Speaker 1:	Thanks a lot and thank you for the invitation, members of the [Swarthmore 00:00:00] community. Very generous comments and I'm really privileged to be here and actually privileged as Carol says, I've been practicing law in and around the Philadelphia area for close to 45 years now and quite privileged to have been able to have a career in public interest litigation.
	We've all learned over these years that working on social justice and political justice issues through the law is not easy. The system doesn't change very easily. We win some, we lose some, we lose more than we win, but the challenge of turning our constitutional rhetoric, Constitution Day in two days, of equality, freedom, and due process of law and to reality for everybody in this country, is an ongoing struggle, and as I say, I've been privileged to be part of that over the past several years.
	Tonight I want to address two related issues in criminal justice. First, the, actually the relatively recent phenomenon of mass incarceration in this country as we're going to see from this first slide. Then not so recent but continuing plague of racial injustice in the criminal justice system. These problems manifest themselves on a number of different levels. I want to talk both about the current state of those issues, the causes of why we are where we are, and then suggest some possible ways out of the problems that we face.
	Let me start first with the issue of mass incarceration and the statistics. The first slide you'll see, been a lot of discussion, I'm sure most people in this room are very familiar with this debate and discussion around the country about the carceral state, the new Jim Crow, our punishment society all describe a process, which really is of recent vintage. If you look at this chart, which charts the state and federal prison population from 1925 to 2012, you won't be surprised. You've probably seen some of this data already.
	For the first two-thirds of the 20th Century, the incarceration rates were similar to those of Western Europe and Japan. I'll map those out in a moment. We were running about 100 persons in prison for every 100,000 in our population, and in fact in 1975, there were approximately 200,000 inmates in our prisons.
	Today, we imprison at a rate seven times, seven times the rate of imprisonment in 1975, We now imprison over 700 for every 100,000 in our population, a rate that's actually close to eight times that of 1975, 10 times greater than the rates in Europe and Japan. If you look at the rates here, this is incarceration rates 2012 and 2013. We lead the world.
	We have 5% of the world's population, we have 25% of the world's prisoners, and those of you interested in some kind of cross cultural analysis with 5% of the population, we also have 25% of the carbon footprint. I'm not saying there's a necessary connection between those two, but kind of interesting data.
	Today, while this chart shows 1.5 million, this is only our prison population. When you factor in local jails and other institutions that hold people including juvenile facilities, today as we stand here today we incarcerate 2.2 million people in the United States. Beyond those 2.2 million people actually in prison and in jail today, there are another 5 million on probation or parole.
	Further as you know, there are huge numbers of persons either in prison, on probation or parole, or who have finished completely all their sentences, who suffer from very significant collateral consequences of conviction. This means deportation in the immigration area, it means loss of voting rights in many jurisdictions, it means loss of governmental benefit, restrictions on employment, and restrictions on social contacts. Not only do we incarcerate huge numbers of people, not only do we punish them for long periods of time, but over their lifetimes it's almost impossible for many of them to come out under the initial effects of that incarceration. Mentioned before, we look at the international rates.
	I want to talk a little bit about what people are in prison for. I think a lot of people think well, maybe it's not such a bad idea to have two million people in prison. We have a lot of violent crime in this country, we have more violent crime certainly than we see in many other countries, and so maybe it's not so disproportionate of the United States, for whatever reason, why we have so much violent crime, to have more people in prison.
	As it turns out, only 20%, think about it, only 20% of our people in our jails in prisons are there for violent offenses, 80% are there for drug charges, property crimes, or other minor non-violent crimes. In terms of drugs, and you'll see this charge here on the breakdown of the population in prisons as a result of drug offenses, again if you compare the data from 1980, in 1980 there were about 40,000 people in our state and federal prisons there on drug convictions, today it's 500,000. We went from 40,000 to 500,000 in a period of about 30 years, many serving sentences that exceed by far the sentences for violent crime, and by any measure proportionally that are cruelly excessive.
	Consider as well, it's not on the chart here that persons serving life without parole from 2002, we went from 12,000 persons in this country serving life without possibility of parole to today we have 50,000 persons in our prisons serving life without possibility of parole. While many people think well, but that's probably those people who are convicted of murder, they're not given the death sentence, they're given life without parole. It turns out a majority of those 50,000 are serving sentences for something other than murder. We have life without parole for three strikes, we have life without parole for drug offenses, we have life without parole for recidivism. It's not limited to those who have been convicted of murder.
	There's a picture of what the prisons look like, a population that has been driven by the war on drugs in part, but I'll talk a little bit more about other causes, as well. A huge increase in incarceration and as I'll come to later, notwithstanding that huge increase in incarceration, what we're finding is in places where the incarceration has increased the most, we haven't gotten much benefit in reducing crime.
	In fact, just the opposite. Those few states and jurisdictions that have been responsible in reacting to this phenomenon and have reduced their prison population, they've also reduced crime at the same time, so there's no necessary correlation between the number of people we keep in prison, and public safety.
	Let's look a little bit at the issue of race and incarceration, which is probably just as troubling, if not more troubling than the numbers themselves, the total numbers. As I say, even more disturbing. More than 60% of our prisoners are persons of color. For black men in their 30s, one in 10, for every black man in this country in their 30s, one of every 10 is in prison or jail on any given day, and in terms of likelihood of imprisonment over one's lifetime, for white men it's one in 17, for African American men, it's one in three.
	One in three of every black men in this country, black child born today, one in three chance that they will serve time in jail or prison over their lifetime. Similar disparities for women of color, as well. Of course, one response to that piece of data is well, that may be true, it's not something we should be proud of but if crime is defined somewhat by race, if one race commits more crime than another, then shouldn't we expect perhaps to find more members of that race in prison?
	There's certainly a correlation there. When we look at areas in which we know there's no difference between crime rates, particularly with drugs, we find something quite different in that, and I will get to that in a moment. In some selective zip codes in this country, there's a one in two chance that every African American male in that area, that geographic area, will spend some time in prison.
	Beyond the race, I just want to put in a footnote also in terms of when I talk about causes of the huge increase in the number of prisons, when we look across the country both our jails and in prison, we find uniformly across the country some 15 to 20% of all our prisoners are persons with serious mental illnesses, 15 to 20% are persons with serious mental illnesses.
	You may recall historically, some of us lived through that period. In the '50s and '60s, we, to our credit, closed down a number of the large mental hospitals. We used to lock people up with mental disease in some very, very poor mental hospitals. It's hard to even use the word hospital. They were dungeons. They were closed. They were closed on the theory that we can provide mental health services on the outside.
	Well, as we often do in this country, we did it half way. We closed the facilities, and we didn't provide the services on the street, and so what are we finding now 40, 45 year later? We're finding that same population winds up in the last catchment area. It's no longer a hospital, it's our jails and prisons.
	Those persons tend to have the worst of the worst. Because of their severe mental illnesses, they tend to act out in prison, they're punished more, they're denied parole more frequently, they wind up in solitary confinement, much more persons without responsibility, literally, who can't control themselves, wind up spending even more time than others in the prison system. That's part of the picture that I want to draw.
	Let me give a little bit more about historical context. I mean it is quite something that in a period of some 35 years, we've increased our incarceration rate, as I say, by eight times, now an outlier in the international community. The leader of imprisonment across the globe. Of course in a world of multi causation, it's not just one thing that happened over this past 35 years.
	For sure, starting in the 1960s, early 1970s, there was a fair, sharp increase in this country in violent crime. That trend has had its spikes and downturns for the past 50 years, but that period of violence, particularly in the late '60s and '70s and early '80s led to more people being arrested, more people going to prison, a call for longer prison sentences. It's not surprising that that had some impact during that period of time.
	Yet, even in the last 20 years where we have seen sharp reductions in violence in this country from 1990 to now, for example, there's been a sharp reduction nod violence in this country. Consider New York City, for example. In New York City in 1990, there were 2,400 homicides, 2,400 homicides in 1990 in New York. Last year, New York had 400 homicides. A huge, huge drop.
	A lot of debate about what caused that drop. Again, probably multiple factors. Police had something to do with it, but it wasn't incarceration. New York has both driven down its crime rate dramatically, not only in terms of murder, in terms of robbery, in terms of rape, in terms of car theft. Car thefts in New York are down 90% in the last 15 years, 90%. Part of that's technology. Finally, the car manufacturers started to do what they should have done many years ago to prevent cars from being stolen, but part of it is other factors, as well.
	New York has driven down its crime rate. It's also reduced its prison population, at the same time. The New York City jails, for example, hold only about 13,000, population of 8 million. Philadelphia jails, population of 1.5 million, we've got a population of close to 10,000. In other words, we have almost as many people in our jails in Philadelphia as they do in New York with a population that's about one-quarter the size, so something's going on, right? Something is going on here.
	Again, no necessary relationship between how many people we incarcerate, and public safety. Certainly the fear of crime, the reality of crime in the late '60s, '70s, and then spiking and coming back, cocaine, crack cocaine epidemic late '80s certainly had its impact in terms of the numbers.
	There was also, over this period of time, a very fundamental shift in theories of punishment. We went from a period of, for many years, of what I'll call individualized sentencing where the judges had discretion to take in a lot of factors as to what sentence somebody should have. It wasn't automatic. We didn't have mandatory sentences, for the most part. We didn't have the three strikes and you're out laws. Judges had some way to individually sentence people that became disfavored.
	The criticism was there's too much discretion and too much disparity, right? The same person commits the same crime, somebody gets six months and the other person gets six years. How do you account for that? We went towards this system and that criticism was valid in part, so we went towards a system of much more consistent sentencing, sentencing guidelines, mandatory sentencing, that kind of sentencing that certainly built up the numbers and gave prosecutors much more control. Gave prosecutors much more control over the sentence somebody would have because they determine what charge somebody would have.
	I can tell you, over the years I had many cases where a prosecutor said to me, "Your client is charged with a misdemeanor, we're willing to offer a certain sentence. If he doesn't take that, we're going to charge him with a felony that will be a mandatory," right, and so you either plead for a six months or a year, or you face a mandatory charge of 10 years. Not surprising in those situations, many people choose to plead guilty even though they may be completely innocent, to avoid that very harsh sentence. Prosecutors held the power.
	The war on drugs, for sure. You've seen the numbers. The war on drugs has had a huge impact from 40,000 in 1980 to 500,000 today. Huge impact, but even if you take away the war on drugs, you'd only reduce the prison population by about 25%, but it has certainly had its impact.
	I mentioned mandatory minimums, that they became a very popular reaction to what I'll call the moral panics. Every moral panic we had, how do we deal with it? We deal with it with a change in sentencing. When we had the crack cocaine epidemic, right, in the late 1980s, something I'll talk about in a little more detail, we changed the sentencing for that particular drug.
	When we had sexual assaults on children, all of a sudden it became mandatory minimums. Every crime of the day, the reaction of legislatures and for them politically it was very powerful, was to make it more harsh, more repressive, nobody objected to that kind of legislation.
	Indeed, when you think back on it, what's happened I think in the last 40 or 50 years is the issue of crime and justice has become enormously more politicized than it was before. It became a wedge issue. Even back when president Nixon was running for office, complaining about the liberal Supreme Court and their rulings in Miranda and other rulings of the 1960s were being soft on crime, the republican party ran on that. It had its racist overtones as well, but it worked for them. It was a huge wedge issue. Still is in many places, although there is some change today, I think. That became a major factor.
	Something I call the crime politics of the 6:00 news. I don't watch it anymore. What do we start with? Every 6:00 news starts with fire and crime, right? Crime of the day. When you look at those news, you think about it, you think you're in a world where crime is surrounding you all the time. That's the vision that we see on television. That plays, it plays for the local stations, it plays for those who are paying for those stations through the ads. That became a central way of communicating, there.
	I've said mass incarceration probably had something to do with reduction in crime. There have been a number of pretty sophisticated studies that have been done over the last 20 years. The best of those studies suggests that we probably don't get more than a 20 or 25% reduction in the crime rate, even with these very high numbers. Even increasing our prison population by eight times, we're not getting an eight time reduction in crime. We've never seen that. We get some reduction, but not the kid of reduction that people think.
	As I've said, the counter weight to that and very, very interesting, because we now have some states, for a number of reasons, often for economic reasons, deciding you know what? We can't continue to lock up as many people as we do. It's very costly. Maybe there's a better way of doing it.
	For those states, and I'll name just a few, Michigan, New York, New Jersey, North Carolina is starting to do it, as well, they have been able to significantly reduce their prison populations, for example, in Michigan. There's been a 12% drop in imprisonment in the last five years alone, and a 17% drop in reported crime at the same time.
	I've already talked about New York City. North Carolina, just recently there was an article in the New York Times last week, realized it didn't take a genius to realize it, but you just had to look at the data. Somebody looked at prison admissions in North Carolina. What they realized were that half the people being admitted to the North Carolina prisons on an annual basis were not being convicted of new crimes, they were there on parole violations. The parole violations weren't new crimes. It was they weren't reporting, right? They had a dirty urine, they had violated some technical rule of probation and parole.
	In virtually every state, if you violate parole, you can be sent back to prison for the rest of your sentence. If you're on parole for 10 or 12 years, you could be sent back for those 10 or 12 years. For some very minor infractions, people were being sent back to prison for much longer than people who were committing new more serious crimes. North Carolina realized, "Well why are we doing that," right? Probably we just need a short period to send a message. A week is probably all we need.
	They've done that, they've reduced both their parole violations, their incarceration rate, and their criminal rate in the last five years by a significant number. Now one of the things I'll talk about later, just in terms of some of the remedies that we should be thinking about.
	Of course, in an age where in the last 15 years through the DNA revolution and the innocence movement, we've realized that a lot of the theories that we had about the criminal justice system are not very accurate. Just think about the fact that in the last, been about 20 years now since DNA, post-conviction DNA testing has been widely used, there have been over 350 exonerations of persons post-conviction who had been convicted of the most serious crimes. Murder, rape, robbery, many of them on death row, some no doubt who have been executed whose DNA could not be tested in time.
	What we found was that those principles that we rely on, police rely on, prosecutors rely on, courts rely on in determining the guilt or innocence of somebody, confessions, eye witness testimony, testimony about jailhouse informants, forensic testimony, testimony that comes out of police labs, what we found is that there are critical deficiencies in that form of testimony across the board.
	Twenty-five percent of those cases, those are cases we now know people were convicted on what looked like very compelling evidence, confessions, eye witness testimony, a lab technician who came in and said there's a match between this hair here and the hair of this defendant, right? Matches him to the crime, ballistics testimony.
	Turned out by post-conviction DNA testing, [inaudible 00:21:58] completely innocent, we know they're innocent. In fact, in a third of those cases the DNA evidence not only showed the innocence of the person whose DNA was being tested, but we were to show the real perpetrator because we now have a DNA database and we were able to actually then later arrest the person who actually committed that crime.
	Just to give you an idea of how pervasive these errors are, 20% of those cases involved a false confession. People who were innocent confessed to murder, confessed to rape, confessed to robbery, even though they were completely innocent. In 70% of those cases, witnesses made incorrect identifications. They weren't lying, they could understand it and said, "That's the person." They were wrong. Often times they were wrong because of the police procedures that we used, the way the lineups were shown, they were suggested that this was the person and they picked that person out.
	Lab error. Lab error, in fact in 30% of those cases, over 30% of those cases involved prosecutors and police who didn't turn over exculpatory evidence. They had evidence that someone else did it, they had evidence of the innocence of this particular defendant, didn't turn it over, and the person was convicted.
	I'm as cynical as anybody. Years ago, Justice, Judge Learned Hand, he was a famous judge on the Second Circuit, said, "We live with the nightmare of the innocent person being convicted, but it's not true. We have so many protections in our system, there's no innocent people in prison."
	Well, the data now shows again, hard to measure, hard to measure how many innocent people are in prison when we have DNA in such a small number of cases, but it's representative, but the best estimates are it ranges anywhere from 2 to 8%. Not huge numbers by percentage wise, but play that over two million people, and you can figure out how many of these people put aside everything else, are sitting in prison and innocent. Real questions about the fairness of our system.
	Let me go back to race and incarceration. I mentioned before, it is certainly true that with respect to violent crime, for example, there is a higher rate of violent crime among minorities than there is of whites, not reflected necessarily proportionally, the number of people who get arrested and convicted, but certainly that.
	On the question of drugs, however, we have a very good test for determining whether or not our system is fair in terms of race. Here on this chart, on the race and incarceration, what you see just by the numbers is blacks being incarcerated at six to seven times the rates of whites. We've gone through that.
	Here is the data on the likelihood of imprisonment that I mentioned. Look at black men, one in three likely, white men, one in 17, and I'm going to get to that in a moment. Let me talk a little bit about drugs and incarceration, because with that huge increase, it tells us something about whether we're really being fair in terms of racial justice, putting aside the numbers of people who are in prison.
	In 1980, to go back to 1980 again as a benchmark, African Americans were twice as likely to be arrested for drugs as whites. Twice as likely in 1980. In 2010, they were four times as likely. In 2010, they were four times as likely to be arrested, yet we know from every study that's been done in the past 15 years, whether it's police studies, self reporting crime studies, a lot of federal studies on drug use and possession in this country, there is almost no difference between the rates of use and possession and distribution of drugs by race. African Americans are about 13% of the population. Every study shows that about 15% of them are involved some way in drugs. Whites, if they're 60% of the population, same thing. Latinos, the same.
	Putting aside all the other crimes that we may be concerned with, with drugs we know that drug use, possession, is not by race. People of all different races consume, possess, sell drugs at about the same rate. As I said, yet when we, so we look at the black population, African American population, about 13% of the population. In 2012 they were, as I say, about 14% of the offenders, 35% of those arrested, and 70% of those incarcerated for drug offenses. Thirty-five percent of those arrested and 70% of those incarcerated were African Americans.
	Let me just drill down a little bit further just to show how unfair the system is. If we look at a specific type of drug, marijuana, and small amounts of marijuana, and we look at arrest and incarceration rates for marijuana, let me draw on recent experience from both New York City and very close to home, from Philadelphia.
	In New York City from 1997 to 2006, there were 360,000 arrests for small amounts of marijuana, a ten-fold increase over the previous decade, right, 360,000. A ten-fold increase over the previous decade. Of those arrested, 55% were African American, 15% were Latino, and 15% were white.
	If you break down the New York City population, that means it was a five to one ration minorities to whites, New York City is about half white, half minority. A drug, as we all know that's probably used more by whites than blacks, blacks are being arrested at five times the rates of white.
	In Philadelphia, we've tracked marijuana arrests for the past five years and we've found even worse than New York, over 90% of all arrests for small amounts of marijuana in Philadelphia are of racial minorities, 10% perhaps is of whites. As you look at that data you think, well how can that be, right? If we're policing fairly, if we're enforcing the law fairly, how can it be that the numbers are that disproportionate? Maybe some disproportionate.
	The response often is, "Well, that may be true, we can't argue with the data," everybody agrees that data is accurate. We get it from the police reports themselves. "It's the manner in which we police." We have more police in minority neighborhoods so it's likely we're going to have more arrests and it's true, minority neighborhoods often are asking for more police because for many years they've been under policed. That's fair.
	The use of marijuana is, you know, if you use it on the street you're more likely to be arrested than if you're in a dorm. I've always said if we had as many police in the dorms of Swarthmore and Penn as we do in the streets of Philadelphia, our prison population would look much differently, and we wouldn't tolerate it. We would not tolerate it as a society, that, that many people, you and I that look alike, right, would be incarcerated or arrested for small amounts of marijuana. Not everybody gets incarcerated for that. We wouldn't tolerate it, right?
	I've got a son who's currently at Wesleyan, I'm sure it's no different from Swarthmore and Penn and a lot of universities around the country. My wife and I visited on a weekend last spring. It was Smokin' Day, right? The entire university was stoned, right? There wasn't a single officer at the university, right? It was accepted, right? It was fine, right? Nobody hurt anybody. It was fine. We probably ought to legalize marijuana, that's a separate issue.
	If that happened in North Philadelphia, you'd have a thousand kids arrested, right? There's the difference, but we live with it, right? For those who think, and it's certainly a fair point that if there's more crime by race, we can expect higher number of people in prison by race, that's fair but when you look at drugs, you've got a hard argument.
	Think, the other example I'll give, when there was the crack cocaine scare in the late 1980s, right? Len Bias, the draft pick of the Boston Celtics dies from overdose of crack cocaine, all of a sudden becomes public issue number one. What did Congress do? Congress decided the way we'll deal with that problem is that we'll increase the punishment for crack cocaine as opposed to powdered cocaine.
	Well turns out that crack cocaine at that point was, "A black drug." Powdered crack cocaine was a black drug, white cocaine was a white drug. What did Congress do? They made the penalties for crack cocaine 100 times higher, 100 times higher than it was for powdered cocaine. Just to give you an idea what that meant, it meant that if you were in possession of five grams of crack cocaine, which is not very much, mandatory five years in prison, 50 grams 10 years, 50 grams and a prior conviction 20 years, 50 grams and any two prior convictions, life imprisonment. Life imprisonment. For powdered cocaine it was the same thing right, and so no surprise, right?
	As we look from the 1980s, 1990s, and we looked at the incarceration rate of whites and blacks for drug offenses, it was blacks going to prison, whites not. Not completely, but that's what happened during that period of time. Crack cocaine was no more dangerous than powdered cocaine, but it was in people's heads that it was. Again, I think if the races were switched, we wouldn't have found that kind of disparity.
	Let me give one or two other examples of race and the insidious nature of race in policing. I want to talk about stop-and-frisk a little bit, because we have very good data on stop-and-frisk practices, both in New York and Philadelphia, for a variety of and now historical reasons. Both of those police departments have been keeping pretty accurate data, now in an electronic database as to persons who are stopped and frisked. You know the dispute in New York that became a major issue in the recent election, probably led to a new mayor in New York because of that.
	We've had the same litigation in Philadelphia and a lot of interesting issues about stop-and-frisk practices. Let me again, just give you some without overwhelming you, giving you some data. Let me talk about Philadelphia, because it's closer to home. What we've learned from of the litigation and the release of this data from the Philadelphia Police Department in Philadelphia last several years, these numbers stay pretty consistent.
	African Americans are about 43% of the population in Philadelphia. They accounted for close to 70% of the stops by police officers. Whites who were 41% of the population, accounted for about 23% of the stops. Those who were stopped, if you're a minority, you're much more likely to be frisked, arrested, searched, and sent to prison in those kinds of situations.
	Same numbers in New York. We found the same kind of racial breakdown. Many, many more stops and frisks of minorities. What we also found in this first chart here was that a huge number of those stops were without what the law requires. Before somebody could be stopped, the police have to have some reason to stop you, right, they just can't stop you randomly. It's something called, "Reasonable suspicion." It's not a very high threshold. They have to believe that you're committing some kind of crime, or planning some kind of crime.
	When we looked at the data on that, if you look at the pedestrian stops for a certain period, that was in 2012, 2013, out of, over 1,100 stops, when we looked at it, applying standards that everybody agreed with, almost 40% were without reasonable suspicion, right? Now this was just a sample from a period in Philadelphia. In Philadelphia in 2013, there were 225,000 pedestrian stops, 225,000 pedestrian stops, which meant on the 40%, close to 75 or 80,000 people, by the police's own paperwork, were being stopped illegally. The response to that in part by the mayor was, "Well, that's not so good, but it helps to drive down crime and it helps to get guns off the street."
	Then we started to look at what we call the, "Hit rate." How many guns are they actually finding? Let me just throw out a question to you. We just looked at 1,300 stops for the first quarter of 2014. Randomly put by the police department out of the first quarter, which probably had 50,000 stops, we picked 1,300 just to look at randomly to test who's being stopped, whether there was reasons to be stopped, racial breakdown.
	This is a program that's meant to get guns off the street. Anybody guess how many guns they found in those 1,300 stops? Take a wild guess?
Audience:	Five.
Speaker 1:	Five.
Audience:	[inaudible 00:35:26]
Speaker 1:	Well, not as quite as bad, one. One out of 1,300, point whatever, however you figure that out on a percentage wise, this is a program meant to get guns off the street, right? I think you can do it better randomly, based on what I know and how people possess guns in Philadelphia, if you just randomly stop people, you probably do better, but there it was.
	When we look further at the racial component, that's not working ... Not working. Let me just give you some data on race. I've already said many more stops of racial minorities and when we look at the success rate it turns out, not surprisingly, that whites are stopped more often when the police have reason to think there's good reason for a stop. One way of, there's a big dispute in the field about benchmarks, how do we measure racial prejudice, how do we not. It may be we have more stops of blacks because there are more police in that community, it may be because there's more crime.
	When we look at, for example, the question of when we separate good stops versus bad stops by race, it turns out there are many more stops without cause of African Americans, which means the police are applying two different standards. Whites are only stopped when they really do think they have reason that someone's committed a crime. Blacks may be stopped somewhat arbitrarily.
	The stop-and-frisk data, as I say, is interesting, as well. Think a little bit further to just the events this past summer in Ferguson, in Missouri. A lot of complaints there obviously about the police and use of force and of course there was a use of deadly force that led to all the initial protests.
	Then as people started to dig a little deeper into the criminal justice system in Ferguson and started to talk to people in the community, particularly racial minorities in that community, their complaints were of several levels, not only violence by the police in terms of unauthorized use of force, but something else with nobody had even kind of kept an eye on. It was below the radar screen.
	Turned out that in the city of Ferguson, the city was funding itself, its budget, by about one-third by use of traffic warrants. People arrested for speeding or going through a red light, if they didn't show up in court, those fines increased astronomically. By the time they were picked up, a $50 fine became a $1,500 fine. If people didn't pay it, they were sent to prison.
	The New York Times did a tabulation of the number of outstanding warrants in Ferguson last year. There were more than three outstanding warrants for every household in Ferguson. Every family, if you spread it out, owed the city two or $3,000. You can imagine what that does to the population, right, in that city? That's a third of their budget.
	They're basically funding, right, a large part of their budget by arresting. Who's being stopped in cars? I don't think anybody claims that black violate traffic, right, laws any more often than whites, and yet the rate of stops of blacks in Ferguson and the surrounding counties were again, not surprisingly, three or four times the rate of white drivers who were stopped.
	That's another thing we found consistently across the board when we talk about driving while black, racial profiling. You may remember a number of years ago in New Jersey, on the New Jersey Turnpike, large numbers of stops of African Americans. My favorite statistic from the New Jersey study was when you look at the racial breakdown of stops, New Jersey, turned out they actually have data on this, national data that not surprisingly, about 14% of the drivers were African American. That reflects the population, the driving population of New Jersey.
	When you saw who was stopped for speeding or for other kinds of driving violations in New Jersey, it was six or seven times, African Americans above whites. When you broke that down a little further, if you looked at stops that were based on radar, right, and radar doesn't read the color of the skin of the driver, those radar stops were totally consistent with the proportion of drivers. That is, radar stops of speeders in the New Jersey Turnpike, 13% of the drivers are black, 50% of the stops, right, were black drivers. White drivers were 60%, radar stops were like 58%. Very consistent, right, with the driving population?
	Stops where it was the officer's discretion who to stop and think about it, everybody speeds on the New Jersey Turnpike, so the officer has this universe of cars to choose from, virtually everybody speeds or commits a traffic violation at some point. When we looked at discretionary stops, the New Jersey police were stopping minorities at five or six times the rate of whites, right? Pretty compelling evidence in terms of race.
	Okay, so tough data. The question is, where do we go from here? We keep thinking that with history we make progress. Martin Luther King said famously the arc of history bends towards justice. Not so sure the last 30 years have actually reflected that, so where do we go?
	I think what's interesting is that the country may be making some turn. Even from this chart, you can see a little bit dip in the prison population in the last year or two. A number of factors have come together which have caused people who would normally not be thinking about this issue, to think hard about it.
	There's some agreement on right and left. You may have seen a few months ago, there was a meeting, this is one wouldn't have predicted this, between Eric Holder and Rand Paul, right, had a meeting, and agreed we have too many people in prison. We incarcerate too many people. We incarcerate too many people of color, so we have the right and the left agreeing on the problem. Maybe not on the solutions.
	Part of it is driven by the huge course, the huge course of incarceration, the billions of dollars, hundreds of billions of dollars that we spend on incarcerating people in this country. About 12 years ago, the budget lines in California, crossed. California used to have probably the best system of higher education in the country. That budget was like this. In the last 25 years has been going like this.
	The prison budget in California, not coincidentally, has been going in the opposite direction. About 12 years ago, it crossed. California was spending more on its prison than on its system of higher education. That caught somebody's attention as well, and said, "Wait a minute, what are we doing [inaudible 00:42:19] in this country, and why are we spending so much money and getting so little for it."
	In terms of public protection, there have been as I said, a number of kind of innovative reforms. Some on the small scale. I mentioned before, parole and probation. Why do we lock up every parole violator? They're not dangerous, they haven't committed a new crime, give them a second or a third chance before we use the heavy tool of incarceration to try to correct their behavior.
	We've learned from the states that have actually reduced their prison populations, that you can do it without endangering public safety. In fact, maybe in some ways it may even enhance public safety. We've started to realize the enormous, the enormous pain and suffering that we inflict on communities of color in this country when we take so many men out of those communities and put them in prison.
	Not only put them in prison, but then say when they come out they can't vote, they can't have jobs, they maybe can't even live in that community because they're too close to a church or a daycare center or someplace else, or we deport them because they have an immigration problem. People are starting to get a little wiser as to what we ought to do.
	As I say, it's slid. In the last couple of years, we now see a 1 to 2% drop in the, what was a spiraling number. That's come down a little bit. I suspect 2014 to '15 will look like that, as well. The problem is, even with that kind of rate of decline, as a friend of mine pointed out, it'll take another 88 years at that rate to get back to where we were in 1980. I don't think we can wait that long. I can't wait that long, I'm not going to be around.
	We've got to do something a little more dramatic, I think, in terms of our criminal justice and tinkering at the edges. It's fine to tinker, it's fine to make some changes. I think we need a fundamental shift in sentencing. We ought to be getting rid of most of the mandatory minimums of life without parole for those who have not committed murder. The recidivist enhancements, all those which increase the length of time people spend, it's not just the number of people who go into prison, but it's the long prison sentences they have.
	The average federal drug prisoner, even though he or she is there not as a major drug dealer, is serving over 10 years for drug offenses, over 10 years for, it could be the first or second drug offense. Very long periods.
	We need better support and reentry programs so that when people come out, we don't have the kind of recidivism rates that we currently have, which are very high.
	The seriously mentally ill shouldn't be in our prisons. They should not be there at all. Not a place for them. They can only get worse, they can only disintegrate even further. We ought to find alternatives for that very large part of the population.
	None of that's going to be easy. We have built up in this country a police, prosecutor, defense lawyer, judge complex with prisons, right? I mean when President Eisenhower left office in 1960 at the end of his presidency, he talked about the military industrial complex, and he was right on it, right? The amount of money and the relationship between the military and the industry in this country had gotten out of hand and this was President Eisenhower, who was not radical, believe me, was able to see what was going on there and he warned with those kinds of special interests, it'll be very hard to turn the tables on that.
	We had the same thing in the criminal justice system. When you think about it, there are thousands, hundreds of thousands of people whose lives kind of depend on the system functioning as it always has. That's correctional officers, it's parole officers, it's judges, it's prosecutors, it's defense lawyers, it's police officers. I mean there are hundreds and hundreds of thousands.
	A few years ago, it was amazing. It used to be when I first started practicing, you tried to build a prison, and people say, "Not in my backyard," right? "Don't put it there." In some states now, prison is employment, right, and so build it here, right, because we'll then have jobs for correctional officers and other people, that'll be good.
	In New York state five years ago, I mentioned that the population was going down rather dramatically. The Governor said, "We can close three prisons in this state." Who could argue with that? He had a huge argument on his hand. Those communities where correctional officers worked said, "You can't close this prison, we're going to lose jobs." It's not easy. Even when it looks like there's an obvious answer, we've done a great job, we've reduced the number of prisons, let's close the prison, let's save $100 million over the next year, you've got a fight, right, from those whose lives depend on it.
	As easy as it is to kind of point out some pretty obvious reforms that can help reduce the numbers pretty significantly, there are very strong forces in this country who work against it. I'd say the one point of optimism is it's become less of a left versus right issue, whether it's because of libertarianism or economics or whatever it might be, there's a little more consensus that we could be smart on crime, we just don't have to be tough on crime all the way. We can be smart and not always tough.
	That's where we are. Interesting period of time. We'll see what happens and what develops, but not surprisingly in our country which has been plagued by issues of violence and racial injustice, that we see this intersection between mass incarceration and racial injustice. It's still there. It manifests itself in a lot of ways and it's for the next generation I think to take hold of that and see if we can change it.
	Thank you very much. I'd be happy to take any questions.