i think senator patrick articulated that in a way that probably would change. i think he genuinely cares about the issues that are important to all texans. he feels very strongly about this issue. i think he is going to be a wonderful lieutenant governor. andn't have 100% faith believe in every single person i support. we are a group of people who are a coalition party. we are not always going to agree. my 80% friend you're are not my 20% entity. withagree a percent somebody, we are not always going to agree on everything.

>> sometimes they don't realize it is offensive to us. many of us who called and said, that is offensive. that is not proper. it was immediately changed. he was brought in for that reason. help me understand what i should not be saying. i'm not defending him. i am telling you the people do not realize they have offended us and it is up to us to speak out and say you have offended us. >> it goes back to leadership. we should have done this a long time ago. i see a young professional bring to the arts institution.

it's making me want to step up and do more. hispanics are going to start looking up to me. it is the circle of influence we have to follow. >> we only have time for one more question. >> there's been a lot of talk about outreach to latinos. and young latinos who may not identify socially conservatively to you guys or -- but they do on other issues. you all kind of share the same values. but your party is very -- they're not backing away from the voter i.d. thing and we

can't lie to ourselves that the voter i.d. does not isenfranchise voters of color. >> what is your question? we're running out of time. >> yes. what can you do to let your party know voter i.d. hurts latinos? >> let me just tell you that somebody who deals with candidates all the time, voter i.d. is something that they face and they embrace all the time. somebody like myself who understands how texas politics or county politics, understands at there is a problem with that, a definite problem. let me put it into perspective. there is a lady and i know the commissioner knows her, too. behr county y in

a big operative who happens to own a cemetery that they just removed from her because she was violating some laws and what have you. that in and of itself, those are the kind of things we see on a daily basis on the ground that there is definitely -- there are definitely issues ith voter fraud and why, why can't you just show an i.d. to be able to vote? there is no reason not to be able to do that. in ed inburg they had their first elections and had no problem when they had to show their i.d. last november. support it. >> i'd add something to that. first of all, as you know, i was in charge of overseeing the election pros necessary the state of texas. i will tell you it is all about protecting the process. for you to say it hurts the latino vote actually sometimes

we offend latinos to think hey're not able to go get an i.d. most people -- most people are proud to show an i.d. they show i.d. when they pick up a prescription. we should be more concerned about making sure we have mobile sites everywhere so there is an opportunity to get a voter i.d. but what i'm telling you is that as i travel the state that's not what i heard. it's about making sure we are proud of a process we have in texas that that's what we want, one that we can respect. most people thought they had to show photo i.d. years back everyone knew each other. when you went to a polling place you didn't have to show voter i.d. because everyone knew you. but in texas we are the fastest growing state. as you know we grow by 1200 people a day. people can no longer be responsible for knowing each

other. in order to protect that process we should be showing a photo i.d. okay? we should be concerned about making sure we make those i.d.'s available to everyone more so than finding something -- fighting something that has already passed and was passed by the people. >> if i could add because i carried the bill in part, polling has been done in the minority communities and in the black community and the hispanic community. 75 found to be supported plus percent. so some of the biggest support for voter i.d. comes from the hispanic community and even omes from democrats. when they do polling, actually the texas tribune did much of the polling i'm talking about. democrats support voter i.d. we live in a democracy where the majority rules. obviously if there are issues hat the minority has and i'm

talking about minority in thought, they'll take it up with the courts. the courts, the supreme court has already ruled that voter i.d. is constitutional. the question presently is whether or not the texas version is constitutional. i believe in the end it'll be upheld. the bottom line is this is supported by the public, african-americans, and the hispanic community. and so that's why the legislature voted for it. >> well, unfortunately, we have to wrap it up there. we are the only thing between you and lunch. we will get you out of here. thank you so much to our panelists for being here today. thank you for joining us. has set up bune along the tower. programming will resume at 1:45. thank you. >> on the next "washington journal" jennifer duffy looks at the 2014 campaigns for u.s. senate seats. u.s. surgeon general

dr. richard carmona discusses the administration response to ebola and whether having a surgeon general in place would make a difference. as always we'll take your calls and you can join the conversation on facebook and twitter. "washington journal" live at 7:00 a.m. eastern on c-span. be part of c-span's campaign 2014 coverage. follow us on twitter and like us on facebook to get debate schedules, video clips of key moments, debate previews from ur politics team, c-span bringing you over 100 senate house and governor debates and you can instantly share your reactions. the battle for control of congress. stay in touch and engaged by following us on twitter at c-span and liking us on facebook at facebook.com/c-span. the supreme court recently heard oral arguments in a case questioning the authority of

prison officials against the religious rights of prison inmates. in particular the court is considering whether an arkansas inmate is entitled to a religious accommodation from state prison officials that would allow him to grow a beard in accordance with his muslim beliefs. this is an hour. >> your argument first in morning in holt vs. hobbs. >> mr. chief justice, may it please the court. 40 other prison systems permit beards without a length limit yet arkansas prohibits even half an inch. in their brief they reject every means the courts have devised to evaluate their testimony. so what they really seek is absolute deference to anything they say just because they say it. and that would be to repeal the statute defacto. there may be deference to prison officials but there must

be concrete limits to that deference. >> if a prisoner wants to have require rd, would it that the prison administration allow him to do that? >> some courts have said yes. there is very little in this cord about full beards and whether they're safe or dangerous but the 40 states that permit them suggest the state would have a difficult burden of proof. that question is not presented here. >> mr. laycock, the problem i have with your client's claim the ligious requirement is religious requirement is that he grow a full beard, isn't it? now let's assume i'm in a religion that requires polygamy. i mean, could i say to the prison, well, you know, okay. i won't have three wives.

just let me have two. you're still viting your religionon it seems to me if he allows his beard to be clipped to one inch, isn't he? >> well, the religious teaching is a full beard. he testified religiously half inch is better than nothing and explained that in terms of his reference. he is in a very difficult situation. i don't think he should be penalized for being reasonable here. he offered an extremely conservative compromise to the prison. >> well, religious beliefs aren't reasonable. religious beliefs are categorical, you know? god tells you. god be reasonable. he's supposed to have a full beard. >> he is suppose today have a full beard but a partial beard is better than none. that's not just in secular terms but also in religious terms which he explained on the record. >> okay. you think on the record that's what his religion would require if he can't have a full beard. >> that's correct, your honor.

>> you're really just making your case too easy. one of the difficult issues in a case like this is where to draw the line. you just say well we want to draw the line at a half inch because that lets us win. the next day someone will be here with one inch and maybe it'll be you and then two inches. it seems you can't avoid the legal difficulty just by saying all we want is half an inch. >> well, most of the cases seek a full beard or full hair and sooner or later you'll have to decide one of those cases. but this case he made a pro se decision to limit his request. the court expressly limited the question presented. so this case is only about -- >> but we have to decide this case pursuant to a general liam basketball legal principle and that is one it seems to me that demands some sort of a limit. you are unable to articulate a principle to the limit itself it becomes a little difficult to say we don't know what the limit is because you are only asking a half inch. we'll apply a theoretical legal

structure and say you fall within it. >> well, the limit has to be determined on the record in a case that is seeking a longer beard. i think, you know, the larger issue than just half an inch at this case presents is legislative history suggests deference to officials in the context of a compelling interest standard. >> i don't want to do these cases half inch by half inch. let's take a case that involves full beard. the next case will be one inch, one and a half inch, two inches. >> the next case is most likely going to be a full beard because that is the great bulk of cases. this case has a limited question presented and it is a serious question of statutory interpretation. the courts below essentially applied the constitutional

standard. they gave essentially unlimited deference to the prison officials. >> what has this court said about the standard under lupa with reference to prisons? the prison has to show the least restrictive alternative in order to meet the requirements of strict scrutiny and that's the prison's burden? is that proposition established? >> well, your only case is cutter and that was a constitutional challenge. >> do you think it displaces turner as the right standard? >> it was clearly intended to replace turner. it textually replaces turner. >> what is the test insofar as you're concerned? >> the test is compelling interests and least restrictive means and deference must be administered in the context of that standard not instead of that standard. so if the case -- they get deference. if they give a reasoned and well informed explanation they

deserve more deference. more deference would be due. cutter says they get due deference but cutter had no occasion to decide how much deference is due or how that should be administered. the textual standard is clearly compelling interest and least restrictive means. >> could you put your answer in practical terms? the chief justice asked you what is the legal principle you want us to apply and you announce it as give them the right deference. it is a little bit circular there, sir, in my mind. looking at what the circuits have been doing, which one do u think articulates the best approach and what the court should be doing? >> maybe the opinion in the tenth circuit. but i'm not sure any circuit has given a fully elaborated account of deference in the context of a compelling interest test. we think the more reasoned and

informed their explanation the more deference is due. do they give concrete examples of specific harms? do they treat similar risks the same way? do they take account of solutions that have been found to work in other jurisdictions? do they take account of religious needs of prisoners at any point or just reflexively say no? >> the standard of similar risk the same way, then what about a quarter inch? because that's what they allow problems. who have >> they allow quarter inch for medical beards. they don't allow even a quarter inch for religious beards. but the quarter inch i think for medical beards fatally undermines your claim they can't administer it and it somewhat undermines all their other claims about a half inch beard. this is in some ways like the case written at newark in the third circuit that the medical

exception undermines all the alleged reasons for not allowing a religious exception. >> there are some religious actices and i think the sikh actice of not cutting hair ranks as a religious practice. so not cutting hair and wearing a turban, consistent with what you say -- could the prison say we won't allow that because it is too easy to hide contraband. >> yeah. that may be. i don't know what the evidence would show about sikh hair wrapped in a turban. but that's clearly a much more serious issue than what's presented in this case. you know, sikh hair wrapped in a turban may well be different but we don't have any evidence about it in this case. we don't really have a way to know on the record in this

case. >> you're relying on this case really on felt intuitions that this couldn't possibly advance the state's interest, but for the most part in these cases, there will be some incremental -- with respect to the interest that the state has. whether it is a full beard or whether it's long hair or whether it's a turban, there will be some ability to say even though it's just teenie iny, there is some increase in prison security that results from disallowing this practice. i guess i want to know in this -- and this really fits in with several other questions that have been asked, how do we think about that question in the context of this statute? >> i think they have to show material effect on their security situation. any teenie, tiny risk however small is another way of defacto

repealing the statute because you can always imagine some teenie tiny risk. even in turner under the rational basis the court said the test isn't zero risk. even in turner. >> teenie tiny isn't enough but how about measurable though small? at what point does it become something that we say, yes. we have to take that into account? >> well, i think material or significant may be the best we can do. they say, for example, in 2011 they confiscated a thousand cell phones. i don't think a half inch beard would change that number but if we went to a thousand one or a thousand ten i don't think it's material. if it goes to 1100 that is a significant increment. they have to show some material effect on their security situation. here where they allowed beards for many years where 43 states allowed beards there should be lenty of examples if it were a

problem. this is not something that is so dangerous no one has tried it. there should be plenty of examples. in fact they have no examples hidden in beards and certainly not a very short beard such as half an inch. this idea of deference comes from legislative history and the very same legislative history said exaggerated fears, exaggerations, mere speculation are not enough. it is for judiciary to distinguish the two. what we have in this case is exaggerated fears and rationalization. >> the problem with deference i think is if you accept the fact that there is a point at which the es become a problem, full beard with the turban, then there is a question of how you draw the line and drawing the line strikes me as maybe the point at which you consider

deference to the prison administrators. you take deference entirely out equation by saying look. we're only asking for half an inch. >> i haven't taken deference out of the equation but when we only ask for half an inch and they offer so little evidence and no examples and no consideration of solutions elsewhere, they haven't done anything to deserve deference. hey haven't shown expertise. even with some degree of deference it doesn't make out a compelling interest on these facts. hat is the question presented. >> we seem to be arguing rules. they say no beards you say half inch is okay. the question begs itself how about 3/4 of an inch, how about n inch, or a full beard?

what are we measuring this against? are you seeking to establish a rule that every prisoner has to be permitted to grow a half inch beard and no more or are you asking for a rule that and es just to your client then articulate why for your client. >> we think reversal here would establish a right to a half-inch beard for all prisoners on this record and unless some other state made a very different showing all prisoners generally. >> what happens -- i know the magistrate judge or the judge it was re said that preposterous to think this prisoner could hide anything in his half-inch beard assuming it was not thickly grown, but some are. and some you can't see the kin. should that half-inch issue be applied to that prisoner? wouldn't it be a different set

of facts in that case to consider? >> the state might be able to show that is a different set of facts. you know, but the question is not just is it conceiveable somewhere some prisoner somewhere could hide something in a half-inch beard but could he hide something there that he couldn't much more easily or securely hide in the hair on top of his head, in his shoe, the lining of his clothes? you know, >> for all half inch beards, right? we got to assume all half inch beards are okay if god tells you to grow them. right? >> well, you know, i think that's right. again, subject to somebody producing evidence that we're wrong about some half inch beards. but i think, yes. >> really subject -- i mean, whose burden is that? >> it is the state's burden that is explicit in the statute. this is an affirmative defense we're talking about of compelling interest in least restrictive means.

the only limit to the hair on top of your head is it can't extend below your neck. you can have afros, long hair, curly hair, the difference isn't even rational. they could hide more, and the prison wouldn't testify to this. yeah you can hide things in the hair on top of your head but it isn't against the rules. they have singled out the beard preserved, more for religious reasons and not treated other things that are really indistinguishable. if there are no further questions i'll reserve the remaining time. >> thank you, professor. >> mr. chief justice, may it please the court, this case involves the religious accommodation of a half-inch

beard that in over 40 states a prisoner would be allowed to wear. the state failed its burden of proving the half-inch religious beard would be the least restrictive means to further a compelling -- is it your position that, what, if 90% of other -- of other institutions similar to the one at issue in the case practice that is challenged it cannot be a compelling interest? is that your position? >> no. in fact, i think our position is that security interests in prisons are compelling but the burden that is imposed upon the state is a burden to show that the means selected, that is the denial of a half-inch beard, is the least restrictive means to further that interest. in this case that is a showing that has to be made in court. it is something congress specifically recognized would be -- frpblts i understand that

but i'm asking what is the relevance of the fact that other -- >> well, the relevance -- >> are we going to say whenever an institution comes up here that has a restriction which other institutions of the same type do not have or at least a large majority of them, it's ipso facto bad? >> no. i don't think it is a dispositive factor. however, it specifically undermines the state showing that a similar restriction could not be had in this context. the state in the face of that example has raised in litigation would have to provide a reasonable basis for explaining why there might be a distinction between what is going on in other states and what is going on in this state. the showing in this case is essentially -- >> why show a distinction? it can just say the other states are wrong. we think this is dangerous. i don't care what other states think. i think a little more will be required under the compelling interest test. now, this court in -- >> suppose the state simply

says this. actually, there is nothing special about our prison. we can't show you some special circumstance. but what we can show you is that prisons are in the business of making trade-offs between security and other values. they do that every single day. our state just thinks the trade-off should be more security oriented so we insist on a greater level of security than our peer institutions do. are you saying the statute prevents a state from doing that? >> no i don't think the statute promotes a least common denominator among state prison systems. however, i think there is some bounds to the state's judgment that needs to be -- there are some limits and the state needs a reasonable explanation in order to get deference to its predictive judgment in this context. >> how do you reconcile deference with the strict scrutiny that the statute requires?

>> this court in cutter for instance explained the strict scrutiny, when deciding what is required by strict scrutiny context -- >> there are two questions. one is a good question. where does this idea of deference come from in this context? the question i was asking was how do you think assuming that there is a role for deference, how does it fit together with what this expressly requires? >> i don't think there is any disdense between the ideas for scrutiny which is not a degree of proof required. it is a question about whether you identify a compelling interest and have shown that, what the burden is the least restrictive means. that can be shown by preponderance of the evidence. when talking about deference in this context you're talking about deference to the predictive judgments of officials based on their experience and expertise based on the fact that they are in fact charged with protecting the public and administering

these prisons. and so when they provide a reasoned explanation based on experience and expertise, they can -- don't have to point to a specific example of a half-inch beard in the past resulting in mething -- >> i share justice alito's confusion because all the things you're talking about are things we would never allow in the strict scrutiny contest. well, as long as they say something they don't really have to prove it and just it has to sound kind of reasonable. that is the very opposite of strict scrutiny generally. >> well, in this context, the statute doesn't say strict scrutiny. it says that the state has to identify a compelling interest and show that the burden that it is imposing is the least restrictive means. is similar but remember this court in cutter has recognized that the application of strict, what you might broadly label strict scrutiny depends on context. congress when they enacted this

understood that these two ncepts could be administered together. >> do you think it is the same standard in both of those statutes? >> for the large part, yes. completely age is the same. >> yes. the standard is the same. but in rulupa, it has the additional provision that requires that the terms of the statute be broadly construed to e maximum extent possible to protect >> i thought we actually used that in the recent case to protect -- that is because the definition of religious exercise incorporates the rulufa definition but beyond that context it is conceivable the court might have a broader interpretation. >> before you sit down, your brief lists a whole series of cases on page 14 that were decided before rulupa.

are all of those practices which we approved up for grabs now? there were restrictions on receipt of publications was one. i think the analysis is different now. it could be litigated. any of these claims could be litigated. the state would then have the burden of coming forward to show that the restriction would in fact be a least restrictive -- >> wem, all of those we approved -- they have to be looked at anew under the lupa standard. >> i think that's right because f you were to go back to prerulupa case law no one could argue the state would in fact

permit a half-inch beard but congress has set a higher bar and imposes upon states the obligation to come forward and explain and justify. >> where are you on the full beard? >> on the full beard i think there won't be a difference but rulupa depends on a showing in litigation by the state that the means selected is the least restrictive means. the state may well be able to full beard would run real risks. >> assuming that is the case and they have some evidence of concealment or whatever in a full beard, do we just litigate a dozen cases until we settle on one and 3/4 inches or what? >> well, i think -- >> the same question i asked for, the legal principle. if there is no direct legal principle then isn't it a situation in which you would employ deference to the administrative judgment? >> i think that is exactly right that there is going to be a bound, a range of

reasonableness that courts will find appropriate to defer to predictive judgments by expert officials in various contexts. >> can i ask a similar question but you know lots of religions including lots of religions have dietary codes of various kinds. suppose a lot of prisoners say here is my dietary code personal to me. and all of that costs money and let's just stipulate as prisoners have to spend money on that they have less money to spend on things relating to internal security. how is somebody supposed to think about those kinds of estions where every time someone makes a religious claim the cost to the institution goes up and the ability to deal with security issues goes down? >> maybe not necessarily always -- certainly you can have costs going up. it may not necessarily affect the -- >> but the costs are going -- they come out of someplace. >> that is true. we all operate under a real

world with limited costs and as the court recognized in cutter -- > how do we do that? >> i think it depends. does the increased cost prejudice other types of interests in operating the prison? that would have to be articulated. >> wait a minute. all you have to do is raise taxes. we're talking here about a compelling state interest. bear in mind i would not have enacted this statute but there it is. it says there has to be a compelling state interest. compelling state interest is not a reasonableness test. at all. >> it is not me. i think it is what the court recognized in cutter. the court in all quotes said it needs to be applied in an appropriately balanced way, particular sensitivity to security concerns and

accommodation must be measured so it does not override other significant interests. >> thank you, counsel. > thank you, your honor. >> mr. chief justice, may it please the court, arkansas's security objectives are undermined by the petitioner's half inch beard because he could use it to alter his appearance for identification and conceal contraband in our maximum security prison's unique environment. >> i thought it was conceded that at intake the prison could shaven. otograph clean >> your honor, that is on the record. i concede that was not sufficiently addressed to with stand the summary judgment posture in this case. the record testimony was, i agree with professor laycock it wasn't satisfactory.

>> there are two issues. one is within the priss oon itself. one is a post escape scenario. >> right >> our testimony on that was not engaging in the record and there is no question regarding that. let me get to -- >> why do you need record testimony on a question such as that? if you're claiming, if he scapes, he can shave off his half inch beard and thereby alter his appearance and the response is, well, just take a photograph of him before he grows his half inch beard. why do you need evidence on that point? it seems to me it's obvious. what prevents you from taking a photograph before he grows the half-inch beard which can then be distributed to police

departments if he escapes? >> i agree, your honor. >> it's not an evidentiary matter at all. >> the point of identification within the prison, though, is an evidentiary matter on this record. it is very important to understand this in the prison's unique environment. it can enable an m.a. to get into an area where he is not supposed to be. and that a beard can enable an inmate to deviate from an inmate's appearance on an i.d. badge. and of course a beard is one of the quickest and easiest ways join -- of course the grooming policy itself speaks in terms of maintaining a standard appearance throughout the period of incarceration minimizing opportunities for disguise. this is a very important point here. the testimony on the record

page 101 of the joint appendix was we have a very different situation with barracks housing and inmates going outside the fence in large groups of 30 to 60 per barracks unit every day. it is a very high traffic, maximum security facility, where they come out of a large barracks holding 60 or 30 inmates, go out, and come back. there is a lot of traffic there. in that environment rapid and accurate identification of the inmate by his face, his i.d. badge and the like, but also general familiarity with the inmate, who the guards are dealing with, is very important in that process. and if a mistake is made an inmate can get into the barracks where he is not supposed to be in and an assault can occur. these are separated by enemies and the like. that is very serious in our environment. it differentiates arkansas from every state mentioned by the petitioner and the united states. >> but you have no example of that ever happening. >> i have no example of a -- well, let me say this -- in our

brief on footnote 13 and page 26 of the 18 states amicus brief there are examples. >> examples of what? >> of interprison identification problems with an escape happening in the prison, a beard being used for identification, and -- >> you have that same concern with the prisoners who have a very short beard for medical reasons? >> no. and let me explain why. there is confusion here as to what this so-called medical beard is. there is no exception in practice of a quantitative matter for medical beards. it is a means of shaving exception. in fact, our policy change to reflect our actual practice about a year ago. what the practice is, is when a doctor's order says the person has a skin condition or some other scarring or condition

that needs to shave they use barber style clippers, electric clippers without a guard and they're used directly on the skin. and the result is a very clean shaven look not quite as close as using a tamper resistant safety razor other inmates use but a very clean shaven face. the clippers are kept in the barber facility and a couple of -- >> how long are the whiskers when that is done? >> so they may take barber call maybe twice a week. they'll have a clean shaven face then go a couple days, three days, and then go back to the bamber. >> you're saying they're completely clean shaven? >> i'm saying they are clean -- i mean, what is clean shaven? someone said a razor shave looks -- clean shaven is somebody like you. >> right. i've got fairly dense hair. that is the appearance. >> and that would satisfy the medical problem? >> that's correct. >> if you shave that closely? >> that's correct. the doctors' prescriptions invariably are get a clipper

shave. that brings a second point up, your honor. the policy's rationale is follow doctor's orders. we think of a fundamentally different nature than a religious reason because the eighth amendment law of deliberate indifference and the like admits no count veiling security interests come into play. our policy is we follow doctor's orders and that is the end of the matter. under the -- >> are you telling us that the -- that porter is wrong? i thought that was in the record as a given that a quarter inch is allowed for medical reasons. >> the policy states that your honor and is confusing and in practice there is no quantitative quarter-inch rule for beards. there is a clean shaven rule that allows some lengths to go to the next barber call. you can still see the skin the entire time in that scenario. if the petitioner wanted to avail himself of that we would let him do that. >> what about the argument that

it's -- never mind the least restrictive means? you have no comparable rule out hair on one's head where it seems more could be hidden than in the beard where if you hide something in a beard it might drop out. >> yes. the material difference there is our professional judgment is the component of a beard and shaving that beard is more profound than one on the head. your point speaks to one of contraband and i agree the matter of common sense and logic there is a length and gravity component to a head that is different than a beard for sure. but the root is still there none the same. there is an interest in regulating the contraband element but the head hair doesn't pro-pose the same disguise related problem as a beard. >> why is that so?

you're something somebody with or without a half-inch beard, that's a bigger difference than somebody who has longish hair versus the same person with a shaved head? >> in our professional judgment, yes, that is correct because you're looking at the essential features of a person's face, jaw line, their chin. that is the means by which we identify each other and so that is a significant difference in our view. really the head hair comp policy complements the facial identification policy because it is not allowed to get to a length that could obscure the hair. that is the rationale for that. >> mr. laycock characterizes your position as being essentially all deference all the time. so could be an opportunity to say when would deference be inappropriate? >> deference would be inappropriate when the explanations offered on the witness stand and the record of compelling interest and least restrictive means is neither

supported with logic or common sense. i think it sounds like we're all in agreement on that. justice sotomayor asked what the lower court decision would maybe lend the most guidance. i think a rather straight forward but apt analysis is in the couch case in the fourth circuit where judge jacksler joined by justice o'connor and judgeshed sort of went through the initial obligation is to explain the reason and common sense why that approach furthers the compelling interest and the least restrictive means. once that happens deference attaches but it doesn't mean either that you win the case. it just means you have substantial weight -- you are sort of a thumb on the scale so to speak and more evidence could come into play and you could still lose. two uld i go back to compelling -- or two compelling interests, one in identification, one in contraband? >> that's right, justice sotomayor. >> are those the only two? >> those are the only two we're talking about. >> in this case the magistrate

judge said it is impossible to think you could hide something. you don't have a security contraband. >> let me take on almost preposterous if i might. if you look at the findings, there is no such finding. in fact the finding was to the contrary. i believe it's on page 167 of the joint appendix the magistrate judge says the testimony about smallness of dangerous contraband is indeed the most compelling in the entire case. if you go back and look at the verbal musings from the bench the judge sort of reflected a layman's view that the idea of contraband in a half-inch beard seems almost preposterous then jumps down to the next immediate paragraph after that and says well then i heard the testimony of experience, highly perienced correction professionals and he used the word impressed. it's 155 of the joint appendix. i think what you see here is the judge doing what judges ought to do which is come to court with their layman's

understanding of how things work and then hearing this testimony. >> it is somewhat hard for me given what you just said to figure this out. because there may be in my mind some situations with some prisoners where a half-inch beard won't hide anything. nd with others that it will. doesn't this law require you to consider the individual before you and to accommodate them in the least restrictive way? let's assume that what the magistrate judge meant, which is what i assumed, you have a different read, that it's preposterous to think this prisoner could hide something in his beard but not preposterous to think that others might not be able to do o. >> the question, your part of the question i think justice

sotomayor is whether the warden i guess needs to do some sort of hair analysis. >> no, no, no. my question is one of whether you are obligated under this statute to look at the request of the individual and assume that the application of whatever rule you create can't have an exception as to that individual. >> on this testimony, your honor, you pointed out that the testimony was a half inch beard. you can't see the skin. i think that is an assumptional difference. you have to think of how to administer a rule where that level is just not functional. >> yes. but i don't know given the deference that was given here, the question is, was it applied too broadly? what i'm getting at is does the court have to look at the individual request and figure out whether it can be accommodated in the least restrictive way?

>> yes. think it is fair to say that defies common sense. >> in this case. >> yeah. i think that's right. i don't think it's an accurate finding of what the magistrate judge says. is a problem that that rule ministerable. if he asked for that kind of accommodation we would grant offered has not that. he offered a half inch and he has a very complex lesser of evils -- >> now on the change of looks, i'm still not sure. you say, could you describe in more detail -- i obviously missed it in the record. what is this barracks situation? where do they go when they leave the compound? >> they are in a barracks situation. they have 30 to 50 or so in a room. there are four barracks on each side of a common roof. they go out and they get in a

line in different shifts and they go out and they will go to chow and then do their business and work outside the prison in fields and come back again. it is a very high traffic environment. >> are these unprotected fields? >> there are guards there watching. you're not just out there working alone. there is no prison -- the guards keep up with them. you have an environment which on this record of page 101 of the joint appendix was we're not like california. we're not like new york. they have cell blocked housing. there is no instance in which the government or the petitioner has said, challenged that as to maximum security facilities. that is a big difference in the nature of how our institution runs. we think if deference means anything it means you don't have to copy the prison policies of other states who don't even have a similar security concern. >> did you establish arkansas as unlike all these other states in the other states

don't have barracks, they don't have people going out to work in the field? -- not t that was not so that there are other prisons that operate similarly with housing and having the prisoners work on a farm? >> two things in response to that, justice ginsburg. first is on this record there was only two states offered and the undisputed testimony on this record at page 101 is they're different and that stands undisputed. our question is what about all -- about what is in all the briefs submitted to this court. if you look behind what was submitted to the internet sites that is what the petitioner uses and the government, internet sites and also case law examples, each one of those is referring to a minimum security institution. they've not offered any institutions like ours. as far as i can tell, the only institutions that have something similar to ours have clean shaven rules. >> what about the federal

prison system? i thought the rule was throughout the prison system. >> both the government and the petitioner cite a link to the minimum security inmates in their briefs. >> when a prisoner goes out in the field and wants to come back to the barracks the prisoner is wearing an i.d., is that correct? >> that is correct. >> does it say which barracks the prisoner is supposed to go to? >> yes. and what happens is they trade i.d.'s. they trade shirts. there's -- that happens even now. >> does the i.d. have a picture on it? >> yes. so the person guarding the barracks, that flow to and from the barracks, relies on the i.d. but also general familiarity with who he is working with. general familiarity -- >> i'm having difficulty envisioning the scenario that you're suggesting, so a prisoner who is supposed to be in barracks a has a half-inch beard, has an i.d. that says barracks a, has that person's

picture on it, goes out in the field, brings a razor with him while he is out there, he shaves, then he wants to come back and go into barracks b, how is he going to get into barracks b if he has an i.d. that says barracks a? you say he is going to trade with another prisoner? then he'll have a different picture on the i.d.? he is going to alter the i.d.'s also while they're out there in the fields? >> they alter the, they would alter the i.d. i mean, they -- what happens is you have very fast recognition. if they favor at all, this happens now, your honor. the shaving was probably in the barracks in the morning but when they come back, the person monitoring the flow of 60 incosmonauts through there gets beaten and that happens. >> he has to find somebody who also looks like him from barracks b. >> i would think that's how the scenario would work. that happens. i mean, prisoners are capable of doing a lot of mischief in prison as you understand i think and that kind of thing happens even now. we have assaults in the wrong

barracks because correctional beat.rs get >> you just said that they take, can shave themselves in the barracks. where do they get those razors? what happens to them? >> we have tamper resistant safety razors issued and they keep them in their personal possessions and when they are through they can turn them back in on a one-to- one basis and get a new one if they exchange n old one. >> how if at all does your standard differ from what it ould be if we had no -- is there any case, now we have rulupa. is there any case that would come out differently in arkansas under rulupa and under preexisting law? >> well, that is going to get to the different elements. i think -- i'll talk first about maybe compelling

interests. alone credited prison officials' testimony that muslim inmates are sort of getting a good, rehabilitative event by not having to go back into the prison for friday prayer because they might as well get used to an intolerant employer when they're out in the free world. that won't pass muster under compelling interest anymore. that was the old standard and the interest has to be truly compelling. on least restrictive means, we think that interest grounded mostly in cost and hassle would have survived under the old regime which had a lot of dietary cases and the like. those probably will fail a lot more often under rulupa and the previous standard so incremental like the yellow bear case, maybe an incremental increase in more staffing, ever so slight. i'd say okay. that is required to pass least restrictive means but it wasn't under the prior standard. so i think even under a deferential approach to rulupa

grounded in logic and common sense you'll still have more vigor under the rulupa standard and cases will go the other way more often than the prior standard. >> the statute, 2000 cc -- 3 c that says this chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on a religious exercise. it is anticipating there might be expense. >> that is exactly right. even within the analysis there is a particular statutory command. now, i think courts are going to have to manage that with reason. we can't have each inmate with his own facility with ten guards around it. there's going to have to be some limit on cost. i don't know this case really impolly case costs, much of a cost issue.

>> it doesn't implicate the costs. >> mr. curran, i'm not sure what your position is -- i thought earlier that you had pretty much abandoned the concealment justification for the policy. and that you were relying on the identification justification. >> no. where we think each justification stands on its own weight -- >> you think something can be concealed within a half inch beard? >> i think on this record something as small as a sim card which the court found compelling could. i do think the identification within the prison is more weighty here. >> okay. >> as far as concealment is concerned, what is the difference between half inch beard and hair on the head that's much longer? >> well, the testimony on the record was that common sense views that longer hair is a better way to conceal contraband i think is the right one. the question really is, is a

beard an unlikely play? the testimony here is not only can something fit in a beard but correctional officers very likely will be somewhat reluctant to do a full search of the beard like they would with, say, head hair. >> if there is no example, not a single example in any state that allows beard policies where somebody did hide something in his beard -- >> i think that's mostly right, your honor. i think there is an affidavit. >> we have no examples. there is no such example then do you think it might fit within the language of that report which says that the fear of people hiding things in their beards is, to use their language, was it grossly exaggerated? i mean, 42 states -- you know what i'm quoting from -- i'm quoting from the report -- the exact words are what they're trying to get at is exaggerated fears. it doesn't even say gross. would you say that it's an

exaggerated fear that people would hide something in their beards when in a country of a very high prison population? not one example has ever been found of anybody hiding anything in his beard as far as you can tell and as far as i can tell. do i have that right? >> as far as i can tell but let me make a caveat that i think is important, which is that just because we haven't found the example doesn't mean they aren't there. the courts -- >> no. there are a lot of things we've never found that might be there and i'll refrain from mentioning them. we're we see them on television on weird programs from time to time. frpblts the problem, justice breyer is these things are buried in incident reports among thousands of other things and this court, justice kennedy asked the assistant to the inspector generally thought the evidence here of contraband was rather scanty. i was surprised to see there weren't more of this. and the attorney's response was these things are buried in

incident reports. we can't find all of these examples. it is the nature of prisons. take my newspaper articles. and the court actually, you know, took note of that as confirming its common sense intuition there in part three of its opinion. i think that is a problem of empiricism in the prison environment. >> as far as searching the beard is concerned why can't the prison just give the inmate a comb? you could develop whatever kind of comb you want and say, comb your beard. and if there is anything in there, a sim card or anything else you think can be hidden in a half inch beard, tiny revolver, it'll fall out. >> you know, i suppose that is a possible alternative. i think the concern there is there is no perfect way of searching and there is a lot of area there. you're going to have to really monitor to make sure you get all the spots. >> do you really think that would be difficult? say here's a comb. comb your beard. >> i don't think it would be that difficult. i mean, i'm not in the prison

environment. i wasn't raised on this record. my clients might think it is. but based on the information i have i would agree that sounds like that would be something done. uld be and i do think it's important to distinguish sort of the rule that i would propose and that is from the couch case and that is what i think is very similar to what the government is offering here is really an effort to marry strict scrutiny with deference in a way that doesn't invite empiricism. this court's strict scrutiny jurisprudence hasn't always demanded examples especially in the prison context and i think that's important that we do be allowed to have preventative rules in some settings. justice ginsburg asked well what about literature? we have a rule that says racially inflammatory literature of a religious nature that incites violence isn't allowed in the prison and justice ginsburg in the footnote in the cutter opinion, you know, seemed to think that

of course that is a concern that prisons ought to be worried about. it is not susceptible to any kind of empirical proof i don't think. as i understand my friend's understanding of the rule we're in a land, really a content ased speech analysis where prophylactics is to be condemned, we ought to be using after-the-fact deterrent measures against maximum security inmates. they've already shown themselves not to comport with that view of how to behave and i think that is particularly dangerous in the prison setting particularly in our prisons' environment. thank you, your honor. >> thank you, counsel. professor laycock, you have five minutes left. >> on the issue of the written findings, the magistrate says it is almost preposterous to

believe you can hide anything in this beard but then he immediately said but there is a larger principle here which is i have to defer to these people. the subsequent written findings are based on that mistaken level of deference. he said three times i am constrained by the feegi flfment s case. the 8th circuit basically applied. on the issue identification on the inside of prison, prisoners can shave their heads, shave their mustache, shave their medical beards, they don't claim that that is aignificant states, and the other 43 that do not find this to be a problem is a small and manageable problem. -- on the question of the quarter inch medical beard, a policy is in the appendix, and heard it is not

a quarter inch rule, it is really some kind of other rule. this is the first time that we have let a religious claim on a beard and it has never set any kind of precedent before. they have not been able to justify their policy, and they do have to prove it, justice seriousnd if they offer evidence, they get deference, very shakyve testimony and no examples in a situation where there can be plenty of examples. you can't maintain a prison if you do not have some substance or's hide things. you do not have to dig out the data on the file, these two witnesses would have known that i would have remembered that rum earlier in arkansas, and it would have been easy to get examples rum that from other states, so there is simply no

examples of the on the record that this is a problem. you said that there was no comparison and that arkansas was unique, and that the rules were cited elsewhere have to do with minimum-security facilities. arkansas may be somewhat difference in the number of maximum-security prisoners who are working outside in the field, but that does not make a half inch beard anymore attractive. better places to smuggle, including my shoes and my pockets and other places in my clothes, and as mr. curran agrees, the hair on my own head. about laycock, you talk deference in the statue, and it is something that is still going to trouble me, so i'm going to ask you to expand on that. >> well --

>> it just seems like a contradiction in terms, so i want you to how it is not a contradiction in terms. >> there is obviously some contention here. deference -- due deference and expertise, that is the question that is to be decided here. we think the more informed and considered and well explained ir decision, the more deference is due. they have to take account of prisoner's religious needs, they have to take account of their stay, if it were something that was so dangerous that nobody would ever try, then you would see that there are going to mean a examples, but 43 states have tried it, arkansas has try to, there is no example of any problem, so they have to produce

the proof. . so the degree of deference is the quality of the consideration of the issue, and here there is no consideration that they have ever considered the idea of the prisoners when they adopted this rule, and they never took a second look at it after they adopted it. are void ofimonies examples, devoid of examples from other jurisdictions. the level of deference cannot be so great to negate the standard. the statutory standard is still compelling and the situation. thank you. >> thank you counsel, case is submitted. c-span's 2015 a student competition is underway. this nationwide competition will rewards of different

amounts, make a three minute video about the three branches and in you. submit by january 20, 2015. cam.org to submit, grab a camera, and submit today. [captioning performed by national captioning institute] 2.5 million people are in prison, today, they are going to discuss prison and prison reform. ♪ good evening, good evening, good evening, and welcome. welcome everyone. yourrticular if this is

first visit to the california endowment for healthy communities, we welcome you if this is your first time. for those who are return visitors, we welcome you back and we are glad to have you. my name is dr. bob ross and i am the president of the head -- and head of the california endowment. this particular conversation tonight is timely and compelling and powerful. topic of thisthe issue and the timing of it is --eresting for me personally it goes back 30 years for me when i was a practicing priti attrition in a clinic -- iniatrician and a clinic camden, new jersey, in 1984. it is when cracked-cocaine hit the streets of urban america. genius invented

cracked-cocaine, it made cocaine, which is an intensely addictive and intensely euphoric, short-acting drug, which was previously not available to low income people and families because it was too expensive, when cracked was invented, the affordability of wented, of cocaine, it down from hundreds of dollars, to five bucks. it went to the neighborhoods that i practiced in, and i was seeing a more premature bail -- babies and more violence and more sexually transmitted diseases, and all kinds of things exploded and went through the roof. not just in camden, new jersey, but in major urban centers

across america. the reason i share this with you was because this is the very same time and that gave us the as threeugs, as well strikes and you are out. as the zero tolerance culture that has permeated our criminal justice system and our schools and law enforcement. and so here we are, 30 years later, and we still have this problem. tonighthe conversation is with some extraordinary experts, and i want to introduce the person who is going to bring up the moderator and the panel, and that is the great visionary, the extraordinary founder, and the director and publisher of zocalo public square, a round of applause for this great civic leader, gregory rodriguez's. rodriguez. gregory? >> i appreciate that.

thank you dr. ross. thank you for the california endowment for cooperating. is to public square connect people to ideas and to each other. we partner with educational, cultural, and philanthropic is a tuitions, and journalism. we published journalism, daily public journalism that we syndicate throughout 150 media outlets address the world. we include time.com, the washington post, smithsonian.com and usa today. all of the publications are free and all of our friends -- all of our even as our freeze\. we invite you to join us at zoc alopublicsquare.com, and you

may know as as the guys who put on offense and who serve you wine afterwards. we want you not only to listen, but we want you to engage with the speakers and we want you to form a community that you may have not formed afterwards right behind us in the courtyard. you can fan us on facebook and follow us on twitter, @publicsquare, and we're using #whyprison. could speed up traffic in l.a.? will downtown l.a. rival the west side? the big question of our time. after this program is finished, we hope you will join us to meet with each other in the courtyard. the four i and, we are very

happy that c-span here recording 10 i's event, -- recording tonight's event, and broadcasting this nationally. i very happy to introduce tim golden. applause. [applause] as anlden has worked investigative journalist for nearly 30 years. his upcoming book is about the detention of terrorist suspects at one time obey, and he is currently the managing editor at the marshall project, a not-for-profit, non-artisan news organization dedicated to covering america's criminal justice system. please give a warm welcome to mr. tim golden. [applause] >> thank you very much. i am a native californian, so i know that this is a place that prides itself on tolerance,

including a high tolerance for self promotion, so i would like first to lean on the virtue and say if you have an interest in her subject and i, make your way here through rush-hour traffic, i hope you all become readers of the marshall project, which we fall, and wen the will have both daily coverage and ambitious investigative reporting that will hopefully cast some light on the criminal justice system and hopefully give some solutions. after many years of relative paralysis, this is a time of a policy education, so much that it is hard to not be hopeful on some days that this system is starting to change in some pretty fundamental ways, but today is not that day, or one of those days. this morning the big striking news in criminal justice was that the number of people incarcerated around the country is actually going up rather than theg down, which had been

trend line in american prisons over the previous four years. idea that we had really corner after three decades of a steady rise in the incarceration rate was maybe overly optimistic. california was right in the center of this, of course, for the last few years. it has been helping pull the national incarceration rate down, but this year, as people have already noted, california's numbers were up, and once again, so goes the country. the number of people in federal prison did the client for the first time in memory, and that is perhaps the best news given that the bureau of prison prop beenison population had rising over much of the last decade. some states, like new york, new jersey, hawaii, they were all down and have been steadily down for a decade to the point that they can claim the distinction of having an incarceration rate lower than cuba's, which is

better than most of the country or many of the big states. but overall, things were bad on both ends. or people were coming into the system that in the previous year, and fewer are getting out. great ande have a rich panel to help us try to unpack that. we're going to try to make some sense of it. in anburton lost her son accident when he was five, and then spent the better part of thedecades stuck in criminal justice system before she made her way out in 1897. she has been focused on reentry efforts ever since, founding a new way of life, re-entry project, which provides resources like housing and case management and a legal services to people who are trying to rebuild their lives after being incarcerated. witt furred had a long career in criminal justice, starting as a correction

officer at san quentin in 1978, later she became warden in 1999, and five your she was brought into the direct the to california department of corrections and rehabilitation, and became the department's undersecretary the next year. she worked as an advocate in opposition to the death penalty and is now a senior fellow at the berkeley center for criminal justice. mr. walker was kind of an insider in the system, having been sent as to six years in prison for assault when he was 16 years old. he helped start a two you're probably -- two year college and gave into opportunities to young inmates and a founding member of an anti-recidivism coalition, which help young people get a fresh start after incarceration.

he is currently running for the status ugly in the 64th district, which runs from come den and wants to a north long and kermit reader is an assist of professor of department of criminology and law and society at the law university -- law school at the university of california, irvine. her research focuses on prison, prisoner rights, and impact of policies onunitive individuals, communities, and legal systems. she is also going to be the author of a book about pelican bay. so welcome to all of you. [applause] just a start, i would love it if you could give me a sense of what you made of the news today. misplaced thatm things were starting to change in a fundamental way? , for me, what i began optimism thate

wendell just because we want to see constant declining numbers, but i think there was a new optimism that arose in me, which was the targeting of the second strike within our two strikes law. theuilt a huge campaign for third strike within our three strikes law, but the second amount ofbles the time that people actually get once they commit a second strike has --offense, which what happened in california, is that it now increases at the length of time that each inmate is actually spending in our prison system. so i think that because of these numbers, we will be able to open a dialogue on how to we now reform the second strike as well, and continue to take these incremental steps to see real reform, because one of the things that the numbers pointed

out is that california and texas, they largely impacted the overall percentage, right? so if we can make real change within our policies and our laws, i think we will see those numbers decline, yeah. we see good news in mention,ers, as you new york continues to see their incarceration rates go down, and there were sentencing reform, which california is slowly doing, and we certainly need to do more, as you mentioned, the second strike law, that there is an initiative on the ballot which is looking at sentencing, which is prop -- >> 47. yes california slowly do what we need to do, and i think we are still headed in the right direction, and we realize

we are taking the steps in the right direction, that many counties have not embraced the utilize the, to money that the state has given to them to address incarceration, so we need to look at those counties in california that are doing that well, like san francisco and some others, and really try to implement policies that hold the other counties accountable for using that funding in the way that it was intended. that polls, i think have shown that americans -- the longer want to see these numbers and these is a two shins built. they are looking at other ways to handle people with mental health issues and drug addictions, which really drive the numbers in our prisons and in our jails, but i think that over the lastone

few decades is really build this mass incarceration via call -- vehicle that has driven and driven and driven the numbers of men and women and children sucked into the systems, and is, we are realizing that it no longer working, it is broken, it is too costly, it has taken lives, and if we handled it differently, that is where we have landed. but the system keeps churning away. and i am very happy to see a proposition in california like proposition 47 that the people can go and cast their vote, and this machine will have to downsize. so i think that it is out of

control regardless of what we, the people, are looking at and wanted for our communities. i wanted to point out another new wines with these numbers, and that is within the juvenile population. another nuance with these numbers, and that is within the juvenile population. so while here in california we look at our juvenile facilities and we say, overall, juvenile incarceration has gone down, i think that is somewhat of a this gnome or, because we are actually increasing the amount of direct files from juveniles into our state prisons, which puts us act at the place of reforming policy and go back to a more rehabilitative model for juveniles. >> please explain what direct files are. direct file is where is

that of going to the juvenile process, they are directly filed into the adult court system, and then they are likely convicted and sentenced to prison. so that increases our prison population as well, and i think we need to go back to what the premise of the juvenile justice system was met, which is rehabilitation and focusing on the mental health and the trauma that children face as opposed to mass a car's rating. -- mass incarceration. >> i think when i look at the numbers here, i like to look at the long view and think about in 1980, we had a few hundred thousand people in prison and today we have 1.5 million, and we won't see that decrease overnight. there have been incredible increases and what we saw today was a couple thousand numbers, a is 4000,ink it

roughly, less than more people in prison this year than last year and that does not compare to the 80's. we are not seeing the kind of dramatic increases that got us here, the we are not seeing it the kind of dramatic changes that will get us out of here. it is nice as your people starting to brainstorm how to get there. california hask done at harvesting the lessons of other states and the programs that have worked in other places? in other words, how has california done in planting the seeds in other states than the three strikes, juvenile without parole, solitary confinement, but there is a better dialogue, pointed to new york and the progress that they are making on issues, and california, there are thousands of people in long-term solitary confinement, tough drug laws,

and new york made progress reforming those and we are starting to see these conversations in california also. it would be nice to see california be the trend setter as it was in the 1960's and the 1970's. especially in terms of progressive policies, i don't think we are there yet, but the initiatives are putting us in the right direction. >> proposition 47 will be on the , andornia voter initiative it reduces six low-level felonies to misdemeanors. it will transfer to hundred $50 $250 million a year out of the adult prison system into schools and into rehabilitation services, and into a victim services, and if this proposition passes, the people, the voters, will ship many resources, and they will

lower the amount of time that people can spend in prison for substance abuse, for petty theft, or receiving stolen property, there is six low level offenses that will change and who went toople prison for those crimes eligible for an expungement, and i am really excited about it. releasedfter being from prison 20 years, after rehabilitating myself and hundreds and hundreds of others, i will be eligible to get an expungement. i will be eligible to clean up my record. i will be eligible not to be punished anymore and for medicating a my grief with an illegal substance and being a carpet -- and being incarcerated when i lost my son. and that is not just me. those are hundreds of thousands of more californians, so, i am

for propertyo seven. -- drop 47. -- prop 47. [laughter] bitou mentioned a little the political shift going on. and you saw that when it was a very close up way when you were lobbying on the two juvenile justice reforms the past. what is your reading of how much that has begun to change just in california? the confluence of compassionate conservatives, christian conservatives, who have been interested in prison reform for a long time, with tea oftiers who are suspicious the government's involvement in these big giant programs, and always the, these libertarians, is starting to make a difference here? i, first of all, was not

lobbying, i would get in trouble for that. i was advocating. [laughter] to be clear. that we areills speaking specifically about ouae sb9, which would disallow california to sentence juveniles with life without the 260,ibility of parole and sb which says if a juvenile is convicted to, i think, 20 years or more after 15 years or so, the board of parole can revisit to their case and determine whether or not they have successfully rehabilitated themselves. and what we saw was, first of all, the power of story is exley being utilized a lot more effectively these days, and so myself, and a few other individuals, who have had successful transitions from

prison went to sacramento to advocate for these bills. what we found was it is not as adversarial as many would think. it is slowly coming together. so we have support from different law enforcement groups, different victim rights groups, we had support from -- we got a letter from grover norquist and newt gingrich, and just different conservatives and others that you would otherwise think they were just completely against this, but i think that people are seen not only has our prison system been socially irresponsible, it has been fiscally irresponsible dwell. i was telling the group in the just this year alone, our legislature passed a budget of $9.8 billion for our 130on system, which serves plus thousand people. we only plat -- past $9.6 billion for the cal state

system, which serves 500,000 two 600,000 students, and we are clearly on a path or have been on a path that we scare ourselves. in the 80's and the 90's, it was tough on crime. if you were elected if you said you were to -- you were elected if you said you were tough on crime. intoared the public believing all of these myths about super criminals and the whole deal, but i think now conservatives and democrats and everyone are saying, it you know what, it is no longer the idea of tough on crime. we actually need to be smart on crime, and if you are conservative, right on crime, and we are seeing a transition here. >> to use shared a sense of fun little change going on, jeanne and everybody? do. even researchers who predicted the super predator kids really areto these long sentences

saying, we were wrong, and assigns that is coming out about the maturity of the brain and all of those things and how much it costs, they realize that we were headed in the wrong direction, we are spending too much money on in incarceration, we are not getting anything for our money, really, and our money could be better spent helping people return back to society, keeping them from going to prison and the first place, and that is really what public safety is about, right? not understand the collateral consequences of putting people in prison. we took mother's away from their children. their children ended up in foster care. the whole idea that we were sending people to prison for really, what were minor crimes, led to the growth of gangs in our communities. and so as people were beginning to understand the colorado -- the collateral consequences of locking people up, i think that they are on board of trying to

figure out what we need to do to stop incarcerating so many people. news.s the good now, the devil is in the details, and that is what we get into all that the eight about what should be the length of prison sentences for different crimes. and it is going to take time to unravel that. to meis a big seachange from a five or 10 years ago when people were not talking about the details, right? i open up the paper almost every day and see some thing about solitary confinement, and people from an entire political's drum and religious perspective are talking about those things and that gives me hope, and whether we are going to get to the right answer, i don't know. we were talking about those things the 1970's, and we did a lot of bad policies. maybe the wisdom of hindsight and the sense of what has been happening has gone wrong. preservation -- conversation is better than none. story.ll people the

i was in richmond, california, and i saw a guy standing on the street corner, and i recognized his clothing. clothing fromased san quentin, and i saw the bag in his arm, and he is looking left and then light as if he was trying to decide which way to go, and the truth was, no matter which way he went, there was nothing there for him. and to me that really describes how we release people from our prisons without a plan, and it is what we do with our country every day. we release people into the middle of the night with no services -- when no services are open. so the dimple is in the -- the devil is in the detail. policiest the local and the things of that we do and we need to change so that people can be more successful when they leave our jails in prison. people leaving prison and understanding honest record in

the middle the night, we cannot keep them there forever, and we cannot afford them, it does not work, it is not necessary, and we have to think of prisons, not just solutions, and also the community. you talk about your experience and what his taught you about what people -- what it has taught you about what people need to is missing now from the system? wei just want to say yes, are talking about it, and i remember when no one was saying anything about it and there were very few people who knew very little about it. so when people come home, they need to have an actual exit plan, a place where they can go to just detox the whole prison experience. where they can be stable and get their id, together social security card, where they

can begin to feel welcome, and they can begin to get back in touch and say why am i here? what is my purpose? even know i have been through all of these things, what do i do with my life tomorrow? next year? next decade? how do i connect with my children? things we think about for our own lives, as far as development, what will i be doing in 10 years, where do i want to work, where do i want to rebuild myow do i life, how do i become a part of do iicy system, how t become a voter? how do i get my dream back? my goal back? some of the things we need to be

thinking about is it what do we coming backt those home to become constructive members of our community. to be useful and productive in our world. we we a new way of life, have a new purpose -- we have a new per biz, that's what we do with the women there. we do what we do, and i think we do it really, really well. ther organizations across , across the state, across the nation, that are bringing people back again, and supporting them to become engaged in their communities. jeanne, why is that so hard to get money for that? i had a conversation with a prison warden who said that ameone would give them

hundred thousand dollars, or a million dollars, and it was discretionary money that he could spend anywhere in his prison that he could become a would spend outside the prison. -- why is it so hard? realignment, counties could push their problems to the state, and now it is kept locally, and is hopeful that these moneys will be utilized to -- with more of an emphasis on reentry, and it is just so critical. there have been studies that show that when people leave a jail or a prison, they do not know whether are going to spend their first night out, and if they do know, they can be more successful and if they have a place to stay for 30 days, the success rate continues to go up. so we know what works. it is just really getting people committed and those resources

behind those things. again, i live in san francisco, and i know what they are doing there, and they have spent a lot of the resources and making sure the people have the services they need to be successful. and so other counties need to departmentsrobation and their local communities responsible. i think there is a real, visceral, social sense that is people in jobt training resources when they have broken the law, and that is something we really have to confront and get over and realized if we don't try to lift everyone up, society will help. i taught education programs for years. i taught a college program at san quentin for several years, and i can tell you how many times i have answered the question how and why should you provide higher it occasions or verses for people that broke the law, when you have college students in your classroom and

you are taking time away from them? my tuition as a graduate student in california went up because we are spending so much money on incarcerating people in california. i think it is both making the investment and committing to it, but also really stepping back to have the acre view and the eager perspective to understand that ifare not educating -- that we are not educating people in prison because they are less deserving, in the long-term, we are really hurting the person in the classroom because we are taking resources away from them in the long-term. i heard a commercial a few days ago, and the commercial just made really, really good sense. i think the buttons out there, and the stickers out there, they do the math. dimeys you can spend a

now, or a dollar later, and it was just really simple. do the math. are we going to spend more and more and more over $60,000 on a person in prison and jail and no services and no education, or $9,000 on a person's education, a kid's education? so, it is like a dime now or a dollar later? >> i think that is a very difficult conversation that we also have to address, which is when we are talking about reforming our prison system, what we are also talking about is the inevitable loss of jobs. and i think that no one is actually facing a conversation as well, so when we continue to decrease our prison population, that means we are going to need prisoner guards, or administrative staff, or what have you, and we also need to

figure out a way to utilize that population as well, and get them educators to become and social workers that can actually wean us off the prison system and put us back into more education-conducive systems. and the warden, when you said if he could have a million dollars, would he do reentry, one of my personal views i heard, i heard a gentle and say this before, , he said that we need to incentivize wardens to reduce their prison populations. jeanne,y, we have like who are incredible, and they have absolutely no incentive to be incredible, but our prison system, as it stands right now, actually encourages more people to be locked up. we need to switch that system to

where we are actually being aging people locked up and encouraging wardens and others to reduce the prison population. and i think then we strike some sort of a balance, because, yes the numbers on their surface show, yes, it is easier and less to educate folks than it is to incarcerate, but we are also talking about losing a substantial amount of jobs that the system has unfortunately created. is,so part of this dialogue how do we replace those jobs as well? think that having performance-based funding is really a way to get to that. i need to spend more time, and i lot to say about money, but when it comes to counties or the prison systems and tying it to performance measures, essentially saying the

more successful you are the more money you're going to get, shows that we have a morbid system. state gavele, the more money to counties who reduce the money they were sending to prisons, so counties really worked hard to reduce the amount of people they were sending to prison, and as a result, they were given, i think san francisco received $1 million after one year. those are the kinds of policies we want to see put into place. the better you do, the more money you get to do to do more good. >> one thing that miss burton had hit on in terms of reentry, it is very small, and i'm not sure people realize how big it but just getting a social security card, a driver license, i personally think that should be done within a few weeks before use that out of the prison system, period. i can tell you when i was released, if i did not have the family and the support around

me, i would not be here today, i guarantee you. because i was released with $200 and was told to forge a new life after being imprisoned from the time i was 16 until i was 22. i had no fundamental training within that time. that is certainly a point of failure where we can clearly 's someand say here tangible things we can do to change it. the legislative side of things come in terms of former inmates getting housing and those things, that is a larger battle, and hopefully in november i will be fighting, but it is certainly something that can be addressed before folks can even be released. kermit, this is all very optimistic, and i want to throw in a little cold water. what do you think the possibility is of a backlash? these counties are also getting dumped with a lot of prisoners who are not their

responsibility, and the recent history of social policy is not necessarily that the best decisions are made as response abilities devolved to the counties and the states from the federal government. a very different view of realignment if you read the orange county papers as compared to the los angeles once. you will see that reporting on crime is up, there are more theres in our community, are more sex offenders in our committee, and there is no evidence of that. bad and are steady what causes crime as sociologists, but there is one person that comes out and commit the crime, there is a real potential for there to be a backlash. one thing that is really important to think about is the thatnal justice reform, is we have an indication to think that we can get it perfect. and that is where reforms have

failed in the past. the riskerstood assessment, if we never let anyone out of prison who did anything bad, it wouldn't work. we need to accept a little bit of error. get it wrong,will and that is ok, and that does not mean the whole policy is wrong, and we think of all the successful stories that do not get told. an attempt tois be more humane and to get people out of prison, there are the stories they get stuck in the news, like during the dukakis campaign, there was someone who committed a crime, and it is hard for us to forget it because it was really horrible, is that of remembering the people who did really well.

we need to focus of the people who are succeeding and get them in the news more. >> we need to create a counterintuitive idea is that of all of the negativity that is causally being pushed. resources ton more different places, but and tell the narrative is change, for what it is for someone to have committed a crime, because i can say through and through, when i crime, butommitted a i was not a criminal. i think that that is the dialogue that we have to begin to have with the public so that when a person commits a crime, they are not forever wearing a scarlet letter in society and they are actually having an opportunity to succeed and an opportunity to go back to their communities and make it more successful. and i think we just have to bite the bullets. isyou say, everything imperfect, and we are going to

have some mistakes and missteps, and some individuals are going to commit crimes and we're not going to be able to catch that, but the clear direction that i think we should be on is how do we treat mental illness, how do we successfully treat drug notctions, because that is a crime. it is a serious illness, and an ailment, and i think those are two things that are huge for this. and mental illness, specifically in our children, who have ridiculous amounts of trauma, who grow up in an thinkable anlent and improv -- impoverished neighborhoods, and that are expected to somehow be the golden child. it is just unrealistic. we need to certainly bite the bullets and focus on that. imperfection for individuals and not is a too shall. >> and for me, knowledge is

power, and i've ever cater for a public report card by county, how many mental health beds to have, how many drug treatment beds and patient's age county, and putting those numbers comparing that with how well are we doing and then we have to not goout what works and back to just locking people up. so i think a public report card is really important is a concept that needs to take hold in the state. we have 50 different -- 58 counties that working 58 different ways. what is working? let's do that. >> you have any thoughts on the prophet, on one of the hard pieces of this, is how you start to build that tolerance for risk which is inevitable. you have to somehow do it, you

have to create some level of strategic patience in a society that doesn't have to look at what hasn't changed in system. there is political pressure on willie report, the system kind of kicks back into its old instinct very quickly. to have some sense of change on that? >> i think the, i think you had part of an answer. changeetty cynical about and backlash, but i think the movement for greater transparency is really huge and you have been doing incredible work on this front, and when we have -- part of the problem, with stories like willie horton or the guy who commits a crime because he was under realignment, or someone who is paroled and committed a murder -- is that we do not have the data to counter that narrative and say we have the numbers to say the 500 people were paroled and look exactly at what they

are doing now and where they are, or look at the numbers and realize what the county did and how they overcame. todon't have the data counter the narrative. so i don't think that works to databases that show us exactly what prison systems are doing, exactly what criminal justice systems are so getting the data is a really important way of countering that narrative. aren the stories, people being told that someone is being captured, and people are and what people directly doing. it is amazing to me some of the work that people are engaging in after spending some time incarcerated. but we never hear about it. we never see it. one of the women came to me last week and told me the child she grabbed out of the street it was about to be hit by a car. this is something that she did, to save a life, which any of us would have done, but that does but she did that

day. there are amazing things people are doing daily by people who have been incarcerated and they want to come back to their community and just be useful and thoughtful and they want to give and make their lives count for something more than the number of the time that they have spent. there is a deep yearning within people to be that person. so i would agree with you that there needs to be more stories out there on what people are doing, not just the willie newsflash ofhe e did.he personal parole one person. >> the articulation of policy at the federal level has change a medically in the last several years and it is almost not been get a deal as they

as it is. but you sort of wonder today, of federalhe impact drug sentencing guidelines that have changed now going back four years on these incarceration rates? there a sort of a less of a role for the federal government? is this one of those places where the power of the presidency is a lot less than people thought? prisonhe national population overall has continued to fall, so there is some impact there. i think people forget when you in 1.5 million people prison, less than 200,000 are in the federal prison system. so any reform that is a limited is not targeting the individual criminal justice system and existing our state. it is a question of whether reforming trickles down it or those times when eric holder

says they're stopping people for cracked-cocaine, does it have an effect? time toit just takes change that legal culture. i think one place we need changes is federal liggett -- federal litigation. it is the federal courts that said the federal prisons are overcrowded, and that is going to trickle down everywhere because that is a national law. i think there is room to trickle down to the state system, but it is a very slow process, and when you look at a lot of the criminal justice policies in the u.s., they are coming from the state level. three straight print -- three federalpreceded the system. it is not an easy answer. we started talking about how california was doing and we are harvesting the lessons of other places.

where are there other solutions out there, other programs, that have jumped out at you as models that it should be looked at, at least? theo i don't want to get state wrong, but i believe it is massachusetts now, that is sending -- that is not sending mentally ill to prisons, but they are sending them to treatment centers, and then showing tremendous success. that just happen recently, and it is being modeled in lots of states and is being looked at. in new york state again, we talked about the prison population that is falling. and in hawaii, they have had success with their hope initiative, and some of the other programs, i think there are bright spots around the country, and people are beginning to look at what his ing and i think this is good news. this is a slow transition. in bostonoing to say

as well, there is a program for every day you keep someone out of prison who would otherwise be prison, there is a certain percentage that the government gives to the employer, and it is like this constant trade-off of jobs versus imprisonment, and is just constantly turning out to be cheaper. so, similar to what you said, i was in new york a couple of weeks ago, and there was a conversation on different organizations of how we affect the justice system. and i think they're all these right spots, and there are a lot of them that are correlating with one another -- these bright spots, and there are a lot of them correlating with one another. there is an argument that the kinds of success that you have had with the juvenile justice lowem is getting at the hanging fruit, and a much harder problem has to do with people

who are in prison and are not sympathetic caregivers in any way. these are people who represent bigger numbers in some ways and harder, more elusive solutions. can you talk a little bit about that, kermit? this is something that i think about a fair amount, in solitary confinement, there have been similar performances for the mentally ill and the mentally ill juveniles and pregnant women and trying to get them out, but this has been a systemic problem. you elect with these core people and it is pretty hard to advocate for them. prison system as a whole will have a hard time advocating for them. on the one hand, i would say that juveniles are a great place to start because they are so young and there is so much hope, right? there are 22 euros facing the

rest of their lives in prison and he did some been a 15 that they did not even understand fully what was wrong. we can get them out of the condemn us rate the people are having successful lives. tothe same time, we have start the much larger conversation about those really tough cases, what to do if we don't believe as a society in solitary confinement, as we say, the national human rights community says that it is torture, so we still have to figure out what to do with a person who murdered a prison guard and is in isolation, we have to figure out whether that person can ever get out, whether that person is mentally ill or need treatment, or whether that person is so rare and recognizes that there may be one person in isolation in california, there is probably 104 that committed violent crimes that need mental health care, or maybe be in less restrictive conditions. i think to raise the whole system to be more he may, we have to talk about those come up

the easy and the tough. prison brings out across the nation and the work and the programs that you did across the with the men who are incarcerated there. about maybe able to talk how you implemented it and talk about these programs that raise the consciousness of everybody. >> well first of all, i need to say that i was just very fortunate to be at that quentin, because it is located in the bay area. ability to bring and volunteers is just a tremendous. my last year there, we had 3000 volunteers coming in every year. we had volunteer professors from berkeley efforts tampered and from out-of-state state universities, how could it be better than that? fortunate to be

there. and you try to duplicate that across california, and it is really difficult, because where we have built our prisons. and it doesn't mean that we should not try. have done a better job of opening up their doors, and there are more programs coming into prisons around the state, but i also want to comment on what you said. i think the point really is that within to look at people the systems as individual. what are there risks? what are their needs? can we meet the needs of many of these people? and the truth is, we can. are there hard-core people that probably should never get out of prison? and we have there, to look at it that way. we have decided to take people and throw them away, and we can't continue to do that. i think the point you make is

about looking at people. where are the issues? there are so many veterans in our prisons systems. it is so sad to see a veteran with our >> i would like to add to the conversation. it is more than just low hanging fruit. 40urally projecting 30, years down the road because the reality is the men and women who are currently in prison who we are unable to look at with the same empathetic eyes started off as a child, right? psychopaths inw the world. that suggest that every child actually had an opportunity to not be a victimizer. most