Wednesday, August 1, 2012

Mr. Chairman, thank you for holding this hearing.  This is an important subject, and I'm glad the committee is examining it.  I thank the witnesses for being here today, and I look forward to their testimony.

I have, in the past, mentioned my concern about what I call the "Leniency Industrial Complex."  There are some people in Congress, the public, academia, and the media, who think that sentences that are being imposed on serious criminal offenders are too stringent and that we need to be finding ways to let prisoners out of prison early.

Despite the repeated calls of this growing industry, keeping criminals in prison makes sense.  People should serve the time that the law provides for their crimes.  By keeping convicted criminals in prison, it prevents them from committing future crimes.  The data supports this common sense fact.

It is true that incarceration is up in recent years, but crime is down, significantly so.  Of course, other factors also had a role, like improvements to policing.  The tactics adopted by cities across the country in the 1990s, starting with New York City under Mayor Giuliani and Commissioner Bill Bratton, certainly were effective in reducing crime.  But there's no serious doubt that incarceration is a major reason for the historically low crime rates that the United States now enjoys.

When considering cost effectiveness of incarceration, we need to remember that there are costs to crime, too.  Keeping people in prison reduces costs to society of those people committing more crimes when they are let out.  I have to wonder why the one area of domestic spending that the Obama administration wants to cut is prison funding.

Now, I also believe in being smart about crime.  If there are ways to prevent crime and punish criminals, while also saving money, I'm all in favor.  But, that cost savings shouldn't be at the expense of public safety.

I have two concerns about moves to release prisoners to reduce costs to the criminal justice system.  First, we have to make sure that any programs to reduce incarceration costs will actually work.  So far, the evidence isn't promising.

The Bureau of Prisons (BOP) recently found that a pilot program letting elderly prisoner's serve out the ends of their terms in residential facilities cost more money than keeping them in BOP facilities.  While a Government Accountability Office review of this data questioned the BOP's data, it raises even more questions about whether this policy is well founded and should even continue, let alone be expanded.

Unfortunately, we have a problem around here continuing to fund programs that don't meet their intended goals.  And, just like this elderly offender pilot, a lot of the programs that were created under the Second Chance Act have no empirical evidence to prove that they work in reducing recidivism.  So absent this evidence, it's not cost effective to set up programs that don't work.

Second, I'm concerned that efforts to save money will come at the expense of public safety.  For example, I often hear about how there are so many "non-violent" offenders in prison who can be let out early.  Well, is someone who sells drugs while carrying a firearm a "non-violent" offender?  He may not have killed someone this time, but he surely was prepared to.

I also hear about "non-violent," "first time" offenders in the context of white collar crime.  Bernie Madoff was a non-violent, first time offender, too.  And he got what he deserved.   I certainly hope any effort to change incarceration practices doesn't lead to a get-out-of-jail-free card for white collar criminals.  I think the victims who lost their life's saving would have something different to say about the cost savings achieved by letting someone like Madoff out early.

This brings up another important element of the debate over what to do about rising costs of incarceration.  Maybe this debate is focusing on the wrong end of the process.  As I said, I think people who have been convicted should serve their sentences.  But if there's a problem with the federal criminal justice system, perhaps we should focus on who and what gets prosecuted.

For example, I'm very concerned that no major figures responsible for the financial crisis have been prosecuted.  As I understand it, most people being prosecuted for things like mortgage fraud are low-level criminals that feed off the lax oversight.  While they were convicted and should serve time in prison, why aren't we asking where the prosecutions of the kingpins of the financial crisis are?

There is also an issue of whether the federal government focuses enough on major crimes that fall squarely into federal jurisdiction or is instead federalizing state crimes.  That's a conversation we can and should have.  It's also something that we might truly be able to reach a bi-partisan agreement on fixing.

So this issue is more complex than just the dollar cost of building and sustaining prisons.  We need to remember that crime has a cost to society and not just the federal budget.  Shortsighted efforts to cut budgets today could cause long-term damage by reversing the decades of falling crime rates.