Pat Nolan Provides Testimony before The House Committee on Oversight and Government Reform

TESTIMONY OF PAT NOLAN

DIRECTOR OF THE AMERICAN CONSERVATIVE UNION FOUNDATION’S

CENTER FOR CRIMINAL JUSTICE REFORM

BEFORE THE HOUSE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HEARING ON CRIMINAL JUSTICE REFORM AND EFFORTS

TO REDUCE RECIDIVISM

JUNE 28, 2017

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Chairman Gowdy, Ranking Member Cummings, Members of the Committee:

My name is Pat Nolan, and I am blessed to work at the American Conservative Union Foundation (“ACUF”), where I am the Director of the Center for Criminal Justice Reform. Thank you for holding this important hearing. Keeping the American people safe in their homes and communities is the primary responsibility of government, and I hope my testimony is helpful to this committee in finding ways to better prepare offenders to be good neighbors, good parents, and contributing members of the community.

The American Conservative Union Foundation has been working to reform the criminal justice system for a number of years at both the state and federal levels. We support reforms based on conservative principles. We keenly value liberty, and so we strive to ensure that there is an appropriate balance of power between prosecutors and the accused. We believe that every human life has value, and thus, work to improve conditions of incarceration. We honor human dignity, and therefore try to identify policies that keep families connected so that crime doesn’t become an intergenerational cycle. And we support programs that reduce crime and recidivism, as well as cut spending to lessen the burdens borne by the American taxpayers.

We hope you will look to the impressive reforms enacted by many states which maintain liberty, advance human dignity, and reduce recidivism and spending while making our neighborhoods and communities safer places to live.

Background

The American criminal justice system is broken. The United States makes up 5% of the world’s population, yet we have 25% of the world’s prisoners.[1] We incarcerate more of our own people than any other industrialized nation on the planet and spend approximately $80 billion each year to do so. In fact, when opportunity costs to offenders, victims, and the government are accounted for, the real cost of the American criminal justice system is closer to $1 trillion.[2] There are two possible explanations for our high rate of incarceration: either Americans are the most evil people in the world (which most of us would agree is not the case), or our justice system is seriously out of balance.

If incarceration and prison spending ‘purchased’ safety, then we should have lower crime rates than the rest of the world. But we do not. We are no safer than the citizens of the Bahamas or Japan[3] – both of which have approximately the same crime rate as the United States, but have substantially lower incarceration rates.[4] The human cost of these policies is huge, and the impact on the state and federal budgets is heavy. As Chuck Colson famously said, “Only a nation that is rich and stupid would pour billions of dollars into a system that leaves offenders behavior unchanged, victims needs unmet, and our communities still living in fear of crime.”

States are our laboratories for criminal justice policy. For the past decade, criminal justice reforms have been sweeping across the country at the state level, and led primarily by Republicans in elective office. They have shown that we can get more public safety at a more modest cost by enacting the reforms I will describe here.

States Leading the Way in Criminal Justice Reforms

In 2007, Texas was one of the first states to address criminal justice reform. With an expected explosion in its prison population, the state was facing having to spend $530 million just to build new prisons to house all of the inmates.[5] When factoring in operational expenses, Texas would have had to spend approximately $2.63 billion over five years.[6]

Instead, Texas went in a different direction. The state enacted 16 criminal justice reform proposals that reduced prison sentences for non-violent offenders, strengthened post-release supervision, provided anti-recidivism education and programming, and emphasized treating addiction and mental health issues. This allowed the state to reduce spending on costly prison beds and use some of those savings to target violent criminals. With ten years of data, the results are unassailable:

• The prison population has been reduced by 17%;
• Juvenile incarceration has been reduced by 75%;
• Recidivism has steadily declined; and
• The crime rate dropped by 25%.[7]

In doing so, Texas saved its taxpayers more than $2 billion in capital and operating expenses. Despite the state having a smaller prison population, Texans are seeing crime rates drop to levels not seen since 1968. Just this year, the Lone Star State announced that it was closing four additional prisons, reflecting the continuing decline in the prison population.[8]

Texas is not unique. Deep “red” states such as Georgia, South Carolina, Utah, Kentucky, and Alaska have moved criminal justice reforms to alleviate overspending and overcrowding. These states demonstrate that they can cut incarceration rates and reduce crime. Just this month, Louisiana – the state with the highest incarceration rate in the country – passed 10 bills to reform their criminal justice system.

The Opioid Epidemic is a Public Health Crisis

The opioid epidemic sweeping across the country has far surpassed crisis levels. In 2015 alone, opioid overdoses claimed the lives of over 33,000 people in the United States.[9] Using incarceration as the primary vessel for reversing this terrible epidemic will not work, and in fact may lead to more opioid-related deaths.

Scientific evidence routinely points to opioid addiction as a chemical brain disease, not a lifestyle decision.[10] Because of this fact, merely incarcerating an individual battling an opioid addiction will not address the root of the issue. An opioid addict’s tolerance for the drug goes down while in jail or prison without rehabilitation, but his/her addiction doesn’t change. This lowered tolerance and persistent addiction is a perfect recipe for overdose and death once offenders leave prison and have access to opioids again.

Increased understanding of opioid addiction is driving many states to implement a different approach. They are implementing programs focused on rehabilitation and breaking the cycle of drug addiction. Last year in Virginia, Chesterfield County Sheriff Karl Leonard developed the Heroin Addiction Recovery Program (“HARP”), which connects addicts to professional counselors, volunteer mentors, and each other to educate inmates on drug addiction and help them identify stressful situations that can trigger their addictive responses.[11] Due to the great success of the program, Virginia’s House Majority Leader Kirk Cox introduced and passed legislation that would expand the HARP program to additional facilities in the Commonwealth.[12]

In order to fight this terrible epidemic, it is imperative that we eliminate the flow of opioids into our communities and provide treatment to help those who are addicted to break their bondage to opioids. Programs like the HARP program in Virginia show that the states remain at the forefront of using innovative ways to treat the opioid epidemic beyond incarceration. It is now time for the federal government to follow suit; it is truly a matter of life and death.

Lessons for the Federal Government

Unfortunately, the federal government continues down the road of imposing long sentences for non-violent offenders. As a result the Bureau of Prisons has become the largest component of the Department of Justice, eating up one-fourth of its budget, and growing. (Recent budget data indicate that the Bureau of Prisons expects a 2% increase in the federal prison population in the coming year.[13]) This allocation of tax dollars for the BOP squeezes out money that is needed by law enforcement to address homeland security, terrorism, and violent crime.

Moreover, studies of the federal system have demonstrated that longer sentences do not reduce recidivism. The Congressionally-chartered CharlesColson Task Force on Federal Corrections[14] noted U.S. Sentencing Commission research on the topic.

In 2007, the U.S. Sentencing Commission reduced the sentencing guidelines for crack cocaine by 20%. However, the mandatory minimum sentencing legislation was still in effect. Thus, for people sentenced under the guidelines for crimes involving crack cocaine, their sentences were reduced; those charged with a mandatory minimum served their full sentences.

A USSC study followed people for five years after these changes were made. Those who opposed the reduction had predicted a “crime wave.” Based on this one would have expected a much higher recidivism rate than those who served a full sentence. Instead the USSC study found that the recidivism ratefor those who received a reduction in sentence of 20% under the retroactive application of the statute was actually lower (43.3%) than that of those who did not (47.8%). “In short, USSC research has demonstrated that reductions to sentence length and time served do not harm public safety.”[15] In fact the extra time served by those whose sentences were not reduced was a waste of the taxpayers’ money: We got no added public safety benefits despite holding the offenders a year and half longer.

It is clear that the old way of ‘locking ‘em up and throwing away the key’ is a failure. The American Conservative Union Foundation continues to work with policy makers in the Executive, Judicial, and Legislative Branches of government in an effort to develop proposals that reflect the state experience in criminal justice reform. By reducing incarceration of non-violent offenders, we can devote more resources to reducing recidivism and targeting truly violent criminals. As a number of states have demonstrated, this is the key to reducing crime and cutting budgets.

Anti-Recidivism Programming

Efforts to reduce recidivism must focus on three core areas: (1) mental health and addiction treatment; (2) education and job training; and (3) anti-recidivism and anger management programming. The caveat to each of these, however, is that the programming must be meaningful and effective.

A recent study by Families Against Mandatory Minimums was an indictment of the current BOP approach to anti-recidivism programming. Specifically, FAMM found:

• Access to quality education is scarce. Most classes lack rigor and substance and are taught by other prisoners. Inmates reported taking classes such as crocheting and one based on the TV show Jeopardy. Attaining a college degree is difficult, if not impossible, for most prisoners.

• Most jobs afforded to inmates are “make work” jobs to service the prisons, such as cleaning bathrooms and living spaces or dining hall services. Vocational training is popular and coveted, but is limited and only offered to prisoners who are close to their release dates.

• Not all inmates who need substance abuse or mental health services are getting help. Two-thirds of respondents said they entered prison with a drug or alcohol addiction. In addition, more than two-thirds said they had not received mental or behavioral health treatment in prison. These types of programs should be expanded to help all prisoners in need of treatment, no matter the length or duration of their sentence.[16]

Even more problematic are the findings of a 2016 Department of Justice Inspector General’s (“OIG”) review of the Bureau of Prisons’ Release Preparation Program (RPP).

[W]e found that the BOP does not ensure that the RPPs across its institutions are meeting inmate needs. Specifically, BOP policy does not provide a nationwide RPP curriculum, or even a centralized framework to guide curriculum development. Rather, it leaves each BOP institution to determine its own RPP curriculum, which has led to widely inconsistent curricula, content, and quality among RPP courses. These variations present significant complications to, and have ultimately precluded the BOP from, identifying and measuring the specific effects of RPP courses.[17]

The old adage “you can’t manage what you can’t measure” also came into play in the OIG review. The OIG Report found that the BOP failed to even attemptto measure the results of its Release Preparation Program:

Finally, we found that the BOP does not currently collect comprehensive re-arrest data on its former inmates, has no performance metrics to gauge the RPP’s impact on recidivism, and does not currently make any attempt to link RPP efforts to recidivism. We also found that the BOP has not yet completed a recidivism analysis required by the Second Chance Act of 2007. Such analyses would help the BOP know whether the RPP is effectively accomplishing its objective of reducing recidivism.[18]

If recidivism is to be reduced, the first step is for the Bureau of Prisons to collect recidivism and programming data on a facility-by-facility basis. This will allow legislators, academics, and indeed, the public, to hold BOP officials accountable for their performance in reducing recidivism.

Of course, whenever policy makers discuss various types of programming to help offenders re-enter society, there are always folks who ask why we are spending money on job training, addiction treatment, or mental health for those incarcerated. The answer is that the cost of helping an ex-offender become a productive member of society again is a lot cheaper than the $32,000 per year on average that it costs to lock that person up again, if/when he recidivates.

Mentoring and Volunteers

Release of offenders who have completed their sentences does not end the need for counseling and mentorship. Indeed, a key performance indicator for success is whether an ex-offender has an active support system for mentoring and guidance. Unfortunately, the BOP lacks any coordinated approach to recruiting volunteers and mentors. The BOP makes volunteering difficult and expensive.

This is a critical hole in BOP’s reentry efforts. I cannot stress enough the importance of a mentor in helping offenders successfully transition from prison to their communities. The moment offenders step off the bus they face several critical decisions: Where will they live, where will they be able to find a meal, where should they look for a job, how will they get from one place to the next, and where can they earn enough money to pay for these necessities? These returning inmates are also confronted with many details of personal business, such as obtaining various identification cards and documents, making medical appointments, and working through the many everyday bureaucratic problems that occur during any transition. These choices prompt feelings of intense stress and worry over the logistics of their return to the outside world.

During their difficult first days on the street, returning prisoners need relationships with loving, moral adults who will help them reenter society successfully. Dr. King said, “To change someone you must first love them, and they must know that you love them.” This love cannot be provided by a program. Programs are helpful, but only people can love a returning offender. It is important that they have a friend they can turn to as they take their difficult first steps in freedom. Being a mentor to a returning inmate is the greatest demonstration of love you can give them. A loving mentor is a key to helping them think through their decisions and holding them accountable for making the right moral choices.

The importance of mentors to returning prisoners was stressed by Dr. Byron Johnson in his study^[19] of the InnerChange Freedom Initiative (IFI), a reentry program operated by Prison Fellowship under contract with the state of Texas. Dr. Johnson’s study found that IFI graduates were two and a half times less likely to be re-incarcerated than inmates in a control group. The two-year post-release re-incarceration rate among IFI graduates in Texas was 8%, compared with 20.3% of the matched comparison group.

Dr. Johnson emphasized that mentors were “absolutely critical” to the impressive results. The support and accountability provided by mentors often make the difference between a successful return to society and re-offending. As these offenders make the difficult transition back into the community, they need relationships with caring, moral adults. The greater the density of good people we pack around them, the greater the chance they will be successfully replanted back into the community.

Once again, this is an area in which states are leading the way. Kansas Governor Sam Brownback (R) is a noteworthy example in creating the Mentorship for Success (MFS) program. MFS pairs volunteers with inmates who need help with reintegration back into society. Started in 2011, the program has matched 6,400 volunteers with inmates, and the results have been nothing short of remarkable. Those who go through the mentorship program have had an 8.7% recidivism rate, compared with 20% for the overall population released from Kansas prisons.[20]

BOP facilities vary significantly in the number of volunteers. At a time when dollars are very short, volunteers that come in to assist the prisoners can expand the number of programs to prepare inmates for their eventual return to their communities. Congress should establish reporting requirements for each institution to report how many volunteers are recruited, trained and paired with offenders. This data would indicate the institutions at which the wardens are encouraging volunteers, and where impediments exist within the federal prison system.

Criminal Justice Reform: Good Policy is Good Politics, Too

We have all heard how criminal justice reform is an issue that cuts across political boundaries. Certainly, there is a wealth of polling data showing support for criminal justice reform among liberals and progressives. But support for reform among right-of-center voters is significant as well.

During the Conservative Political Action Conference (“CPAC”) last February, we took a poll to gauge our attendees’ attitudes towards reforming the justice system. When asked whether the Conservative Movement should be working towards criminal justice reform, 92% either “agreed” (26%) or “strongly agreed” (66%). Only 5% disagreed. Moreover, of those agreeing that reform is important, 46% cited “mental health and drug treatment” as a top priority, reflecting the opioid crisis.

Similar results were found in polling recently conducted by the Charles E. Koch Foundation.[21] When asked whether criminal justice reform is a priority for the country, 81% of Trump voters described the issue as either “very important” (34%) or “somewhat important” (47%). When asked if judges should have more freedom to assign forms of punishments other than prison, 63% of Trump voters “strongly agreed” (26%) or “agreed” (37%).

About the American Conservative Union Foundation

I’d like to take a brief moment to touch on the American Conservative Union Foundation and our efforts in the area of criminal justice reform. ACUF is one of the nation’s oldest organizations representing grassroots conservatives throughout the United States. Founded more than four decades ago by William F. Buckley, ACUF works to advance our core values of liberty, personal responsibility, fiscal accountability, and human dignity – all of which are impacted by criminal justice reform.

As part of our educational mission, ACUF also compiles ratings of every federal and state legislator in the United States. These ratings help the public understand the positions of policy makers, based objectively on their individual voting records rather than their rhetoric. Criminal justice reform votes have been included in the ratings in recent years. All ACUF ratings can be found at: http://acuratings.conservative.org.

Finally, I would like to personally invite you and your colleagues to the Conservative Political Action Conference (“CPAC”) in Washington, D.C. Feb. 21-24, 2018. This conference draws thousands of grassroots conservative activists from across the country. Over the past several years, criminal justice reform has had a prominent profile at CPAC, and has been vigorously debated. Videos of these events can be found at justice.acu.foundation.

Conclusion

Chairman Gowdy, Ranking Member Cummings, and Members of this Committee, thank you again for the opportunity to present testimony concerning the need for criminal justice reform and efforts to reduce recidivism. These are very important issues for people on the right and the left.

It has been said that the definition of insanity is to do the same thing over and over again and expect a different result. For nearly forty years, we have tried to address crime by imposing harsh sentences on those who run afoul of an ever-growing and overly complex criminal code. It hasn’t worked. Many of the states have figured that out. It is time to apply those lessons learned at the state level to the federal criminal justice system, and prove that we are, indeed, not crazy after all.

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For more information on the American Conservative Union Foundation’s Center for Criminal Justice Reform, please go to justice.acu.foundation, or follow us on Facebook or Twitter @ACUFforJustice.