>> this

sunday at 4:00 p.m. eastern on c-span3. >> "washington journal" continues. host: joining us from our new york studio, bernard kerik, former new york city police officer -- to police -- police a nomination -- a nominee to be the interim interior minister, and also a felon. what happened? i had advised president bush that i had hired an illegal anny and failedn to pay payroll tax. i went through a five-year

investigation. in november of 2009 i pled eight felonies, most of which were related to my children's nanny. i was sentenced to 48 months in the federal prison and i spent three years and 11 days in a minimal security >> what was that experience like for you? >> guest: it is like the same as it is for anyone else that has been in jail or prison. the deprivation of freedom is more profound than anyone knows especially for someone that has been a law-abiding citizen and for someone in my position that has been a law enforcement officerff for -- i had a 30-35

year impeccable career up until that point ande then to be sen to prison and have your freedom taken from you, to lose your civil and constitutional rights, to lose your children pretty much for any period of time is more profound than you can imagine. it was extremely difficult. it was difficult then. it is probably equally difficult today as it was then with the collateral consequence of the felony conviction. and it is something that no one wants to go through. no one. >> host: commissioner, what are some of the collateral consequencesns you talk about? >> guest: well, i think first and foremost the general public

and even congress, who makes these laws -- i don't think they understand the consequences of the convictionun -- of a felony conviction -- and what it does to an individual, their families, their children. you know, we live in a world where we promote or say that america is the land of second chances. if you are convicted of a felony regardless of what that felony is there is pretty much no second chance. you are a convicted felon for the rest of your natural life. i was with men in prison, young men, very young men, that the first time non-violent, low level drug offenders that were sentenced to 10-15 years. 15 years for five grams of cocaine and a conspiracy.

if they live to be 120 and never had another problem as long as they live they will be a convicted felon and they will suffer the consequences of that conviction for the rest of their life. the loss of civil and constitutional rights, the loss to bear arms, they will have difficulties as probably 70-80 percent in obtaining a real job, they will not be able to rent apartments, they will not be able to get educational assistance. recently the american bar association and the national association of criminal defense lawyers put together a study about a atthree-year study on collateral consequences throughout the united states for a convicted felon and i think e total number in all was about 45,000 different collateral consequences.

and don't get me wrong, i need peoplet to understand there are people that anbelong in prison. some belong there a long time and some may belong for life. but we put people in prison today that don't need to go to learn theirh lesson. they could have been punished by appear alternative sentence -- -- or means be it home confinement, house arrest, community service, a fine, a bigger penalty but we send them to prison and they come home and the collateral consequence of their conviction and imprisonment will last forever and i don't think anybody a understands that. >> host: did you ever have these thoughts as head of the

commissioner or the department of corrections? >> guest: no. no. what happens as a cop and law enforcement officer you have a job toow do and your job is to take bad guys off the street. you don't necessarily think what happens to them in the long run. and don't get me wrong i put people in prison for a long time -- some for life. but these were bad people that did ba id things. they tried to kill me. they shot my partner. they killed men i worked with. i seized tons of cocaine from them and millions of drug proceeds. and then i went to prison and met young men that were sente e sentenced to people serving 15 years for selling drugs.

i met fisherman that caught too many htfish. and i met men fudging trying to get a loan for a house and were sentenced to bank fraud. i never realized or thought about those types of circumstances. we have evolved into a society where we now take a number of r r reglortory issues and turn them into crimes. and i am not saying they should not be held d accountable for actions but a commercial fisherman that catches too many fish? fine him. but making him a convicted felon and taking his license away -- i was with a man who was fishing since he was 17 and he was 55

and owned his own business tr for the last 40 years. he lost his life, and his family was on public assistance because he caught too many fish. fine him. you now turned him into a convicted felon in theed prime years of his life. he cannot work, can't get a job, has no business, pays no taxes, can't take care of his family and i just don't see that as justice. there is a way to address those issues without turning these peoperle into felons and having them and the economy, most importantly the economy, suffer eternally. i don't get it. >> what would you like to see done, pardon me, and at what level of government?

>> guest: i think, first for foremast i think the mand atoma centsance sentence has to be overturned. and i am not the only one saying that. this isn't a democratic issue or republican issue. this is coming froman both side of the house where, you know, the legal professional is saying these things have to be addressed, the punishments are too severe, the sentences are too lonppg and they are crippli families. theync have to be addressed. i think we have to look at

alternatives for incarceration. as i said earlier, home confinement and house arrest, fines and penalties, community service -- we put a number of professionals in prison that could be serving their community in ways that we really need it. you have doctors that have been arrested and charged with -- or convicted of some kind of financial crime relating to either insurance or taxes but overall they are phenomenal doctors. put them in communities where they are needed. you have professors and teachers. we have people with master degrees that could be teaching at community colleges for nothing. 15-20 hours a week make them go teach at a community college for

nothing where kids in these communities that really need an education and they don't have the money to get it have people teaching them. there is a number of things you can do to punish people without putting them in prison. the cost of incarceration runs aboutns $28,000 a year to house federal inmate. but the reality is if a guy is making $150,000 and a year and you put him in prison because he caught too many fish it is a cost to you of the taxpayer of about $600,000 for his stent in prison. fine him $150,000, suspend his license -- doin something. but making him a convicted felon and lose his contribution to society forever -- for the rest his life, i think is absurd.

>> host: 202 is the area code. we would like to have you call in. we will flash the numbers up on the screen. let's hear from our callers. queeny is calling from columbus, georgia on our democrats line. >> caller: i am calling because i feel like once a person is put into prison and they do their time like you said they are convicted the rest of their life for crime and i feel like that is double jeopardy. they should be able to get a job and get back into society and be able to work and take care of their families. but once they do their time they are still a convicted felon for the rest of their life and if is hard to get a job.

i feel like what you are saying true. >> host: thank you, queeny. let's get a response. >> guest: i agree totally with what you said. here is the problem: you never finish paying your debt to society. we as the american people, the press, congress, the people that make these laws they will stand before an audience and talk about a person has to be held accountable and pay their debt to society and at what point does the debt end? it never ends. you pay that debt forever. for the rest of your life. there is no cut off point where somebody says okay, you now have been made whole. you did your prison time. your did your probation time and you have gone beyond that and

you are model citizen. we will expunge your record and giveng you back your life and constitutional and civil rights. that doesn't happen. the problem is you pay that debt forever. and that is not justice. the punishment is supposed to fit the crime and i am confidant this isn't what the founding fathers wanted when they created the constitutional. the personal and professional annihilation of someone that made a mistake isn't what was inted tended. >> bob, winchester, california. go ahead. >> caller: your guest is right on. i was a prison minister and priest for 15 years. i helped setup the -- i cannot

think of it anymore but it is for the freedom fund. and we found here is what it is about. prisons are now a cottage industry. they are built by a company who bids on the prisoners and then they stuff them full of prisoners. we have 2.7% -- we are, america -- is 2.7% of the world's population and we have 25% of the world's prisoners. and your guest is so right-on. it is about getting them into the system. once a young man gets into the system, unless you are smart like i was, i saved my son, you can't get them out unless you --

like i got a forgiveness because i won a silver star. and my son went right into the marine core and was one of the first 17 that landed in afghanistan and that was because president clinton gave me a forgiveness. but the thing is your guest is so right. see they want you to be there. they want to get you in prison. when young men get caught, they get in the system and there is no way out. >> host: let's get a response and hear from bernard kerik. >> guest: it is an $80 million a year industry number one. there is a lot of lobbying out there and industry that wants as many people in prison as

physically possible. but i agree with your caller on this one point and that is these young men and women that come into the system you are creating, in my opinion, an eno enormous amount of chance they will come back into the prison and here is why. you take the young men i was talking about. 19 years old and against arrested conspiracy and five grams of cocaine. he goes for ten years and does eight years of prison time. during that period he gets no life improvment skills. he is physically in a prison. a prison is a training ground for thug life. you learn to lie, cheat, steal,

manipulate, gamble and most terrifically fight. your disagreements are usually in verbal confronitatitation or physical. that is your education in prison. and then we let them out to go back to society. they cannot get a job, they cannot gethe public assistance r education, they cannot get an apartment. they cannot get a place to live unless they have someone to take care of them. at what point do they give up? they give up and have to revert to crimeth and do something stud to take care of themselves or their family o and that puts th back into the system. they need an education -- a real education and real programs. we put tons of people in prison

today for addiction. people that are addicted to drugs need treatment. they don't need prison. they need treatment. we put mentally ill in prison. they belong in treatment centers. they need to be taken care of by clinicitions. not sitting in a jail cell. this leads to advanced recidivism and the numbers turn over. i can we are about 5% of the world's population, but we are 25% of the world's prisoners. we hold 25% of the world's prisoners. how is that possible? how is that possible we have more prisoners than russia or china? the insanity of the system is unsustainable and has to change.

the congress and our legislators have to address it at some point. it is going to cripple our society and our economy. >> host: now, bernard kerik, this is a tweet we have gotten several like it sentiment-wise. darryl rich tweets in it is a funny how opinions change when the shoe is on the other foot. >> guest: that is exactly right. it is education. here is the issue: one of the reasons i am talking to you and one of the reasons i have testified before the congresslk and one reason i talk about this constantly is because the public doesn't understand the damage that the system does. they just don't. if you haven't experienced first-hand. if you haven't been there or dealt with it through some personal discourse -- a family

member, friend or otherwise you have no idea. and the reason i know that is because i was in the system. i ran two of the largest law enforcement agencies in the ge country. i ran the nypd and rickers island and i didn't know half of what i know today then. so you are right. and people can criticize or they can agree but the bottom line is i have now seen the system full circle. and i think the system is broken and we have laws and failures that are crippling the economy, devastating families and crucifying children and we have to do something about it. >> host: the prison policy in initiative group put out this chart. 2 million people are locked up

on a day-to-day bases in the u.s. state prisons contain the most and federal is 216,000 and local jails 721,000. this prison policy group says about 12 million people a year siphon through the u.s. prison systems. calvin, new ark, delaware. independent line. >> caller: i want to thank you for coming on and sharing your story and, you know, trying to make a change. i am fromto new york so i want say thank you for that. my comment is there are -- i read they spend about 40,000 per inmate -- either the taxpayers

or the government and for the education system it is only $8,000. it seems like an incentive for the prisons to keep being build if we are paying $40,000 per inmate, you know? and that is a lot of money per inmate so it gives them incentive to lock up more and more people. that is my first comment and my second quick one is i was diagnosed with a mental illness and every since being diagnosed with that i have had to deal with the justice system but since having it i have dealt with several charges because of thbee mental illness. i believe drug users need treatment. people with mental illness need treatment not jail and thank you for allowing me. >> host: thank you, calvin.

bernard kerik? >> guest: i understand what he is. saying. back to the financial and economic issue, you know, you run -- depending on where you are at and the system, you can say that an inmate cost $25-$100,000 a year depending on where they are being held. state governments around the country, the bottom line, they cannot sustain these cost. that is why you see a lot of state governments around the united states that are looking at alternatives to incareratiat. they are looking at the overall criminal justice system man-in an attempt to reduce bed space and the prison population.

i have to give credit to the state of texas and governor perry and some states out west -- the right on crime states -- now that are really addressing criminal justice reform for whatever reason a lot of it has to do with economics. you cannot sustain these budgets. you only have so much and once you rulyn out no body is comingo your aid so you to do something about it. in the federal system, in 1980 there were 20,000 prisons in the united states federal system to it is up to 218,000. not one year since 1980 has there ever been a reduction in the bed space in the federal prison system. it has increased every year to

date right up until this year. the federal government prints money. they keep putting money into it. and at some point the american people have to realize it is an economic cost that is burdening them, the american taxpayer, and i don't see this being sustained. i think at some point in time it has to be addressed and i give the attorney general and the president credit in trying to do something about it. i just hope that the members of congress will get on board, cut the polarization, cross party lines and do what has to be done. right now you have senator booker from new jersey, my home state of new jersey, rand paul and a number of others looking at criminal justice and prison reform. i hopeju others jump on board a

do what has to be done to get the laws changed. >> host: at 9 a.m. c-span is covering a hearing on criminalization task force. that is about the need for criminal code reform and the over federalization in federal criminal law. 9 a.m. c-span 3. mark from fort lauderdale, florida is next. >> caller: thank you for bringing this subject to the front. i called in on the ex-inmate line because i did federal time myself. you had a tweeter that stole my thunder when they mentioned how things look very different when the shoe is on the other foot and the fact is i am willing to bet that as bernard kerik was coming up through the police

force and climbing the ladder and even when he reached the top of the food chain always thought pr prisoners and criminals deserved more time and were getting off too easy and i am very glad to see now that you have been through it you can realize how rough it is for people that fall in. when i was in the bureau of prisons, i met fallen politicians and a judge and they all said the same thing. if only i knew then what i knew now. >> host: mark, why were you in prison? >> caller: bank fraud. >> host: were you guilty? >> caller: i thought i wasn't thought i was. >> host: bernard kerik, any

response? >> guest: if someone told me before i left you will go to prison and meet good and decent men and great fathers and great busine businessmen and good professionals and doctors and lawyers and judges that are really good people. i honestly i would have laughed. i wouldn't have agreed at all. but i have to tell you i went to prison and i was housed with lawyers. i was housed with doctors. i was housed with other professionals that w made mistas and i want to go back to your caller when you asked him was he guilty, he didn't think he was, the judge thought he was -- there are people in prison today that had no criminal intent. i know men that didn't even

though they did anything wrong. the days of criminal intent are pretty much over. you don't have to intend to commit a crime in the federal system and you can wind up in federatel prison which is scary. but at the end of the day they made a mistake. yeah. they did something wrong. but they paid their price. they are good family people. hard workers. i met really, really hard workers. all i am saying is once they have done their time, once theyd have paidon their price and pai their debt to society, then give them back their life, giving them back their constitutional and civil rights and make them whole again. that is all i.'m asking because today as it stands that doesn't happen.

>> host: should that also apply to violent criminals who have paid their debt to society? >> guest: i think they have to be looked at. and like i said earlier there are people that do bad things that belong in prison. someone pays their debt to society at some point in time when does that debt end? and i think for violence, you know, it is something that has to be looked at. my bigger concern is the non-violent prisons. right now, as of last year, you hadll 27,000 men in mim minimum security prison camps in the federal system. that means they are not violent becausee they could not be ther if were and they are doing under ten years in prison.

these men can go back into society, they can work, they can pay taxes, they can take care of their families but in reality we prevent them from doing that and that is one of my principle concerns. >> host: rick is calling from new jersey l on the democrats line. go ahead. >> caller: good morning. >> guest.: good morning, sir. >> caller: i am pretty sure you are rehabed and i think you are a cool dude. my question was asked by the tweet basically so i am going to ask you a quick question. if i had the pow er to look bac

would you go and book at cases? 13 years ago a man ran an israeli moving company out of new jersey and look into his businesses as well. would you as commissioner reopen that case? they were held in a new york city prison for a couple months. does that ring a bell to you? >> guest: no. i don't -- the name doesn't sound familiar. >> caller: let's take his question and broaden it. have you talked to your former colleagues about your reform effort and have you met any of the people you put in jail since

you have been u out? >> guest: no, i haven't met anyone that i have put in prison. but i have talked to a number of colleagues and peter, i will have to tell you initially when we had these conversations -- and i think some of my best conversations were in prison -- a number of formal colleagues and people that work t for me. keep in mind i had 55,000 men and women that worked for me and at the new york city department of correction i had 13,000 so it is a big group of people many of which came to prison to see me. during the course of the conversations when we talked aboute the criminal justice system theysi thought i was

loosingnd my mind until i was ae to look around the roof, identify people and what they did. this guy caught too many fish. and they see him with kids, grand children, family and then they get it talk to his family when they leave. they see a young man who is 19-20 doing 10-15 years for a low level drug offense. they talk to his family and understand the devastation it caused the family or they see a business man or an attorney that is in prison doing a year and a day, a 75-year-old attorney doing a year and a day. he is 75 years old? what is the sense in sending him. put him on home confinement. why? i don't think anybody

understands time and this is prosecutors, judges, cops, me -- no body understand what it is like to live by a clock that is standing still. no one does until you have done it. and people say, and they have said, especially the press, they love to jazz this up in the media as well, you went to a minimum security camp. it is a country club. club fed is what they call it. really? my answer to that is to find the finest hotel you can find. you have the saint regius or the four seasons here in manhattan. wake into one of their suites and go into the bathroom which is about 12 by 15 and lock yourself in the bathroom for a

year and tell me how good it is. the taking away of freedom -- when you can't tuck your kids into bed or say their prayers with them or you cannot visit them ayot school or you cannot and take them to a school event then it is pretty horrific especially for someone that for their entire life has abided by the law. it is horrifying. so i just think that, you know, for my colleagues -- they didn't get itey and understand it unti they were physically there and got to see it. and a number of them today look at it very differently. >> host: carson, redlands, california. you are on live.

>> caller: thank you, commissioner, i appreciate your valuable input to the country vv via the show. i was arrested after being a private investigator for 23 years for a non-violent or alleg allegedly according to the laws at theer time served five yearsf a sentence and was plea bargained. i think the reality is we have to understand these problems begin with the local district attorney andbl their efforts to make convictions whether they are valid or not. unfortunately we have a local police force and district

attorney who are looking at numbers and i would like you to give mee input or gave the natn input on the problems we are experiencing with the efforts to prosecute at the lowest level. thank you. >> host: carson, what were you convicted of and were you guilty? >> caller: i was convicted in a plea bargain of assault with a deadly weapon on a police officer. >> host: do you think you were guilty? >> caller: i absolutely wasn't guilty but by thein dynamics of the local system as the commissioner knows we have a necessity to plea bargain. i was originally arrested for 9 felonies and 3 misdemeanors.

i had never been arrested in my entire lifeli until i was 52. >> host: how did that change yourca life? >> caller: it changed it profoundly. you are not done when you served the sentence. you have a permanent stigma attached and even at age 60 it is impossible to get meaningful employment. >> host: thank you, sir. bernard kerik? >> guest: listen, i understand what he is i saying. it is -- the system has to be fixed. i just want to touch on the

prosecutor thing and the law enforcement thing in general. no body is more pro-law enforcement than i am. even with all i have been through. people violate the law, they need to be held accountable. but our system is flawed. and on the prosecution end, i have iworked personal with, i think, some of the most incredible and phenomenal prosecutors both at a local and county level and a federal level. i was a federal drug agent for five years. i think i have worked with some of the best prosecutors in the country. but you have to keep in mind whether it h is local county prosecutor or a federal prosecutor theirut performance

is based on three things: one, their conviction rate; two, the amount of time someone is sentenced; and three, the positive press they bring to their office. that is what their performance evaluations are based on. that hason a lot to do with fairness and prosecution. a public defender -- a federal public defender isn't judged and based on their acquittals. they are judged on how many cases they can get off their desk. the system is flawed. we need to have oversight of prosecutors who violate the law to enforce them. real oversight and they need to be held accountable. it isn't all of them. it is not most of them. but there are prosecutors in

thisth country today that do violate the tlaws to enforce them. and they need to be held accountable. real accountability and if we had that we would see less of those problems. >> host: vernon is calling from mineral wells, texas on the republican line. go ahead. >> caller: did i understand your crime was not paying social security tax on a illegal alien you had hired? >> caller: yes, sir, some of them, yeah. >> caller: that is amazing that would be a felony. i would never believe that. >> guest: take my word for it. >> caller: what it sounds like as somebody higher up in power had a personal grudge against you to prosecutor you for that

when there is politicians taking bribes that are never prosecuted. for example, senator robert torselli took bribes. the person who bribed him, i understand, was prosecuted but the senator got off. so somebody wanted to take care ofte him but but the criminal w actually the briber not the one who was bribed in that case. >> host: let's leave it there. bernard kerik, to politics play a role in conviction? >> guest: they are not supposed to but the reality is they do. there is selective prosecutions all the time in this country. you would have to be blind to say there isn't.

there is. and you know, be it politically selective or personally selective it happens. it is human nature almost. it chapati shouldn't happen but it does. an ad that is another arena of accountability that should be looked at. but that is the way we operate and there is nothing, you know, it happens. so, you know, it isn't supposed to but it does. and anybody that says it doesn't or thinks it doesn't you need to open your eyes and take another look. >> host: derrick is calling from new york. go ahead. >> caller: about 21 years ago i was working for a lady and she -- i am a union plumber and i was told i was pulled over by her car, beaten up by the police and charneled with assault on a police officer and wreckless in

endangment. i had money and bailed myself out and where was witness to a murder and because of that they wound up to dropping some of the charges but i have the record on the felony. i sued new york city for this. got awarded six figures but the police were never put in jail for what they did to me and the police lied. i don't understand how this goes on. the police lied. new york city l paid me six figures for what happened to me but nothing happened to the police. >> host: bernard kerik, can you speak tod that in general. >> guest: i cannot speak to the individual issue but the estimate he made g that police e not held accountable -- i have to say that is not true.

police are held accountable in many a circumstances. i cannot talk about this specificy issue, but if you pi up the new york post or new york daily news, you know, several times a month there are police officers that are held accountable for either ethical breaches or you know some illegal activity whether it is a assault, whether it is a drug-related issue, no matter the case, police are held accountable. in new york city, in general, you have the manhattan's da office or the local district attorney that looks at the issues. you have the review board that would look at an assault issue like that. and quite often you have the federal government that comes in and they will look at an incident like thatco where an officer is involved in assault to see ifed there is any federa

ulor civil violations. so, you know, do things slip through the cracks? of course. but police officers are definitely held accountable when they get caught. >> host: mark is calling in from alaska. >> caller: thank you. and thank the guest for his honesty and taking this cause up because it is a scourge on our nation. itn is an embarrassment. first of all, he has made excellent points. the prison lobby is getting built up because of the private prison industry and that is one of the first thing we need to eliminate. it is our duty as citizens to incarcerate people and it isn't something we can farm t out to corporation. once that happens we have a lobby and we know how powerful the lobby industry is.

i would also like to say that it the pre the mand torysu sentencing came about back in the '80s when, i guess, we lacked a way to manipulate the voting base so politici politicians would talk about being tough ond crime and thats how they got elected. and it is my instilling all of us with fear. >> host: we are running out of time. let's get a comment prom the commissioner on the private issue. >> guest: it is doable at lower level lofacilities. but i would never sign a contract with a private correction company that had a mandate to have that contract

for 20 years and i would have to guarantee them a 90% occupancy rate. this isn't a hotel. anybody that would sign a contract guaranteeing on occupancy rate -- you would have to be doing something illegal and unconstitutional to sign the contract. but i would sign a contract with a private organization if they can cairn tee -- cairn tee me to reduce the recidivism and i will sign the contract. >> host: what is your view on the death penalty? >> guest: my view is the same. someone that kills someone with malice and they are convicted i have no objection to the death

penalty. what i do have an issue with today and i would feel uncomfortable with -- i would have to see incredible evidence to prove the person was guilty. we have seen way too many cases where there has been -- there have been prosecution misconduct in some of these death penalty cases that have been overturned and that scares me. i am for the death penalty but i think there has to be guarantees within thete system that where there is oversight on the prosecutors that prosecute the cases to ensure that when someone is convicted of a death penalty case that they are really guilty. >> host: what is your advice for ex-felons who may not have your resources or for felons that don't have your resources?

>> guest: i have resources and support but i can tell you i am not doing probably much better than anygu of them. they have to stay strong, they have to stay committed, they have got to try to focus and get beyond all of the negativity and all of the stigma and do whatever they have to do to stay out of prison. don't go back. and it isn't as easy as it sounds especially for -- >> hos >> host: go ahead and finish. >> guest: especially for guys that are not educated. we have people coming out of prison that are not educated and i i not literate and they will have

problems finding low level jobs even. it is difficult circumstances. >> host: where is the best place for people to follow you in your work? >> guest: bernard kerik on twitter and the kerikgroup.com is my company website. >> on the next washington journal ruthy of the american civil liberties unit will discuss the clas action suit they filled on behalf of immigrant children. and former homeland security clark kent irvin details increased security at airports flying to the u.s. washington journal live at 7 a.m. eastern on c-span.

tune in to book tv for the harlem book fair. live coverage starts saturday morning. the house committee's over-criminalization task force heard from attorneys and judges about potential changes to the federal code. the task force was formed in 2013 and reauthorized to assess criminal statute. this is an hour and a half. >> good morning. the over-criminalizational task force will come to hearing. the chair is authorized to call

resource of the task force at any time. we welcome our witnesses here. at this time i will turn to the chair of the full committee to introduce our first witness mr. hephey. >> thank you for holding this hearing and allowing me the honor of introducing my united states attorney who has represented us well in the western district of virginia for the past several years and he is someone who is very interested in not only the enforcement of the law but in criminal law and publish policy so i am delighted to have him here to testify and tim welcome. >> thank you. our other witnesses. we have irene keeley from west

virginia. u.s. district judge. received her under graduate from the college of notre dame in baltimore and her masters from west virginia who is playing university of alabama in their first game. before attending gloscow she was employed as a second education teacher and received her doctor degree from west virginia college of law. we welcome you, judge. from 1980-1992 she practiced law with the firm step and johnson. was that here in washington? >> it was in the original office in west virginia. >> so they are a west virginia originally. thank you. she was appointed district judge

in 1992 and served from march 2011-2008. she currently is chair of the committee of law for the united states. patty saris is the next witness and she is no stranger to the committee and we welcome you back again. she served as chair of the united states senate and commission since december 2010. judge saris has served as united states district judge for the district of massachusetts since 1994 having been nominated to the federal bench by president clinton. prior to her appointment to the district court she was an associate judge for the massachusetts superior court and before that a federal magistrate

judge for the district court for the district of massachusetts. judge saris served as staff and council for the united states senate and a law clerk to the late justice robert brock ter of the massachusetts supreme judicial court. she held a position of the chief in the civil division in the office of the united states attorney for massachusetts. she received her ba from ratcliff university. ... j.d. from harvard law school. she is the sister-in-law of jim sokul, who many of you know, whose office was right down the hall for several years and served as chief of staff for chairman frank. >> mr. chairman, if i might?

>> the chairman is recognized. >> i shortchanged my united states attorney, and i never want to do that, by leaving out his credentials. he's a graduate of the university of virginia and the university of virginia school of law, and upon grad yauation fro law school, he served with judge tierney and served two years at more morrison & forester in san francisco. he has also lectured frequent the at the justice of north carolina. he served 12 years as assistant district attorney in both the

districts of columbia. >> thank you. >> we have at least two virginia grads. our last one is david patton. he's been defender and chief of the federal defenders of new york since july worked at the federal defenders as a trial attorney in the manhattan office. during that time he also served as an professor at nyu, school of law. in 2008, mr. patton was assistant professor at the university of alabama, and from 2010 to 2011 he was visiting associate professor of law. he teaches professional responsibility in criminal law and ised a adjunct professor at nyu. he clerked for the honorable claude hilton of the united states district court for the eastern district of virginia, is a graduate of university of

virginia school of law. we welcome you to the committee. we're expecting our first and our only votes of the day at 10:15. so without objection, members' opening statements will be made part of the record. contributed

will continue to contribute significantly to the discussion of improvements to make our system more fair and efficient. the department has an interest in all of the interests that this task force has explored. in our written testimony we address issues regarding so-called regulatory crimes, a possible mens rea uniform crimes, which are the focus of the task force. i look forward to addressing those topics today. in my opening statement, i would like to use my very limited time on focusing on the crucial and

urgent need of improving federal sentencing and correction policies. as this task force has recognized, our strategies have included a greatly expdof our nation has the greatest number of prisoners in the world. a rate that is five to ten times higher than rates in western europe and other democracies. such extensive use of prison is expensive and unsustainable. our state and federal governments spend $74 billion a year on incarceration. at the department of justice, spending on prisons is a third of our operating budget compared to a quarter in 2000. increasingly displaced other crucial justice and public safety investments, including resources for investigation, prosecution, prevention, intervention, and assistance to state and local law enforcement agencies. in response to the increasing percentage of our resources devoted to incarcertion, the

attorney general has launched a smart on crime initiative that began back in august of last year. smart on crime requires all federal prosecutors the men and women with whom i work every day, to ensure that we're devoting our enforcement resources to the most deserving of the federal criminal charge. smart on crime augments or state and local law enforcement as well as funding and other supportive prevention and re-entry programs. the goal is to maintain our ability to fulfill our core enforcement function and pursue other priorities in a comprehensive approach to community safety. one important component is the department's support for reform of sentencing practices for low-level offenders. half of those in custody are serving time for drug-related offenses. the department is committed to modifying, charging and sentencing policies, both to help control -- will face

sentences appropriate to their individual conduct. to most effectively address that issue, however, congressional action is necessary. we strongly urge the task force and the full committee to take up sentencing reform legislation this year. the department strongly supports the legislation introduced by congressman scott and labrador, the smarter sentencing act, the bill could allow billions of dollars to be re-allocated to other critical public safety priorities while enhancing the effectiveness of our federal sentencing system. the kinds of reforms the department supports already proven successful at the state level. state leaders, republicans and democrats are transforming correction policy across the country. changes in state laws and priorities have demonstrated it's possible to spend less money on incarceration without sacrificing public q safety.

in fact states have seen drops in recidivism. so by controlling prison spending and shipping away from incarceration we can't focus on important law enforcement priorities such as violence protection and protection of vulnerable populations them department is committed to an approach that is reducing crime and also more consistent with our nation's commitment to treating all americans as equal under the law. we cannot achieve these critical goals without congress. we urge you to seize this opportunity to make our criminal justice system fair and keep the american people safe. thank you. >> at this time i recognize judge keelie for her opening statement. >> thank you,, chairman, and ranking member, and distinguished members of the task force for inviting me to testify today. it's an honor to appear before you and alongside such

distinguished witnesses, especially my good friend and colleague, chief judge. i testified today on behalf of the judicial conference of the united states. the policymaking body for the federal judiciary. the conference's committee on criminal law that i chair oversees the federal pretrial services system and reviews legislation and other issues relating to the administration of criminal law. my committee has watched this task force's progress with keen interest. the judicial conference has submitted letters for the record at past hearings, and i thank you for accommodating us with regard to that. i offer for your consideration today several strategies to address the pressing problems of overcriminallization in the federal system. each of these points, curbing overfederallization, reforming mandatory minimum sentences and amending the guidelines are

disdiscussed at length in my written testimony. at the outset i wish to emphasize that major criminal justice reforms currently under consideration, front expend back-end sentencing reform legislation, executive clemency and reforms to the sentencing guidelines will increase the qáj must provide the courts, which currently are operating at 1997 staffing levels, with adequate resources to shoulder those additional burdens. the failure to do so will result in further delays for your constituents and ultimately could have public safety consequences. for nearly a century, the federal judiciary has expressed concern about the federalization of crime. the conference encouraging congress to conserve the federal courts as distinctive judicial forum of limited jurisdiction in our system of federalism. it is the conference's

long-standing position that federal prosecutions should be limited to charges that cannot or should not be prosecuted in state courts. to this end, the conference has identified five types of crimes that are appropriate for federal prosecution. first, offenses against the federal government or its interests. second, criminal activity with substantial multistate or international aspects. third, criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise. fourth, serious, high-level or widespread state or local government corruption, and, fifth, criminal cases raising highly sensitive local issues. the conference also recommends that congress review existing

federal criminal statutes with the goal of eliminating provisions that no longer serve an essential federal purpose. an idea i know has been discussed at past hearings of this task force. another pressing problem related to the issue of overcriminallization is the burgeoning population of the correctional system. caused in part by the proliferation of crimes carrying a mandatory minimum sentence. mandatory minimums, in the opinion of the conference, are wasteful of taxpayer dollars by unnecessarily increasing correctional costs,olw which are borne bought by the bureau of prisons and by the pretrial services name which is within the judiciary. for 60 years, the judicial conference has consistently, and vigorously, opposed mandatory minimum sentences. mandatory minimums are incompatable with guideline sentencing, a point on which

judge makes a stan. in the absence of mandatory minimums. judges would not have unfettered discretion in sentencing. the sentencing guidelines that have been carefully developed with the benefit of the sentencing commission's congressionally endorsed expertise, would remain fully enforced. departures or variances from the guidelines would be reviewable on appeal for reasonableness. mandatory minimums also cause disproportionallity in sentencing, by treating similarly offenders who actually may pose very different risks to society. the judicial conference endorses amending section 924c to preclude the stacking of count and to clarify that additional penalties only apply when one or more convictions have become final prior to the commission of the next offense.

the con sentence has already shared draft legislation in this regard with congress, which i would be pleased to re-submit to this task force. one example of the significant costs of stacking is the case of weldon ang lows, a first time nonviolent offender whose 55-year sentence resulted from stacking mandatory minimums. i would urge your task force to consider whether taxpayers are truly well-served by spending $1.4 million or more to -- incarcerates mr. angelos for 55 years. thus the judicial conference agreed to seek legislation such as the safety valve act of 2013. the judicial conference also supports the policies contained in the smarter sentencing act of 2013. legislation that i know several cosponsored. the third major public policy initiative that the judicial

conference supports relating to overcriminallization, is the sentencing commission's april 2014 decision to amend the guidelines, to lower the base offense levels in the drug quantity table across drug types. the commission is currently considering whether to make this decision retroactive. the judicial conference endorses these reforms on principles of fairness. nevertheless, recognizing that they will impose costs on the judiciary. retroactivity in particular would cause a dramatic influx of offenders out of prison and into the system. inadequate resources or preparation for this event would imperil public safety. the judicial conference, therefore, endorses retroactivity only if release of the first wave of prisoners is delayed by six months in order

to give the system time to prepare for the first wave of new superviseees and if the commission coordinates a national training program among all the affected agencies. thank you for inviting me to testify today. and for considering the conference's views on curbing overfederallization, reforming mandatory minimum sentences and amendmentsing the sentencing guidelines. look forward to answering your questions. >> thank you, judge. we'll hear from judge -- >> good morning to everybody. chairman backus, ranking member scott, distinguished members of the task force, thank you so much for providing me with the opportunity to testify on behalf of the united states sentencing commission. we are so pleased that the house judiciary committee set up this overcriminallization task force. i have been waiting for his hearing and thrilled we're all here. the commission identified reducing costs costs of incarcen

and overcapacity as a pry fort for the amendment soil this year and last year -- amendment cycle this year and last year. the commission is carrying out statutory duties. we are required to ensure that minimize the likelihood that the federal prison population will exceed the capacity of the federal prison. while state prison populations have begun to decline slightly due to reform, the federal prison population has grown byçó about a third and exceeds capacity by 32% overall and by 52% in high security facilities. drug offenders make up a third of the offenders sentenced federally every year, and a majority of the prisoners serving in the federal bureau of prisons. so, they are an extremely important to the size and nature of the federal prison population can you hear me better now? usually hearing me is not a problem. the commission set out to

determine ways to address the crisis in the federal prison budget and populations that are fair and appropriate. we have south out the perspectives of law enforcement to be sure that any proposed changes will by consistent with the goal of promoting public safety. the commission found in its 2011 review of mandatory minimum penalties that certain mandatory minimum provisions apply too broadly, are set too high, or both, and as a result, certain mandatory minimum penalties are applied inconsistently from district to district, and even within districts. we also found that 23% of all drug offenders were couriers, who are usually low level and nearly half of these were charged with offenses carrying mandatory minimum sentences. the category of drug offenders most often subject to mandatory minimum penalty, who didn't receive any kind of relief from mandatory minimums like the safety valve, were street-level dealers who are many steps below high-level suppliers and leaders

of drug organizations. we're concerned, too, about the differences in how mandatory minimum penalties apply and relief is granted in different racial and demographic groups. mandatory minimums have contributed to the growth in federal prison population. the numbers tell the story. the number of offenders in federal custody who are subject to a mandatory minimum penalty at sentencing increased from 29,603 in 995 to 75,000 in 2010. a 155%@r increase. so, the bipartisan seven mesh commission recommends that congress reduce statutory minimum penalties for drug trafficking, that the provisions of the fair sentencing act of 2010 should be made retroactive, and that congress should consider expanding the safety valve that is allowing sentences below mandatory minimum penalties for nonviolent low level drug offenders, to

offender with slightly greater criminal history than currently pier meted. the commission unanimously approved an amendment to the guidelines to reduce by two levels the base offense levels assigned to most drug trafficking offenders based on drug quantity. why? the guidelines were originally set slightly above the mandatory minimum penalties so that even those offenders with no enhancement and million criminal hit would benefit from pleading guilty and cooperating. congress created the safety valve which gives low level offenders a better benefit for cooperating. so setting the guidelines before the mandatory minimum is no longer necessary for that purpose. indeed, after a similar reduction for crack offenders in 2007 the rate at which the crack cocaine defendants pleaded guilty, helped -- the original authorities remained guideline level levels were

set, the guidelines only had one enhancement for a gun. but now it has 14 enhancements for specific conduct, which reduces somewhat the need to rely solyrug we recently did a recidivism study of those offenders whose sentences were reduced following the -- after five years there was no statistically significant difference in recidivism rates between those offenders and those other ones who are released the previous year after serving their full sentences. this study indicated a modest reduction in drug sentences may not lead to any increase in resid victim. the amendment we approved this spring, if it goes into effect on november 1st, is an important but modest -- i underline modest -- first step c anddressing prison cost overcrowding, consistent with the law and public safety, but more comprehensive change needs to come from congress. the commission has been encouraged to see the bipartisan

legislation introduced here in the house and the senate that is consistent with the recommendations we have made. we hope to see further progress toward enacting legislation in this area and stand ready to work with you and others in come. so thank you very much. i'm sorry if i spoke too quickly. i'm the bane of my court reporter. thank you. >> thank you. >> thank you, mr. chairman. thank you, members. it's truly on honor for me to be here. i'm the federal public defender in new york city. good to see you representative, jeffreys. i -- together with my defender colleagues from around the country andcourt-appointed attorneys who are assigned to cases, we collectively represent all those accused of federal crimes who are too poor to afford a lawyer. nationwide that means we represent over 80% of all defendants in a federal criminal

justice system, and i can tell you that we are grateful to this committee for holding these hearings on the very important topic of overcriminallization. when i think of the term "overcriminallization" i think of a quote by the late harvard law professor, william stunt, who wrote, legal condemnation is a necessary but terrible thing. to be used sparingly, not promiscuously. as i think this committee knows, the federal criminal justice system has become remarkably promiscuous by any measure, whether it's by the size of the federal criminal code, which has doubled since 19 '0. whether it's the sheer number of people arrested and prosecuted for federal offenses, which has tripled since 1980. or most significantly, if measured by the number of people the federal government imprisons. the federal prison population has increased by 1,000 percent

since 1980. and in the past ten years it's increased at a rate three times the rate of state prison populations, and this is awv a time of historically low crime rates. so it's not an increase in crime that is driving the increase in incarceration? what is driving it? would things in the federal criminal justice system. one, a vast increase in the number of federal prosecutions of basic routine crimes that were once solely the province of state and local law enforcement. and, two, vast increases in the severity of federal sentences. largely driven by mandatory minimums that prevent sentencing judges from imposing what would otherwise be reasonable, common-sense appropriate levels of punishment. you have already heard a great deal about the human toll the state of affairs has taken, and the fiscal toll it has taken. i would like to focus in my brief time on the toll it is taking on the very structure of the federal criminal justice

system, and what do i mean by that? i will summarize it with one number. 2.7. 2.7 is the percentage of federal criminal defendants who go to trial. 30 years ago, the trial rate was five times that number. it's a state of affairs that caused the supreme court just two years ago to state that criminal justice today is for the most part a system of pleas, not a system of trials. this vanishing trial rate poses a serious threat to the quality of justice in federal court. why is that? well, first we have to ask, why are they disappearing? and the answer is straightforward. the disappearing trial rates correspond precisely with the enormous increase in power we have given prosecutors. via severe and mandatory sentencing regimes. prosecutors have always had

enormous discretion in charging but they now have full control over many cases from start to finish. and they control whether to charge a mandatory minimum or not, entirely at their discretion, and that power is used largely to create a spread in the sentence that someone will receive if they plead guilty versus if they go to trial. orders of magnitude, 10, 20, 30 years or more. why is that a problem? it's a problem because juries are fundamental to our criminal justice system. they are the most direct way that ordinary sentences can check government overreach. they are vital to a constitutional democracy. like ours, and they also happen to be the best way we know, in the history of the world, at transparently and account blue getting at the truth of various

matters. juries teach us that sometimes government agents make mistakes. sometimes witnesses make mistakes. sometimes witnesses lie. and those truths get lost in a system where only 2.7% of defendants can go to trial because they can't risk the decades of additional time they might face if they go to trial. not based on the severity of the offense but purely based on their exercise of the trial right. it is a system that our founders would surely find unrecognizable. it's a system that does great damage to our constitutional value us. i see that my time is up and i look forward to answering your questions. thank you, mr. chairman. >> at this time we'll have questions from the member. i'm going directly to mr. scott and i'll reserve my questions if there's enough time. >> thank you, mr. chairman. i want to thank all the witnesses for their testimony,

and ask judge keelie, on mandatory minimums, i want to thank the judicial conference for their opposition to mandatory minimums. they've been studied. they violate comment sense they've discriminate against minorities, waste the taxpayers' money and frequently require judges to impose sentences that violate common sense. now, if we eliminate mandatory minimums, not just in the -- in the smarter sentencing act but in the safety valve act, that would allow judges to sentences below the mandatory minimum when the sentence violates common sense, if the judg@ went awry, would the departure from the sentencing guidelines be an appealable issue? >> yes, is a note inside my comments, whether it's a departure specified under the guidelines or variance pursuant

to the 35.53 factors of the sentencing reform act, it's reviewable on appeal for reasonableness. so no judge has unfettered discretion in that area. >> thank you. judge saris, on the retroactivity you mentioned the fact that those that got retroactive benefit last time, recidivate ited a a rate statistically insignificant, in fact a little lower. >> yes. >> there are any statutory barriers that we need to look at that slow up the work of the sentencing commission? >> that slow up or work? no. as -- i mean, if i had a wish list i could probably go through them, but i think right now, we feel as if we are -- we're bipartisan commission, working at the cross-roads. we feel as if we have worked well with congress. we feel as if we have our

hearings. we're at this point -- there are no statutory barriers. there are certain things we would love but -- i guess this is my -- but the commission at this point feels as if we're able to work very well on the whole area of recommending changes to the congress as well as doing our own work with respect to the guidelines. >> thank you. are you prepared to discuss prison issues? >> yes, i think so, your honor. >> can you tell me some of the prison programs that help reduce recidivism. >> the bureau of prisons created a re-entry coordinator prison in every federal prison, and director samuels has an assistant director who focuses exclusively on reentry programs. it is imperative that we spend time for people, member and women who are incarcerated to develop skills so when they get out they can be productive in our view the vast majority of them want very much to makeeii

choices that are productive and not criminal but they need assistance, and there are programs from anger management to substance abuse counseling to job skills, educational programs from ged on up to college classes. we're working very hard in virginia to get some of the online content provider ling to s like liberty university to provide content to prisoners in the virginia system. there's a great bipartisan movement across the country to provide more of these very tangible services to those who are incarceratessed to help reduce recidivism when they get out. >> been studied to ascertain whether they're effective. >> they're ongoing because a lot of the programs are new. the second chance act, which i think you pioneered, has been hugely successful and we would urge it continue to be fully funded... would urge they conti be fully funded. >> what about programs like

unicor? >> unicor also provides tangible skills to those incarcerated that translates to job opportunities when they get out. if there is a certification for those incarcerated, then those are very portable skills used on the outside. >> now, that pays for itself; is that right? >> absolutely, it does. >> and the recidivism rate for those who have had the opportunity to get into unicor? how has that compared to the general recidivism rate? >> i can't give you a specific figure, but absolutely lower, congressman. it makes common sense that when you have a skill and you can get a job, you're less likely to make a criminal choice. >> and the opportunity to get into uni yapper attendees to get into yet another horror as i understand it is a great management tool. >> enforces discipline within the institution and people that are above the prison programs have fewer disciplinary actions when they are incarcerated. >> in any of the panelists discussed the need to get a

requirement before we prosecute people? >> the best majority of statutes to include statues. there are some however they do not and the department believes there's a role for the careful use of strict liability offenses where they are are highly regulated industries that impact health and safety or environmental protection. there are occasions when we believe statutes that provide a liability or purpy. they just have to be very judiciously use. >> thank you mr. chairman. >> now the ranking member the chairman of the full committee mr. conyers. >> thank you mr. chairman and i welcome the contributions of the witnesses. i can't emphasize too much how important this task force is in

the judiciary committee and i'm so glad that this discussion is taking place. judge saris the commission's own impact analysis demonstrates that 70% of the 51,000 inmates eligible for the drugs minus two amendment are of color, black or hispanic. would you agree that denying retro activity would disproportionately impact minorities who have already been prosecuted and sentenced at disproportionate rates? >> let me start off by saying we have not made our decision yet. is that okay?

we vote next week. actually next friday. back in d.c. at 1:00 we vote so we have not yet made a decision on retroactivity. we have however held extensive hearings, had innumerable letters from everyone from law enforcement to the courts to people from various stakeholders groups, religious groups and prisoners. we have heard from everyone and we will be making that decision next week. but i will say is mandatory minimum penalties and her drug sentencing scheme overall have had a particularly significant impact on racial and ethnic minority communities in more than 70% of offenders subject to mandatory minimums are minorities, black and hispanic. one of the reasons for that is especially black offenders have qualified for the safety valve less so the mandatory minimums have disproportionately affected minority populations. >> thank you so much.

could i ask for the opinions of judge keeley and david patton on the same issue please? thank you. >> thank you chairman conyers i mean ranking member conyers. i wanted to remind everyone that our committee, the criminal law committee, did have authority from the judicial conference to make a decision regarding retroactivity at our june meeting of the criminal law committee. we voted by a large majority in favor of making the drugs minus two amendment retroactive. >> thank you. mr. patton, would you comment on this if you choose?

>> i think it's safe to say offenders would strongly encourage the commission to make and for congress to make any changes retroactive. it really does not serve the interests of justice for the amount of time somebody serves to just depend on the fortuity of one to lagos into place. if it's an unjust sentence come if it's unjust for those people serving time now in addition to people who will be sentenced tomorrow. and it would i thank greatly help to ameliorate some of the racial disparities, and the significant racial disparities that we see in the system. >> thank you. my last question is directed to judge saris, judge keeley and mr. patton. and here it is.

congress intended mandatory minimums to be imposed against drug kingpins but as we found out it's often low-level offenders often people of color who receive it. does this comport with your experience? >> i'm just going to jump in because congress asked us a few years ago to do a study on exactly this issue and we issued a report in 2011. at least as at that time we have studied it and adapt in fact the mandatory minimums as we said applied very broadly not just a serious and major drug offenders but they were also flying to street level dealers, carriers and mules. so for example now many of those

get safety valve relief but they are being hit at high levels with convictions of statutes curing mandatory minimums particularly the street-level dealers are subject to them. >> thank you. could i finish mr. chairman by asking judge keeley to weigh in on this please? >> as you know i speak for the conference and a conference for 60 years has imposed mandatory minimums. one of the basic reasons we have opposed it is because the disproportionality and sentencing bad results by treating similarly offenders who actually may pose very different risks to society and so to the extent that the statistics demonstrate that disproportionality of facts the african-american and the hispanic community in a more

disparate fashion that's a result of the fact that mandatory minimums are -- an offender who is in similar and a very similar way which is individually. >> david patton would you give us your opinion? >> absolutely. to your initial point about the fact that mandatory minimums sweep in people that they were not originally intended for i think the evidence is then. that's absolutely the case. congress intended for mandatory minimums to apply to managers and organizers of large-scale drug organizations and instead they have swept in much lower-level offenders. >> thank you all very much. thank you mr. chairman. >> thank you mr. chairman. at this time the gentleman from new york mr. jeffries. >> thank you mr. chairman and

let me first thank the distinguished panel for your presence here today and of course your tremendous service to our country. let me start with mr. patton. it seems to me that there are four primary actors in the criminal justice system. we have the prosecution, the defense, the presiding judge and the jury. but if you have a trial participation and i believe the number is 2.7%, it seems to me that the course of the criminal prosecution as you point out in your testimony is largely determined by only one of those four actors, the prosecution. to the exclusion of the other four contemplated to bring about a just result in our constitutional system, meaning

presiding judge largely excluded. certainly the jury largely excluded. the opportunity of meaningful defense largely excluded so the system is out of balance in my view. i think it's fair to say. what would be your recommendations in terms of how to restore some balance to the system in a manner that allows for meaningful engagement and participation by all of the actors in the criminal justice system so that we can have a better shot of reaching the most just result? >> i think the committee is probably growing tired of hearing it but the answer is straightforward in one respect and that is to ameliorate and eliminate mandatory minimums. prosecutors have eyes had a great deal of authority and they always will in the charging process but when they control the backend of the process as well that's an unhealthy state of affairs and i want to be clear, i think most prosecutors like most americans are trying to do the right thing most of

the time that we are a nation of laws, not of men. we are very wary historically and with good reason of investing too much power in on transparent decision-making and that's what happens in a plea bargaining process where as when a judge imposes a sentence is on the record. there's a transcript. it can be appealed and others can review it. congress can look at the reasoning and decide whether that changes need to be made by charging decisions about whether or not to stack multiple 924 c. macrofile in 851 could exponentially exponentially increase someone sentence those are done not transparently and not a countably. >> and let me thank you and pick up on that point mr. heaphy. thank you for your service and your testimony and your progressive positions that are being articulated. but i want to follow-up on this point in terms of the prosecutorial incentives to move

forward. notwithstanding the direction i think appropriately that has been given by the attorney general. in the context of the u.s. attorney receiving a performance evaluation, lying attorney is it normal practice that performance evaluation is based in part on their conviction rate? >> no, absolutely not. >> so how was prosecutorial advancement determines? >> it depends on the individual but it's about judgment. it's about fairness. it's about compliance with discovery and obligations in our legal requirement to provide what is material and exculpatory to defense. i've never in my 20 years as a federal prosecutor pronounced about a conviction rate and i don't even know what it is and i don't keep track of that for the lawyers at my office. our paramount objective is to do justice and evaluate our people on the consistency with the pursuit of that goal.

>> how do you measure judgment and discretion and the ability to do justice consistent with what a prosecutor's ultimate obligation is? >> it's hard is? >> it's hard to do that empirically or statistically. i don't think justice is always reflected in a conviction rate or the way a case is handled. it's really the product of the case-by-case evaluation of whether or not someone is fair as in a sense of justice and is achieving outcomes in the view of the management of the office are fair and just and that is what our people are trying to do every day. >> some have articulated a concern based on performance evaluations being largely measured by conviction conviction rate and/or enhanced length of sentencing and i'm pleased to hear at least from your perspective from the way you see it in her capacity and hopefully that is the case across the country. the other side of the coin is the notion of what are the disincentives for prosecutorial misconduct and can you cite

instances where examples of bad judgment, perhaps even judgment that crosses the legal boundary and to potentially unlawful conduct has actually been sanctioned in a way that every other american citizen has to face consequences in the context of the criminal justice system when they make a grievous error? >> in the federal system we have the professional responsibility that receives complaints and investigate allegations of professional misconduct. state bars do the same thing. there is a doctrine of sovereign immunity. actors whether law enforcement or prosecutors in good faith attempting to do their job. if they make decisions that are later viewed to be unwise they are protected from immunity but there are tremendous checks and balances internal within our department to ensure that our

lawyers are junior lawyers on up to senior decision-makers are playing by the rules and are doing what's right. >> i think my time has expired so i yield back. thank you. >> thank you. let me first go to judge, actually i think i will go to the u.s. attorney. you mention environmental crimes and we have had testimony before this committee and i personally know of two businessmen in my district that were convicted in the 80s of environmental violation of environmental statutes. i've actually looked at those statutes and none of them are actually criminal statutes. you know by regulation it was

made a crime. the regulation basically said the storing of toxic materials. in both of those cases, what happened and i will just give you one example, a gentleman who was a vietnam war veteran, businessman, bought a piece of property which had been a business, and ongoing business, he found on that site some barrels and he reported it to the epa that he had found those barrels. and he was told that he needed to dispose of them. he then contacted them back and said you know it's going to cost

over a million dollars. he started disposing of them but they gave him a deadline and he didn't meet that deadline. here was an individual that bought a piece of property not knowing there was a chemical stored and notified the agency, started disposing of them but and it was hard to get people to take these chemicals. that's a very expensive process. and then going with mr. patton and what he said in his testimony on page seven, i can actually see in a lot of cases where the u.s. attorney's office for the environmental protection, they have all the resources. he is faced with a situation in hiring an attorney. he has offered a year and a day

to serve 60 days. he was told that if he does not accept that that he could get 10 years. his attorney spent over $100,000 in the 1980s on attorneys. he is really tonight and let mr. patton said, he can go to court. he can roll the dice. he can pay his attorneys money he doesn't have, borrowing mon money. but he chooses to take a plea. he is obviously very bitter about this because he thinks he has done everything and i think he says to me everybody says well why didn't you go to trial? of course he is saying you know, i can't risk this. i have young children. he has a criminal record. he can't vote. that is how i found out about

one of the situations. i don't think many people knew. you know, the above-mentioned environmental so that's a trigger. shouldn't there be some intent? i mean it is intent to violate the law even after you notify an agency, something that you didn't cause, anyone make a comment on that and i've been told and i actually talk to people on the various committees in the judiciary committee and they said there were a slew of these convictions back in the 80s literally thousands of these cases. >> congressman i appreciate that question. i would not someone 20 years from now to second-guess decision-making but that said that case just on the facts as you described and nothing more came to a today that would not be a federal criminal case.

>> now it is not. they have since, i think it has just changed. they do not as a matter of policy. >> let's assume instead of it being an individual sole practitioner or someone that has a piece of property and found the barrels that is a company who routinely deals with hazardous waste that has sophisticated professionals who are aware of the regulations. perhaps are warned that you must dispose or you will face a legal consequences and they affirmatively choose to not. that probably would be a crime in this gets down to prosecutorial discretion. the reality that we are doing with commerce minnesota and have enough people, we don't have enough agents and prosecutors to deal with the 100 statutes, the guns, the drugs, the fraud in the child exploitation that we face every day because we have so many people in prison and their budgets are so stretched. in a case like an impairment of regulation someone not doing

appropriately disposing of a barrel of waste to be honest that is an anomalous and peripheral matter that i'm less likely to reach because i can get my core work done. it's only if we look at sentencing reform that we increase the amount of resources available for us to get our core work done that we are really going to be able to sustain the system going forward. >> all right. anybody else have a comment on that? my time has expired. >> thank you mr. chairman. mr. chairman i don't know if we can get you to introduce a guest in the audience but a group from baptist temple, the children just arrived and we wanted to make sure he could they stand so we know? thank you. they are touring the capital and wanted to see what a congressional hearing was like. >> what church plex.

>> mt. zion baptist temple church. >> where they located? >> hampton, virginia. >> oh okay that's her district. [laughter] you have an outstanding conference. thank you very much. >> i wanted to follow up on the questions to mr. heaphy. you said that perhaps strict liability might not be appropriate and health and safety is not a factor even if it is a factor we have woeful disregard to get past the strict liability and we have civil. what rational rational basis with ap even in health and safety were the people just didn't know? there is no deterrent effect of begin now. >> congressman i think there's a greatly enhanced deterrent effect if there's a criminal sanction. when you're talking about people that work in highly regulated industries like the food and drugs and the protection of

public health and safety, then it is a policy choice that congress has made to force those people to know the rules. if they do not know the rules then there is a criminal sanction. we had a recent case involving jensen farms. this was a business that produced fresh fruit and they had cantaloupe that were insufficiently washed and they had listeria bacteria and on they can't love. those got into the stream of commerce 20 or 30 states and ultimately tied to 33 deaths because of the ingestion of that listeria. there was no evidence that the two proprietors and the two owners in business intentionally tainted cantaloupe but because they are operating in a business that directly has that kind of impact on health, the strict liability misdemeanor of being responsible for ensuring that did not happen was employed by

the department. in cases like that. >> you mentioned misdemeanor. that was not a felony? in civil fines were insufficient? >> the judgment of the prosecutor in that case that if it's a business problem that can be ameliorated by writing a check in resolving a civil case. it's insufficient deterrence that congress made and we frankly rear. criminal sanction has a greater attention effect with corporate entities. >> all of this would be limited to situations where health and safety are both? >> generally strict liability cases the bp oil spill for example there is no one intentionally injecting oil is into the gulf of mexico but it was such magnitude that the corporate office could be held responsible as could the company. generally those kinds are in the regulated industries with sophisticated actors that has made it their business to know the rules and ensure people are protected. >> highly regulated is an important factor because they

know about the highly regulated nature of the business they are in. >> congress has decided that we will put the onus on them essentially. apollo public, the person eating for the cantaloupe protect themselves and that is why the onus is on the company that distributed out to ensure health and safety is protected. >> thank you. judge keeley you mention state offenses should not be tried in federal court. should we repeal the statutes or use the discretion of the prosecutors to reduce the number of state offenses that are tried in federal court? >> i think their response of the conference would be that we have always urged congress to do reasonable review of statutes to see if they are still effective than if they are is still a need for them so in those circumstances it would make sense to review those statutes

of course being within the discretion of congress to determine whether the statute should remain in place or be repealed. >> is the decision to try something in federal court reasonable if there is a differential in punishment? should that be a factor in ascertaining whether or not the federal government ought to prosecute? >> certainly it is not within the conference's prerogative to say what crimes should be prosecuted in federal court for a particular reason but we would say that among the factors, that we have recommended to congress to review that would not be one of them. >> thank you. >> thank you mr. chairman. back to me i guess. let me pursue again just some of

the lines i was hearing. and i know that when people read laws, they say will congress intended this. many times congress didn't intend to you read a statute that says that you shall not store hazardous waste. when that statute was passed, i don't think members of congress realized that they were saying if you buy a piece of property you discover toxic waste on it or stored chemicals and you know there'll or you buy a building and there are some chemicals stored in that building. and in an ongoing business you almost immediately report that. you find out what it is, you've reported and the cost is several

times even more than what you bought the piece of property for. i am back to this gentleman because this is a real example. he actually said to the epa, you can just have the property. that's right. he said can you just take the property? i'm not sure that congress ever intended and it may be a misdemeanor but a civil fine or forfeiture of the property or something of that nature. do each of you agree that there may be should just be a tighter general statute and i would just start with you.

>> no, candidly congressman bachus. no matter what we do the system depends upon the individual discretion discretion of decision-makers. if you came to my office on behalf of that client and had the barrel of hazardous waste again i cannot imagine why i would bring that case. it just does not make sense without more facts but to apply a uniform mens rea standard without a care so -- careful review statute by stating and there may be rare cases with more sophisticated actors and persistent conduct. where responsible corporate officers should be held accountable as a matter of policy and congress has passed these in the area of health and safety so congress needs to be explicit. obviously generally they are. judges can try hard to interpret them and apply standards to the interpretation but a blanket standard that would apply un