review than segregation has had historically. and when it comes to the discussion about mental illness, regretfully our family, friends, and neighbors suffering from mental illness are too often punished rather than treated. and i would like to share the story of a man named kevin, a young man i have a privilege of knowing back in michigan who was diagnosed with bipolar disorder when he was 11 years old, and at 14 was pressured by a peer group to holding up a pizzeria with a toy gun. he wound up in an adult prison and was -- spent nearly a year in segregation. who described his experience as an ongoing panic attack, and felt as though he was stuck in an elevator that he needed to escape from, and he eventually tried to commit suicide as his escape, but instead of helping kevin, the prison guards at the time simply increased his punishment because that was all that they were trained and

knowledgeable to do. too often our jails have become our country's mental institutions, and i believe that supporting bills such as the community mental health collaborative mental health act that senator franken spoke of earlier will help provide resources to our states, law enforcement community, as well as to our state corrections officials when they're encountering and dealing with people that are suffering from mental health issues and mental illness. i would like to share some promising alternatives and strategies from justice fellowship's perspective of those that have reduced the use of segregation. that is first to use mission housing to target the need of prisoner was mental illness, developmental delays, and those at risk of sexual victimization. second, to use alternative responses to the disruptions

outside of segregation. third is to increase the training for the prison staff on methods that promote positive social behavior within the bureau of prisons. jurisdictions employing these strategies have not only reduced their use of segregation but have also tracked concurrent reduction in the use of force on prisoners and the number of prison grievances. i want to acknowledge the aca and other organizations have taken a very progressive stance on inviting in external and independent reviews as has the bureau of prisons and to this senate panel whether it's the internal revenue system or the department of justice, i believe that holding government accountable comes with no expiration date, and when the issues of human liberty and public safety are at stake, we must never give up the watch, and i would hope, senator, that this is not the end of the discussion today and that these can be continued, including the work with the newly authorized

charles colson task force on prison reform. >> mr. deroche, thank you very much. it's not the end. this is round two, and i don't know how many rounds there will be but i wanted to bring this issue up again and see if progress had been made, and i thank you for your participation. mr. levin, you're making me very nervous. we keep inviting you to these hearings and as a texas conservative i find myself agreeing with you more and more, so i'm hoping you'll at least highlight a few things that you know we disagree on, but thank you very much for coming and the floor is yours. >> thank you, mr. chairman. >> turn the microphone on there. >> thank you, mr. chairman, for your leadership on this and i want to thank as well the ranking member who i have known and admired for many years, senator cruz. we are a conservative think tank but -- >> and i'll note on that you did find something you disagree with the chairman on. >> well, we are a conservative think tank but i will tell you that if we believe in making government less intrusive and

personal responsibility and accountability, we have to shine the light in the darkest of places, and the most restrictive areas of government control, which is solitary confinement. so i'm pleased to be here today. one of the issues that we feel strongly about is ending the practice of releasing inmates directly from solitary confinement. this is a major problem in texas with over 1,300 such releases directly from solitary confinement in 2011 from texas state prisons. in washington state a study was done on their super max unit that found inmates released directly from solitary confinement were 35% more likely to commit a new offense and even more likely than that to commit a new violent offense as compared to comparable inmates with similar risk and offense profiles who were not released directly from solitary confine am. i also want to point out the successes we've seen in states around the country. mississippi as noted earlier has gone down from 1300 inmates in seven in solitary confinement to today only 300.

violence in mississii prisons has dropped 70% since they made those reductions and in maine, for example, they've gone from 139 in solitary confinement to between 35 and 45 today just in the last couple of years. and what i want to note is their corrections commissioner joseph ponte has noted the done sizing has led to a substantial reduction in violence, reductions in use of force in use of restraints, reductions in inmates cutting themselves up which used to happen every week. it's been almost totally eliminated. part of what they've done is reducing the duration of solitary confinement. those that used to go there for drugs, they may still go, but if they test clean for drugs, they can graduate out of solitary confinement. if somebody is september there for more than 72 hours, that decision is reviewed by the commissioner. one of the keys in texas to reducing our solitary confinement has been the gang renunciation and disassociation program. inmates can earn their way out

by exemplary behavior and renouncing their gang membership. using sanctions and incentives behind bars is a way to provide for incentives that lead inmates to behave better which, therefore, reduces the need for solitary confinement. one of the models is the parallel universe model used in arizona through their getting ready program. for example, inmates with exemplary behavior may have a longer curfew. those that misbehave may be denied certain privileges such as making phone calls and, for example, also access to the mail and other things except for their attorneys. and so this creates a positive incentive. by the same token we know through things -- that swift sanctions work. we have to make sure we're not overusing solitary confinement for long periods. one of the perhaps strongest incentives is, of course, earned time. and i will tell you we're very pleased that senator cornyn, senator whitehouse, and other members are supporting earned

time legislation, particularly for nonviolent offenders in the federal system. clearly by reducing the number of dead enders we can make sure folks have an incentive for good behavior in prison and also a study has shown 36% fewer new offenses for those released to parole as opposed to discharge without supervision. i want to go over a list of recommendations that we would urge you to do in addition to, of course, ending the release directly from solitary confinement. those include eliminating rules that deny any reading materials to those in solitary confinement, improving training in de-escalation techniques, training in mental retardation and mental illness. using that parallel universe model that creates incentive for positive behavior and self improvement. creating a matrix of intermediate sanctions. this wouldn't be for those who do serious bodily injury to a staff member or another inmate, but for those that commit minor mile violations, that they would have intermediate sanctions to

get their attention and correct the behavior. reducing the number of dead enders, the missioned housing which was mentioned earlier for those who are in protective custody, former police officers, those who are mentally ill, those in the process of leaving again. unfortunately those individuals often end up in the same 23 hour a day cell when we know these smaller housing communities with a better staff inmate ratio is address that issue. i will tell you if we can address the overcrowding, that helps immensely because when you have inmates piled in day rooms with inadequate staff ratio, that makes it more difficult to defuse the very tensions that often lead to placement in solitary confinement. so i want to thank the committee for their work on this and i truly believe we're on the path to solutions that will both increase our order in prisons and make the public safer when these inmates are discharged. >> thanks, mr. levin. thanks to the entire panel. a special thanks to miss kerman

and mr. thibodeaux for coming and speaking openly about their own experience in incarceration. mr. thibodeaux i have read your testimony three times it is that compelling. i ask you to sum advise it. >> thank you. thank you for inviting me to speak about my 15 years in solitary confinement on death row at the louisiana state penitentiary at angola. i'm here because in september of 2012 i became the 141st actually innocent death row exxonee since the u.s. supreme court reinstated capital punishment in 1976 but before he was exonerated and released i was subjected to solitary confinement for 23 hours a day for 15 years between the ages of 23 and 38. this experience was all the more painful and cruel because i had not committed the crime for which i had been sentenced to die. in my written statement i described the physical and mentaler to tour that inmates in

solitary suffer. the diet is horrible, the heat and cold are often unbearable, and human contact and access to health care are severely limited. as harmful as these conditions are, life in solitary is made all the worse because it's often a hopeless existence. humans cannot survive without food and water. they can't survive without sleep, but they also cannot survive without hope. years on end in solitary, particularly on death row, will drain that hope from anyone because in solitary there's nothing to live for. i know this because i lost my hope. after realizing what my existence would be like for years on end until i was either executed or exonerated. i was on the verge of committing what was basically suicide by state. by voluntarily giving up my legal rights and allowing the state to carry out the sentence of death. something that would have been done only a few weeks after signing the necessary paperwork. my lawyer, denise labeouf, talked me out of doing that by

convincing me that i would be exonerated and released some day. and that's why i was able to regain my hope and became willing to continue my legal fight. i was one of the fortunate on death row because i had denise and my other lawyers and supporters, but the state effectively kills most men in solitary years before it injects them with any lethal drugs. i can see no reason to subject anyone to this type of existence no matter how certain we are that they are guilty of a horrible crime and are among the worst of the worst. even if we want to punish them severely, we should refrain from this form of confinement and treatment only because it's the humane and moral thing for us to do. my religious faith teaches that we should be humane and caring for all people, saint and sinner alike. what does it say about us as a nation that even before the law allows the state to execute a person we're willing to let them

kill it bit by bit and day by day by subjecting them to solitary confinement? i do not condone what those who have killed and committed other serious offenses have done but i also don't condone what we do to them when we put them in solitary for years on end and treat them as sub human. we are better than that. as a civilized society we should be better than that. i would like to believe that the vast majority of the people in the united states would be appalled if they knew what we are doing to inmates in solitary confinement and understood that we are torturing them for reasons that have little, if anything, to do with protecting other inmates or prison guards from them. it's torture pure and simple no matter what else we want to call it. i would like to think that we can all agree that our constitution prohibits it. i thank the subcommittee for looking at the situation, educating the public about it, and am pleased to have any questions you may ask. >> mr. thibodeaux, in the

opening statement i talked about the inmate that i met who said i got an extra 50 years because i told them if they put somebody in this cell i'd kill them and i did. it was a stunning, cold-blooded statement. did you run into similar circumstances of other inmates who were that dangerous? >> there was -- there was one. he volunteered for execution, and that's why he dropped his appeals because he stated that if he ever got out, he would do it again. >> what is the right thing to do with that kind of person based on what you've seen in your -- i don't know how to describe it -- incredible life experience. >> well, i have also come in contact with individuals who are in prison rightfully, they're on

death row, and they make no attempt to profess their innocence. they just would prefer life as opposed to death. but someone who would make a statement like that to kill someone that's put in the cell with them, just leave them in the cell by themselves. you let them out at appropriate times. you don't just lock them in a hole and forget about them. you know, if i was to do that or you were to do that to someone in your home, you would go to prison for that. it's inhumane. >> thank you. miss kerman, i know that senator hirono and others may raise the question about incarcerated women, and you have lived that, and you know the vulnerabilities

they have. i think about other categories, those who are being held for immigration offenses which are technical viol.ations they're not crimes per se. i mean it's a violation of law, no question about it, but it isn't a question of a violent crime or anything like that and the vulnerability they would have because of language and culture and threat of deportation. what can you tell us about those women and what they face? >> women who have not been convicted of a crime and yet are held in confinement and potentially subjected to solitary confinement for any variety of reasons. that's a horrifying thought. too often solitary confinement is used not to control people who are truly dangerous to themselves or others but as a tool of control within an institution when other management tools of an institution, whether it be a detention center or whether it be a prison or a jail would be

far more humane and likely more effective. >> was there any recourse at danbury in terms of a person or office that you could contact as an inmate if you saw or felt you were being threatened by a guard for example? >> your best chance if you felt that you were under threat and in danger from either a staffer or frankly from another prisoner would be if you had contact with the outside world, and different prisoners have different degrees of contact with the outside world. frankly, a prisoner like myself who is middle class and has a lot of access, you know, money on my phone account and so on and so forth has a much better chance at gaining recourse if i was subjected to either sexual abuse or any other kind of abuse, but within a prison system, it is a very slippery slope to try to gain justice,

and inmates have a very limited trust of prison officials unless a prison is run in a way that is transparent and humane in the first place. so, you know, there's a medium security men's state prison i visited in ohio a number of times. it is run in a very, very different way than any prison i was ever held in. and the warden there is a really remarkable person. so different institutions are run in very different ways and it makes all the difference in terms of whether a prisoner who is being targeted for abuse, whether it is by staff or by another prisoner, feels comfortable seeking justice. >> mr. thibodeaux, how much contact did you have with the outside world in your 15-year experience? >> i had -- >> you need to turn -- >> i had five contact visit was my family in the 15 years i was there. >> how often were you able to meet with your attorney? >> whenever they got up to

visit. i had a law firm from minneapolis on my case as well. they probably saw me there three, maybe four times. >> in 15 years? >> in 15 years. but i was more concerned with the case work they were doing. if they wanted to come and visit me, fine. being in a cell like that, you kind of cherish the visits, you know, but i was more concerned with the progress that was being made in my case. >> mr. raemisch, there was a point in director samuels' testimony that kind of sturgeoned msturgeon -- stunned me. i thought what he said was 4% of the federal population in prison suffered from mental illness. i may be off on that number, but not too far off. i have heard numbers about people with mental illness

challenges in prisons, state and otherwise, dramatically higher than that. what is your impression about the question of mental illness and incarceration? >> i'm not sure -- i can't speak for him, and i believe the 4% was right that he said, but went through my mind was it's very possible he was talking about those that fall within the definition of major mentally ill which our number is about 4%, but our mental health needs that don't fall into that major category is 34%. so it's about a third of our population. i can tell you about 70% of our population has some type of drug and/or alcohol problem also to throw into the mix. >> and what we found in the first hearing was that many people with mea-- mentally challenged people found it difficult to follow the rules as well as they should have and any

type of resistance on their part because either they wanted to resist or they were mentally challenged was answered with segregation. >> let me give you the example i give when i speak publicly about it. if i was walking down the sidewalk past a bus stop and someone was mumbling fairly loudly to themselves like is often the case, we'd keep walking and understand that there was some type of mental health issue. typically in an institution that would probably get someone if they were disrupting the day-to-day activities of the institution, would get themselves into anned administrative seg cell, so what i have said and i can't stress this enough in my mind is that administrative segregation is used, except for the extremely dangerous, is used to allow an institution to run more efficiently. it suspends the problem at best,

but multiplies it at its worst, and so it does run more efficiently until you let that person out of there, and if you haven't addressed what got him in there to begin with, you've done nothing, and that's the problem with the mentally ill is what i struggle with and what we're trying to change in colorado and we're making great progress is how can you hold someone accountable if they don't understand the rule they broke to begin with. it's a no-win situation. >> thank you. senator cruz? >> thank you, mr. chairman. i'd like to thank each of the witnesses for coming here and for giving your testimony, and i'd also like to thank you for your advocacy and involvement with the justice system and advocating on behalf of those who are incarcerated and in particular mr. thibodeaux i'd like to thank you for your powerful and moving testimony. when i was a lawyer in private practice, i had the opportunity

to represent john thompson, who was another individual who was wrongfully convicted of murder in louisiana and sentenced to death, and he was subsequently exonerated, and it was a powerful experience personally having the opportunity to get to know mr. thompson and to represent him both in the court of appeals and the u.s. supreme court, and so let me echo the chairman's comment to apologize to you for the ordeal you endured. >> thank you, sir. >> and to thank you for having the courage to speak out about it because that cannot be easy to do. >> no. >> this issue is an issue that raises complicated issues because you've got conflicting interests. mr. raemisch, i'd like to ask in your judgment, with what frequency is solitary confinement used for relatively minor infractions?

>> i can only at this point give you my impression, and my impression is that it is incredibly overused in that area. i was talking during the break that really the process hasn't changed in over 100 years, and i try to think of what is still being done 100 years ago that's being done today that should be done, and i can't think of anything. and so when i look at that whole process, it, again, has become a tool to make a facility run more efficient, and that part of our mission we're failing because we're sending them out into the community worse than they came in, and i believe that's what lengthy periods of time in administrative segregation does, and, you know, if i may just say that when i hear some of the comments and i spoke at john jay

university a few weeks ago on some issues in corrections, and sitting next to me was the director of the texas corrections and florida -- or california corrections, some pretty big systems, and when i was asked a question by one of the audience members, i said, and i pointed to the others, welcome to the knuckle dragging thug club because the public perception is that's what we are, and if i can stress one thing, and i saw mr. samuels try to stress it and i would also is that at one time in my early law enforcement career i may have had that same impression, but i truly have to tell you that overall i have never seen a more dedicated professional group of men and women that risk their lives and they do it because they want to have a safer community and they put themselves at great risk to do that. that aside, there's, like any large bureaucracy, and we tend to be the largest in each state or close to it, i have 6,000

employees, you end up with problems. and it's how we react to those problems, and that's why right now, one, i really appreciate what you've done by calling this hearing and, two, by having me participate because i can tell you that i don't know of any state in the nation that is not taking a very hard look at their administrative segregation policies. you have really brought it to the forefront. we all understand that as professionals that the movement is to -- this isn't the right way we should be treating people and we get that. what we do ask for is help in finding some solutions because there are some that are too dangerous that they can't be let out, but i also have to stress that's a small number. >> thank you, mr. raemisch. in your written testimony you stated that while the goal of many of your reforms is to decrease the number of offenders

housed in administrative segregation there will always need to be a prison within a prison. some will need to be secured to provide a secure environment for staff and offenders. it strikes me that a great many people would think that solitary confinement, particularly for an extended period of time, is not an appropriate punishment for relatively minor infractions but could well be a necessary tool for the most violent inmates who may pose a real threat to the safety of other inmates or of guards. each of the members of this panel has interacted with the criminal justice system in different capacities. miss kerman and mr. thibodeaux as inmates. mr. raemisch administering a correctional institution and

system. mr. deroche ministering and helping bring home and redemption to those incarcerated. mr. levin, studying the important justice issues. a question i would ask of all five of you is in your judgment based on the different experiences you've had, is there an appropriate role for solitary confinement? is there a need for it? and in what circumstances, if at all? i would welcome the views of all five witnesses. >> in my mind right now, yes, but in a limited sense, and that's because i have said that there are some diseases for which there are no cure right now, and that doesn't mean we don't keep trying to find the cure for the deeisease, but wha i've been told by my head

clinicians is we have four to five in our system that if they are let out of administrative segregation they will kill someone and they lay that responsibility on me and i get that, but i also understand that in all other areas that there's so much room for improvement. let's figure that group out a little while from now. let's take care of all the other numbers sitting in administrative segregation. >> i would first of all say we have to distinguish 24 hour, even 72 hour placement to defuse the situation from long term. in texas state prisons the average time in solitary is four years. so some served as long as 24 years. the other issue is in texas thousands are placed in solitary confinement solely for being suspected gang members upon initially entering prison having

committed no disciplinary violatio violations. i think it's critical and i question the extent to which we're doing that in texas. we have gone down in our total solitary confinement by over a thousand since we started bringing this up and there's an ongoing study in texas that the legislature approved last session but i think one of the issues you brought up, commissioner, i think that's very important is if you have got somebody in solitary who is 23 hours, no stimulation, having them be able to earn an hour more this month, okay, and programming and such so they can get out or gradually work their way towards more interaction. and so that's a great idea, and i think generally speaking as i have said the more you can create both positive incentives and graduated sanctions for inmates to address disciplinary issues, that's going to be able to make sure that the people in long term solitary confinement really should be those who have done harm to other inmates or

staff or who have made statements indicating they intend to do that and, again, the short term can be used 24, 72 hours, to defuse, but even that we've heard about the teams, there's de-escalation training, just making sure there's not overcrowding and proper ratios. that can defuse a lot of tensions that lead to violence behind bars. >> there's a study, senator, that was done in minnesota for a faith-based dorm that we've run there for more than ten years. it was a ten-year study of every single inmate that went through that program, and it found there was a 0.8% recidivism rate, and that was every type of prisoner that went through there from the worst of the worst on through, and at the same time it found that there was no deviation between the technical violations of the people that went through that program and the general population in minnesota which

had a 37% recidivism rate. in other words, human beings were still going to be human beings even if they've moved away from a criminal lifestyle. so i do think that the director's comments about technical violations that we should take to heart that, boy, that's the same type of behavior i see in my kids. that's the same type of behavior i see in the workplace, and guess what? when we study it and we find a bunch of people moved away from criminal activity, they're still going to get it wrong on a technical side of how they get through a day. and so we need to take that seriously of what i started my statement with. if you want to change the culture on the outside in our cities and in our states, we've got to change the culture on the inside, and i am so impressed and encouraged to hear people going out, mr. chairman, and to the director, his willingness to see people who are doing it right because there are prisons where the population, the people in the prisons have made a decision they don't want to live

in a bad downward spiraling culture, and when skilled ward bes change that culture and they use very sparingly the use of segregation with people knowing that they can return back to a positive and improving culture when they straighten their act out, that's where it's best used. temporary, always with the invitation of working your way back because these corrections officers do have the responsibility the same as the noble people that serve in our fire departments, our police departments, they're supposed to be making it more safe for us as taxpayers when these people leave. they've got a difficult job, but we've got to empower them. we've got to train them, and we have to hold them accountable. we have to have oversight like we do in the other professions. when you're using this power, how is it being meted out and to what end, to what results, what outcomes, what metrics because

we can do a far better job than they are, senator, but you're not going to be able to eliminate it if that's what you're asking for. >> i don't believe that solitary confinement has a rehabilitative value and, therefore, i think that it should not be used other than for the most serious security concerns. what i have seen solitary confinement used most often is that disciplinary se g, not ad seg. it is true that women often do not go into ad seg though sometimes they do spend years and years in solitary confinement. there is not rehabilitative about being locked into a tiny box for 23 hours a day and so correctional systems should take very seriously their responsibility to rehabilitate and direct the tremendous amounts of taxpayer dollars that they consume towards that goal. >> in my 15 years in angola, it

got to a point where we were all being taken to the yard one at a time. when i got there, they were taking us one tier at a time, but an incident takes place and everyone suffers the consequences, not just the person who commits the incident, and that's a real bigamy ne min the system because it tells everyone else that it doesn't matter if i'm the model inmate because i'm going to get punished if someone else does something wrong anyway so why should i bother? solitary confinement is going to be used for the worst of the worst, as it should because safety is the biggest issue in prison because -- let's face it, we all agree that not everyone in prison is innocent. so if it's going to be used, know your limitations with it. you know, don't just lock someone up in a cell and forget

about them. they're still a human being somewhere. they may have mental issues. they may have emotional issues, but if you identify that and find a way around it, then you can deal with it in a humane way. it doesn't have to be, okay, just put them in a jumpsuit and shower shoes and lock him in the cell for 23 hours a day, you know. the one thing i wanted more of when i was in the cell is time out of the cell, you know. sadly, that's not the reality. but if you want to have solitary confinement, use it in the most limited capacity possible. >> thank you very much to all fi of you. >> thank you, mr. chairman. i want to thank all of you for coming and testifying and

shedding light on this issue, and i particularly want to thank mr. thibodeaux because your testimony was very -- you have been there, and as we say in hawaii mahalo for sharing your terrible experiences. i am especially concerned about reports that women are confined in solitary for reporting abuse including sexual abuse by the bureau of prisons staff, and especially as i have been working with senator jillen brand and other senators to address the issue of sexual assault in the military which is another institution where survivors of sexual assault can also be at the mercy of their supervisors and the chain of command due to the power dynamic and possible threats of retaliation that can exist in both of these environments. so i want to thank you, miss kerman, for your testimony, and i do note that mr. raemisch, you noted that 97% of our prisoners

do get released into the community, so we really need to pay attention to what's happening with them because as you say, mr. raemisch, they should come out better, not worse, than when they were in prison, and i think that's a sentiment that all of us would share. miss kerman, you heard director samuels' responses to my questions about what happens in the instance of the abuse of power by the bureau of prisons personnel, especially with regard to women and sexual abuse. now, having heard his responses, do you think that the bureau of prisons is doing enough to prevent and prosecute this kind of abuse of power by their staff? >> no. i believe that in every women's prison and jail that sexual abuse of women and girls by

staff is a problem. in some places like otter creek, kentucky, or tutwiler prison in alabama those abuses have been revealed to be systemic and very widespread and very sinister. what i observed during the time i was locked up was that a staff member who was under suspicion for sexually abusing prisoners would be removed from direct contact with the prisoner or prisoners that he was accused -- there were always men in the instances that i knew of, but they would still be there on the property and, of course, a person is innocent until proven guilty. i firmly believe that, but many, many aspects of the experience of incarceration have that silencing effect. the fact that your abuser may

not, in fact, be far away from you, may be in view. he might be driving perimeter in the facility in which you are 4e8d and so you might, in fact, see him all the time. the fear of solitary confinement and isolation, i can't overemphasize how powerful a disincentive that is. to go into the shu for 90 days is a really long time, and typically during the type of sis investigation that happens in the b.o.p., those investigations do not happen quickly. not only will you deal with the pain of isolation which is so well detailed in some of the written testimony which has been submitted to this committee, but on a very practical level, you will lose your housing, you will lose your prison job, you will lose a host of privileges obviously if you're held in isolation. all of these things conspire to really, really silence women and, of course, the concern about how much they can trust

the people to whom they are supposed to report abuse is a very serious consideration. >> so there are all kinds of disincentives in the environment where reporting of these kinds of abuse of power does not readily occur. do you have any thoughts on what we can do, and i'm not even talking about using the threat of being put into solitary as a way to control and hide this kind of behavior on the part of the staff. >> the best case scenario is for female prisoners and frankly for all prisoners to have increased access to the outside world. so the person you would be most inclined to trust in terms of seeking redress against abuse would not necessarily be someone inside of the institution in which you live. access to counsel is a tremendously important issue. the vast majority of prisoners in any system are indigent. 80% of criminal defendants are too poor to afford a lawyer, and

so their access to counsel before they're locked up is poor and their access to counsel while they're locked up is negligible. those are the things that would make the biggest difference and frankly those things would make the biggest difference in their rehabilitation as well not just their ability to access justice while incarcerated but also in their ability to be rehabilitated and to return safely to the community. the isolation of solitary confinement is just a small metaphor for the total isolation of incarceration, and when we put people to the margins, it makes it harder for them to return to the community. >> and i don't want to confine my questions on women and the deller toous effect, the negative effect, but for the rest of the panel miss kerman has said maybe one of the ways we can shed light on what is going on in the prison system, and i'm not saying this is

symptomatic of everything that's going on. it's a tough problem, but would you agree that providing more access to the outside world is one way that we can prevent some of the these abuses of power from occurring within the system? >> yes, and also an ombudsman. we had a scandal of sexual abuses in our juvenile facilities. one of the things we did was create an ombudsman's office which is not in the chain of command of any prison warden and actually reported directly to the commission, texas youth xhiths at that time whose members are appointed by the governor. so when you have an ombudsman who is not in the chain of command at a particular prison unit who these reports of abuses can go to and that individual can then independently look into them and certainly not every one of them is accurate but some of them are. when it's not kept totally within the unit, there's more accountability and independence in examining that. >> would the rest of you agree

that's one of the ways that we could help? >> i would say very much so, and we find that at prison fellowship the more that the prison lets folks in from the outside, the less problems that exist. it's an inverse relationship, and i think that that would continue, and i know the gravity for a state or federal officials, i saw it first hand when i was speaker of the house in michigan. we had a mental lly ill inmate found dead in his cell after being neglected for 72 hours and the cell was 110 degrees and i fought that as hard as i could but the gravity was we've got this, we've got an investigation, we've got people. it didn't get the satisfactory outcomes you would get with the justice system on the outside. we need independent voices. i think people need immediate access, not a month later, to a

phone call about something that's happened in their life, senator? >> thank you, mr. chairman. my time is up. >> senator, senator hir ron know. i want to thank everyone who has testified here today. we have over 130 statements that have been submitted for the record. i won't read the names of all the groups, but i thank them, each and every one. they will be made part of the record without objection. i asked my staff to look up a quote which was in the back of my mind. i got part of it right. the degree of civilization in a society can be judged by entering its prisons. and that is why this hearing and this testimony is so important. we have our charge is to deal with issues involving the constitution, civil rights, and human rights, and i think all three of those elements come together in what we're talking about today. there's some things that strike

me as more or less consensus. we don't want to release people from segregation or solitary into society. the results are disastrous and they've been well documented. we don't want to see children in solitary confinement or segregation. perhaps in the most extreme cases maybe, but otherwise no. we know the vulnerability of women in incarceration and even more so in segregation and we certainly know the impact of mental illness on the behavior of prisoners and the problems that they run into once put in solitary confinement. if you get a chance to read mr. thibodeaux's testimony, do it, because he goes through in graphic detail elements of segregation or solitary confinement which should not be acceptable under any circumstances under any circumstances, where the food you're given is barely edible,

where there's virtually no medical care given to those who are in this situation, where -- i'm struck by the sentence where you said for 15 years you never saw the night sky or stars. it just is one of those gripping realizations when you think about what you've been through. the limited access you had to even keep your body fit. limited access you had to outside visitors, even as you said, you made a conscious choice that you didn't want your son to see you there during that circumstance. all of these things suggest treatment which goes beyond incarceration. it really crosses the line, mr. raemisch, i think in terms of what we should do to any human being, any fellow human being, and that's what this comes to. i thank you all for being here. this is not the last of these hearings until the problem is resolved, and i don't know that it will ever be totally resolved but we are moving on the right

path. the first hearing started the conversation and i sense we are starting to move in the right direction at many different levels. i commend the states and i think senator cruz would join me in saying many of the states have shown a real willingness to take this issue on even more than we have, and more than i have and i think it's important we learn from them in the process. we will leave the record open for about a week, if you get written questions, you might. it is rare, but it happens. if you would respond and return them, we would appreciate it very much. senator, thank you as well. this subcommittee stands adjourned.

>>. on the next washington journal. a discussion on gun control efforts this elks cycle on the state and federal level. our guest is chelsea parsons, centers for american progress crime and firearms policy director. then we hear from former utah governor and former hhs secretary michael leavitt. el talk about the response to ebola in this country and how federal agencies work with state

agencies an hospital. washington journal is live every morni morning. and you can join the conversation on face book and twitter. here is a look at what's airing tuesday night on prime time here on c-span 3. at 8:00 eastern, our interview with michigan state president simon. that's followed by events featuring conservative political figures and journalists, including discussion moderated by columnist david brooks about the future of the republican party. and portions from this year's western conservative summit in colorado. here are just a few of the comments we recently received from our viewers. >> i've been battling my local cable provider here, cable vision in new jersey, for over 18 months now to start offering c-span in high definition. >> i have never done anything

like this before, but i thoroughly enjoyed this program. i never -- i like the history channel where i live in naples, florida. and i thought this was absolutely really mag any nific. i just sat glued to my chair port whole hour and i will continue to turn back to this program again. >> i just want to get a first start off by allowing c-span to know that i do not watch any other channel on cable selection besides this. and c-span 1, 2 and 3, so i really want to show my appreciation for this, for your services there, and your ability to really keep it mixed up and really lively. >> and continue to let us know what you think about the programs you're watching. call us at 202-626-3400.

or e-mail us at comments@c-span.org. like us on facebook, follow us on twitter. house judiciary committee formed a special task force in 2014 to look at criminal sentencing. in late june the task force looked at the impact on individuals when it came to such things as voting or their ability to get housing p. this is a little over an hour.. this is a little over an hour. >> ask for us on criminalization will come to order. without objection, the chair will be authorized to declare recesses duringing votes on the floor. let me see, we're supposed to have an hour and half worth of

votes beginning at 10:30 to 10:45. and i don't think that it would be advisable to have witnesses sit for an hour and a half and i don't know how many members will be coming back after an hour and half, so i'd like to wrap this up by 10:0, 10:43 0, 10:450, 10. i have an opening statement. i yield myself five minutes. good morning and welcome to the eighth hearing of the judiciary committee's overcriminalization task force. today's hearing will focus on the collateral consequences associated with a criminal conviction. over its first seven hearings, the task force examined issues related to criminal attempt over federalization, penalties and other issues which affect criminal defendants during oat investigative and prosecutorial phases of the criminal justice process.toat investigative and prosecutorial phases of the criminal justice proces theoat investigative and prosecutorial phases of the criminal justice

procesinvestigative and prosecu phases of the criminal justice process. however, today's hearing will examine the consequences that follow a criminal conviction which may not be immediately apparent during the pendency of a criminal case. the american bar association knows that some collateral consequences serve an important and legitimate public safety or regulatory function such as keeping firearms out of the hands of violent offenders, protecting children or the elderly from persons with a history of it physical, mental or sexual abuse or barring people convicted of fraud from positions of public trust. others are directly related to the particular crime such as registration requirements for sex offenders, drivers license restrictions for those convicted of serious traffic offenses, or disbarment of those convicted of procurement fraud. however, advocates for reform in this area including our panel today have argued that in many cases, the collateral consequences applicable to a given criminal conviction recognize scattered throughout the code books and frequently

unflown to those responsible for their administration and enforcement. this claim should sound familiar to members of this task force since the witnesses before us have repeatedly demonstrated that statutes carrying criminal penalties are also scattered throughout the u.s. code. additionally the supreme court recognized in padilla versus kentucky in 2010 that when a person considering a guilty plea is unaware of serious consequences that inexibly follow, this raises questions of fairness and implicates the constitutional right to the effective assistance of counsel. i agree that this area is one that the fantastic force should consider during its evaluation of the over criminalization of federal law. there are several here's where i is concerns most notably with regard to the argument that advanced by many including at least one of our witnesses today that congress should force private employers to ignore employees' criminal history when

making a hiring decision via a ban the box and other legislative initiatives. generally i do not believe that adult offenders who engage in violent and other form of conduct should be able to complain about the consequences of their actions. additionally, over the years congress has repeatedly seen fit to make criminal history records available to be employers including schools, banks, power plants, and other vital parts of our nation's infrastructure in order to protect public health and safety. proposals such as ban the box run directly contrary to that important effort. additionally, as the author of the adam walsh child protection and safety act of 2006, i have serious concerns with any efforts to characterize dangerous sex offenders who prey on our children as suffering from an unjust collateral consequence. having said that, during my tenure in congress, i have been a consistent proponent of

efforts to happy reality ex-offenders and lessen their risk of reoffending following release. last year, i reintroduced the hr-34765, the second chance reauthorization act of 2013. this bipartisan legislation which has been cosponsored by the task force's ranking member, mr. scott, would reauthorize and streamline the grant programs in the second chance act to help ex-offenders become productive members of our society. i want to thank the witnesses for appearing today and look forward to hearing about these and other issues associated with the collateral consequences of a criminal conviction. it is now my pleasure to recognize for his opening statement the ranking member of the task force, the gentleman from virginia, mr. scott. >> thank you, mr. chairman. mr. chairman, last hearing focused on the problem of

overincarceration and the need for proportional evidence based in individualized sentencing. the pew center estimates that any ratio of over 350 per 100,000 in jail today begins to get a diminishing return for additional incarceration. they also tell us that anything over 500 per 100,000 actually becomes counterproductive because you're wasting so much money, you're messing up so many families, if so many people with felony records that it actually increases crime, not decreases crime. data shows that beyond -- data shows since 1992, the annual prison costs from gone from about $9 billion to over $65 billion adjusted for inflation and that increase of prison costs was over six times greater than higher education. this hearing focuses on the significant punitive and often counterproductive collateral consequences that obstruct impede and undermine successful re-entry. our witnesses today will share the data that demonstrates that

our existing system of state and federal collateral consequences waste money, violate common sense and ultimately counterproductive to the goal of public safety. just like each of the 195 man doer to minimum in our federal code one at a time, each and every one of the over 45,000 collateral consequences that were written in the state and federal law got there slowly over time. when considered in isolation, a collateral consequence may not initially appear to be a high hurdle to re-entry and success but taken together, these collateral consequences form a tightly woven web that restricts individuals from over coming the hurdles in their path. many of these collateral consequences are born from the worst of the worst of these tough on crime sound bites masquerading as sound public policy. just as mandatory minimum sentences sentence people before they're even charged or

convicted, based solely on the code section violated without any consideration to the seriousness of the crime or the role of the defendant, collateral consequences apply across the board into "all convicted felons." for example in the drug context in the fiscal year 2012, 60% of convicted federal drug defendants were convicted of offenses carrying a mandatory minimum penalty of some sort. right now restrictions on your ability to work, live, learn and survive are the same irrespective of your offense or how long ago it was or what role you played. the consequences you face are not narrowly tailored or even tailored all at all. it's a one-size-fits-all there is no reliable scientific data that demonstrates of these collateral consequences improve

public safety, reduce recidivism or save money. to the contrary, all the evidence is the opposite. consequences of conviction affect an individual's ability to obtain necessary social services is, employment, professional licenses, housing, student loans to further their education, the ability to the interact with their children and critically power through the voting in the democratic process. all of these restrictions among tens of thousands of other ones have resulted in lifelong civil penalties that prevent individuals from transitioning back to society successfully and serve to marginalize and stigmatize those with prior convictions. just as the children's defense fund has recognized secure housing, employment, education and other social services are the best crime prevention resources to redirect individuals from what they call the cradle to prison pipeline towards a cradle to college and career pipeline, so too must we apply the same data to redirect those reentering our communities after serving their sentences.

when there is no hope for a decent job because employers refuse to hire those with a prior conviction, we can't be surprised that some chose to return -- choose to return to the very paths that led them to prison in the first place. often, there is no bearing, no correlation or no relevance between someone's prior conviction and the job they're applying. some circumstances there may be value at looking at the criminal conviction. it makes sense for someone with an embezzlement conviction to be denied a job at a bank. but what does a 30-year-old marijuana possession conviction have to do with someone getting a good paying construction job? the eeoc has issued guidance that provides that an employer's use of an individual's criminal record of may may discriminate against them if there is a disproportionate impact on certain minorities without any job related relationship.

that could constitute discrimination. so although the criminal record may be relevant, could i have about 30 more seconds? >> without objection. >> although the criminal record may be relevant, the untargeted overly broad denial of all jobs because of any federal record may actually constitute discrimination. mr. chairman, i thank you for holding the hearing and look forward to the testimony of our witnesses. >> the time of the gentleman has expired. without objection, other members' opening statements will be made a part of the record. it is now my pleasure to introduce the two witnesses this morning. mr. rick jones is the executive director and a founding member of the neighborhood defender service of harlem. mr. jones is a lecturer at columbia law school where he teaches criminal defense externship and a trial practice cures. course.ourse. he is on the faculty of the national criminal defense college in macon, georgia and is frequently invited to lecture on

criminal justice issues throughout the country. he currently serves as secretary of the national association of criminal defense lawyers and previously served that organization as a two-term member of the board of directors parliamentarian, co-chair of both the indigent defense committee and the special task force on problem solving courts and is currently cochair of the task force on the restoration of rights and status after conviction. platform mathias heck is a prosecuting attorney from montgomery county, ohio. he previously served montgomery county as a law clerk and then as assistant prosecuting attorney. he received his undergraduate degree from marquette university which is a very wise choice and his jd degree from the georgetown university law center. i would ask all of you to limit your opening remarks to five minutes. i think you're all aware of what

red, yellow and green means and the timer before you. and even though i introduced you second, the prosecution always puts their case in first. so mr. heck, the floor is yours. >> good morning, mr. chairman. members of the task force. thank you very much. i appreciate your comment about marquette. okay? thank you. again, good morning. i appreciate your comments about marquette university. and i know it's very dear to your heart. in addition to being the prosecuting attorney for montgomery county, dayton ohio i am honored to be the chair of the criminal justice section of the american bar association which is a section of about 20,000 members which include the whole array of the partners of the criminal justice section and the criminal justice process in the american system.

and that is judges, defense lawyers, prosecutors, law professors and other law enforcement personnel. i appear today to talk about the aba's view you have collateral sanctions and how it relates to convictions and also highlight some of the things that the american bar association has done. as many of you know, the american legal system has long recognized that certain legal disabilities or collateral sanctions result from a criminal conviction in addition to a sentence. so there may be a prescribed sentence relating to a crime but attached there to may be collateral sanctions. or disabilities that are also imposed in addition to the sentence. that sentence could be probation, could be to the penitentiary or a combination of both. these collateral consequences of conviction include such familiar penalties disenfranchisement, deportation, loss of professional licenses, felon registration, ineligibility for certain public welfare benefits even loss of a driver's license and many more. over the last number of years, collateral consequences have been increasing steadily in

variety and severity throughout the country. and they have been accumulated with little coordination in state and federal laws making it almost impossible to determine all of the penalties and disabilities applicable to a particular offense. now, some collateral sanctions or consequences do serve an important and legitimate public purpose. as the chairman has already mentioned, keeping firearms out of the hands of persons committed of crimes of violence or barring persons convicted of embezzlement from holding certain public interest jobs or deny diagnose driving privileges to those convicted of aggravated vehicular homicide. other sanctions are more difficult to justify particularly when applied automatically across the board to a complete category of convicted persons. and the reason is, it results in serious implications not only in terms of fairness and as a prosecutor i can say this, not only in regards to fairness to the individual charged but also

to the resulting burdens on the community on the citizens. collateral consequences can also present challenges to the issue of re-entry and re-entry is very important. it may become a surprise to many of you but local prosecutors throughout the country have already spearheaded re-entry programs because we see this as a public safety issue. nonetheless, not all collateral consequences of conviction are effective. many have no relationship to public safety. and prevent a former offender from doing productive work in order to support a family and contribute to the community. this effect to employment results and represents one of the more difficult issues facing i think our justice system and our nation. the reality is that ex-offenders who cannot find jobs that provide sufficient income to support themselves and their families are more likely to commit more criminal acts and

find themselves again back in prison. now, the american bar association has adopted a comprehensive set of principles regarding collateral sanctions. and they have two primary goals. one to encourage awareness of all involved in the justice system process of the full legal consequences of a conviction. so when someone is convicted, they know what's going to happen. and secondly, to focus attention on the impact of collateral consequences on the process by which a convicted person can get into re-entry and become back come back into the community and be a productive member of the community. they also call for a significant number of reforms to the law. number one, the law should identify with particularity the type, severity and duration of the collateral sanctions. so everyone knows what it is. now the collateral consequences of conviction project which is funded by the national institute

of justice and completed just recently by the american bar association is something that was authorized by congress. we started it in 2009. we just completed it and we have adopted and found 45,000 collateral consequences. and again, the hope is that we can categorize these and that everyone knows it's open to the public to defend defense lawyers, to prosecutes and that way everyone can understand what the collateral consequences are, they're readily available and they know what's involved. thank you very much. i appreciate it. i'll be glad to answer any questions. had. >> thank you, mr. heck. mr. jones?>> thank you, mr. hec. mr. jones? >> thank you for the invitation to appear before you this morning. we have a lot of ground to cover in a little time. i'm going to get right into it. 68 million people in this country are living with a criminal record.

that's one in every four adults. 20 million people with felony convictions, 14 million new an arrests every year, 2.2 million people residing in jail or prison. that's more than anywhere else in the world. as a member of the nacdl task force that produced this lateral damage report, i had the opportunity to travel to every region of the country and listen to the testimony of people living with convictions as well as to the testimony of many other stake holders in the criminal justice system. in northern california we heard from a chief of police who was dealing with a significant crime problem arising murder rate and widespread community distrust. as he searched for solutions he realized that he was policing from a place of fear. that was his term, policing from a place of fear. he was not serving or protecting the community. he was at war with the community. his officers did not really know the citizens they were policing, distrust and fear was the order of the day. it wasn't until he took the time to get to know the people he was charged with protecting that he recognized and appreciated their humanity. trust and understanding improved. and his crime problem began to

decline. 68 million people living with convictions more than the entire population of france, we are in danger of becoming a nation of criminals because we are policing from a place of fear. 14 million new arrests every year. we are prosecuting from a place of fear. 45,000 collateral consequences on the books in this country. 45,000 roadblocks to the restoration of rights and status after conviction, we are legislating from a place of fear. the time has come for change in our national mind-set. we must move from the penalty, prosecution, and endless punishment to forgiveness, redemption and restoration. a great way for this task force to begin the healing process is to implement the first recommendation in our report. a call for a national restoration of rights day, a day every year where we can celebrate redemption and restoration with educational programs for employers, skills

training workshops for the effective community, jobs fairs, certificate of relief programs at no cost and no cost opportunities, no cost opportunities to clean up your rap sheet. more concretely, there are four steps this task force can take that will have an immediate impact on the collateral damage of collateral consequences. first, you must repeal federal mandatory collateral consequences. 14 million new arrests each year, 68 million people living with convictions, mandatory automatic across the board collateral consequences make no sense. you cannot paint with that broad a brush. there is no public safety benefit in stripping people of their right to vote. eliminate mandatory collateral consequences and stop creating new ones. second, you must provide meaningful federal relief mechanisms for those people living with federal convictions.

first and foremost, 14 million new arrests each year is indicative of the problem. we must create avenues for diversion in the federal criminal justice system. defense attorneys, prosecutors and judges must be cognizant of diversion opportunities and promote them. judges have to be empowered with relief at sentencing. individualized relief tailored to the individual and unique circumstances. the federal pardon process must be reinvigorated and carried out. pardons should be routinely granted in the ordinary course of business. the process must be transparent and accessible to all. the media must be informed and aware of the process and there should be dedicated staff committed to the regularized review of pardon applications. third, for those discretionary consequences that remain, they must be clearly established guidelines for decision makers to follow guidelines with respect to relevancy, passing and of time and evidence of rehabilitation.

there should be a presumption of irrelevance for any conviction beyond a certain number of years and from anyone who has shown evidence of rehabilitation. finally, consumer reporting agencies and background check companies must be regulated. rap sheets are not a commodity. we should not be creating a market in the buying and selling of people's conviction records. there are some law enforcement agencies in this country that sell rap sheets. that must stop. any records disclosed must be accurate. the fbi website which is the main source of criminal record acquisition is wrong 50% of the time. it must be cleaned up and maintained. and there must be an easily accessible no cost method for individuals to check their rap sheets and make corrections or updates. the time has come to end the economic drain of collateral consequences. the endless government intrusion into the lives of our citizens and the social and moral havoc

they wreak on individuals, on families and entire communities. we need a coherent national approach to forgiveness, to redemption, to restoration of rights and status after conviction. thank you. i look forward to your questions. thank you, mr. jones. the chair is going to put himself at the end of the question queue. just so in case we run out of time, all of the other members will be able to ask questions and at this time, well, before recognizing the gentleman from virginia, mr. scott, let me say that the chair is going to be especially vigilant at enforcing the five-minute rule so that everybody has a chance. >> why do you say that? >> i do have a reputation of looking at the red light. gentleman from virginia, mr. scott. >> thank you. mr. heck, ban the box has been mentioned.

is that where you have to check off if you've had a felony, does that prohibit an employer from considering on an individualized basis your criminal record? >> what we -- first of all, on behalf of the american bar association, the american bar association has not taken a position on that. i think there are discussions that have to be had on that. i think we're seeing a lot of problems that are associated with that particular issue. >> the point is, if you don't check off the box, it does not subsequently eliminate the employer's consideration of your record but only on an individualized basis and whether or not the record is relevant to the job. mr. jones, do you know, are you familiar with the eeoc guidance on the -- can you say a word about that? >> ban the box, you're absolutely correct, congressman scott. ban the box does not prevent an employer from having an

opportunity to review and determine relevancy of a person's criminal record or criminal conviction. all ban the box does is get the person's foot in the door initially. it allows them to have an opportunity to prove their credentials, to prove their ability to do a job. and before and once an employer is in a position to think that this individual is able to do the job and someone who we would like to employ, they then have the opportunity to review the person's criminal record and decide whether it's relevant, whether they've rehabilitated, whether there's been enough passage of time so that it's not a factor but they do at the end of the process have the opportunity to know and evaluate the person's record, so ban the box is not a wholesale preclusion. >> you never would have gotten to the point where you would have been considered if you checked the box, your application would have been thrown in the trash. when you talk about collateral

consequences a couple things that haven't been mentioned is the total waste of money. california many years ago spent a lot more money on higher education than prisons. now prisons have exceeded by a large margin what they're spending on higher education. so the waste of money crowds out things and that is a collateral consequence of overincarceration and children with parents in prison are also at high risk. just very briefly, prosecution mr. heck, can you tell me whether the automatic across account board collateral consequences help keep people from coming to jail or add to coming back to jail? for example, collateral consequence on employment making it more difficult to get a job, does that help or hurt in terms

of recidivism? >> i think it's counterproductive to what we're trying to do. i think that across the board, any type of across the board sanction without looking at the particular offense and the particular offender is counterproductive. >> what about education? >> well, education is the same way. it's interesting in ohio, we have dealt with that and the legislature has over the last year. there are a number of alternatives that we now offer to prison. and i mean, a number of different alternatives that they have to try because again, it makes no sense when we're talking about re-entry, most of the individual who's go to the penitentiary are going to be released. so i think we have to look at that on the front end rather than say what are we going to do after they're released. >> if you cut back on your right to get an education, education has been studied over and over again. more education you get, the less likely you are to come back denying somebody an education

seems to be clearly counterproductive. >> absolutely. >> what about have you studied the implications of the right to vote in terms of recidivism? the project that the american bar association just completed looked into as a collateral consequence. again, i see no reason why someone is not restored to the right to vote. that is a to me a fundamental right, personally as well as the american bar association that should be respected and i think they should be restored. >> mr. jones, have you done any studies to show the impact on recidivism for any of these things i've mentioned? >> certainly when you disenfranchise and youent wa to enfranchise people. you don't want to take away their right to vote or their sense of participation in the democratic process. with respect to the money that the government spends on educating people to hold any kind of license to be a barber, for example, it makes no sense to educate someone and to give them a license to be a barber to pay for that and then when they get out, tell them they can't do that job. it's counterproductive and it

absolutely leads to frustration and recidivism. >> the time of the gentleman has expired. the gentleman from the alabama, mr. bacchus. >> thank you, mr. chairman. one statement here in mr. jones' testimony is even with conviction records, the well documented failure states record when charges are dismissed or records sealed and the failure of private data company to keep accurate records hurts millions of individuals. you know, that's a little separate situation, but is that a big problem too? >> that is a big problem, particularly when people are being denied opportunities without even having a conviction, merely the arrest is enough in many cases to deny a

person the opportunity. certainly when records are not updated someone has received a certificate of relief from disability, someone has been pardoned, those things are not added to the record and are not known. it hurts the person right off the bat because all we're seeing is an arrest and many times not even an arrest that leads to conviction that is denying people opportunities. >> what if you know the fact act has certain strict regulations on what can be reported in a background check. is that violated and what's the process for combating that? do you know? or under the eecoc? >> it is frequently violated particularly in an age where you can get almost anything with a mouse click or a keystroke. so frequently, employers and other decisionmakers landlords are making decisions on less than accurate information and often inaccurate information. and really there needs to be much greater limited access to these records, much greater

regulation over the records. opportunities for people to update and correct inaccurate information in their rap sheets, all of these things need much stricter guidelines limited access and an opportunity at no cost for people to correct mistakes in their conviction records or their rap sheets. >> well, do employers actually get the criminal record, criminal history? or do they -- or are they told whether or not the person meets a certain criteria? do you know? >> employers are actually given a person's rap sheet. they can buy them from consumer reporting agencies. in some cases they can get them directly for fee or not from law enforcement agencies. so the access an employer or the decisionmaker has to a person's complete criminal rap sheet is far too loose and easily available.

>> all right. >> and they have them. >> i'm a cosponsor for legislation with plaintiff sensenbrenner and others, mr. scott of the second chance act which helps state and local government agencies and community organizations improve prisoner re-entry nationwide. do any of you have any comments on the second chance act and how it might help? >> well, again, i think with comments that have already been made, prosecutors around the country are certainly supporting and have started re-entry programs. i think it's so important. i think without looking up front of what's going to happen to an individual who it is sentenced to the penitentiary, knowing that that individual is going to come back into the community is just develop -- it misses the entire point of what we're trying to do, trying to make productive citizens out of these

individuals and help them. to just warehouse individuals as a prosecutor i can tell you, just warehousing individuals in penitentiary makes no sense at all. i think we have to be smarter on crime, smarter on who is sentenced to the penitentiary and to help whether it's education, whether it's having someone to help get a job, have employment, have housing when they're released. so i commend all of you for supporting that. >> nacdl certainly supports the second chance act. >> gentleman's time has expired. the gentleman from michigan, mrs. connyers. >> thank you, mr. chairman. i just want you to know that i think this overcriminalization panel is one of the most important in the house judiciary committee. and what we're doing is working on ways to get this as much into

the legislative mainstream as possible, and so we would welcome any thoughts that you have now or in the future about this. it's that critical. and after the votes this morning, in 2226 rayburn down the hall, we're going to have personal narratives of witnesses that have experienced some negative collateral consequences. so we wanted to invite not only you two distinguished lawyers but everyone here to join us, if you can. my first question to both of you

is, how can we ramp this subject up as effectively and as thoughtfully as possible without overdoing it or creating a backlash or anything like that? if you have any thoughts on that, gentlemen? >> i do, thank you for the question. first of all, the collateral consequences of conviction project that was funded by the niha and just completed by the american bar association. this is a grant we got and many reasons because of senator from vermont. $750,000 grant. the american bar association because of the immense and the depth of this project invested

another $750,000 of its money money and just completed again recognizing about 40,000 to 45,000 collateral consequences. what we would hope what the american bar association hopes is that congress and the states use this database that we have to identify all the different collateral sanctions or consequences throughout the country in the federal system. all right? and to look at them and say, how effective are they? how relevant are they? retool some. limit some. some have just been over broad or they've applied forever. and so they need to limit some of those. so we're hoping again that congress will take advantage of this monumental project that we've just completed. and maybe use it and we'll be glad to assist in any way possible. >> well, we intend to. now, what about going beyond the american bar? you know that there are dozens of law organizations and associations across the country. i'm thinking about widening our approach so that we can begin

this discussion with them working off of the good initial work that you started. >> well, he appreciate the question. and again, i think your point is well taken. as a former president of the national district attorney's association, i know that district attorneys across the country are very concerned about this project and are very interested in what the results are that we just finished. i know we're going to be having conversations about this. i know state prosecutors associations are going to having and are always concerned about collateral sanctions.ng and are always concerned about collateral sanctiong and are always concerned about collateral sanction and are always concerned about collateral sanctions. and the effect it has on not only the offender but on the community. >> you're giving prosecutors a great new description here. i always think of prosecutors as the bad guys that are trying to rack up convictions as many convictions with as many severe penalties as possible. i mean, i think that's -- i

think this is an incredible of -- has there been some kind of turn around on the -- have we been making progress that we didn't know about or what? >> well, congressman, let me assure you that i can really believe i can speak not on behalf of the ndaa because i'm not the president. henry gars from texas is now. i think most of the prosecutors realize that. this idea of just putting people away, that may have been the thought of some prosecutors many years ago but that is really not the thought today. the thought today is be smarter on crime and to identify those individuals who must be prosecuted and are a threat to the community. >> could i get just a -- >> gentleman's time has expired. the gentleman from texas, mr. gohmert. >> thank you. and i appreciate your being here. i'm sorry i was late.

this is a project that's near and dear to my heart and when ed meese called and asked if i would participate in something that dealt with the problem that i saw as a massive problem, overcriminalization, something that as a former prosecutor, judge, chief justice has driven me crazy, because i had seen, when people want to beat their chest and show how tough they are, well, let's slap a criminal penalty on something. and so as you know, we talked about there may be 5,000 or so crimes. they're not in 18 u.s. code where they ought to be as a criminal code. and i had wondered why in the world have we not been able to clean this mess up before. and what i'd heard is that it seems like every time a project gets fired up to try to clean up

the criminal code, that it ends up being a big santa claus christmas bag and people start trying to throw more and more in it and then overall, you lose too many votes and people go, i can't agree to that. wait a minute. i love the idea. i was on board but now you've thrown that in the bag. i can't agree to that. and then it loses the impetus and nothing gets done over and over. and so that's one of my concerns as we go here. i hear from people going yeah, you're right. we've got to stop this overcriminalization and also we've got to the stop the militarization of many of these federal departments and you know, the epa doesn't need a s.w.a.t. team and neither does the department of education for heaven's sake.

and we should never have, as we heard in this room, testimony about a poor little nerd that was trying to develop a new battery and he gets pulled over by three suburbans, run off the road, yanked out of his car, thrown down, boot in his back, handcuffed and drug off because he didn't put a sticker on a thing he mailed to alaska with an airplane with a line through it. he put ground only, checked that, but he didn't put the sticker. i mean we need to stop that. and so people are getting that and they're getting all on board and then when we start saying, well, we're also looking into whether or not maybe employers shouldn't be able to find out if you committed a crime before they hire you. oh, wait a minute. now, wait a minute. this is a very sensitive industry. and you're telling me i don't get to know if he's been stealing from his last job or in this daycare job, i don't get to know that this person has actually molested people in the past? and i can tell you as a judge, i had a case where because of the law trying to protect people, protected a child molester and

it wasn't till he molested and destroyed other lives that he got stopped. and because of the way the law was, the juvenile probation department didn't even get to know that he had had these other incidents just because of the way he was protected. so i'm really concerned that we may be getting into an area where we're going too far if we're not careful. weigh lose the steam. let me just ask you guys. why would it be be appropriate for congress to force private businesses to ignore somebody's criminal history? >> i just want to be -- thank you for the question. i just want to be crystal clear about ban the box, right? because ban the box does not prevent an employer or other decisionmaker from knowing about a person's criminal record. there need to be clear relevancy guidelines that adhere across the board so that decisionmakers understand what's relevant and what's not when looking at a person's criminal record, and

there also needs to be an opportunity for the individual to get his foot in the door to be able to present his credentials and his employability but once those things are done, once there are clear relevancy guidelines and decisionmakers know and once the person has had his foot in the door. >> my time's about to expire. i want to get this question in. isn't it true that those who access individual criminal histories are already subject to strict regulation regarding the use of that information under fair credit reporting act and equal employment opportunity commission. isn't that true? >> that's correct. >> so it's not just wide open already. >> i think there are safeguards. i think there are some abuses to it, no question about it. i understand what he's saying. i do think there are collateral consequences that are appropriate. >> okay, thank you very much. i yield back. >> the gentle woman from california, miss bass. >> thank you very much, mr. chair, and the ranking member for holding this hearing. i think this is such a critical issue for our nation.

and earlier this year in my district, i had a town hall and we had several hundred people come talking about this very subject. and it seems like in our society, we used to have a belief that if you paid your debt to society, that you could can be reintegrated. and it seems like part of what has happened over the last couple decades is we no longer have that belief and in fact, you can spend sometime in prison, but then you can spend the rest of your life with the stigma and not being able to appropriately reintegrate. in california, when i was in the state legislature, we had a law that said if you were a felon, could you not get a license to be a barber. at the same time -- in our state prison system, we had a barbering program where we taught felons how to be barbers and then didn't allow them to have the license when they left. so we had to change that law and

we had over 54 occupations that you couldn't do if you had been a felon. mr. jones, you mentioned that there should be a presumption of irrelevance and you know, the experience about ban the box i completely understand what you mean in terms of getting your foot in the door to even say that it was a conviction from 30 years ago. and it was when i was a college student or something like that because if you don't check that box and then you find out, then you're subject to immediate termination because you've lied. so when you were talking about a presumption of irrelevance, i wasn't sure if you were talking about that rhetorically or if you actually meant that's what we should do. then i wanted to know how we would go about that. >> well, well, thank you for the question. you know, there are -- there are studies that suggest that after a certain number of years, a person's conviction is a person is less likely -- is no more likely and in some cases less likely to reoffend than anybody in the general society. right?

so when we're talking about evaluating a person's criminal record for whether or not they should be accessible to an opportunity or benefit, then what we really need to do is we really need to look at whether or not there is any relevance to the opportunity, what the passage of time has been, and whether or not there's any evidence of rehabilitation and when the passage of time has been such and there's evidence of rehabilitation, there really ought to be a resumption of irrelevance that the conviction is no longer relevant to whether or not this person ought to have that opportunity. >> and i agree with you, but how do you do that? is it a law? do we pass a law that says that? and then i'm assuming that you would exempt certain type of crimes. >> exactly. i think there have to be guidelines that are set out clearly for decision makers for employers and landlords and others. there have to be guidelines that clearly instruct individuals as

to what's relevant and what's not and what the passage of time is and what the evidence of rehabilitation might be. so that people understand and know we're all playing by the same rules. once we have the same guidelines and playing by the same rules, then there ought be a presumption of irrelevance. >> one of you made reference to the fact that the fbi website is wrong a significant amount of time. and i wanted to know how it's wrong. is it the wrong people are listed, wrong charges are listed? >> well, i'm not sure exactly what you're referring to, ma'am, except to say that so many times when we have the silver streaks or we have the histories of convictions that many times people who put, input that data, that it is incorrect. and i think that not only. >> so it could be both the wrong charges and the wrong people.

>> exactly. i find that when we're looking at defendants who we've charged in my office and my assistant prosecutors will try to get a record check, we have to make sure we confirm that to make sure it is accurate. many times the inputting of that data and the way it goes through our bureau of investigation identification is wrong. >> i have a piece of legislation i've introduced called the success act which is looking at a piece of collateral damage which says that young people who have a certain crime cannot get financial aid. and i'm wondering if in the tens of thousands of collateral damage examples that you two talked about, are there a number of them that relate to education? >> well, i think a lot of them do relate to education. either directly or indirectly. i think the idea of preventing young people who may have made a mistake from making amends from doing what they were supposed to do and then later in life restricting them from having the education that benefits not only

them but society makes no sense at all. >> it's very difficult to make the argument that there's a public safety benefit from allowing young people to get an education. >> gentle woman's time has expired. the gentleman from new york, mr. jeffries. >> thank you, mr. chairman. and let me thank both of the witnesses for your system and for your work on this very important issue. let me start with mr. heck. you testified earlier today, i believe appropriately, that an automatic blanket across the board imposition of collateral consequences is counterproductive. in that regard, how would you suggest the committee look at or the task force look at how the collateral consequences that you believe may be appropriate in certain circumstances are narrowly tailored to fit the

severity of the crime so that we don't broadly sweep into individuals into this blanket fashion? >> and i appreciate the question. i do think that some collateral consequences if they're applied so broadly across the board and not relevant to that individual case or that individual offender, that's what i don't think the law has been looking at, at the offender, not just the offense, for example, in ohio, if someone owes child support and they're not paying their child support, their driver's license is suspended. it's so ridiculous. i've told my prosecutors who handle those kinds of cases we are not going to ask for that. in fact, we're going to say it shouldn't be done because we're asking the person to pay child support and saying you can't have a job to pay it. i think we have to look at what the collateral consequence is because some are appropriate. >> when we craft a law, who should be given the discretion to make the determination as to the appropriate application of collateral consequence if one is appropriate under limited circumstances?

should it be the court, should there be built into the law in some way? should the prosecutor have in the first instance have that opportunity? i don't know that everyone is as enlightened as you are or the prosecutors in your office? who should have that opportunity to make the determination. >> there have been a lot of suggestions made on that. i believe, not the aba, that it should be the court. i think the judges are in a unique position to see what's going on and that they should make the judgment. >> mr jones, your thoughts on that? >> yeah, i think that everybody in the system needs to be aware, educated, updated. prosecutors, defense counsel, everybody needs to understand at every step of the process, the implication of collateral consequences as we go through the process i do think relief at sentencing by the judges who are able to tailor to the individual and remove and repeal consequences that are of no moment and are irrelevant is a

good thing. so i believe relief at sentencing is important. i think all the players in the system ought to be aware at every step along the way of their consequences and packet. >> both of you mentioned in your testimony there were 45,000 collateral consequences which is a staggering number. so that's a difficult undertaking but one that obviously is necessary and i think we as a task force have to think through how to create greater transparency as it relates to those consequences and obviously take steps in my opinion to reduce many of them. but you mentioned that 68 million people in america i guess are living with convictions. is that right? >> that's right. that number is growing. >> and that 20 million of those individuals have felony convictions which mathematically

i gather would leave 48 million with misdemeanor convictions or criminal violations in some way, shape, or form. now, if we are to look at this issue in terms of collateral consequences, has any work been done to look at the consequences associated to those convicted of felonies versus the consequences associated with those convicted of misdemeanors? and is it relevant for us to think through this issue in that fashion? >> well, i think that even just looking at some of the legislation that's proposed, certainly there always is this notion that, you know, first time offenders, nonviolent misdemeanents are more often the subject of legislation, but the fact of the matter is that at

some point, everybody's coming home, right? the vast majority of these folks are coming home, and we need to be thinking about and incorporating and be prepared to embrace all of these folks because nobody is merely the product of the worst thing that they've ever done and we all deserve a second chance. so i would strongly suggest that as you think about how to set these guidelines and evaluate relevance, that you include everybody. including those 20 million living with the conviction. >> the gentleman from georgia, mr. johnson. >> thank you, mr. chairman. we need to reject demonization of every person who has a brush with the criminal law. persons released from prison should be given a second chance and we need toant here in a new age of restoration and redemption. these are things that are listed in your conclusion, mr. jonas. and i think that those are very

important ideals. that we should seek to live up to. often times, it is we ourselves that are the perpetrators of overcriminalization. certainly the legislators are responsible. and certainly judges and prosecutors who are elected are responsible for, you know, getting tough on crime and throwing the book at people. and implementing the policies that we enshrine into law. but i will ask you both, you're both members of the bar. you're both attorneys. you're licensed to practice law and you know that when a person

suffers a felony conviction and even misdemeanor convictions in many states, they are barred from being able to license practice law. do you believe that those types of barriers, which are collateral consequences, you believe that those should be removed from person's ability to practice law, to get a law lice? mr. heck? >> i think like any other cla collateral situation, they have to look at all element. in ohio, someone was convicted and removed. someone convicted of manslaughter has become a lawyer. we have seen where someone is convicted of a theft or fraud was not given the license to practice law in ohio.

so there has to be some type of per di, some type of fairness, if there are sanctions at all. >> so you would be against blanket bans on all who have been convicted being ineligible to receive a license to practice law? >> i don't think blanket bans do any justice. >> all right. mr. jones? >> i think unless there is some public safety that outweighs a person's right to get a law law sense, to pass the bar, unless there is some public benefit that outways that person practicing law, then i would say, he should not have that

restriction or any automatic mandatory bans. >> do you know of any initiatives by the aba or state bar association to address that particular issue? either one of you? >> no. i know the project of the collateral consequence of the project did not entail that. it today had to do with catalogd assembling the collateral consequence. which was a monumental task. but the particular issue you are asking about, i don't know of any state or bar tackling that yet. >> thank you. >> i think that just like we see, disproportionate as far as imprisonment is concerned, i think that goes along with that. because so many times the

sanctions are attached to a conviction. i think that once you see the affect it has on the incars rag, imprisonment, you will see the thing on collateral sanction. i think collateral sank sanctions, as it relates to employment, as it relates to income and housing, really has an effect in that regard. >> the answer is profoundly. there are studies that show that african-american men who have never been in -- have never had trouble with the law at all, are less likely to get a job than white men with a felony conviction. there are studies that show that african-american men are particular likely to be addressed for drug-related crimes in the community is the same. so the consequences on individuals, families, and society is profound.

>> thank you. >> the gentleman's time is expired. the gentleman from tennessee, mr. cohen. >> thank you, mr. chair. thosish ice affect my constituents in a major way. second chance opportunities for employment is one of the things i hear most from constituents, somebody had a conviction at some time in the past and they can't get a job. the continuing cycle. but more fundamental is the loss of the right to vote. and i don't know if this has been addressed. just extensively by y'all, but do either of y'all know the history of that particular -- those laws? i was reading about civil death or however it is called. civil death. and that seemed to take away your right to vote and everything else. and being described as barbarous and barberism by reason and by

more ality, et cetera. but we have these laws. does maryland have a law like that, mr. heck. >> maryland? >> yes. >> i have to be honest, i'm not familiar with maryland state. >> which state are you from? >> ohio. >> oh, sorry. they all join the big ten and i'm confused. oh ohio doesn't have that law? >> right. >> it is mostly southern states. >> what you say, disenfranchisement, the right to vote, which to me is so important, it trumps everything. when you take someone's right to vote away and with the idea of never giving it back, i just think that this should never be. >> mr. jones, are you familiar with my history on these laws? >> i have my own thoughts, but they would be conjecture. i don't know, but i tell you this, the history of

disenfranchisement, but by the time i get back new york this afternoon, i will know. and i'll get that to you. >> i think history goes back to jim crow. i think it was a southern thing. and really, if you look at the states that have those laws and or had that laws, they are general lit same states that justice roberts said no law room, have to have preclearance, because it is a wonderful world, according to justice roberts. it is hard to fathom when you look at the history of discrimination in this country and look at it in boating areas. and those are the same states that put a star let let are on individuals that says thou shall not vote. >> voting in my district, we had an election in may. primary election for county offices. very important. about 10% of the people who are vej jered voted. so my theory is, if people who

had convictions in the past were allowed to vote, if they voted by their simple action of voting, they would show they were in the upper 10% of the citizenry. we do in tennessee have a law that i was happy to have sponsored and passed, allows you to get your right to vote reinsteered. without having the d.a. come and bless you, et cetera. but the guy if the house, kind of the knee andre that will character put an amendment on the bill which passed and it says that if you were behind in your child support, you couldn't get your right to vote back. and it is not something that is pretty clearly ib tended to have a desperate impact. >> there are two states i believe that this task force out to look at, to allow voting while in prison, and i think that's maine and vermont.

you can speculate as to why the two states allow that. but i do believe that maine and vermont, and somebody correct me if it's wrong, those two states allow you to vote while you're in prison. i think that everybody -- that's right. >> is vermont. which is the other state? >> maine. >> maine. >> right. have you to be eating lobster or cheese or something. >> thank you. >> yield the balance of my time. thank you. >> thank you. we still have some time left. so i'll now recognize myself for five minutes. both mr. jones and mr. heck have said that we should repeal all mandatory collateral consequences that apply across the board. now one part of federal law prohibits anyone who has been convicted of a misdemeanor crime of domestic violence from possessing a firearm, do you

believe that congress should repeal this law? >> as far as my position is concerned, again, the aba hasn't taken a position on that. i think we have to look again at the individual involved in the individual crime. so for example, we had cases, domestic violence, which is on my radar screen, and my office. and like child abuse, we take it very seriously.