Prison population. Does that show, as Iowa Supreme Court chief Justice Mark Cady says, significant Racial Disparities in our system . If so, what can be done . What is the purpose of prison anyway, punishment, rehabilitation, the protection of society . What kinds of principles should guide us as we work toward criminal Justice Reform . We have a great panel today to discus sentencing reform in criminal justice. To my left, jerry Vander Sanden, a linn county attorney. Thanks for being on again, gerry. Jerry good morning. Its great to be here. Scott sara riley, an attorney at tom riley law firm. Sara, thanks for being on. Sara thank you for having me. Scott at the end, justin lightfoot, an assistant us attorney. Thanks for being on, justin. Justin good morning. Scott well, okay, jerry, maybe we can start with you. For, now decades now, weve been getting tough on crime. Have we gotten too tough . Are our sentencing procedures too much . Jerry well, youre right, we have gotten tough on crime. From back in the mid 70s to the current time we have seen more and more crime in terms of mandatory sentences, mandatory minimum sentences. I think that back in 77 we had about 700,000 people incarcerated in america. Now its closer, i believe, to 2 million so if you go just by the incarceration rates, i think some would say that maybe weve gotten too tough on crimes because our prisons are filled with so many people. But on the other hand, i dont think you can ignore also what has happened with our crime rates. I think if you look at our crime rates actually for the last 20 years, our crime rates have steadily receded and its debatable, i think, about what you would attribute that to. Some would attribute our lower crime rates to our get tough measures on crime. Some would say that weve gone too far and i think its a good debate to have. Theres no doubt that, not just at the federal level but at the state levels as well, the american criminal Justice System is coming under scrutiny and i think thats a good measure get complacent in the way that we administer justice in america. The Justice System is too far an Important Institution to be complacent without always striving for ways to improve it. Scott okay, well, lets get sara in on this conversation. Do we lock up too many people than is good for our country . Sara well, if you look at each individual person you might say, well no, this person deserved to be locked up and this person did but clearly, i think especially with the drug war and not that we should im not saying, okay, lets legalize all drugs, but there are a lot of people who have a problem with drugs. Maybe they sold drugs because they had a problem or they were just in possession of drugs and theyre, instead of being in a treatment facility, theyre in anamosa, or fort madison, or some place and house them and keep them. Then once they get out, now theyre a convicted felon and its harder for them to get a job so do they go back to selling drugs and do they just land back in there . I think, at least definitely for drugs, i mean, im not saying for anyone, assault and Violent Crimes i have a different view on, but at least for drug crimes and not everyone whos selling drugs but at least i think that treatment would be a better option or at least should be looked at. I know theyve had a lot of success with the drug course that theyve used here. Scott right, and it sounds like governor branstad is interested in making some kind of movement on this kind of drug stuff but lets get justin in here too. Where, if at all, is there injustice in our sentencing system, justin . Jerry Vander Sanden said. I think you do have to first note the crime rates have gone down but the question now is weve all realized we cant arrest our way out of this problem. The question is, how can we reduce crime further or continue reducing crime without the unwarranted cost of mass incarceration, those costs being financial costs but also the human costs. The department of justice under former attorney general, eric holder, rolled out the phrase thats now pretty well known, smart on crime. I dont think people necessarily know what it means. They think it means soft on crime but its not. Attorney general holder said, being smart and being tough on crime is what we need to do. That means focusing on the worst of the worst so federally speaking, as a federal prosecutor, we need to put our limited resources on the worst of the worst, on getting the most bang for our buck, if you will. The people who need the long prison sentences should be those who, or excuse me, the people who get the long prison sentences should be those who really need them, that that can protect the public the most. General sort of philosophical question, what in a sense is the point of sending someone to prison . On the one end weve talked about maybe reduction of crime rates. Is it to deter crime . Is it to keep criminals out of society . Is it to punish them proportionat ely to their crime . Is it rehabilitation in some ways . What exactly are we doing when we send someone to prison anyway . I guess the reason why i ask this is to think, you know if we think of our goal then we have to think of what is our system meeting that goal or is it sort of an all of the above thing . Sara its probably all of the above except for depending upon what the crime is. I mean like in iowa, with first degree murder you have life in prison. I dont know that we really are that concerned with rehabilitation because unless that persons conviction is overturned or is pardoned by the governor, and its very rare for any of our governors of any Political Party to pardon somebody who is convicted of first degree murder, theyre going to be in prison the rest of their life. I dont think people are too concerned with rehabilitating somebody. But if somebody is going to be getting embezzled money or they had some assault convictions, whatever the situation is, you would hope that before they get out theres some rehabilitation just for societys sake. Scott yeah, jerry, i mean is it partly, i mean you were talking about the idea of maybe the fact that weve gotten tough on sentencing crime has had something to do with the crime rates overall, is that a deterrent effect . Is that keeping criminals out of society . What would be the effect there and is that part of why were sending people to prison . Jerry well, we hope that there is a deterrent effect. Thats part of the purpose of our laws is to determine or deter criminal behavior but in iowa the way the law works is that we have individualized sentencing and the law says in iowa that when a judge sentences somebody for a crime, theyre to craft a sentence that would best serve the rehabilitation of the defendant and also would serve to different factors the judge has to look at when they sentence somebody. Theyre supposed to look towards rehabilitation but also protection of the community is a big factor. When we talk about protection of the community, you do want to fashion a sentence that is going to provide for some deterrents. For instance, not just specific but general deterrents. When a person is convicted for instance for drunk driving, you hope that the sentence they receive is going to deter them from doing that again. Likewise, when other people see that that particular kind of law is being enforced that its going to deter them from driving impaired. Scott do we have evidence that that works . One also hears about recidivism rates being fairly high after people get out of prison. Is it the case that they go to prison and learn the lesson . For rehabilitation thats being offered for defenders. Scott right. Jerry themselves of that opportunity, its up to each and every individual but you like to think that the effect of the law does have some impact on behavior. I believe that the facts and the statistics will bear that out. Scott but the other thing, and maybe justin can speak to this, is one does have this deep sense that the punishment should somehow fit the crime, that even if we could protect the community by locking that some crimes just dont merit that, i take it, particularly with drugs stuff. Sara was mentioning this before that sometimes people feel like these sentences just dont seem fair that someone is going to prison for a long time and who knows, maybe it does reduce crime rates to send them to prison for that long but is that really fair to this person and that persons family for a justin right, and under the federal statute, title 18, section 3553, the Federal District court judge has a set number of factors that he or she has to consider as well but the important guiding principle is that, based on those factors, generally and specific, which include treatment opportunities for the defendant, which include protecting the public certainly, include the seriousness of the offense but the guiding principle is that the judge should select a sentence which is sufficient but not greater than necessary to achieve those goals. Scott right. Justin i think the department of justice would agree that some of the sentences that are required by some of the mandatory minimums, especially in the drug context, in certain instances, depending on the specific facts of those cases, would perhaps be greater than necessary. The department of justice does support some pending legislation which would cut some of those mandatory minimums. About that and maybe, gerry, you can speak to this. How do mandatory sentences and mandatory minimum sentences work right now in our system and to what extent is this a federal issue, to what think not everyone has a clear sense of how these things really work for people. When do these kick in and how do they work . Jerry sure. Well, theres two kinds of sentences in iowa that call for a mandatory prison time. For which the judge has no discretion. Scott jerry prison is the only possible outcome. Those are reserved for the most violent offences, for instance, murder, or robbery, or the worst forms of kidnapping, or sexual abuse and so forth. Then there are some crimes for which not only is prison mandatory but the offender has to serve at least 70 of their sentence before theyre eligible for parole. We call those the 70 ers. This was a law that went into affect back in 1997. First, in fact, it used to be 85 and they reduced it to 70 back in 2003, i believe it was, but its reserved for the worst of the those people that commit crimes like murder in the Second Degree, attempted murder, aggravated forms of kidnapping and sexual abuse, and both forms of robbery. I dont think that we should give our public the impression that everyone who gets sentenced for a felony goes to prison. Thats not the case. In fact, most dont. Most get a chance on probation the first time around for the felony offence unless its a crime of violence. What our legislature has decided is that for those people who commit certain acts of violence, not only is the term going to be mandatory, but for certain extreme crimes of violence youre going to serve 70 of your sentence before youre eligible for parole. There are reasons for that. I remember when i started back in 83, the first murder case i ever resululd in a conviction for murder in the Second Degree. The sentence was 50 years in prison but we had no mandatory minimums and the defendant was paroled after serving a little bit more than 7 years. The legislature saw examples like that happening across the state and decided, enough is enough. If you go to prison for certain crimes then youre going to serve a certain mandatory sentence before youre eligible for parole. Scott but why was the person paroled after 7 years . Couldnt some people make an argument that well, they met the requirements for parole, this person was not a harm anymore to the society, this person had shown proper rehabilitation . Sara wasnt it just crowded prisons really . Scott or was iicrowded prisons . Jerry well, the parole board, i think, is always under a certain amount of pressure to keep the prison population under capacity or at capacity but i think most people would say that a person that goes to prison for murder on a 50 year sentence should do more than 7 years. But its strictly up to time and so sentencing discretion has really taken away from the judge, from the jury and given to a to nobody. Scott right. Well, so is there a problem, sara, with our sentencing, our mandatory minimum sentencing . Sara there was a problem before they changed it where there were, i mean Second Degree murder was anywhere in reality 5 to 7 years. I mean that was what was standard and that was considered crazy because just because you were lucky enough to have a really good attorney, because if jerry was going for first degree murder i can tell you that person deserved to have been charged with first degree murder. If the attorney, d he probably stillll remembers s o it was, but was good enough to get the guy off on Second Degree murder, which is not a minor crime, for that person to only serve 7 years, im quite sure that the family of the person who was killed was pretty unhay when that person got out in 7 years. My unhappiness or my concern, with that type of youre now serving 70 of Second Degree murder, i have no problem with that because theres a death. The problem i have is in the federal system where you have drug crimes where the judge has no discretion. Mark bennett, whose a great judge, hes now senior status but he was a chief judge in the Northern District of iowa, and hes written some columns, some opinion columns that have appeared in theheazette aboututis concern with the mandatory minimums and hes sentenced people who he thinks shouldnt be going to jail at all but theyre going to go for 20 years because they had a drug problem and it they had been charged in the state systems for the same crime, they probably wouldnt have gone to jail. Thats a problem, is to have the bad fortune and nothing against yoyo youre dealing, youou know you dont have discretion either. If the person is charged with whatever amount of that sentence says this is the least you can serve no matter what. Scott yeah, justin you want to justin yeah, a few things on that. First, theres significant differences in the federal and state system. There is no parole in the federal system right now so when someone is sentenced to a period of imprisonment, they serve that entire period other than about 15 they can get shaved off for good time credit. Second, there are some policies the department of justice has adopted in recent years which give us line prosecutors more discretion in alleging the triggers that cause a mandatory minimum to apply. In drug cases its almost exclusisily drug quantity right now, so you reach a certain point of drug quantity and a mandatory minimum applies but thats only if the drug quantity is alleged in the indictment. Theres now a set criteria that the ausa and the ausa supervisor go through in each and every case to determine whether to allege the quantity. Similarly there are on recidivism, recidivist enhancement, so if youve had 3 prior violent felonies you have a mandatory minimum kick in and so we have another set of criteria; well look at that. Its not any more the case that we always have to charge it and those policies are part of the smart on crime e itiative that attornrn general holder initiated. But i think there are some reasons why mandatory minimums are important and i think thats important to understand. One, they offer a certainty of sentence and for some types of crimes thats important. You need the public to know that if you commit crime a, there will be a 10 years or whwhever it is. That certainty can lead deterrent effect than if you commit crime a you might be sentenced to 10 years but you might be sentenced probation, depending on which judge you get. I think that there is value in that. Theres value in limiting the unwarranted disparity. As i said, if you can commit the exact crime and have the e act same criminal history but you happen to get a judge a instead of judge b and you get 10 years difference, that disparity is something that i think the system would try to avoid but thats only when mandatory minimums are an appropriate length and for the appropriate scott right. Justin type of crime. Again, we believe that the lengthy mandatory minimums should apply for the most serious and violent offenders. Scott well, i guess, i mean the couple problems that i think about, one is that, and saras alluded to this already a bit, that it seems as if part of the beauty of our system is that a judge makes a judgment. That is to say, looks at the specifics of the case and somehow applies what is a kind of set of precedents sentence ties thth hands, in some wawas, of a judge who might say, well, there are so mmy extenuating circumstances here, so judge a and judge b might be giving different sentences and maybe that is unfair but it could also be that judge a and b are giving different sentences for the same crime but there are all sorts of extenuating circumstance s that make up for that and wouldnt having a little bit of play in our system be a kind of good thing in that regard . I guess the other thing is, is that one fear is like with having multiple, you know youve been convicted a few times and then all of a susuen some mandatory minimal sentence kicks in. I guess if thats appropriate thats okay but again one worries like, in an extreme case like a 3 strikes, youre out, and yoget like a minor crime and all of a sudden now youre serving life in prison for something that just seems disproportionate punishment to whats actually going on. S sa yeah, there e s somebody in california that they had stolen their third scott right. Sara offense it was 3 strikes, youre out, a a scott right, and admittedly sara california got scott it might not always be so dramatic sara right, right. Scott but nonetheless, it seems like we want, like i said, the punishment not to exceed the crime and even if youve done 3 crimes, you know that doesnt necessarily jerry sure. Scott mean you deserve some huge, long sentence. Sara we do have habitual offenders in iowa jerry right. Sararabut isnt there also discrrtion with the court . Jerry sure, the judges still have discretion even on those who are habitual offenders and have prior felony convictions but i think its important to note that not only are judges concerned about fashioning the appropriate sentence to fit the crime but prosecutors are interested in scott right, right. Jerry doing that too. Prosecutors are supposed to be fair and to play by the rules, and not overcharge crimes, and try to fashion an outcome thats appropriate to the kind of crime thats involved. For instance, if somebody shoplifts and they assault a clerk on the way out, i mean technically a mandatory minimum 7 year sentence but i think the, most prosecutors would look at that and say, this is an assault and a theft, and so i think its important at every position to have people of integrity working in the Justice System. If you dont have faith in the people who are involved in the Justice System then you dont have faith in the Justice System itself. Scott right, but doesest, i mean in some ways a mandatory minimum sentence says, we dont have faith in the system, saying, we dont trust you guys to do it so were going to make sure that you do it . Sara well, i think it started with the biden crime bill, the mandatory minimums, then, and crime was much higher at the timm was that there was too much leniency. Problem is some of those minimums are way too high for what people are being charged with. I mean the biggest problem people have, no you dont hear anyone say, oh, i dont think we should have a mandatory somebody who kidnaps and rapes a person. Ive never heard anyone say, you know, theyre sentenced too long, but when you have s sebody who, and not that i am advocating in getting involved in meth, but the sentences for meth, which theres a lot of people who have an addiction to that, are rather high and at some point our prisons just cant handle all the people that have a drug problem and steal stuff to keep going. Scott maybe we should talk about just the number of p pple in prison and in particular the kind of Racial Disparities that chief Justice Mark Cady has mentioned that, you know, so the numbers i have are that, you know of 8,000 inmates in 9 state prisons in iowa, roughly 31,000, you know 25 of the population is black, whereas only 3 of our population in iowa is black. Does that show that there is some kind of disparity . I meme if the goal of this stuff is to make things equal, is that equal . I mean is it the case that the sara well, i think theres reasons for it. A lot of them arent good. Some are as simpleles who they have for a lawyer. I mean, im not going to pretend that all lawyers scott so its a kind of class thing, partly . Sara there can be, there can be that, i mean, you know scott right, but it seems like theres a race thing on top of the class thing. Sara im not saying theres not. It could start with where theyre getting arrested. It could, there could be a whole thats why i said s se of the things arent good but some of them actually are color blind. I mean if you ask somebody, who, you know, tell me one person you can think of that got away with murder, most people uld say who, oj, you know . Why did he get away with murder . It wasnt because of the color of skin. It was because he had what was called the dream team so some ofofhe Racial Disparity is income basedd although i have a nephew who is a public defender and i think the public defenders in iowa do a great job so just because you dont have the money for dont think that theres some, you know, necessarily some conscious thing that people are going after but it does seem startling. I mean, justin, doesnt this seem like a problem that needs to be addressed in some ways . Justin yeah, i looked up the numbers here and brought it with me from the federal system scott yeah, okay. Justin because i wasnt aware. Id heard about the iowa numbers and so according to the bureau of prisons website the African Americans make up approximately 38 of the feral prison population as of, i think it was the end of 2015. Thats about 74,000 inmates. Now comparatively, according to the census, africananmericans make up 13. 2 of the nationwide population similar disparity scott disparity, sara but not a stark, nowhere near as stark as in 3 versus 25. Justin i would agree theres a lot of issues contributing to this. I dont think its just the criminal Justice System. I think theres some, you know some crime is prompted by social or economic inequality and so i think as a society or fromomll angles and not just the criminal Justice System but all angles as to how we can help this. Now, criminal Justice System can do, i think one way we can take a step towards correcting this is actually focusing on offender reentry. Reentry focuses on, when people get out of prison are they going to recidivate and come right back into prison, or can we help them stay out and live law abiding lives . I mean 74,000 African Americans in fededel prison ririt now, almost all of them along with almost all the other inmates are coming home at some time. Theyre all going to be released or almost all of them will be released at some point in time and due to difficulty finding jobs or lack of community support, they have a hard time getting on their feet. If were going to end this cycle, and not send them back to prin and contribute to this disparityty even more, w whave to help with the reentry. Scott well, what about, jerry, that just the sentencing piece of this . Does that play a role in increreing the number of black americans in prison . I mean, i guess the worry would be, particularly stuff, that all of a sudden the rug war gets waged predominantly in black communities and then all of a sudden theyre paying this huge price that has been brouout on by getting tougug on crime in the way that we have . Jerry i think its a fair question. I think the question we have to ask is this, are any of our laws that we have on the books unfairly targeting minorities . If thats the case, then those laws need to be changed but at least at the state level, the state of iowa, i dont believe there are any laws that unfairly target any segment of the population. I believe thats true at the federal level as welel many will point too the disparity in treatment of drug traffickers wih regard to the difference between crack cocaine and powder cococne but some offhese people have a very short memory. Many might remember back in the late 80s and early 90s when crack cocaine wawatearing people wanted scott right. Jerry a response to that problem because scott right, right, to crack down on. That was part of clintons stuff jerry right. Scott and everything in turf right. Jerry were dying and so our legislature crafted the sentences. It got tough on people who peddled crack cocaine and so i dont think there was any kind of insidious intent our leleslators to craft a law that was going to come down on one segment of the population. Scott affect has been sort of to do that a bit. I mean even one could sort of say cynically that part of why branstad has all of a sudden worried about drug stuff is that its s l of a sudden hitting White Communities more in iowa and its like, oh, now we need to back off the sentence. Sara it could be that and also with budgetary concerns. You know at some point you ve to build a new prison or scott sure, and that might scott right, that might sentences are and stuff. Scott right, right. We only have a few seconds but do you want to respond to that, jerry . Jerry no, i think its good laws s see if theres any way that we can amend them to make them more fair for justice is not supposed to depend on who you are. What you do. Scott right. Jerry the law should apply to all equally. Scott right. Well, thats maybe a good note to end on. I mean, i think as a society we lock people up and as you said, this is Serious Business not just for those who have suffered crimes and committed those crimes but really for all of us in whose name we are doing this. I hope that the conversation that weve started is one that you can continue in your homes and communities and i would really like to thank the panel for really a really enlivening discussion. Thank you again. Sara thanks for having us. Jerry my pleasure. Justin thank you. Scott okay, thank you, and well see you next time on announcer the following is a paid advertisement for tai cheng, brought to you by beachbody. 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