be going into supporting sort of the states in their efforts to keep crime down is not available, and that's in part because the Bureau of Prisons budget is eating up 25 percent of the Department of Justice's budget today. It's a huge percent.

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10:32:36
Adam.

GELB

10:32:37
Susan, you asked a few minutes ago about them, about whether there's been a change in public opinion, and I said that it was a little bit difficult to document that. I think it -- what clearly has changed is the opinion of victims that were just referenced. Twenty years ago, 15, probably even 10 years ago, you would not have found victims as supportive today as they are today of alternatives for nonviolent offenders.

GELB

10:33:06
And let me just read you quickly here from one statement that is -- that's part of a set of guiding principles that over 100 victim representatives and some of the top victim advocates in the country have signed on to, and here's what it says.

GELB

10:33:23
"While it is important for offenders to receive just punishment, the quantity of time that convicted offenders serve under any form of correctional supervision must be balanced with the quality of evidence-based assessment, treatment, programming and supervision that they receive that can change their criminal behavior and thinking and reduce the likelihood that they will commit future crimes.

GELB

10:33:45
"For many offenses and offenders, shorter prison terms are acceptable if the resulting cost savings are reinvested in evidence-based programs that reduce recidivism." So victims are not some monolithic group. I wouldn't want to say this is a universal opinion either. But from the victim perspective, I think things really have changed.

GELB

10:34:06
And they realized that keeping somebody in prison till July rather than June and paying that extra cost is not going to have much impact on public safety. But if you can capture some of those savings and make sure that offenders are getting the right kind of supervision and the right kind of intervention, that there's a decent chance that over the long run, the community and they will actually be safer.

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10:34:31
I'm Susan Page, and you're listening to "The Diane Rehm Show." We're taking your calls, 1-800-433-8850, or send an email to drshow@wamu.org. Well, Scott, have you seen a change, as Adam mentioned, in the attitudes of victims toward what they want to see?

BURNS

10:34:51
Yeah. You know, some of the questions they pose -- and I listen to them, Adam, and I say this respectfully -- I don't know that anybody would disagree with that. If you say, well, they should be balanced, well, of course they should. Well, the punishment should be proportionate with respect to what the crime was. Yep. I'm surprised it's not 100 percent. The difficult part is, in the real world, who should stay till July instead of June?

BURNS

10:35:17
Who was the victim in that case? Because we take them one at a time. To speak in these gross generalities from 80,000 feet and say, we're spending a lot of money, we're locking up a lot of people, everybody agrees that if they're not going to re-offend, we should let them out. Yep. I think everyone agrees with that. But in the real world, it is much more complicated than that, and the reality is this is a good story.

BURNS

10:35:41
This is something we should be proud of in America. Crime is down. I got a call the other day, and we were talking about Amnesty International and all these groups, talking about the American public has lost its appetite for the death penalty. What do you say to that? Because executions are down 50 percent. Well, the response is homicides, violent murders are down 50 percent in this country over the last 30 years.

BURNS

10:36:05
We also now have a thing called life without parole, which, by the way, several groups are now claiming this is cruel and unusual punishment under the Eighth Amendment. It's worse than executing somebody, to lock them up for the rest of their life. Well, the reason we did life without parole is because people were against the death penalty. So the next thing that's going to happen is they're going to try and initiate that sentencing alternative, and we'll be back here debating that.

STEWART

10:36:34
I'd just like to mention that -- I mean, there have been a lot of people that have supported the idea of incarceration and that that would, in fact, reduce the prison population. And there's no doubt that it has had an impact, as Adam has said, maybe as much as 25 percent. But even one of the most ardent supporters of that concept, Steven Levitt, the author of "Freakonomics" -- he's been cited, you know, frequently by people pushing for higher mandatory sentences.

STEWART

10:36:57
He has recently said that we've gone too far. And he believes that public safety -- the public safety benefit per new prisoner is now outweighed by the cost. And he recommends that the entire U.S. prison system, both state and federal, cut its prison population by one-third and that public safety would not be in jeopardy.

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10:37:16
We're going to take a short break. When we come back, we'll go to the phones, 1-800-433-8850. We're also going to talk about a documentary on this issue that's going to air on Monday on PBS. Stay with us.

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10:40:05
We've got an email from Andy who tells me to ask the details. And here's the question that he has for you, Julie. He says -- we talked about the case of your brother. How this -- Andy asks, "How much marijuana did he have? Was it a second, third, or fourth offense? Was he on probationary parole? Did he, in fact, cooperate with law enforcement or not? Was there violence or a firearm involved? And did he resist arrest?" So could you tell us a little more about his case?

STEWART

10:40:28
Yes. The short answer is he was the first offense -- offender. No violence. No, you know, priors, no gun, no -- none of that. The amount of marijuana was 365 marijuana plants that were about five inches tall. They had filled the garage with as many of the little potting plants as would fit in there. They -- I had -- I learned a lot about this after he was arrested. They had not grown to the size that you could determine the gender. They would've thrown out roughly half of those plants had they -- the males would've been thrown out.

STEWART

10:40:58
So in the end, my brother and his friends hoped they would have 20 pounds of marijuana between them. That's a lot of marijuana. I'm not denying it. I do not condone what he did. However, when he was sentenced, he was sentenced for 365 kilos of marijuana because each marijuana plant under the federal system is considered to weigh one kilo, regardless of its size.

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10:41:17
So in response to Andy's question: It was a first offense, he wasn't on probationary parole.

STEWART

10:41:21
No.

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10:41:22
Did he cooperate with law enforcement?

STEWART

10:41:23
Oh, he pled guilty 'cause he was guilty.

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10:41:26
Was there violence or firearm involved?

STEWART

10:41:27
No.

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10:41:28
And did he resist arrest?

STEWART

10:41:29
No.

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10:41:30
Here's another email we've gotten from Henry. He writes us from Baltimore. He says, "My brother is currently in jail. He was prosecuted by the local authorities in Maryland for a nonviolent offense. He had little choice but to plead guilty because they threatened to hand the case off to federal prosecutors who had far longer mandatory minimum sentences." And he asked, "How often is this sort of leverage used by state and local prosecutors?" Scott, you were a prosecutor in Utah.

BURNS

10:41:56
Right.

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10:41:57
How often is it used?

BURNS

10:41:59
Pretty rare. I mean, like I said, we've got about 40,000 prosecutors in the United States handling hundreds of cases at a time and only in the rarest of circumstances when you want something specific from that person charged. Maybe you believe they have information with respect to a homicide or a violent sexual assault.

BURNS

10:42:21
And, sure, you look them in the eye and say, if you're willing to cooperate, if you're willing to tell us who shot that 9-year-old in the head, we're going to prosecute on a state basis and be your friend. If you don't, we're going to call the local U.S. attorney. We're going to prosecute you federally for a crime that we believe you committed and is a violation of federal law.

STEWART

10:42:43
I might just add, though, that even in my brother's case, it was really a very local marijuana case, and they put it in the federal system.

PAGE

10:42:50
And why did they do that?

STEWART

10:42:51
You know, that was never made clear to us. I mean, my guess -- our guess is that because they knew he'd get more time. In the state system, he probably would've gotten two years.

PAGE

10:42:58
Let's go to Austin. He's calling us from Denton, Texas. Austin, thanks for holding on.

AUSTIN

10:43:03
Oh, thank you. My question was, what should we do to lower the rate of recidivism? And what programs have been prima tort? And how do we deter criminal behavior to begin with? Is it, like, more educational prevention or other programs?

PAGE

10:43:20
All right. Austin, thanks so much for your call. Adam, you had mentioned earlier the desire that you see in the American public opinion for the programs that work best. Have you looked at what programs do, in fact, work best?

GELB

10:43:34
Sure. And there's whole science now around what's called evidence-based practices. And some of the best programs that combine these evidence-based practices can reduce recidivism on average 30 percent. Some do well better than 50 percent. I think one of the best programs to mention is the Hawaii HOPE program.

GELB

10:43:55
It was started by a former federal prosecutor who's a judge out there now, and it actually does involve a little bit of mandatory sentencing. And I'll describe how, and that it's very different from everything we've been talking about, but it does involve saying to somebody, you're going to be drug tested twice per week. And if you are positive, you're going to jail, but not for two years or the remainder of your sentence, you're going to jail for two days.

GELB

10:44:22
And so what they've been able to do with this sort of no ifs, ands or buts approach is to really knock down on drug use among probationers and cut down on arrest, arrests in a randomized controlled trial where it compared people on probation as usual to people in this program knock down their arrest rate by 55 percent and positive drug test by 72 percent.

GELB

10:44:46
And, right, so what's fascinating about it is that that certainty, which is really part of what folks are after with mandatory minimums, does have an impact. If you can tell somebody you're going to catch them with certainty and that you're going to punish them with certainty, you can -- even in a case of drug addiction for a large number of people -- have an impact.

GELB

10:45:11
Not everybody. Not everybody gets better through this. I don't want to pretend that at all. But it does help triage folks who can quit using drugs without much more expensive treatment and then identify those folks who do need professional help to stop using drugs. So it's just one of those approaches that combines some of the evidence-based practices that we know can reduce recidivism.

PAGE

10:45:39
Scott, I know that you think mandatory minimums have had effect. The effect it was designed to have, to reduce the rates of violent crime. Are there other things that you think work as well or even better toward that goal?

BURNS

10:45:51
Yeah. I think prosecutors and judges and those in the defense bar across the country are looking at all types of different approaches. One is pay more attention on the front end. You know, sometimes somebody's charged or arrested, they bail out. You spend five minutes on that case. And they come to court, they don't show up. You get an arrest warrant then you finally get charges filed down the road.

BURNS

10:46:14
Instead of just doing it step by step, everybody comes together in kind of a pre-trial conference and spends a concentrated time on this person to try and make a determination going in. What was the offense, what do we need to do to help this person so he or she does not re-offend, and then try and do it then instead of after the person is sentenced or released. I agree with Adam, project HOPE is 24/7. There's a number of programs and projects going on across the country. Prosecutors are involved in those.

BURNS

10:46:49
And essentially, it's -- I mean, I don't mean to oversimplify it, but it's like dealing with, you know, my daughter Carly when she was 7. It's close supervision and then immediate consequences instead of waiting two or three months, and you find out this person's been abusing alcohol or suffers from the disease of addiction. You test it 24/7.

BURNS

10:47:07
They come in every day: once in the morning, once in the afternoon. I think they pay a dollar to get their alcohol or drug test. And they've got a prosecutor, and they've got a law enforcement officer sitting right there. So you know when you go in, if you're positive, you're headed straight to the jail cell.

PAGE

10:47:23
Now, we've gotten a series of emails and questions from listeners along this line. Here's an email from Daniel, "To what extent does privatization of prisons contribute to arrest, conviction and lengthy sentencing?" Another question that's similar from Ben. He writes, "Please address the fact that many judges and lawmakers have economic interest in the private prison industry."

PAGE

10:47:46
And one more from Steve, who writes us from Cincinnati, "Please discuss the possibility and potential facts that corporate prison lobbyists have pushed state and federal lawmakers to put mandatory minimum terms in place so they can keep profits maximized." Julie, have you looked at this issue?

STEWART

10:48:02
You know, I haven't looked into it deeply. We've certainly heard about it over the years, and the private prison industry has grown tremendously in the past 20 years. But interestingly, one of the biggest private prison companies was recently offering state legislators the opportunity to have a free prison if they guaranteed that they'd keep it occupied 90 percent for the next 20 years. And I don't believe there was one state that took that offer.

PAGE

10:48:25
Adam, what's your sense of this issue?

GELB

10:48:29
I think it's been overblown. I think it's -- there are definitely some pressures there as Julie just described. There are also pressures from the public employees union side, and I don't know how to weigh those out. There are pressures from both sides to keep the prison population...

PAGE

10:48:45
You mean to keep prisons open because it provides employment in those communities. Yeah.

GELB

10:48:49
Absolutely, and certainly in California, the prison correctional officers union was a big part of the run up in the prison population out in California. I think the more important dynamics, Susan, though has been that policymakers at the state level now have fought since the or during the '80s and the '90s, as Scott Burns said earlier in the program, that they had to do something.

GELB

10:49:11
There had -- there ought to be a law to respond to the violence and open-air drug markets that were plaguing so many communities across the country. And they thought it was their role to be tough on crime. And what the shift that we're seeing that's happening now that's resulting in changes in mandatory minimum laws in California, which struck three, you know, struck down finally three strikes just a few months ago and in Georgia where lawmakers just put in a safety valve in mandatory minimum cases.

GELB

10:49:41
What we're seeing is that, as we talked about before, policymakers are realizing it's not enough to just dump your chest and be tough on crime that the public particularly in tight fiscal times is demanding smaller, leaner government and demanding that prisons pay their way and achieve or return on investment as well.

GELB

10:50:03
And that's why we see in more than half the states over the last five years have taken a hard look. Many of them with the help of our project and with the help of other organizations, like the Council State Governments, Vera Institute of Justice and others take a look at these statutes and on a policy level to say, hey, where can we get a better public safety return on all of this correction spending?

PAGE

10:50:25
Scott, do you think that either the profit motive with private prisons or the interest of public employees -- you want to keep some of these corrections jobs going in communities -- is a factor that supports the idea of mandatory minimums?

BURNS

10:50:37
No. I think it's a result of when there's a strain on the system, when governmental institutions don't have the capacity or the funding or the ability to do something. They often look to the private sector to fill the need. Let's contract that out.

PAGE

10:50:54
Julie, you've been involved with a documentary that's going to air on the PBS series "Independent Lens" on Monday. It's called the "The House I Live In." Tell us a little about it.

STEWART

10:51:05
Well, it was done by Eugene Jerecki, who produced this, and he really started with his own family and looked at the nanny that took care of him and his brothers as a child, an African-American woman who kind of sacrificed her own family in order to take care of his. And as a result, or perhaps not, but in some way, her -- one of her sons ended up getting hooked on drugs and died. And this was an issue that I think he found out about and sort of started looking into the entire drug war.

STEWART

10:51:36
And the show really talks about this war as a war on people, not a war on drugs that is -- that sort of makes it inanimate. And he shows how those who are really deeply involved in the system have come to see that the war on drugs is a failure, including the cops on the street, the guards in the prison, the wardens in prisons. And it's a very compelling comprehensive look at the last 25 years of our war on drugs.

PAGE

10:52:02
We got a link to the documentary site on our website. Take a look at it if you'd like more information. I'm Susan Page, and you're listening to "The Diane Rehm Show." Let's go back to the phones and take another caller. Jim has been waiting patiently. He's calling us from Virginia Beach, Va. Hi, Jim.

JIM

10:52:18
Hi. How are you doing?

PAGE

10:52:19
Good.

JIM

10:52:20
One of your panelist's brother got a felony conviction, lives in Virginia, can't vote, et cetera, can't carry a gun. I, too, have a felony conviction. I'm really sorry for what I did. I can't fix it. So let's try to -- instead of trying to fix the past, which we can't do, let's try to fix the future. So we talk about lowering recidivism, and we talk about re-entry. Part of my sentence was five years of probation. I was very lucky to not do any prison time.

JIM

10:52:51
So -- but when I go for job interview and they see felony conviction, I'm really not getting that job. I work in the legal field, and I face rampant legal discrimination 'cause I got a felony conviction. That's not part of my sentence. When does that end? I mean -- and the answer is it never ends because people see, oh, you got a felony conviction, you must be a bad person.

JIM

10:53:16
Forget that you've got 18 years of experience on the legal field. Forget that you're, you know, got other accomplishments. All they see is this black mark on you, and you're done. You're not getting a job. You can't be a notary. You can't vote. You know, you're, in a sense, out of luck. How is that helping people re-enter society?

PAGE

10:53:37
And, Jim, let me ask you, what was your felony conviction for?

JIM

10:53:41
Well, it was a sex abuse thing. And, you know, again, it was a stupid situation. I'm really sorry I did it. I would do just about anything to go back and undo it, but I can't.

PAGE

10:53:54
Yeah. Jim, thank you so much for calling us and for telling us your story. And, Adam, I wonder if you've looked at the impact on people who come out of prison on the lives that they live after that.

GELB

10:54:06
We have and lot of other organizations as well. And that's -- it's another area of significant activity in the states to try to look on a case-by-case basis, which of these laws are justified, which you want to make sure that sex offenders can't work with kids any more. There's not going to be anybody with -- questioning that. But more and more conservative and liberal legislators alike are uniting in terms of rolling back some of the laws that really do stick with people for the rest of their lives.

GELB

10:54:39
And people have a sense now that you do your crimes, you should do your time, but then you should have a second time. And President Bush was about to -- right just before the election signed the Second Chance Act. And that's been -- got a tremendous amount of support in Congress and the thrust of it really is just that, to try to make sure that these bad choices that sometimes people make in their lives do not stick with them around their neck for the rest of their lives.

PAGE

10:55:08
You know, we have a political odd couple, Sen. Patrick Leahy, the Democrat from Vermont, and Rand Paul, the Republican from Kentucky, who have come together on a law that would change some of these mandatory minimum sentencing standards. Julie, tell us about the proposal they made.

STEWART

10:55:24
Well, it's basically taking the idea of the safety valve that was passed in 1994 for drug offenses and expanding it so that it would apply to all crimes that carry mandatory minimum sentences in the federal system. There are over 100-and-some crimes that do carry mandatory minimums, including, you know, piracy from 1790.

STEWART

10:55:42
So this law would allow the judge to look at the defendant individually, see if, in fact, the punishment -- that the sentence is over punishing the person if it doesn't fulfill the goals of punishment as listed in by statute. And if it doesn't then the judge is able to depart from the mandatory minimum and give the judge a low -- give the defendant a lower sentence, not, you know, probation but maybe eight years instead of 10.

PAGE

10:56:05
And, Scott, do you think this proposal is a good idea, or would you be against it?

BURNS

10:56:09
I can tell you prosecutors don't support it. Right now, the discretion is with him or her in what offense to charge and what to offer in a plea agreement. And then there's some expectation of what will happen once that agreement is made if the case doesn't go to trial. Under this system, all the authority is now in the hands of the judge.

STEWART

10:56:31
Where it should be because the judges are in open courtroom and their sentences are reviewable, whereas the charging decisions are behind closed doors, and nobody knows what went into that.

PAGE

10:56:40
Julie Stewart, Scott Burns, and Adam Gelb, thank you so much for joining us this hour on "The Diane Rehm Show."

BURNS

10:56:45
Thank you, Susan.

STEWART

10:56:46
Thank you.

GELB

10:56:47
Thank you.

PAGE

10:56:47
I'm Susan Page of USA Today, sitting in for Diane Rehm. Thanks for listening.

ANNOUNCER

10:56:52
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