03/26/14 – Nathanael Ferguson – The Scott Horton Show

All right y'all, welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
And our guest today is Nathaniel Ferguson.
He is from Texas Public Policy Action and Right on Crime, TexasAction.com.
Welcome to the show.
How are you doing, Nathaniel?
I'm doing great.
Appreciate you having me on the program today, Scott.
Yeah, sure thing.
I'm very happy to have you on here.
First of all, any friend of John Utley's is a friend of mine.
And second of all, I love the entire idea, generally speaking anyway, about right-wing conservative push for criminal justice reform, justice on foreign policy issues, et cetera, et cetera.
It's always best to attack the right from the right.
Nobody really cares what some hippie grad student says about criminal justice.
What we need is people who are former cops, former military guys, who are conservatives, who are businessmen, to say this has got to stop.
This is the wrong policy.
We could be law and order as hell and against what's going on now, because this ain't law and order.
This is screwing us up.
This is undermining what our society is supposed to be, and we've got to knock it off.
And so thank you, first of all, just for being part of this, and I sure hope that you guys can really make a difference by taking this tack.
Well, I appreciate that, and it's a great endorsement of the criminal justice reform initiative.
And I want to clarify one thing real quickly, that as Executive Director of Texas Public Policy Action, I'm not actually officially affiliated with Right on Crime.
I'm just a person in my organization.
We believe in what the guys at Right on Crime are doing, and we support it, and we're out championing what they're doing.
But I myself am not one of the eggheads that's over there at Right on Crime, proving this stuff and proving that these reforms are effective, and that this isn't some sort of fanciful, wishful thinking kind of solution.
These are actually data-driven, experience-based, we-know-that-they-work kind of things, and they're doing a fantastic job over there.
All right.
Well, so give us a good idea of where you're going with this.
Okay.
All right.
Well, just a little bit of overview first, I think, before we talk about what some of the solutions are.
I think probably your audience is pretty well-versed in a lot of this already, but we'll hit it just for kicks, right?
I think broadly we can agree that there are too many laws and too many regulations, and that those things are leading to too many people in prison for too long a period of time at too great a cost, often at a length of time that is vastly disproportionate to whatever crime they may have committed.
And that as a result, we're seeing prisons and the criminal justice system focused less on criminal justice, less on victim restitution, and more on just another big government, costly, unwieldy, very not conservative, not American in the traditional sense kind of enterprise.
And so what the guys at the Right on Crime Initiative are trying to do—and by the way, this is a Texas-based national initiative—so this thing is being tried in a growing number of states across the nation.
It's being looked at by the United States government.
You know, the U.S. Senate is holding hearings on things like mandatory minimums.
Solitary confinement is a major issue where people are just being put in solitary confinement for, you know, indefinite periods of time and then being released directly to the public with no transition period in between.
I don't know about you, but if I was in solitary confinement for a long time, I don't know that I would necessarily be in a place where I'd be ready to be released to the public, you know?
So these are problems, and they're part of the problem of having this big government solution to criminal justice, which we've had for at least a generation in this country.
So that's sort of the background, the backstory of it.
And Texas is really leading the nation on this.
And we're talking about reforms that have been implemented in Texas that, you know, what we've seen is a couple of years ago, they were talking about building a couple of new prisons in Texas and said, you know, legislators were going to have to go back to their constituents and sell them on the idea of spending $2.1 billion to build 17,000 new prison beds in Texas.
And so what they did is they started doing these different reforms, like drug courts and looking at first-time non-violent offenders and saying, hey, how about we don't make prison be the first option for these people?
How about we look at some other options as first solutions, first interventions, lower-level interventions that cost less money, lead to lower recidivism rates, and these kind of things.
And so through these reforms, you have a situation where in Texas, they're not building prisons, they're closing them.
In Texas, we are at something like 94% of capacity in our prisons, that's after we've closed prisons down.
In California, by contrast, yeah, absolutely.
And by the way...
Well, wait a minute.
I'm sorry, I must have missed the part where you explain really what kind of sentences are being reduced for how many people or something.
Did you say that...
How do you explain they're actually closing prisons from the 2007 reforms?
Right.
So what they're able to do is...
I mean, give us some examples.
Like they got rid of mandatory minimums for cocaine or something.
I don't know.
I'm just making that up.
But tell us how this happened.
What are you talking about?
How did they do it?
Well, there's a number of different reforms.
One of the main things is by shifting money away from building prisons and increasing prison infrastructure towards things like implementing drug courts, where people who are low-level, non-violent offenders, instead of just throwing them in prison and locking away the key, they're going and doing things like adult probation, where it's something that's more proportional to the crime.
It costs in Texas, it costs about $16,000 a year on average to house an inmate.
It costs about $2,500 to $4,000 a year to do things like put an ankle monitor on them, have them on probation, have them in some kind of work relief program.
So there are obviously numerous benefits.
The first benefit is for the taxpayer, who's not having to pay these exorbitant costs to build and facilitate and manage new prisons.
There's the cost to the individual offender themselves, who has an option other than going to prison and is able to, in a sense, maybe have a wake-up call and pay some sort of a penalty for whatever crime that was, but still be able to be a functioning member of society.
The economy benefits because these people, instead of being pulled out of the economy, are still able to work and have jobs and produce.
The families benefit because you're not taking people away from their families.
They're able to raise their own kids and do their best to be good husbands, good fathers, good wives, and good mothers, etc., and be able to actually raise their own kids.
So you're having fewer kids who are having to go into the foster care system or these other types.
The economic ramifications, it's a ripple effect, and it touches a lot of things that go far beyond just those first-layer level of things that you would consider.
Right.
Well, it just goes to show just how harmful these kind of sentences have been on those exact issues, destroying people's families and that kind of thing.
That's right.
Well, until three years, you've had this mentality of lock them up and throw away the key, right?
And I think on the right, on our side, we're new to this issue in many respects.
People were shocked at how much attention this got at CPAC and how popular the Right on Crime booth was.
And in fact, there was a panel discussion on the main stage that was very well-attended and very well-received with Grover Norquist, Pat Nolan, and Rick Perry out there championing this issue.
The Washington Post, the next day, did a big write-up about how people on the Right are wanting to make criminal justice reform a central issue going forward.
Right.
Yeah, I don't know.
I mean, I guess I would expect something like this from Norquist, because he's more of a fiscal conservative than a hard ideologue as far as what ought to be illegal, right?
He's just mostly focused on repealing taxes all the time and heroic stuff like that.
So I could see this fitting in with him pretty well.
I think, well, now, and so what about and look, I understand you got to take a very utilitarian tack.
You've got to be able to answer every question of why this will be better, pragmatically speaking.
But what about the morality of locking people up simply for consuming or trading in drugs?
And what about, you know, really even the premise that the people of the state of Texas really have the right to have the government of the state of Texas pass these kind of laws in the first place that would take a man from his family simply for selling drugs to somebody who wanted to buy them?
Isn't that madness?
I mean, we got rid of prohibition 70 years ago because it was madness.
Yeah, you know what?
So this is, it's interesting because this is an issue that is very unique, especially in this day and age when there's, it's very difficult to get broad consensus or broad agreement on anything, much less something that's major.
So now here we have a major issue, criminal justice reform, where you have the left, the center, the right, liberals, you know, conservatives.
We need a consensus.
I understand what you're saying.
You can't get into everything.
You can't be perfect on everything if you want to actually get things done.
But everyone, so everyone, I'm sorry, Nathaniel, I got to stop you here just because we got to take this stupid break.
But, well, you know, we got to pay the bills.
It's not that stupid of a break.
But then we'll be right back and finish up here.
We're talking with Nathaniel Ferguson from Texas Public Policy Action.
They're attacking the criminal justice system from the right, trying to roll it back and set things straight a little bit here.
Texasaction.com.
Back after this.
All right.
We're back now.
And, you know, I was going to kind of just abandon my point there because it is just, you know, it's my libertarian hobby horse that I want everything perfect and I refuse to accept just half a loaf and that kind of thing.
But then, on the other hand, I thought, no, you know, I think we do need to stay with this question of whether it's even really right to have any of these drug laws at all when it comes to just trading in them or possessing them, because this goes along with what you're saying at the beginning about just too many people being convicted.
There are just too many things that are illegal.
And I think I don't remember your exact words, but what you're getting at there is you're talking about all the offenses that have been dreamt up by the rulers of our society that can get people in trouble, all the things that aren't crimes.
Right.
But all the things that are getting in trouble with, you know, like somebody picks up a where did I read somebody picked up a rusty can from the woods and brought it home and they went to federal prison for it because, you know, Lord knows there's some EPA regulation says you can't that kind of thing.
That's what Bernie Carrick was saying.
The former commissioner of the police in New York just got out of the pen where he belonged for his mobster corruption.
But he got out and said, hey, guys, listen to me.
There are good people in there, man.
This is not what you think.
You know, there's something's gone wrong.
We've gone way, way too far here.
And it seems like it's the war on drugs, man.
Come on.
That's what it is.
There are all kind of people who are not criminals, who never would shoot anybody, who never violated anybody's rights, who never really committed a crime, but who are guilty of these offenses against the state's edicts.
And that's what's got to change here.
We're not changing anything.
Right.
Yeah, I know that you're absolutely right about that.
And there are things I think that Bernie Carrick talked about meeting a guy in prison who went to federal prison for a lengthy term.
I don't remember how many years he said it was a long time because he found a whale tooth on the beach and he sold it on eBay and the feds cracked down on him and said, well, you can't do that.
And so they sent him to federal prison.
And most likely the guy never even knew that it was against the law.
You know, it used to be, well, lack of knowledge of the law isn't the defense.
But that was back when we didn't have that many laws.
And now we've got stacks and stacks of books that go miles high if you stack them all on top of each other of all the laws and executive regulations, like you're talking about with the EPA.
And so you've got John Stossel did this crazy profile a couple of years ago of a guy who spent years in federal prison because he was selling seafood.
It wasn't illegal to sell the type of seafood he was selling it, but he was selling it in a type of packaging that the federal government didn't like.
And I don't remember what branch of government it was when they prosecuted him.
They weren't even prosecuting him based on U.S. law.
They were prosecuting him based on some law from Honduras or El Salvador or some other country where the seafood originates from.
So the guy would import it, package it in plastic instead of cardboard, and he went to federal prison for that.
So, you know, in Texas, there are something like 12 felonies you can commit with an oyster.
So, you know, you harvest an oyster out of season or without the proper license or whatever, all of a sudden you're a felon.
That's amazing.
You know what happens when you're a felon?
You lose rights.
You lose economic opportunity.
You lose social standing.
A lot of times you lose your family, and then you lose your freedom because you reoffend because you couldn't get a job because no one would hire a felon when you shouldn't have been a felon in the first place.
So the ramifications and the economic impacts of this are devastating.
Now, you know, you're talking about things like full-scale legalization, you know, those kind of things.
But from a policy perspective, I mean, that kind of thing just doesn't happen overnight, right?
There's a lot of other steps.
You know, we see now that it's sort of just breaking through the legalization of pot all across the country because everybody's known all along how stupid this is.
And so now all of a sudden it's all kind of falling apart at once, right?
Like William F. Buckley in the National Review came out against the drug war really in total, but especially the war against weed 25 years ago or something.
So finally, as soon as it's apparently possible to actually legalize it, you got people all over the country.
I think Alabama last week unanimously, both houses of their legislature unanimously passed legalizing medical pot in the reddest state of all, right?
And so it's important anyway, even if I, and I agree with you, you can't, I can't always have the whole low fall at once of exactly what I want.
But I think if we can forge a consensus that actually, you know, criminalizing cocaine doesn't seem to have any benefit, but it does seem to help spread the meth epidemic across the South.
So, you know, maybe we should just legalize it and maybe, you know, a few more people die of heart attacks, but probably not.
And who cares anyway, it's their right anyway.
And then, so in 10 years, people will say, of course, that makes sense.
Let's go ahead.
And, you know, we got to, you know, be right.
At least even we can't get what we want yet.
Yeah.
There's a sense of incrementalism to all these policy changes, right?
But one of the things that is so just astounding to me is that you have this coalition of the left and, and, and the right and the center and, you know, libertarians, Republicans, Democrats, all saying for different reasons, right?
Conservatives are talking about the economic argument.
Libertarians by and large are talking about, you know, their, their moral view of the criminalization of drugs and for the left by and large, it's sort of a social justice issue.
So all the groups are framing it in different ways, using different words and using the conservative argument is very, is much newer than the libertarian or the, or the liberal argument.
But now you have this alliance that's been forged where people who are not always in sync on these issues and may not even be in sync to the T on this issue, but in large part, 90% of it are in sync and they're actually able to move something forward and get major things done.
And so, and this is happening, by the way, the way that it should, it's happening at the state level and the states are going and they're seeing Texas has success and they're saying, well, God, if Texas can do it, then I can do it.
You know?
And so you have Louisiana pushing major criminal justice reform and all these other states are starting to do it.
And then the federal government looks at it and says, well, man, well, this public state can do it.
We can do it.
And so you have Eric Holder, who is certainly no hero to the taxpayer or the American people.
And he's out there getting on board with a bunch of this stuff.
He's the attorney general of the United States.
You have signatories, people who have signed on and said, put my name and, you know, in my endorsement on this include Ed Meese, former attorney general, numerous former assistant attorneys general of the United States, numerous former state attorneys general.
So just an amazing amount of firepower who are behind this issue.
I think that's why we're starting to see it really move forward and take root.
All right, now let me ask you about the militarization of the police.
And this, of course, is mostly about the war on drugs.
But then with the creation of the Department of Homeland Security and the advent of the war on terrorism, the Pentagon basically just said, you guys can come and have whatever you want, almost for free, basically.
And we've got cops running around with M-16s all over the place and armored personnel carriers and stuff.
And I saw one congressman and it was like seeing the sun for the first time in a year or something when I read a congressman in USA Today say he wanted to pass a bill rolling that back on the national level and making it harder for the Pentagon to give their equipment away.
I was like, you've got to be kidding me.
Hallelujah.
That's beautiful.
What kind of consensus can we build on that?
Because honestly, I don't think I'm a wimp to admit that I'm scared of these guys, man.
These SWAT teams, they are over nothing.
They will kick in somebody's door with their MP5 German machine guns and stick them in your wife's face and God knows what.
And they're terrorists.
I mean, it's got we got to roll that back.
We have to over war on drugs or whatever it is.
These SWAT teams.
Right.
Well, so, yeah, I think this is an issue that is related, but somewhat outside of the current criminal justice reform.
It's more of a law enforcement reform issue.
But I think you're right that it's gaining steam.
I think it's gaining more attention.
This issue of, you know, no knock warrants.
Why can't you just serve?
Why do you have to go bust in somebody's door while their wife and kids are sleeping and shoot their dog to serve them with a, you know, arrest warrant?
Why don't why not just get them when they're driving to the grocery store or something like that?
There's a lot of ways that you can have common sense law enforcement.
Part of it is this.
It's almost an arms race with prosecutors.
Right.
Because it's this idea of being tough on crime that says, well, OK, I'm going to run for higher office.
And so I have to have an image that says I'm tough on crime.
So I need to build up statistics of how many people I put in prison and how many, you know.
People people's lives I've saved by locking up all these people for lengthy terms, et cetera.
And so it builds on itself and it feeds on itself because the next person who's running has to be able to prove that they're tougher on crime than the last tough on crime guy.
And so I think that's part of how we've gotten to ourselves.
We've gotten ourselves in this situation.
And so now people's policymakers have to find ways to de-escalate that.
And it's, you know, it's how do you how do you do that?
Because it takes political courage because nobody wants to be the lone politician who's out there.
I worked in Congress for a while.
I know how these guys think.
Nobody wants to go out there on a limb and be the guy who is standing there going, hey, we we're we need to be softer on crime because that's the way that it sounds.
Right.
And they're going to lose their election.
They're going to be easily attacked.
So.
It's a process of making that intellectual argument, backing it up with data and and going out there and having the argument be made outside of the political arena first in order to allow the politicians to have the cover they need to to get on board with it.
And it's pretty thick that that's the way that has to be done.
But in the real world of politics and policymaking, that's pretty much how it has to happen.
So you have, you know, think tanks and outside special interest organizations that are out there, you know, the Innocence Project going out there and doing fantastic work, getting people who are wrongly imprisoned off of death row, those kind of things.
It's heartbreaking to see people spending decades of their lives in prison for crimes they didn't commit right here in Williamson County.
Michael Morton, you know, most of your listeners, I'm sure probably familiar with that.
I assume you've talked about it before.
Decades of his life, almost 25 years in prison for a crime that he didn't commit, which the D.A. and the sheriff most likely at the time they prosecuted him knew he didn't commit.
Yeah.
All right.
Now, we have very little time left for you to tell people how they can join, how they can help.
What's the website?
Texas Action.
I'll say that part for you.
TexasAction.com.
So TexasAction.com is my organization.
RightOnCrime has a separate website, RightOnCrime.com.
You can follow them at RightOnCrime on Twitter.
You can follow us at PPP Action.
And we'll just work together.
Great.
All right.
Well, thanks so much again.
I think it's so important that, you know, you even especially emphasize the conservative nature of your approach here.
I think it can make a real difference.
Thank you very much, Nathaniel.
Thanks, Scott.
Nathaniel Ferguson, everybody at TexasAction.com.