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Federalist Society Podcast with Pat Nolan and Marc Levin

| October 1, 2014

Right On Crimes’ Policy Director Marc Levin and Pat Nolan, Director of the Center for Criminal Justice Reform at the American Conservative Union Foundation and Right on Crime fellow, recorded “Getting It Right On Crime”, a teleform conference call hosted for the Criminal Law and Procedure Practice Group of the Federalist Society. During this discussion, both the fiscal and human aspects of criminal justice reform are presented with compelling evidence for “intelligently choosing who needs to be segregated from the public for public safety, versus those that should be held accountable and punished in ways that aren’t as expensive as prisons”.

Listen below

Welcome to the Federalist Society’s practice group podcast. The following podcast, hosted by the Federalist Society’s criminal law and procedure practice group was recording on Wednesday, September 24th, 2014 during a live teleform conference call held exclusively for Federalist Society members.


Good afternoon and welcome to the Federalist Society’s practice group teleform conference call on getting it right on crime. Sponsored by the Federalist Society’s criminal law and procedure practice group. My name is Christian Corrigan and I’m director of publications at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call and also that this call is being recorded for use as a podcast in the future. Today, we’re pleased to welcome two experts. The first is Marc A. Levin who is the director of the Center for Effective Justice at the Texas Public Policy Foundation and the other expert is Pat Nolan who is the director of the Center for Criminal Justice Reform at the American Conservative Union. More complete bios of our speakers were provided to you in notice of the call. So I’ll stop there and reserve more time for their presentations and then as always followed by your questions. So I’m going to go ahead and hand the floor over to Pat Nolan who’s going to get us introduced to the topic and take it from there. So Mr. Nolan, the floor is yours.


Thank you so much, Christian. Marc and I are active in a group called the Right On Crime movement. We’re conservative leaders that work with government officials to bring more fiscal responsibility and accountability to the criminal justice system, work with them to keep the violent criminals behind bars, but find sensible alternatives for dealing with the non-violent offenders. I should point out that I work for the American Conservative Union Foundation. We’re affiliated with the ACU, but I am with the foundation, which is separate.

The states have been facing a huge fiscal crunch as a result of dramatically expanded prison populations that have come about in the last twenty years. The ’94 omnibus crime bill included ten billion dollars in inducements to the state to build more prisons if they would also agree to severely expand the length of criminal stays, this applies to non-violent as well as violent criminals. What its done is cause an explosion of population of prisons. When the bill passed in ’94, there were one million Americans behind bars. There are now over 2.3 million Americans behind bars. That’s one out of every one hundred adult Americans is behind bars as we speak. That’s a very costly proposition. It might be worth it if every one of those were a violent felon and dangerous to us. But the fact of the matter is, a lot of them are low risk and non-violent offenders. In the federal system, over half of them are drug dealers, and not major drug dealers. Of those locked up under the crack cocaine mandatory minimums, only fourteen percent of them are classified as major dealers. The others are pretty small fish. And that’s a very expensive way to, you know, deal with these low level folk.

The states got a bad bargain. They got that money from the federal government in return for dramatically expanding the prison space, which means the prison population ballooned. But it was just one time money. It was money for bricks and mortar. The actual money to operate those prisons, to hire the guards, and to buy the food and supplies necessary to run a prison weren’t there. And the cost of those prisons is literally busting the state budgets. Most of the states face very difficult budgetary constraints and prisons are now the second fastest growing item in state budgets, second only to the Medicaid budgets. This is a huge expense. And if we were getting more public safety, it would be worth it. But the fact of the matter is, forty percent of the inmates return to the system within three years. The system is really failing us.

So Right On Crime has been working with the states to say, you know, there’s probably a better way to do this. How can we lock up those that we’re really afraid of and deal with those we’re just mad at in another way? And we’ve had great success in doing that. Intelligently choosing who needs to be segregated from the public for public safety, versus those that should be held accountable and punished in ways that aren’t as expensive as prisons. Things like drug courts, mental health treatment, and drug rehabilitation. Things that have been proven effective at lowering the crime rate but aren’t as costly as locking up the prisoners.

It is interesting that these reforms that we’ve advocated have been adopted in mostly red states. It’s the conservative governors that have been eager to do this and in fact have been very successful in doing it. We’ve ended up saving billions of dollars while keeping the public safe. Pew just came out with a study that showed of the states that had reduced their populations through these means, these intelligent means of separating the dangerous from those we’re just mad at, their crime rates dropped actually more than the five states that had continued to expand their prison populations. So, they got less public safety and the crime rates actually dropped less there than in the states that were working with us to make these intelligent choices.

The Right On Crime movement is supported by such conservative luminaries as former attorney general Ed Meese, former secretary of education Bill Bennett, former speaker of the House Newt Gingrich, Asa Hutchinson, who’s a former drug czar. You’ve got David Keene, former president of the NRA, Grover Norquist, of Americans for Tax Reform, Richard Viguerie of Conservative HQ, and Tony Perkins of the Family Research Council. This is a broad based group of conservative leaders that’s had great success.

I’m now going to turn it over to Marc Levin, who is director at the Texas Public Policy Foundation and really the architect of these changes. He started in Texas with the Texas state prison system and had very effective reforms there that have saved money and kept the crime rate down. We’ve worked with other states. South Carolina, Oklahoma, Georgia, Kentucky, Pennsylvania, to replicate these same reforms. Marc is somewhat of a celebrity too, I should point out. He was just named one of the Politico fifty thinkers, doers, and dreamers who really matter in this age of gridlock and dysfunction. His contribution to the Right On Crime efforts have been recognized obviously by this major national publication and he’s testified many times before congress as well as state legislatures. So I’ll turn it over to Marc now to talk about the specific reforms that have worked so well in the states.


Well, thank you, Pat. I appreciate you making such a great introduction. Pat has truly been a visionary over many years. First, with Prison Fellowship and Justice Fellowship, we worked with them to launch Right On Crime in 2010.

I’m director for the Center for Effective Justice at Texas Public Policy Foundation. We started working on criminal justice reform back in Texas in March of 2005. One of our board members, who’s an oil man at Midland, came to our president and said we need to take a look at this – we’re building all these prisons and not getting a commensurate public safety benefit. We’re having victims not get restitution, yet, the same offender who stole from them is paying thousands in fines to be used by the government instead of having a victim driven system.

So we began studying the Texas system in 2005 and really saw what was going on, which was, in large measure, that all the money was going into prisons and almost no money into probation or drug courts, the very things that safely supervise people in the community. And really one of the things that has really changed – we’ve had a six fold increase in incarcerations from the early 70s to the present day. What we argue is that some of that increase was necessary, that in fact it was kind of a Pollyannaish view among liberals in the sixties – if it feels good do it, everyone could be rehabilitated, society causes crime, not individuals. The public, and conservatives in particular, widely rejected a lot of these ideas, but argue as the pendulum swung too far as we did make sure that, for example, violent and dangerous offenders were serving long terms and the net swept in a lot of low risk and non-violent offenders. And the other thing is we’ve had a lot of advances in technique and technology over the last few decades; whether you’re talking about drug courts, actuarial risks and needs assessments which can predict with great accuracy someone’s risk of reoffending, including their risk for violence, electronic monitoring devices, and even now pharmaceuticals, including non-narcotic treatments for heroin addiction that block the receptors in the brain. So there’s all these developments that have taken place and so what frankly we’re doing is aligning public policy with the best research.

So in Texas we, in 2007, the legislative budget board projected the state would need to build another seventeen thousand prison beds by 2012 just based on the increase of the number of people being sent to prison, the increase in the population and so forth. And so instead, we had a very conservative speaker of the House named Tom Craddick at the time and the chair of the corrections committee, Jerry Madden, who is now a senior fellow of Right On Crime and also a conservative Republican. Working with them, we put together an alternative plan that involved expanding drug courts, expanding mental health and substance abuse treatment, including some residential beds. Short term intermediate sanction beds for people who were committing technical violations on probation and parole like missing appointments. And the reason we did that is we had judges and prosecutors coming up to the legislatures and saying the reason we’re sending all these low risk non-violent offenders to prison is there’s a waiting list for all these other alternatives, whether it’s a drug court or mental health treatment, and so we as a county don’t want to have to pay to have this person in jail, county jail, for months waiting for this we’re just going to send them to prison and that’s what we’re doing. So and then we had a backlog in the backend of the system as far as people who were approved for parole but couldn’t be released either because they had to complete a six month treatment program in prison and there was a long waiting list for that, or there was no halfway house available and you had to have a valid home plan to be actually released even after you’re approved for parole. So we got through that backlog and that was our justice reinvestment package. And many other states now have adopted similar approaches.

And so as Pat said, you have this huge increase in the prison population not to mention the increased health care costs associated both with aging inmates as well as the staff. Ninety percent of state corrections budgets ultimately began being devoted to prisons and that left very little money for these alternatives. So I think what the key for us has been that we said, look, there’s a conservative approach to these issues that doesn’t go back to what the liberals were saying in the sixties, that is anchored in personal responsibility, recognizes the need to incarcerate dangerous and violent offenders, focuses on victims of crime restitution and so forth, and also makes sure we’re not seeing police as the enemies; but also looking at innovative law enforcement techniques, whether it’s Comstat, Operation Cease Fire, ways to actually prevent crime to begin with through the police visibility and having police on the right hot spots. And the other thing about the lasting thing has been that they’ve been beholden in many states to the prison guards union, and that’s one of the reasons why it’s been Republican governors who have been able to take the lead on this. Obviously, we’re non-partisan, but it’s conservatives who have the credibility on this issue regardless of party label.

Now I wanted to highlight some of the states where we’ve seen tremendous advances recently and I think the number one state example is Georgia. Governor Nathan Deal who’s a former prosecutor and judge, whose brother’s a drug court judge, he has passed three major packages in each of the last three legislative sessions and they’ve been either unanimous or virtually unanimous. They, for example, have adjusted the penalties for low level drug possession. They’ve expanded drug courts. They’ve improved their re-entry programs. And really made major strides both in reducing incarceration and the crime rate. And as far as Texas goes, I’m pleased to tell you since we’ve started down this road we’ve had a twenty-two percent drop in the crime rate and a twelve percent drop in our incarceration rate. I think that really, the proof is in the pudding. Also, in Ohio, Governor Kasich has led the way in passing major legislation not only as far as alternatives to incarceration, but also passing a bill we did in Texas as well which says ex-offenders can get occupational licences, if they’re otherwise qualified, as a provisional or temporary licence that then becomes a permanent licence.

So we had found in Texas we were paying taxpayer dollars to train people to be barbers in prison, and then they couldn’t get a cosmetology licence if they had had a drug conviction ten or fifteen years ago. So of course all of this seems very new to some people but I like to go back to what Governor Ronald Reagan said in his 1971 state of the state speech. He said, quote, “our rehabilitation policies and improved parole system are attracting nationwide attention. Fewer parolees are being returned to prison than at any time in our history and our prison population is lower than at any time since 1963.” Now of course that was right before, we have this enormous increase in incarceration, some of which was necessary, and what’s interesting is that Governor Reagan wasn’t measuring progress by how many people were in prison, and we shouldn’t do it by how few people, but, how much bang for the buck are we getting in terms of reducing crime for every dollar we spend, particularly those crimes that are most harmful to people in neighborhoods. And are we getting people on the right track once they have served their sentence, being able to hold a job and be productive citizens? And of course the other thing, really about what Reagan was saying, is he recognized that probation and parole were critical to do those right so that you have fewer people in prison.

So one of the main challenges in this area that states have been addressing is promoting compliance with supervision. And one of the great models for doing that is the Hawaii hope courts which has seen a two-thirds reduction in recidivism and now it’s been expanded to the whole parole system in Washington state. So what is involved is that these are low level drug offenders. They are told from day one that if they test positive they are going to go to jail for the weekend. And that is in contrast to the traditional supervision model which has many technical violations, missing appointments, testing positive for drugs, they let them pile up and all of a sudden you’re revoked, and there could be ten or fifteen years left on your sentence and you’re going to prison.

And so it’s simply like disciplining a child. If they touch the stove you don’t wait till they do it ten times, and then a few months later decide to come down like a ton of bricks. So it’s the swiftness and certainty of the sanction, even though it’s a commensurate sanction that really gets the result. And of course you can do this simply through, although I think the hope court is a great model that should be replicated for some offenders who just even are on regular probation provided you have appropriate sized case loads, the probation officers can administer swift and certain sanctions as well as positive incentives.

One of the reforms that’s been adopted in many states, and that’s a piece of ALEC model legislation, is earned time for probationers. So by exemplary performance, complying with all the terms, which, by the way, you can’t drink alcohol, you can’t do a lot of things, and you can’t leave the county like you can with other probation. So it’s not a walk in the park, but by complying with all the terms, getting a degree, paying all your restitution, hitting various benchmarks, you’re able to earn some time off your probation term.

And that’s one of the fallacies of the criminal justice system, is everything is measured by how long somebody is in a certain program or facility rather than what their actual behavior – what the results are. And of course for, you know, locking up a murderer or rapist, a lengthy incapacitation is the critical outcome. But when we’re talking about low level offenders, particularly drug offenders, it’s more important to change behavior than it is to incapacitate. And of course, the reality is, one of the main problems in prison systems across the country is churning, people going in for several months. And I just testified before the joint legislative commission in Illinois yesterday and that’s an issue they have – over seven thousand people coming in for four to six months in the prison system. Now any corrections officer will tell you, it takes a month or two just to classify people at a reception center. So you’re not going to be able to even administer an appropriate program. Those people ought to be rehabilitated in a local facility or you need to be behind, you know, a residential program or behind bars. But sending those people hundreds of miles away into a major prison system, and these are shoplifters and low level drug possessions, simply doesn’t make any sense. And it’s the revolving door that the public really dislikes. Rightfully So.

So let me just touch on a few other elements and then I’ll wrap up. As I said, I believe it’s critical that we focus on victims in the criminal justice system and of course restitution is a core principle in the Bible and nearly every other major religious tradition. And yet we often hear that somebody who steals something needs to repay a debt to society by going to jail. But of course, when they do that it is costing society more in terms of tax dollars to keep them in jail. And of course, we all heard the three hots and a cot, and I’m not here to say being incarcerated is pleasant by any means. But nonetheless, for some people, going to jail is not that much of a deterrent. Certainly it could be a deterrent for people who have a great lifestyle. But most of these people don’t. We even heard an anecdote about a guy who wanted to go to jail because his teeth were killing him and he wanted to get his tooth pulled. Now people make these silly decisions. Like we hear about people who don’t see their probation officer because they can’t come up with a fee. Well we passed a bill in Texas saying you can’t be revoked just for not paying your fee if you don’t have the money, but they don’t know that. So they still will not show up for their appointment if they don’t have the money. And it’s really unfortunate, but a lot of obviously criminal activity is hardly rational.

I think the point is we need to focus on giving victims a role in the process and one of the ways to do that is restorative justice, including victim offender mediation. This is an action for the victim to choose as well as the defendant, because the defendant has to waive their right to a trial. And so, for example, if a ten year old in your neighborhood steals something out of your garage, rather than go through months of the protracted processes, as the victim, I could say, I want a mediation. I want an apology. I want restitution. It could be service restitution – mowing my lawn every other week if that kid doesn’t have any money and then also community service. We require in Texas graffiti offenders to clean up their own graffiti for example.

And finally I want to talk a little bit about over-criminalization. This deals with the rapid growth in criminal laws, which I know the Federalist Society, the Heritage Foundation, the Rand Institute and others have documented. Unfortunately, there’s now over forty-five hundred federal offences. I just spoke with the Macinaw [PH] Institute in Michigan, the free market group there, and they now cataloged three thousand offences in Michigan. In Arizona, we found a couple thousand. In Texas, we have seventeen hundred crimes. And most of these are outside the penal code. In Texas, fifteen hundred outside the penal code dealing with ordinary and business recreational activities. We have, in Texas, eleven felonies for harvesting oysters. And of course I’m sure many of you have heard about the Gibson guitar raid. The EPA police arrested a custodian in Washington, DC at a nursing home who didn’t even know the sewage was going in the wrong place. And then you have these massive bills like Dodd-Frank and Obamacare that contain criminal penalties hidden beneath two thousand pages.

And so this is also a phenomenon that goes all the way down to the school level. In Texas we had to pass a law saying that schools could no longer make up their own crimes. Previously, under the education code, schools could designate any violation of their code of conduct as a criminal offence. So they were giving kids class E misdemeanor tickets, ten year olds, for chewing gum in class. So we got rid of that. As well as the tickets for making too much noise. And it’s an absolute silliness because they go to municipal court, their parent goes, pays a five hundred dollar fine and months later the kid doesn’t even connect it with their conduct. And these are things that of course traditionally would have been handled in school.

So with this huge growth of the number of criminal laws and the scope of criminal laws and many of them being vague, over-broad, and very difficult to understand, you run into the problem of virtually anybody could be charged with anything. And in fact the head of the secret police under Stalin, a fellow named Lavrentiy Beria once said, you bring me the man, I’ll find you the crime. And I’m afraid that that’s where we’re – we’ve headed. So one of the ways to address that we’re working on is making sure there’s a default Mens Rea provision in state laws so that it’s specified that if a criminal offence is silent as to whether there’s an intent requirement this default provision kicks in. Now this was part of model penal code. So about eighteen or twenty states had their code based on model penal code, had this provision. But we’re working, there’s bills pending in Michigan and Ohio, for example, where we’re working with the Buckeye Institute and Macinaw to get those bills in place that would provide this default Mens Rea provision. So of course the traditional definition of a crime going back to, you know, Blackstone even and before, was a guilty mind plus a bad act. Mens Rea plus Actus-reus. And it’s the erosion of Mens Rea that really leads people to be able to be convicted for virtually anything. In fact, our other approach to addressing this issue led me to have a law review article several months ago with John Malcolm from the Heritage Foundation where they argued for the stake of law defence. And of course “everyone turned to the maximum length of the laws” is no excuse, and that makes perfect sense as long as crimes were obviously harming other people. You know, stealing, violence, all of those things. But of course, as these criminal laws are proliferating, this mistake of law defence would enable someone to say, if it was objectively reasonable that no one would think that this was a crime, then you could bring this defence. And so that’s kind of another way up the mountain from the default Mens Rea provision to addressing the same problem.

Another reform is the rule of leniency, which is similar, but that says if there’s two objectively reasonable interpretations of a statute and under one of those the conduct would not be a crime, then the benefit of the doubt goes to the defendant. Kind of like a tied race goes to the runner in baseball. So there are a few states where that’s been codified and we’re working to advance that as well. And I think that one of – I’ll just say that I think that every legislature, congress, they need to go through a certain set of factors before deciding to criminalize something. We published a checklist called Analyze Before You Criminalize, and we also have a sequel called Look Askance Before You Enhance.

These are in addition to – in most states, every legislative session, there’s dozens of new crimes created, there’s also dozens of enhancements of existing penalties. And of course, sometimes that may be necessary. But rarely, I think, are the appropriate factors considered and instead it’s often a reaction to a specific – one specific incident. And you know, bad facts make bad laws, I guess. And so really there needs to be a more considered approach and actually we found a lot of prosecutors have come around especially on this issue. The fellow who had headed the Prosecutors’ Association in Texas said many of these obscure criminal laws are actually put in place by one business to put out of business another business for not complying with some obscure requirement. And so effectively, as he says, it makes the prosecutor a free government lawyer for one business to put their competitors out of business. So that’s the genesis of a lot of these crimes and many of them are also associated with occupational licensing to crack down on people who are not – do not have the appropriate licence or who are violating some obscure provision of that occupation. So I think that these are all fruitful areas that we need to focus on and I would be glad to – I know Pat will as well – take any questions you might have.


Yeah, I think it’s important to realize that we’re seeing across the conservative movement a shift for years, there’s – because of the leniency of a lot of the federal judges and the sociologists that were ruling the roost, there was a movement of just getting tough on crime. Now we’ve seen, because of the expansive powers of government and the intrusion of the criminal law into a lot of areas that are just common business practices, conservatives are increasingly active in trying to restrain the overreach of government and we think a lot of the members of the Federalist Society would be very interested in the proposals that Right On Crime has not only for focusing the criminal system on dangerous offenders but also on limiting the scope of prosecutions that can be so devastating to the private sector. As Marc said, we’d love to answer your questions cause there are a lot more details. We want to focus this on where you’re interested.


Great. Well, this is Christian Corrigan. In a second, you’ll hear a prompt that will say the floor mode is on. And after that, to request the floor, enter star and then the pound key. So again, if you’d like to ask a question, press star and then the pound key. And it looks like we have one question that jumped on.


John Roland, constitution.org. There are a couple of other issues that haven’t been discussed so far involving prisons. The first is the tendency for too many of them too often to be operated as colleges of crime. In which gangs can be organized, offenders trained in the latest and best method of – methods of criminality. And relationships develop that can persist beyond the prison and into the gang activities offsite. The second is the tendency for the prisons to become warehouses for people who really should be in mental institutions and we haven’t really addressed the prison problem unless we’ve reached the reform that those people should be in mental institutions and not in prisons [OVERLAPPING VOICES] Let me make one more point. Mens Rea and Actus-reus are only two of five points that are supposed to be proved for conviction of a crime. The others being harm, causation, and concurrence of the other four factors. And I’ve met some newly minted lawyers who didn’t get that in law school.


Yeah, you’re absolutely right. The traditional elements of crime are not emphasized any longer in lieu of more esoteric discussions like the rights of trees to have standing. The first two points – the first is, they’re colleges of crime, you’re absolutely right. And it makes little sense to take a first time offender who has no history of crime and lock him up with somebody who’s a murderer or a rapist. Which do you think has more impact on the other? The person that’s lived a life of crime or the person who stumbled in something bad but is not focused that way? Obviously, vegetables take on the flavor of the stew pot. And the low level criminal is going to come out more dangerous to the public than by not sending him there. So first, you’re absolutely right. We’ve created a system that creates hardened criminals. The skills that inmates learn to survive inside prisons make them more dangerous when they get out. The second point about mental institutions, you are so right. It’s estimated about twenty to twenty-five percent of the people in prisons have serious mental disability. These are people that are sick. They’re not bad. And they need to get treatment. But when we closed down the civil institutions, the law enforcement became the default treatment plan for them. Let me just give you an example of how absurd it is. I’m originally from LA County and was a reserve deputy sheriff and one of the deputies took a man to LA County Hospital who was acting out and obviously in need of treatment. The hospital said, we don’t have any psychiatric beds. Take him to jail. The deputy said, this man’s not a criminal. I’m not going to take him to jail. He needs health care. He needs treatment for this mental illness. They got into this standoff where the security guard at the hospital tried to address – to arrest the deputy for trespassing because he wouldn’t remove the man and take him to jail. That’s just absurd that that would happen. We found law enforcement as our biggest ally in this. They don’t want to treat the mentally ill, they’re not equipped to do that. Mentally ill make managing a prison very difficult. Because by definition prisons run on order. And by definition someone that is acting out cannot follow orders. So we need to set up a system of civil treatment beds. Several of the cities including Memphis is a leader in this of contracting with local psychiatric hospitals where law enforcement can take the mentally ill to get this treatment instead of placing them in jails and starting a criminal jacket on them. This makes so much sense. It’s cheaper to give them that civilian treatment, it’s more humane to give them that treatment, and it allows the law enforcement to operate jails as they should be instead of as many psychiatric hospitals. So on both those points you’re absolutely right, I’m glad you brought them up. Those are some of the things that we are addressing with the states. ALEC, the American Legislative Exchange Council, has a conference this December. One of the sessions is going to be on mentally ill and how we decriminalize the mentally ill and get them the treatment they need without putting them in jails or prisons.


Yeah, and I will just add that I fully agree with everything Pat and the questioner stated. The mental health courts and veteran’s courts have been very promising in terms of their results. The veteran’s courts are essentially a mental health court but with a liaison to the VA to integrate the services that veterans are eligible for. And of course, they generally require that the person’s mental illness or PTSD, whatever it may be, that’s associated with their service. And the other thing I would mention is with respect to ALEC, there’s about ten or twelve model pieces of legislation that myself, Jerry Madden, Pat and others have moved to ALEC and we’d be glad to send those to anyone who’s interested. I think they’re on the ALEC website as well. And those include things like the provisional occupational licensing, earned time, victim offender mediation, a whole host of others, the liability relief for employers who hire ex-offenders to say they can’t be sued in those circumstances. So those are really good pieces of model legislation that folks can share with their policymakers in their respective states.


Great. Well, this is Christian again. Our lines are open. So if you’d like to ask a question of our experts, press star and then the pound key. All right, so just while we’re waiting for the next question, could you – could either of you talk a little bit about, maybe get into the specifics a little bit more about distinguishing high level and low level risk offenders and who is going to be – or who has been making the determination. If it’s not the legislature, who then is going to – where do we start drawing the lines and how does that whole process play out?


Well, they’ve developed some very effective risk assessment tools. We’ve moved way beyond, you know, just sort of guessing how they’ll be. There’s certain patterns of behavior and also statuses that make somebody more likely to re-offend and also as the previous caller said, you know, we need to look at the actual harm that’s done. That’s an important consideration. In a lot of these cases, these folks get locked up and there has not been any substantial harm and yet they get locked up for as long as somebody that has been, you know, done terrible things. So the risk assessments, trying to get the states to adopt them, though, are difficult because a lot of times the legislators want to retain control. And the problem with that is we develop priorities for locking people up not based on a rational system of this crime is more heinous than that but just where the latest big publicity is. I’d say one of the biggest situations like that was when Len Bias, the great basketball player, died of a cocaine overdose and the black caucus came to the Republicans in congress and said we really need to crack down on crack cocaine. And they passed these laws that had a hundred times the sentence for the same amount of crack cocaine versus powder cocaine. It turns out that there was no pharmacological difference. And it ended up with a tremendous distorting effect of who actually went to prison, racial disparities as well as economic disparities and it was never intended that way and it took a long time with a lot of bipartisan support. Jeff Sessions was a real hero in trying to champion a fairer system for that. He, working along with Pat Leahy. And they got it passed. But it took about fifteen years to undo that reaction to the Len Bias death that was just basically hysteria. There was Len Bias’ death and then that awful Blaxploitation flick New Jack City. Which, you know, told these horror stories of crack cocaine. And powder is just as dangerous and just as harmful. And frankly, easier to transport. Anyway, so that’s the type of thing of – legislators are often, they want to retain the ability to pass these sentences, to react to public, you know, outcry. But they frankly don’t put a lot of thought into it. The idea that we’ve made carjacking a federal crime. You know, there’s no ring of carjackers working nationally. If there’s a local crime, it’s carjacking. But it was a high profile crime that was going on and congress said, well, we’ve got to intervene. And so they passed a federal carjacking statute. And that’s something that we have to fight because we want a more rational system that weighs the harm that’s done with the penalty that’s assessed to the criminal.


Yeah, and if I could just add with regards to risks and needs assessments, these actuarial instruments which are asked a series of questions about the offender – and of course, they don’t just rely on the offender’s answer, they’re verified, but many of them deal with, you know, some of them are things that aren’t changeable, some of them are. But some of them are like, you know, how young were you when you had your first contact with the justice system which turned out to be pretty predictive. But all these things have been validated meaning they’ve gone back retroactively and said the people that the – that the assessment said were low, medium and high risk did turn out to have those respective differences in their re-offence rates. Now it’s called a risk and needs assessment because it also shows you what things you could do, what needs you can address in order to reduce whatever risk there is. And so, this [UNCLEAR] not just in potentially, you know, disposition of a case, but also in when somebody’s on, for example, probation or parole. Determining what level of supervision. Do they need to be on a smaller case load? Do they need to have wide track monitoring? Or intensive treatment and so forth. And so one of the areas where this is increasingly becoming utilized is in the pre-trial context. In addition of course to the challenges in the state prison systems and the federal prison system there are many challenges to counties face, with regard to county jails, and typically about half the people in county jails are people who have not been convicted, they’re awaiting trial. And many times they are unable to post, you know, the bond because they’re indigent or there’s no one who’s willing to put up the money. So many states have many counties that have implemented pre-trial supervision where individuals who are not a high risk are placed on, essentially it’s like probation, but it’s pre-trial and it may include electronic monitoring and other things to make sure that person comes and appears at their hearing and usually, of course, it’s now many hearings that – and, you know, most cases end up being resolved by plea rather than going to trial. But, you know, the research has shown if somebody is in jail even for forty-eight, seventy-two hours, they’re likely to lose their job, they’re actually likely to become a higher risk in many instances. So that’s why it’s important from a justice standpoint, obviously, some people that are arrested didn’t actually commit a crime and they’re languishing in jail. And obviously there’s just a lot of people who are languishing in jail.

We looked at it in Texas, for example, when it came to very small amounts of marijuana, that very few people were sentenced to county jail for that misdemeanor, but many were waiting in jail for their case to be resolved. And one of the ways we addressed that was creating a cite and summons statute which did not lower the misdemeanor level for small amounts of marijuana, but it gave police the option of issuing a citation and notice to appear to that individual. If they lived in the county, they can look them up on their computer in the police car and see they haven’t had prior failures to appear, they don’t have anything serious on their record, this person looks like they’re going to show up so I’m going to give them a summons. And as we say in Texas, they beat the ride but not the rap. Because they still face the same penalty, potentially, which doesn’t include jail time, but in fact, as I said, very few people would get jail time for that, but nonetheless sitting in jail prior to the disposition of their case. So I think the risks and needs assessments are, well, certainly not the only thing to consider by any means – certainly when you’re, for example, determining a sentence, first and foremost, that it needs to be just, it needs to fit the crime, and those sorts of things, but within that framework, assessing somebody’s risk of re-offence is really important and so we’ve moved from not just looking at the offence itself, but looking at the person when determining how to address that in the criminal justice system.


Fantastic. Well, we still have no questions on the line, so if you like – if you’ve thought of one during, in the last few minutes, please feel free to jump in. Press star and then the pound key. Just – Marc, you mentioned a – you mentioned the sort of, the over-criminalization idea. And that, you know, organizations on the right are starting to take notice of this and do programming. Whether it’s on sentencing reform, civil asset forfeiture, different cases at the Supreme Court. I mean, do you – I mean, do you really see that even sort of a – do you think that – and Pat as well – I mean, do you really think the right is starting to embrace even sort of the people who would consider themselves law and order conservatives are really starting to connect the over-criminalization idea with their belief – with their belief in limited government? I mean, do you think it’s really starting to take hold?


Well, I do. I think that – I consider myself a law and order conservative, but, you know, that’s interesting. To unpack that, more laws don’t necessarily mean more order. That’s one of the challenges. You end up with so many laws that the force of the rule of law is diluted in fact. And I think we have to go back to the idea that the rule of law is the weakest form of social control. The strongest form is the family, civil society, churches and so forth. And again, the vast majority of people and I’m sure everyone on this call, they conduct their life a certain way every day, don’t violate other people – not because it’s against the law, even if it wasn’t, they would still do that. But obviously the rule of law is critical. No one would counter that, but it is a – that it occurs within a society with certain values and culture, of respect for other people. So, but you know, I think that we’ve seen, as Pat noted, so many conservative governors and policymakers taking the lead on this and in congress many – Senator Ted Cruz, Senator Mike Lee, Senator Cornyn, Congressman Labrador, Senator Paul, and many others have really been up front on this. And so I think that as we’ve talked about before, conservatives are the ones with the credibility to lead on this because we know that personal responsibility is critical, that this isn’t about excusing conduct, it’s about holding both offenders and the system accountable for results and outcomes. And so I think that it’s going to continue to resonate and I also think that it’s important that people realize this is not just about saving money. It’s about keeping families together. I was talking earlier today about a case where, you know, this woman was – went to county jail for a drug problem. And she got over it. And it was months later, she started doing great. But she can’t get her child back. Her child’s in, you know, some institution on the other side of the state. The – a lot of families are broken apart by the criminal justice system. Of course, sometimes that’s necessary. But as – I think that there’s – and then there’s many issues like solitary confinement where people are being released directly from solitary confinement to general society with a huge recidivism rate. So there’s a lot of reasons to focus on this topic and, you know, we have to ultimately be about public safety. We have to focus on, as I said, keeping families together. And so saving money is just – is always a positive thing, but I always say, that’s the appetizer and the main course is getting better outcomes in terms of public safety, in terms of more offenders being in the work force and being productive rather than being burdens on society.


And Christian your point, too, is I think very good. I think conservatives are waking up. Like the raid on Gibson guitar. Who knew that the Department of Interior – or Fish and Wildlife had a SWAT team? And why on earth were they trying to enforce Indian laws on who processed wood? I think that as we’ve looked at the abusive prosecutions of the Duke Lacrosse team or of Senator Ted Stevens with the little lies, the hiding of evidence, the hiding of [UNCLEAR] that were exposed by the judge there in an appalling case that not only determined the outcome of Senator Stevens’ selection, but in his defeat allowed Harry Reid to become the majority leader in the Senate and passed Obamacare. So abusive prosecutors changed the impact of the, you know, of the trajectory of the political institution of the United States Senate. And what the judge found was out of control prosecutors. Well, that should be alarming. Conservatives should really be, you know, concerned that this type of prosecution is going on. And I think they are. I think we are beginning to see conservatives saying, this is way too much power to give to the government. That where there’s a consensus that something is evil – rape, robbery, murder – yes, that’s where we want the focus of prosecutors to be. Not on these rather esoteric crimes that they go after and the tactics that they use of win at all costs. I would say, you know, Marc mentioned Beria who was a vicious man, the head of Stalin’s secret police. But what he said was echoed by an IRS agent to one of my colleagues when I was in the state legislature in California. The IRS agent said, Senator, we can carve our paddle to fit anybody’s ass. [LAUGHTER] That was his attitude. And sadly, I think we’re seeing with Lois Lerner they may be able to.


Great. Well, let’s just do a quick last call for questions. If you’ve thought of one, press star and then the pound key. Well, Marc and Pat, I’ll give you just – if either of you or both of you want to offer any concluding thoughts before we end, I’ll go ahead and let you do that now.


I would just ask if any of you are interested, Right On Crime website, rightoncrime.org, there’s –


Dot com.


I’m sorry, dot com. And also the Heritage Foundation has great information on over-criminalization and the ACU Foundation website will probably be up within a week. Also, I have a Twitter account. Pat Nolan. 4 – the number four – justice. I tweet on these types of issues many times a day with the latest developments and studies and surveys that I think would be of interest, so we have plenty available to you.


Well, yes, and the other thing I’ll mention is at the National Lawyers’ Convention I’m going to be part of a discussion on sentencing issues that will also include the former attorney general, Michael Mukasey, John Malcolm, and Bill Otis. And so there’s a diversity of opinion among us on some things. I think on other things like overcrim, there’s consensus. So it’ll be a lively discussion, I’m sure. And I have great respect for everyone else that’s on that panel. So as Pat said, if any of you are interested in, you know, either doing an event in your lawyer’s chapter with a speaker from Right On Crime, I think Pat mentioned many of our high profile signatories and of course myself, Pat, and others give presentations as well. And then also I’m working with your policymakers there to share model legislation, you know, please reach out to me. It’s Mlevin@texaspolicy.com. And you can also just email us through the RightOnCrime.com. So, you know, thanks again. I really appreciate this opportunity.


Excellent. Well, as we’ve previously mentioned, the panel at our 2014 National Lawyers’ Convention is in November. November 13th through 15th and registration on our website is now open. So if you haven’t already signed up and registered for the convention we encourage you to do so. As always, it’s going to be an incredible weekend full of fascinating discussions and speakers. One other quick programming note, our next teleforum conference call will be tomorrow. Also sponsored by the criminal law and procedure practice group. At two pm Eastern time. On the federal monitoring of local policing and that’s going to have Professor Bill Otis, adjunct professor of law at Georgetown, and Professor Samuel Walker, emeritus professor of criminal justice at the University of Nebraska, Omaha. So again, that’s two pm tomorrow afternoon on the federal monitoring of local policing. So on behalf of the Federalist Society I want to thank both of our speakers today for being with us and offering such a very insightful presentation and for being here with us. And you can always give us your feedback by email to info@fedsoc.org. And until next time, we’re adjourned. Thank you all very much.


Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society’s website at Federalistsociety.org forward slash multimedia.



RIGHT ON CRIME is a national campaign to promote successful, conservative solutions on American criminal justice policy—reforming the system to ensure public safety, shrink government, and save taxpayers money. By sharing research and policy ideas and mobilizing strong conservative voices, we work to raise awareness of the growing support for effective reforms within the conservative movement. We are transforming the debate on criminal justice in America.