Transcript: Sen. Al Franken’s Q&A on solitary confinement before the Senate Judiciary Subcommittee on June 19, 2012

Partial transcript of Sen. Al Franken’s (D-Minnesota) Q&A on solitary confinement. The hearing on “Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences” was held before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights on June 19, 2012:

Sen. Al Franken (D-Minnesota):
…Mr. Graves, thank you. What you described is just heartbreaking. I really admire your courage to come here and tell your story. I know that that can’t be easy and I wish you peace and that you can eventually come to grips with this. I don’t know how you can – 18.5 years. But thank you. And thank you for your strength. I think it takes real strength and courage to tell your story.

As Chairman Durbin mentioned in his opening remarks, America incarcerates more people per capita than of the world’s democracy. We have 5% of the world’s population and yet 25% of the world’s inmates. And I think we need to take a really hard look at our criminal justice system.

Thank you, Commissioner Epps, for your work.

And we need to make serious reforms and that’s why I support the Criminal Justice Commissions Act, which Senator Webb has been working on for years now. And the bill would convene a commission of experts to make policy recommendations that would help make the criminal justice fairer and less costly. Do each of you agree with this top to bottom review of the criminal justice system or if that would be useful? And what issues should that commission consider in making its recommendations?

Dr. Craig Haney, Professor of Psychology at the University of California, Santa Cruz:
I enthusiastically support these recommendations. I think this is an evaluation that’s long overdue. We’ve been in this country mired in a series of policies that have led to mass incarceration. The topic of today’s hearing, I think, is an outgrowth of that mass incarceration movement.

I think the kinds of reforms that many of us have testified about today, both in our oral and written testimony, with respect to solitary confinement can and should be done in conjunction with reforms of the entire system. They’re inter-connected, obviously. And I think part of the way the system as a whole has deteriorated is what’s led to the kinds of extremes and outrages that have occurred inside solitary confinement units.

We can reform solitary confinement and we should but it’s part of a larger system that needs to be evaluated and understood as flawed in many of the same ways. We put far too many people in prison. We pay far too little attention to what happens to them while they’re there. We keep them there for far too long. And then we disregard what happens to them when they try to make the difficult transition to come out into the free world. These kinds of problems are exacerbated with respect to solitary confinement, but they’re not unique to solitary confinement. And so looking at the system as a whole, I think, is an extraordinarily important goal.

Stuart M. Andrews, Jr., Partner at Nelson Mullins Riley & Scarborough LLP:
Senator, if I may, while it’s certainly critical to examine the entire system, it would be a mistake, in my view, if the analysis were just limited to the criminal justice system. I think as everyone in this room is aware particularly with regard to inmates with mental illness that the increase in the number of people with mental illness who’ve been incarcerated directly correlates to the decision by state and federal governments to de-institutionalize and to reduce fundings for the mentally ill throughout the country. And that occurred. It’s directly related to the increase in the incarceration rates. And to the degree that this committee’s work is done in isolation from community-based mental health services, we’ll be missing a large part of the remedy.

Sen. Al Franken (D-Minnesota):
I’m in total agreement with that. We’ve had testimonies about the criminal justice system being a substitute for a real mental health policy in our society.

One of the federal solutions to this problem is the Mentally Ill Offender Treatment and Crime Reduction Act, which provides the courts, police and prisons the resources they need to address the special needs of people with mental health problems. But that bill is scheduled to expire next year unless Congress acts. Do you all agree that this law should be extended? And what recommendations do you have for Congress as we re-visit that law? In other words, what recommendations do you have to address the over-incarceration of people with mental health problems?

Stuart M. Andrews, Jr., Partner at Nelson Mullins Riley & Scarborough LLP:
Well, I would like to address the issue concerning the failure of any independent review or right to access to counsels by these individuals. From the public defenders’ point of view throughout the state systems, there is an underfunding of those positions while all states, including South Carolina, are attempting to address that. The recent economic problems and budgetary limitations have imposed greatest stresses on those systems, which would make it difficult for individuals to properly raise the mental illness issues that directly relates to the crime for which they are charged.

There’s a secondary issue that has been raised by your previous question related to the three particular recommendations that you asked of Commissioner Samuels, and that has to do with the due process that’s available for inmates, particularly with mental illness, to be able to challenge determinations concerning solitary confinement. Without the capability of providing an independent ombudsman, an independent counsel for those individuals, it’s a system that’s reviewing itself, and it’s the fox guarding the hen house in a way that – repeatedly in hundreds of cases that we examined – rarely, if ever, results in any true due process or fairness for the inmates.

Sen. Al Franken (D-Minnesota):
…You talked about having independent psychiatrists…

Stuart M. Andrews, Jr., Partner at Nelson Mullins Riley & Scarborough LLP:
Independent psychiatrists, counselors, and evaluation. And frankly, access to counsel who can represent the interests of these individuals who are rarely in a position, if ever, of effectively representing themselves.

Christopher Epps, Commissioner of Mississippi Department of Corrections:
Senator, what I find…is that we incarcerate so many people until the problem is once we get them incarcerated, we don’t have monies to do what needs to be done. I’d like to start more on the front end and that you take Mississippi – well, I’m housing 15% of mentally ill today. A lot of them have been housed – the mentally ill – in the county jails. You know, more support is needed on the front end for the mentally ill person before they get into the incarcerated system. Therefore, we won’t be having these conversations – or as much conversation – as we’re about, you know, the treatment and the due process.

Sen. Al Franken (D-Minnesota):
…Again, always being penny wise and a pound foolish in terms of not investing this money on the upstream side and so that we don’t all these costs downstream.

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