Significant numbers actually. So, all of you, thank you. Senator cornyn, i do think and i believe you mentioned it miss mcdonald that the ability to have people in prison begin to work before theyre released has real potential. Maybe mr. Tollman you mentioned it. I do think that can work. My observation over the years of attempts to have education and other kind of characterbuilding programs in prison before theyre released doesnt seem to have much benefit. Do you agree with that, miss mcdonald . Its very hard to find a excuse me. Its hard to find a current or a released prisoner who has not been offered programs galore. They do exist in prisons, but i think work gives a sense of selfesteem and is the best training for reentry that weve got. The risk assessment, the cognitive therapy, thats already being done. And im afraid that the judgment that was reached in the 1970s, which is that its very hard to find a Therapeutic Program that reduces recidivism significantly remains the case, and thats by the justice departments own evaluations. But work is manage that we have not tried. Mr. Mile mentioned incremental improvements. Senator cornyn mentioned a 9 or maybe one program 19 improvement. Those are thats enough. You show me a program that has a 19 improvement rate, im interested. The only problem is, ive never seen a new program that the first few years the data always looks great. And as time goes by, they havent proved to be able to maintain that success, but its worth considering. And thank you, senator cornyn, and all of you for your work. Senator cornyn . One thing strikes me as true, its for people who dont want to change, they never will change. But there are people in prison, miss campbell may be an example of that, who if given an opportunity to reduce their level of confinement by dealing with their underlying issues, whether its drugs, alcohol, Mental Health issues, work skills, education, general education, can earn a lower level of confinement, perhaps a halfway house, perhaps inhouse confinement which is the goal, as you know, mr. Tolman to provide those incentives what do have the desire to turn their lives around. But for those who dont, i agree, miss mcdonald, we cant design enough programs. Because none of them will work if somebody hasnt made the decision in their own mind that they want to turn their life around and take advantage of that. Mr. Droch, whats your experience been with the prison fellowship . Thank you, senator. For all the senators, in our in the testimony that i submitted, theres a citations of some of these results that are through time, and senator cornyn, one of the them is the study done by the Texas Policy Council of the inner inner change Freedom Program that started in 1998 in texas, that shows i think to senator sessions point, significant numbers. Weve seen that in through the Iowa Department of corrections, the Minnesota Department of corrections. These things are available. I do think that they should be expanded. I think that they should be available to people. The mention i make in my testimony was i said i had a drinking problem. I had to enter recovery for alcoholism because alcohol was my solution. I think too often we think the person the crime theyre doing is their problem. Its not. Its their solution. So what we need to do, we need to go in when people have the willingness, and we work at prison fellowship even if someone is never going to leave prison, it says i want to live my life differently for the rest of my time here and make the transformation worth something because its available and its been demonstrated time and again and by studies all throughout this country that people can when they have the willingness change their behavior and their character and that faith plays an Important Role in that, senator. And i think that can be demonstrated right in facilities in texas. Judge mukasey, weve been talking about mandatory minimums and the length of those sentences, but could you just comment. Is it the certainty of punishment or is it the length of the sentence that provides deterrence in your view . Well, they both do obviously. But i think its certainty thats far more of a deterrent than once you get beyond five years, i think a lot of people involved in the criminal Justice System are involved because they dont think in segments longer than five years and usually a lot shorter than that. Sometimes not longer than five minutes. But the certainty of punishment is a major deterrent. And thats one reason why i think that the old you know, the guideline system before booker was more effective and why i think mandatory minimums to some extent ought to be retained. Mr. Chairman, i would just like to make one last point and then to thank the panel. And that is that it seemed like weve been from a swing of the pendulum here from the time back last time we took a systemic view of our criminal Justice System. We realized that crime was rampant and that Something Else needed to happen. And so the incars ration rates went up. Mandatory minimums, the stacking thats been described here. But the reason why that was done i think was at least in part the sense that people who commit the same offense tried in different courts could end up with vastly different sentences, which is not what i would call equal justice under the law. So, weve seen a swinging of the pendulum, and maybe its time to look at and i believe this legislation does carefully look at some of the mandatory minimums. Particularly with regard to nonviolent offenders. But we do need to do both. We need to have the certainty of punishment as deterrents and we also need to make sure that people who commit the same acts are treated similarly and not dissimilarly. I dont know how we aspire to a system of equal justice under the law where people receive such wildly disparate punishments for the same crime which has been the goal of some of the mandatory minimum policies. So, i just do think we need to be very careful. And i appreciate this great panel. Youve made us all think and question some of our assumptions, and i hope youll hang in there with us as we work through this process not only on this committee but through the senate and also with the house and eventually to the president. So, thank you very much. Thank you, senator. Youre absolutely right. I was here when we did the mandatory minimums and we were tired of some of the courts that didnt enforce the law and didnt give sentences the way they should have, and thats what happened. Now, i think most of us feel its gone way too far and weve got to find some way to resolve that. Thats one reason for this bill. Senator lee will be the last witness the last senator. Thank you, mr. Chairman. I want to echo and agree with and build on what senator cornyn said just a minute ago. With one clarification, which is that i dont think we should see this bill as something thats going to reverse the pendulum. I think by and large the American People feel good about the direction of our criminal Justice System in the sense that no one is calling for a return to the system that we had prior to 30 years ago. No one that im aware of thats involved in this effort on this bill is saying lets go back to what we had before. Thats not what this is about. Nor would it be fair to say that this bill starts to push the pendulum back in that it swings in only one direction. Thats not true either. Were making adjustments in this legislation to the existing framework. In some cases those adjustments might result in some shorter sentences. In other cases those adjustments might result in larger sentences. And, in fact, we do create some new minimum mandatory penalties and in some cases we extend the statutory maximum, so this is not a reversal. This is an adjustment that is made necessary by what weve seen in recent years, that its occurred to us that in some instances, not in every instance, but in some instances we overpunish crime and thats not always a good thing. Overpunishing crime results in a waste not only of money but of human lives and we want to avoid that wherever we can. Judge mukasey i was wondering if i could ask you a question. Youve spoken about the Important Role that Congress Plays in setting the limits of punishment. On the top end and the bottom end. Setting the top range and the bottom range. Now, if we as a congress can agree, if we can get to the point where most of the senators and most of the members of the house agree that certain penalties under current law are greater than necessary and if we decide to reduce those penalties, wouldnt it also be appropriate in that circumstance for us to make those reductions available not only to those who will go through the system in the future but also those who have already been sentenced . It may or may not depending on the case. I think that many of those cases particularly those that end paradoxically those that end in pleas rather than trials are the result essentially of a negotiation involving both charges and length of sentence, such that you would not necessarily want to come in after the fact and decide that that bargain doesnt make sense anymore. And thats why we wouldnt want to make them automatic . Correct. We would want to make sure that they would apply on a casebycase basis such it wouldnt occur automatically but it would have to occur in a separate proceeding in front of the article three sentencing judge. Article three. Right. That would be a big problem if we were talking about putting this authority in article one judges. Didnt even know there was such a thing now that i i think that i think th that also lodging the responsibility in the individual districts is important because they are the people who, a, are familiar with the case and, b, are going to have to put up with the consequences, so that part of it is very important. And i was i spoke to the attorney general about this on friday, and the deputy testified here today that thats going to be their policy, so i think thats all to the good. Thank you, judge mukasey. Mr. Tolman, you were asked some questions about the mens rea component. I want to be clear, this has long been a concern of mine and for the last several years, ever since i came to the United States senate, ive been very concerned about the overcriminalization trend generally and about the mens rea problem in particular. In the sense that weve got so many federal crimes on the books that when we ask groups like the Congressional Research service, things like this. When we ask them how many federal crimes there are on the books, they cant tell us. So, one of the things this bill does is to identify the number of crimes that are out there. Weve got to first get a handle on the number of crimes that are out there. And as we do that, i think well find ourselves in a better and better position to address the mens rea problem. Not every federal crime on the books has an absence of a mens rea requirement or has some kind of an inadequate mens rea provision. Mr. Tolman, based on your understanding of the bill, the crimes that are addressed in this bill are not the crimes that were talking about, are they . No. Theyre not the crimes that lack a mens rea requirement. No. Thats correct. They have mens rea. And with respect to the mens rea issue, it is a worthwhile endeavor. And i would love to work with senator hatch going forward. It appears as though its an appropriate vehicle to follow the current legislation. And the reason is this legislation will identify what those what those crimes are. Some estimate over 30,000 potentially. There needs to be an as careful an analysis of those crimes and the appropriate mens rea to apply that may not be there in applying the current legislation to this legislation. It is, however, something that should be on the near you know, the near future of this congress to address the mens rea issue. And id be happy to work with the congress in doing that. But theres certainly no reason to delay this legislatation for that and, in fact, you would argue that we do the opposite. Well, you know, having worked here, certainly this hearing is evidence of the fact that members of congress can get along on both sides of the aisle and propose a bill together still. Its evidence that members of Congress Work past 5 00. But i also know that it sometimes adding bills that are very well supported to an existing, negotiated package, that would be my concern, senator hatch, and others, that adding the mens rea element at this point may really disrupt the ability to pass this legislation which is frankly is hangs on a very, very thin precipice on whether it will succeed or fail. I will add, it may pass without my support if we dont do something about mens rea because i think its essential to any criminal any criminal action. And, by the way, it could come into play in these matters as well. I think youd have to admit that. I have learned to never underestimate you, senator hatch, and your ability in the senate. I do appreciate that it is a significant issue, that the senators highlighted. Youre absolutely right to highlight that, and i would really look forward to working with this congress on that issue. We appreciate your comments. We appreciate every one of you for being here, and were sorry its so late and had to be at this particular time. I had to make it back from utah so i could be here, but we want to thank each and every one of you for your testimony. Its been its very important to all of us up here. With that, well well recess every weekend the cspan Networks Feature programs on politics, nonfiction books and American History. Saturday night at 9 00 eastern, politics and internet experts on whether social media hurts politics and its effects on campaign 2016. And sunday evening at 6 30, texas legislators and other officials look at the hispanic vote in the 2016 and 2018 elections. And this saturday, on cspan 2s booktv starting at noon eastern its the 27th annual southern festival of books in nashville featuring Nonfiction Author presentations including kristen green on a virginia towns reaction to the Supreme Courts brown versus board of education ruling, actor and producer Wendell Pierce on how Hurricane Katrina impacted his familys new orleans neighborhood, and cecelia tishy remembers the life of author jack london. And sunday at noon on indepth our threehour conversation with economist Walter Williams as he shares his life and career in response to your calls, emails, Facebook Comments and tweets. On American History tv on cspan3 saturday evening at 6 00 p. M. Eastern historian done doyle looks at the world view of the American Civil War and the perspectives of foreignborn soldiers who joined the cause and on oral histories an interview with Supreme CourtJustice Clarence thomas on his upbringing in the segregated south and the influence of his grandfather on his career. Get the complete schedule at cspan. Org. The Supreme Court heard the oral argument this month over whether floridas depath sentencing policy is constitution. In hurst versus florida the issue is a trial whether Timothy Hurst be sentenced to death for the killing of a coworker in 1998. The judge in the case went with the jurys recommendation. Mr. Hursts lawyers argued that his disability disqualifies him and the judge should not have made the final ruling on the Death Penalty. This is an hour. Well hear argument next in case 147505 hurst versus florida. Mr. Waxman . Mr. Chief justice, and may it please the court, under florida law sympathy hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death. That violates the sixth amendment under ring. In florida and florida alone, what authorizes imposition of the Death Penalty is a finding of fact by the court of an aggravating factor, a finding that the trial judge makes independently and, quote, notwithstanding the jurys recommendation as to sentence. Now, the state here contends that capital sentencing juries make implicit findings that satisfy the sixth amendment under ring which the trial judge then simply ratifies. That is wrong. Whatever the jurys recommendation might imply about the specified aggravating factors, the florida Supreme Court has repeatedly rejected the notion that the jurys verdict is anything other than advisory. Florida law entrusts the factual findings of aggravators to the judge alone who may do so on the basis of evidence that the jury never heard and aggravators that the jury was never presented with. Is there ever a case in which the jury found aggravators and recommended the death sentence and the judge reversed that finding . There may well be. This is principally a case about the finding of death eligibility not sentence selection. Either way yes. Is there ever a case in which the jury did not find an aggravating circumstance but the judge did . Well, we dont ever know what the jury found about any of the specified aggravating circumstances. The only thing that the jury tells the judge is, we recommend life death by a vote of x versus y. Right, but they cant recommend death unless they find the aggravator, right . Well, no. No. As a matter of state law, thats not correct. They cant recommend death unless seven of them each believe that some aggravator is satisfied. All right. But the florida Supreme Court and this is a this is another ring problem here. The florida Supreme Court has recognized that where two aggravators are presented, it is impossible to know even if a simple majority agreed on a single aggravator. Well, thats a common feature, though, of jury deliberations. An aggravator is whether the murder is particularly heinous and it can be for for a number of factors. One, the victim is a juvenile, so maybe three jurors find th