Prepared Statement by Senator Chuck Grassley of Iowa, Chairman, Senate Judiciary Committee
Hearing titled “Breaking the Cycle: Mental Health and the Justice System”
February 10, 2016
Today we are here to discuss mental health and the justice system. I will open up the hearing and will later turn the gavel over to Senator Cornyn.
We will hear a broad perspective from our witnesses today about a complex problem. There was a time when people with severe mental illnesses, like schizophrenia and bipolar disorder, were institutionalized. Times have changed and people with these illnesses are no longer routinely hospitalized.
New medications and therapies have been developed. For some people, these new treatments work. For others, however, the new treatments have not worked – because the medicine didn’t work or because the person simply stopped taking their medicine. In fact, many of these folks end up homeless or in the criminal justice system or both - without any treatment at all.
I want to extend a special thank you to our witness, Mr. Pete Earley for sharing his experience with his son Kevin. On a daily basis, individuals like Kevin are literally, running into the criminal justice system or a very broken mental health system. And it seems that with the broken mental health system, many will eventually end up in the justice system.
An Urban Institute report published last year confirmed what law enforcement throughout the country tell us. The report concluded that severe mental illness (SMI) affects nearly one-quarter of the U.S. correctional population. Only a very small percentage of these receive any kind of care for their mental illness. Even more troubling, those who receive mental health services show little change over time. Once incarcerated, a person with SMI faces conditions which often exacerbate mental illness – including overcrowding and abuse.
But, there is another side to this discussion - public safety. Many people have discussed their concerns with me regarding people with mental illness who commit mass shootings. Columbine, Virginia Tech, and Sandy Hook are names that have been at the heart of these concerns and push us to prevent future tragedies.
As Chairman of the Judiciary Committee, I’m committed to finding bipartisan solutions to these concerns. Our job is twofold. First we must break this mental health/criminal justice cycle. Secondly, and just as importantly, we must provide for public safety.
To accomplish these goals, we must be open-minded to solutions. We need all the cards on the table. We need more information about SMI. We need to understand that SMI often begins before adulthood.
On a side note, one of the reasons I pushed to reauthorize the Juvenile Justice and Delinquency Prevention Act is because this law is the single most influential piece of federal legislation to protect youth who come into our criminal justice system.
We need to understand that the treatment of SMI requires well trained specialists who are committed to the long term care of these people. We need to understand that SMI and drug and alcohol problems go hand in hand. We need to understand what therapies work and what therapies do not work. We need well-trained law enforcement and first responders to recognize and manage crisis situations when they occur.
I am open minded about this issue. I think it will take many different ideas to find solutions. Furthermore, I don’t think we can solve these problems by reducing them to silos or sound bites.
In order to accomplish criminal justice reform we must tackle the mental health crisis, including the shortage of psychiatric beds. We must confront the opioid epidemic in our nation. And we must work together to solve the difficult issues that are at the intersection of mental health and the criminal justice system. By doing this, we will meet the needs of people with SMI and we will keep Americans safe on the streets.
Today we will look at Senator Cornyn’s legislation, the Mental Health and Safe Communities Act.
· This bill reauthorizes and strengthens the National Instant Criminal Background Check System. It allows state and local governments to create pre-trial screening and assessment programs to identify offenders with mental illness.
· It requires the Attorney General to direct federal judges to operate mental health court pilot programs.
· It requires state and local governments to use drug and mental health court funding to develop specialized programs for those with co-occurring mental health and substance abuse problems.
· It will mandate specialized training and the use of new technology to ensure that those who work in the criminal justice system are properly equipped to respond to individuals with mental illness and mental illness crisis.
I support this legislation and encourage my colleagues to do so as well.
-30-
Senate Homeland Security Committee Approves Bill to Cut Down on Federal Paid Administrative Leave
WASHINGTON — On Wednesday the Senate Homeland Security and Governmental Affairs Committee approved a bill that would reduce federal paid administrative leave, protect whistleblowers and taxpayer dollars. Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.) and Ranking Member Tom Carper (D-Del.) are sponsors of the bill, which was authored by Sens. Chuck Grassley (R-Iowa) and Jon Tester (D-Mont.).
“There’s a Wild West environment among agencies on paid administrative leave,” said Grassley, chairman of the Judiciary Committee. “Some agencies use it too much, and the taxpayers get short-changed. The statutory and regulatory vacuum on the use of paid leave has contributed to this problem. Congress is stepping in with legislation to fill the void. Our bill puts strict limits on administrative leave. It makes clear when other forms of paid leave are allowable and when employees should be on the job instead. Paid leave shouldn’t be a crutch for management to avoid making tough personnel decisions or a club for wrongdoers to use against whistleblowers.”
“Paying government employees to stay at home not only robs taxpayers of millions of dollars each year, it allows agencies to drag their feet in taking disciplinary action,” said Johnson, chairman of the Committee on Homeland Security and Governmental Affairs. “The Department of Homeland Security is one of the worst offenders, leaving some employees on paid leave for one, two, even three years. This bill forces government agencies to complete timely investigations and make fair decisions, and it mandates real accountability and transparency to Congress. I am pleased that after months of hard work, we have a bipartisan, commonsense product that will save American taxpayers millions of dollars every year.”
“It’s important for federal agencies, employees, and taxpayers to have clarity on what paid administrative leave can and should be used for,” said Carper, ranking member of the Committee on Homeland Security and Governmental Affairs. “The current catch-all use of this term creates ambiguity that has led to misuse and abuse. There have been instance of supervisors using administrative leave to push people out of their jobs without due process and placing others on extended administrative leave while under investigation for wrongdoing – essentially getting paid to not work. This common-sense, bipartisan legislation will help agencies better account for various types of excused absences and better protect federal employees and taxpayers alike from abuse and misuse of the system.”
The bill is also sponsored by Sen. Jon Tester (D-Mont.), a member of Committee on Homeland Security and Governmental Affairs.
The Administrative Leave Act of 2016 (S. 2450):
--Codifies a definition of administrative leave that is separate from other forms of paid leave or excused absence already legislatively authorized. Agencies had been granting this type of leave as an exercise of agency discretion.
--Requires agencies to record other forms of legislatively authorized excused absence separately from administrative leave.
--Creates new categories of leave, investigative or notice leave, separate from administrative leave, for extended excused absences due to personnel matters, in the rare instances during an investigation or when an adverse action is proposed and that employee needs to be out of the office.
--Allows agencies to use investigative or notice leave through a multiple step process that involves escalating controls over its use.
--Establishes that in all cases, agencies cannot use investigative or notice leave unless established criteria are met — the continued presence of the employee may pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss of or damage to government property, or otherwise jeopardize legitimate government interests.
--Directs agencies to consider options prior to use of investigative leave and notice leave, such as assigning the employee to duties in which the employee is no longer a threat or allowing the employee to telework.
--Requires agencies to provide employees with explanations of why they are being placed on investigative leave or notice leave and keep records of these new forms of leave.
The Administrative Leave Act of 2016 does not affect agencies’ and employees’ use of excused absence already authorized in law (e.g., court time, organ donation, official time, etc.). It does not change the standards or levels of due process required for an agency to take an adverse action. It does not enable agencies to force employees to take their own leave or affect Merit Systems Protection Board jurisdiction.
Agencies such as the Department of Veterans Affairs have put whistleblower employees on paid leave in retaliation and to avoid addressing the problems raised. The whistleblower is then helpless because administrative leave is not a “personnel action” that a whistleblower can address. The Administrative Leave Act of 2016 would help whistleblowers by subjecting administrative leave to a variety of escalating controls. At the conclusion, the agency must either return the employee to work or take an adverse action, which the employee may challenge with the Merit Systems Protection Board. In addition, the decision that the employee poses a “threat” and needs to be out of the office is made a personnel action, which enables the employee to challenge it if it were made for a retaliatory purpose.
Open-ended leave is expensive and unproductive for taxpayers. Seventeen agencies spent almost $80.6 million to place employees on paid administrative leave for one month or more in fiscal year 2014, according to a Grassley staff report. That amount might be lower than the reality due to the imprecise calculations some agencies provided. Per the report, agencies did not have adequate justification for extended administrative leave and did not justify why investigations or other actions took so long. The Government Accountability Office documented leave policy shortcomings and agency costs in an earlier report.
Three groups praised the legislation.
“Senators Tester, Grassley, Johnson, and Carper have shown tremendous leadership in putting forth thoughtful, targeted legislation that will address the major problems identified with administrative leave usage and reporting, while preserving agency flexibility, due process and employee rights,” said Tim Dirks, Interim President of the Senior Executives Association (SEA). “For too long, misuse of paid administrative leave has wasted taxpayer resources while unfairly holding public servants in a fruitless limbo status, denying them rights to challenge agency determinations. We applaud the Senators and urge Congress to quickly pass this good government legislation.”
“The Federal Managers Association (FMA) is grateful for the bipartisan efforts of Senators Tester, Grassley, Johnson, and Carper for their call for common sense reforms as proposed in the Administrative Leave Act. Their proposed legislation calls for uniformity of the use of administrative leave throughout the federal government. FMA advocates for excellence in public service, and by providing the necessary tools to address poor performers and encourage efficiency and effectiveness, this bill creates a federal workforce that promotes productivity and accountability to the American public. FMA looks forward to continuing to work with these Senators and hopes that it will advance through the chamber without hesitation.” -- Patricia Niehaus, National President.
“Currently, the U.S. Customs and Border Protection routinely places Border Patrol Agents on extended administrative leave without justification of length, forcing our agents to languish with no avenue of recourse,” said Brandon Judd, President of the National Border Patrol Council. “NBPC supports codifying the definition of administrative leave in hopes that it will curb the overuse of extended administrative leave policies by federal agencies. We appreciate Senators Tester and Grassley for their leadership protecting the rights of federal employees and look forward to continuing to work to find a solution.”
A one-page summary of the Administrative Leave Act of 2016 is available here. A two-page summary is available here.
###
Grassley Seeks Details from Two Agencies With Relative Success in Curbing Paid Administrative Leave
WASHINGTON – Sen. Chuck Grassley has asked two federal agencies with relative success in limiting paid administrative leave for employees, the Department of Justice and the Department of Labor, to describe their best practices and challenges in implementing curbs on such leave. Grassley’s inquiry came soon before a key Senate committee passed legislation he co-wrote to limit excessive paid administrative leave government-wide.
“At least two agencies have been more successful than others in limiting excessive paid leave,” Grassley said. “Their experience will be helpful as our bill moves forward and could become the law that all agencies will implement. They’re well-positioned to advise Congress, other agencies, and the Office of Personnel Management on what works and what doesn’t.”
Grassley noted that of the 19 agencies that his office surveyed for a staff report on administrative leave, the Justice Department had the “most robust controls” over the use of administrative leave. Grassley said the Justice Department’s relative success is noteworthy because it has the second-highest percentage of full-time law enforcement officers among federal agencies. Some observers have argued that law enforcement officers need extended amounts of leave compared to non-law enforcement employees when engaged in personnel disputes or misconduct, but the Justice Department’s numbers appear to show that is not the case.
Grassley wrote that the Department of Labor has been relatively low in its use of paid administrative leave compared to other agencies. The department had no employee on leave for a year or more for fiscal years 2011 through 2013. He asked the department to account for its relative success in limiting extended paid leave and the challenges and lessons learned in implementing leave controls.
The Homeland Security and Governmental Affairs Committee today approved a bill that would reduce federal paid administrative leave and protect whistleblowers and taxpayer dollars. The bipartisan Administrative Leave Act of 2016 (S. 2450) has reforms including codifying a definition of administrative leave separate from other forms of paid leave or excused absence already legislatively authorized, instead of the current practice of granting this type of leave as an exercise of agency discretion. It would create new categories of leave, investigative or notice leave, separate from administrative leave, for extended excused absences due to personnel matters, in the rare instances during an investigation or when an adverse action is proposed and an employee needs to be out of the office.
Grassley co-authored the bill after his oversight and inquiries documented extended paid leave at multiple federal agencies, costing billions of dollars over time.
Grassley’s letters to Attorney General Loretta Lynch and Secretary of Labor Thomas Perez are available here and here.
-30-
