Statement of Jason Pye

Vice President of Legislative Affairs, FreedomWorks

U.S. House of Representatives Committee on Oversight and Government Reform

“Criminal Justice Reform and Efforts to Reduce Recidivism”

Wednesday, June 28, 2017

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

On behalf of FreedomWorks’ community of more than 5 million grassroots activists, thank you
for holding this hearing and reviving the discussion of criminal justice reform and justice
reinvestment in the U.S. House of Representatives.

Criminal justice reform is a relatively new part of our issue set. Beginning in 2015, we began
training our activist community on over-incarceration, over-federalization of crime, and the
abuse of civil asset forfeiture laws. We are a partner organization in the U.S. Justice Action
Network and the Coalition for Public Safety, these two sister organizations represent the largest
bipartisan coalition advocating for criminal justice reform and civil asset forfeiture reform.
Coalition partners include Americans for Tax Reform, the Faith and Freedom Coalition, the
Center for American Progress, and the American Civil Liberties Union.

FreedomWorks works on these issues at both the federal and state level. In 2017, for example,
we drove messages from our activist communities in certain states, including Arizona, Kentucky,
and Oklahoma. The Republican governors of these states – Doug Ducey, Matt Bevin, and Mary
Fallin – have made criminal justice reform a centerpiece of their policy agendas or signed into
law meaningful civil asset forfeiture reforms.

Today, more than 30 states have enacted justice reinvestment policies designed to reduce
recidivism and enhance public safety.1 These reforms also help alleviate corrections costs on
state budgets. Shattering stereotypes, the states that have led the way are traditionally Republican
strongholds, including Texas and Georgia.

While Texas was the first state to enact justice reinvestment policies – with resounding success,
reducing the incarceration rate by 16.6 percent and seen a 33.4 percent decline in crime2 – I want
to focus on the efforts of Georgia, my home state.

In 2011, a newly elected Republican governor, Nathan Deal, a former member of the U.S. House
of Representatives, made justice reinvestment a part of his legislative agenda. During his
inaugural address, Gov. Deal offered a glimpse of his concerns with the state of affairs in
Georgia’s criminal justice system.3

“For violent and repeat offenders, we will make you pay for your crimes. For other
offenders who want to change their lives, we will provide the opportunity to do so with

1
Adam Gelb, “33 States Reform Criminal Justice Policies Through Justice Reinvestment,” The Pew Charitable Trusts, November 16, 2016
http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/01/31-states-reform-criminal-justice-policies-through-justice-reinvestment
2
Marc Levin, “Texas should close prisons, but strengthen alternatives,” Houston Chronicle, May 8, 2017
”http://www.houstonchronicle.com/opinion/outlook/article/Levin-Texas-should-close-prisons-but-strengthen-11129835.php
3
Office of the Governor, “Inaugural Address of Governor Nathan Deal,” January 10, 2011 https://gov.georgia.gov/press-releases/2011-01-
10/inaugural-address-governor-nathan-deal

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 Day Reporting Centers, Drug, DUI and Mental Health Courts and expanded probation
and treatment options… As a State, we cannot afford to have so many of our citizens
waste their lives because of addictions. It is draining our State Treasury and depleting our
workforce.”

Between 1990 and 2011, Georgia saw its prison population more than double, reaching nearly
56,000 prisoners. The Peach State had one of the highest incarceration rates in the United States,
annual corrections costs eclipsed $1 billion, and recidivism was close to 30 percent. If Gov. Deal
and the Georgia General Assembly had done nothing to reverse this trend, the prison population
would have grown to almost 60,000 prisoners in 2016, costing taxpayers an additional $264
million.4

The Special Council on Criminal Justice Reform for Georgians recommended that the General
Assembly adopt a package of reforms to create a safety valve exception to mandatory minimum
sentences for nonviolent drug offenders, establish accountability courts, require front-end risk
assessments for nonviolent drug and property offenders, increase the dollar threshold for felony
theft.5 These were only a few of the reforms recommended by the council.

In March 2011, the General Assembly passed the recommendations through HB 1176.6 Now a
member of the U.S House of Representatives, then-state Sen. Barry Loudermilk voted for these
reforms,7 as well as reforms that were recommended by the Special Council on Criminal Justice
Reform for Georgians in subsequent legislative sessions.

The justice reinvestment initiative in Georgia, much like Texas, has been successful. “Expanded
use of accountability courts and other diversionary programming, improved educational and
vocational training for offenders currently incarcerated, and the implementation of the state’s
reentry initiative have all contributed to a reduction of Georgia’s recidivism rate from
approximately 30 percent in 2009 to 26.4 percent last year,” the council’s 2016 report explained.

The state has averted the $264 million in anticipated corrections costs, and the state’s prison
population was just under 53,000 at the end of 2016, or roughly 7,000 fewer prisoners than
expected when Gov. Deal made justice reinvestment a centerpiece of his legislative agenda.8

Indeed, justice reform will be Gov. Deal’s legacy9 when he leaves office in January 2019.

4
Special Council on Criminal Justice Reform for Georgians, “Report of the Special Council on Criminal Justice Reform for Georgians,”
November 2011 https://dcs.georgia.gov/sites/dcs.georgia.gov/files/related_files/site_page/2011-GA-Council-Report-FINALDRAFT.pdf
5
Ibid.
6
HB 1176, Georgia General Assembly (2012) http://www.legis.ga.gov/Legislation/en-US/display/20112012/HB/1176
7
Senate Vote #775, Georgia General Assembly (2012) http://www.legis.ga.gov/Legislation/en-US/vote.aspx?VoteID=9227
8
Special Council on Criminal Justice Reform for Georgians, February 2017
https://dcs.georgia.gov/sites/dcs.georgia.gov/files/related_files/site_page/Report%20of%20the%20Georgia%20Council%20on%20Criminal%20J
ustice%20Reform%202017.pdf
9
Naomi Shavin, “A Republican Governor Is Leading the Country's Most Successful Prison Reform,” The New Republic, March 31, 2015
https://newrepublic.com/article/121425/gop-governor-nathan-deal-leading-us-prison-reform

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While traditionally Republican states have led on justice reinvestment, Congress has,
unfortunately, lagged behind.

It’s true that Congress has passed some legislation in the past that promoted recidivism
reduction. In April 2008, President George W. Bush signed the Second Chance Act, H.R. 1593,10
into law. The Second Chance Act passed the House by an overwhelming, bipartisan margin11 and
was approved by the Senate by unanimous consent.12

In 2010, Congress passed the Fair Sentencing Act, S. 1789,13 which reduced the sentencing
disparity between crack cocaine (cocaine base) and powdered cocaine from a 100-to-1 ratio to
18-to-1. The Fair Sentencing Act passed the Senate by unanimous consent14 and the House by
voice vote.15 The bill was later signed into law.

The Fair Sentencing Act is a notable piece of legislation for two reasons. First, it reduced a
severe sentencing disparity, one that had a disproportionate impact on African-Americans –
nearly 80 percent of those incarcerated under this mandatory minimum sentence in 2009 were
black.16 Second, the bill was also bipartisan. Introduced by Sen. Dick Durbin (D-Ill.), the Fair
Sentencing Act was cosponsored by Sens. Chuck Grassley (R-Iowa) and Jeff Session (R-Ala.),
with the latter of now serving as attorney general in the Trump administration.

The purportedly “tough on crime” approach taken in the 1980s and 1990s had support from both
Democrats and Republicans alike. However, this approach has failed the American people.
States have taken a new, “smart on crime” approach that focuses on rehabilitation through drug
courts or substantive in-prison rehabilitative programming and access to back-end programming
to help gain employment and adjust to society. Offenders in the federal prison system simply do
not have the same opportunities.17 As a result, they are left with the stigma of their prison
sentence long after they have paid for their crime.

The most frequently cited survey shows that 77 percent of federal offenders released in 2005
recidivated within five years.18 Some would say that this as a justification for longer prison
sentences, but this logic does not make sense. To paraphrase Pat Nolan of the American

10
H.R. 1593, 110th Congress (2007) https://www.congress.gov/bill/110th-congress/house-bill/1593
11
H.R. 1593, Roll Call 1083 (2007) http://clerk.house.gov/evs/2007/roll1083.xml
12
Vol. 154 Cong. Rec. 41 (2008)
13
S. 1789, 111th Congress
14
Vol. 156 Cong. Rec. 39 (2010)
15
Vol. 156 Cong. Rec. 112 (2010)
16
Danielle Kurtzleben, “Data Show Racial Disparity in Crack Sentencing,” U.S. News and World Report, August 3, 2010
https://www.usnews.com/news/articles/2010/08/03/data-show-racial-disparity-in-crack-sentencing
17
Kevin Ring and Molly Gill, Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism, Families Against
Mandatory Minimums, May 31, 2017 http://famm.org/wp-content/uploads/2017/05/Prison-Report_May-31_Final.pdf
18
Matthew R. Durose, Alexia D. Cooper, Ph.D., and Howard N. Snyder, Ph.D., “Recidivism Of Prisoners Released In 30 States In 2005: Patterns
From 2005 To 2010,” Bureau of Justice Statistics, April 22, 2014 https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4987

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Conservative Union, “If we went to a hospital where 77 percent of the patients had to go back
because they were still sick, we’d find a new hospital. We’d redesign it.”19

Indeed, the approach of the past offers little to our nation’s communities. As Sen. Mike Lee (R-
Utah), a former assistant U.S. attorney, explained during a bipartisan colloquy:

“National Research Council of the National Academies issued a major study of

incarceration in the United States.20 One of their main conclusions is that mandatory
sentencing and excessively long sentences generally do not have a significant deterrent
effect and are ineffective unless targeted at offenders with a very high rate of recidivism
or extremely dangerous offenders. The National Research Council concluded: ‘[We] have
reviewed the research literature on the deterrent effect of such laws and have concluded
that the evidence is insufficient to justify the conclusion that these harsher punishments
yield measurable public safety benefits.’”

“And recent data from the U.S. Sentencing Commission, an independent and bipartisan
Federal agency, shows that shorter sentences can accomplish the same goals without
compromising public safety. Our communities have paid a high cost for the stiff
sentences that mandatory minimums require. The National Research Council found that
high incarceration rates are concentrated in poor, minority neighborhoods, and that the
incarceration of significant numbers of residents in these neighborhoods actually
compounded existing social and economic problems such as unemployment, poverty,
family disruption, poor health, and drug addiction.” 21

In the 114th Congress, there were proposals that would have reformed sentences and incorporated
evidenced-based practices in federal prisons. Unfortunately, those efforts came up short because
of the lack of political will within Congress. Still, FreedomWorks hopes to see these measures
reintroduced during the 115th Congress.

Recidivism Risk Reduction Act: Introduced in the 114th Congress by Chairman Jason Chaffetz
(R-Utah), the Recidivism Risk Reduction Act would have required a post-sentencing risk
assessment of federal offenders to determine their risk of reoffending. The risk assessment would
determine whether an offender is a low, moderate or high risk of recidivism.

The Recidivism Risk Reduction Act would have incentivized offenders to lower their risk by
completing programs designed to reduce their risk, including education courses, work training,
and religious services. Offenders can earn time credits, allowing them to spend up to 25 percent

19
FreedomWorks, “Justice Reform with Pat Nolan,” May 20, 2015 https://www.youtube.com/watch?v=RGJnNmoyyYA
20
National Research Council of the National Academies, The Growth of Incarceration in the United States Exploring Causes and Consequences,
2014 http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
21
Vol. 161 Cong. Rec. 45 (2015)

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of their sentence in a halfway house or home confinement. Some offenders, such as those who
committed violent crimes, were not eligible to earn time credits.

The House Judiciary Committee marked up the Recidivism Risk Reduction Act in the 114th
Congress.22 Unfortunately, it did not go to the floor for a vote. With the departure of Chairman
Chaffetz, the Recidivism Risk Reduction Act needs a champion in the 115th Congress.

Smarter Sentencing Act: There were several sentencing reform bills introduced in the 114th
Congress. Although the House Judiciary Committee ultimately marked up the Sentencing
Reform Act,23 the Smarter Sentencing Act was a strong but reasoned approach to the problems
with federal sentences.

The Smarter Sentencing Act, sponsored by Rep. Raúl Labrador (R-Idaho), would have reduced
mandatory minimums for minor, non-violent drug offenders – from 5 years to 2 years, 10 years
to 5 years, 20 years to 10 years, and mandatory life to minimum 25 years. It would have made
the Fair Sentencing Act retroactive, expanded the existing federal safety valve exception to
mandatory minimum sentences, and required the Department of Justice to compile all federal
statutory and regulatory crimes and make them publicly available.24

A previous iteration of the Smarter Sentencing Act would have saved $3 billion over ten years.25
A separate estimate from the Department of Justice found “savings of $3.5 billion over the first
10 years, and an additional $7.8 billion over the second 10 years, for a combined savings of
$11.2 billion over 20 years.”26

Of course, there are those who will say that mandatory minimum sentences are needed to
prosecute drug kingpins. This is, however, not how these sentences are used in practice. “[T]he
reality on the ground is that most prosecutions, despite resulting in significant prison sentences
designed for high-level traffickers, are netting lower-level offenders,” Brett Tolman, a former
U.S. attorney under President George W. Bush, explained.

Using statistics on mandatory minimum sentences provided by the U.S. Sentencing Commission,
Mr. Tolman noted, “The highest-level traffickers – those defined as ‘high-level supplier or
importer’ – made up just 11 percent of drug offenders sentenced in federal courts” and “[a]nother

22
Lydia Wheeler, “Bill to reduce prison recidivism rates advances in House,” The Hill, February 11, 2016
http://thehill.com/regulation/legislation/269123-bill-to-reduce-prison-recidivism-rates-advances-in-house
23
U.S. House Committee on the Judiciary, “House Judiciary Committee Approves Bipartisan Sentencing Reform Legislation,” November 18,
2015 https://judiciary.house.gov/press-release/house-judiciary-committee-approves-bipartisan-sentencing-reform-legislation/
24
Families Against Mandatory Minimums, “S. 502 / H.R. 920, The Smarter Sentencing Act,” Retrieved June 28, 2017 http://famm.org/s-502-the-
smarter-sentencing-act/
25
Congressional Budget Office, “S. 1410, Smarter Sentencing Act of 2014,” September 11, 2014 https://www.cbo.gov/publication/45710
26
Families Against Mandatory Minimums, “Smarter Sentencing Act Would Save $4 Billion, Says Congressional Budget Office,” September 15,
2014 http://famm.org/smarter-sentencing-act-would-save-4-billion-says-congressional-budget-office/

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7.1 percent of drug offenders were organizers, leaders, growers or manufacturers.”27 Street-level
dealers and couriers, however, respectively accounted for 58.6 percent and 27.8 percent of drug
offenders sentenced at the federal level.

While there are many other issues on which FreedomWorks will be engaged in this Congress, we
do hope to see serious action on justice reform. Again, the states have led on these issues – from
Texas to Georgia to South Carolina to Utah to Oklahoma. As a result, they’ve reaped the rewards
of reductions in recidivism, enhanced public safety, and the added benefit of budgetary savings.
We urge members of this committee to look in their home states and see what has been
accomplished and support legislation that would bring these reforms to the federal justice
system.

Thank you for your time.

27
U.S. Senate Committee on the Judiciary, “Testimony of Brett Tolman,” October 19, 2015 https://www.judiciary.senate.gov/imo/media/doc/10-
19-15%20Tolman%20Testimony.pdf

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