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House of Representatives
Appropriations Committee -- Commerce, Justice, State and Judiciary Subcommittee
Committee Hearing
March 17, 2004
U.S. Representative Frank R. Wolf (R-VA) Holds Hearing on FY 2005 Supreme Court Appropriations
[Excerpt]
Witnesses: Anthony Kennedy, Associate Justice, United States Supreme Court
Clarence Thomas, Associate Justice, United States Supreme Court
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WOLF: OK. The staffing, I think you have covered that. It was on the additional staffing, the case analysts. We will try to do that and make sure that you have that. So we will not go into that. I think you covered that.
One is a difficult issue, it is somewhat of a policy issue, but I know the court has spoken out on it. In past testimony before this committee and in a speech to the ABA, Justice Kennedy, you have criticized federal mandatory minimum sentences. I understand that at your urging the ABA has established a commission to study the nation's imprisonment policies. We look forward to seeing the conclusion of that. When it that going to be finished?
KENNEDY: The commission that is studying the sentencing systems for the American Bar Association has been directed to report back before the next annual meeting, and the next annual meeting is in August. So we should see it any time. I am not on that committee, but I know that they are working very, very hard on this.
If you compare the per capita incarceration rate in the United States with countries in Western Europe, England, France, Germany, our incarceration rate is eight times higher. Something is very wrong; 55 percent of those in federal prison, and we have over 150,000 just in federal prison; over 55 percent are for drug offenses, nonviolent offenses. The mandatory minimums enacted by the Congress are, in my view, unfair, unjust, unwise. The guidelines that were set by the commission, there were two different philosophies. One was the Teflon crime argument. The other was, well, everybody should be treated the same. And every time they compromised, it was for higher sentences, higher minimums.
This is wrong. Cost is not just a problem. I am familiar with the California prison system where it is over $26,000 per year per prisoner, compared to $6,000 a year for elementary and secondary school education. That is apples and oranges in a way, because you do not have full-time care. But at some point, we have got to look at what we are doing to ourselves in this country.
There is a case where a kid on the GW Parkway, which is a federal facility, stopped by park police, and he has got just over five grams of cocaine in the seat, which he should not have; a minimum five years. If he had gone off an exit, it would have been six months. This is silly and it is wrong.
WOLF: Well, if you can let us, I would like to look into that. We are going to have a hearing after we finish our budget hearings, on the whole issue of nonviolent, I stress again, nonviolent. We are almost number one. The only country that I think surpasses us is China. I think there are two reasons. One, we are becoming a violent society. If you could see some of the video games that are being shown, Grand Theft Auto, Vice City, Postal. They are violent. Every child who watches it does not become violent, but if you look at the Paducah case, if you look at the Oregon case, you look at the case in Columbine, all of those kids watched those violent games. I cannot believe how violent they are.
But also this problem of nonviolent sentencing with regard to these drug cases. What we are going to do is have a hearing. Obviously, this committee does not have the jurisdiction to change that. That would be the authorizing committee. But we want to bring the searchlight on it. Again, I stress, nonviolent; if there is any violence, clearly I think it is a totally different case, but to see if you could take some of the money that was for incarceration and having with regard, there would be mandatory sentencing to a drug rehab program, and that if they violated the drug rehab program, then there would be perhaps automatic prison. I agree that on the, again I feel an obligation to keep hitting the word nonviolent. So we are going to look at that and if you could have somebody from your office let us see that case, I would like to look at that.
Maybe we could even have that as one of the cases that we are looking at. We are now talking to a number of very conservative prosecutors.
I am conservative. My voting record certainly bears that out. But to come and see how something perhaps that was well meaning at the outset has now gone awry and to see if on those nonviolent cases if there is some means where drug rehab or something like that.
Also, I had a bill passed this year, it took me three years with regard to prison rape. There was a study, 23 percent of the men in Nebraska prisons were raped. So if you are a judge, knowing that this young person before you, put him into a prison, and this is not only an issue with regard to federal; it is state, too; is going to perhaps have a one out of five chance of being raped, certainly to have the opportunity to get him into rehab program. A district court judge the other day said he, as he sentences these young people, he is concerned where they are going to go, but he has lost the authority and the ability.
So if you could share that with us on nonviolent cases. We are going to try to see if we can move the country and move the Congress to take a look at that.
KENNEDY: As I indicated, Mr. Chairman, at the outset of my remarks, part of the budget for the courts consists of supervised release, halfway houses, court supervision. The United States district judges supervise 40 percent of convicted defendants, and this is much cheaper and much more effective than putting them in full-time custody. There are very few studies, very few organizations, very few programs to aid the released prisoner and transition back to society. He sits in a cheap hotel room with a TV set and a bottle of bourbon and tries to figure out what to make of his life.
We just have to spend more money and spend more attention, and change the allocation of existing resources so that with pretrial diversion, drug treatment programs before release, programs after release, we can do a better job. We are not doing a good job.
WOLF: We are going to look at that. I might say, the Bush administration, the president has a very good recommendation that I hope that Congress enacts. I do not think it is coming before us. I think it will be before Labor-HHS, with regard to having a program for men and women as they leave prison so they do not go back to their neighborhoods; that there is a support structure with the, churches, synagogues. So hopefully the Congress will pass that.
KENNEDY: I do think federal judges who depart downward are courageous, and are exercising the independence and the authority of the judiciary not to follow blindly unjust guidelines.
WOLF: Well, again, you mean in nonviolent cases.
KENNEDY: Yes
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