This week Bernard B. Kerik joins us to offer his perspective on criminal justice in America. Mr. Kerik was the New York City Police Commissioner from 2000 to 2001, and was later sentenced to four years in federal prison in 2010 for criminal conspiracy and tax fraud. He shares his experience in prison and how his own incarceration influenced the way he sees the American justice system today.
Trevor Burrus: Welcome to Free Thoughts from Libertarianism.org and The Cato Institute. I’m Trevor Burrus, a research fellow at The Cato Institute’s Center for Constitutional Studies.
Aaron Ross Powell: I’m Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at The Cato Institute.
Trevor Burrus: Joining us is Bernard B. Kerik. Mr. Kerik was appointed the 40th police commissioner of New York City by Mayor Rudolph Giuliani on August 21st, 2000.
Prior to his appointment, Kerik was commissioner of the Department of Corrections. He served with the New York Police Department on both uniformed and plain clothes duty for eight years and was awarded the prestigious Medal of Valor among many other awards.
His stewardship of the department in the aftermath of 9/11 brought him national attention. He is the author of the new book From Jailer to Jailed. Welcome to Free Thoughts.
Bernard Kerik: Thank you.
Trevor Burrus: You have one of the most fascinating and illustrious careers of anyone I’ve ever met. So the jumping off point for your book though was less your career than I guess what we could call your downfall. But I’m putting that in scare quotes.
Bernard Kerik: Right.
Trevor Burrus: So I would like to start where you start your book which is on the ninth floor of the special housing unit of the Metropolitan Correction Center in Lower Manhattan, just a few years ago. Why were you there?
Bernard Kerik: I was actually being housed in the Federal Bureau of Prisons’ special housing unit in MCC. I was a federal prisoner at the time. In 2004, after being nominated by President George W. Bush for the Department of Homeland Security as secretary, I withdrew my name from consideration and because I had a nanny that I did not pay tax on.
Ultimately that led to me pleading guilty in 2009 to eight felony counts, which included false statements and tax charges relating to my children’s nanny and some apartment renovations I had done and I was sentenced to three years in prison – four years in prison. I did three, three years and eleven days.
I was actually housed in a minimum security camp. But at some point in time, I was brought back up to New York as a state witness and I was placed in solitary confinement for 60 days exactly and that’s where the book starts out and it was during that 60‐day period that I realized solitary confinement is a mind‐altering, if you will, experience.
You hallucinate. You talk to yourself. You do anything and everything you can to basically not lose your mind and because there’s no contact with the outside world. You’re locked down 24 hours a day. I was let out of my cell three times a week for a shower, for about 45 minutes to an hour.
No phone calls. One phone call a month, 15‐minute phone call, and no communications with the outside world. So it makes you insane basically.
Aaron Ross Powell: Why do people end up in solitary? We’ve heard these horror stories about it. But is it something where you’re – typically people are put into it to protect others, like they’re just really bad people or violent or is it more of like a retribution or punishment? Like you’ve done something and we want to hurt you really bad.
Bernard Kerik: Well, here’s the thing. I mean there’s a use for solitary confinement. As somebody that ran Rikers Island – I ran Rikers Island and the New York City jail system for six years and basically took it from one of the worst jail systems, prison systems in this nation, one of the most violent, and mismanaged to an international model for efficiency and safety. I can tell you there’s a use for solitary if you are a threat to an institution, if you’re a threat to staff, if you’re a threat to national security or a major substantial threat risk for escape.
Then there’s a place that they have to put you and that would be in solitary or a special housing unit. Unfortunately in our country, we’ve digressed from that and we use solitary confinement for protective custody. That was the excuse that I was given as to why I was placed in solitary.
There’s administrative segregation. There are low level housing units that you could go into but in my case, they stuck me in solitary. We take young kids. We put them in solitary confinement for institutional infractions. Like I said, solitary is a mind‐altering experience.
You don’t want somebody in solitary confinement that basically loses their mind and then you send them back into society. There’s a place for it. There’s a purpose for it, but it should be monitored. There should be legislation to ensure that it’s not abused because the ironic thing is you have correctional staff that man the gates of our prisons and jails all over this country that do a tremerndous job.
They have a dangerous job. They have a job that’s pretty much thankless and for the most part, most of them do their job the way they’re supposed to do it, but there are people out there that believe that it’s their job to impose punishment on you.
Your punishment in reality is the deprivation of freedom. There are correction staff out there, not all of them but some – in some cases, many – that believe it’s their job to punish you, to demean you, demoralize you, to degrade you.
The use of solitary confinement in many cases is one of the ways they do that.
Aaron Ross Powell: Isn’t that though part of – I mean the attitude of putting people into prison is a part of it, to demean them and degrade them and take away more than just their freedom? Because otherwise, we could – I mean the environment – prison is not – aside from the absence of freedom. It’s also not the greatest environment. It’s not pretty. The food is not good. We get less – all of these things. I mean even minor things compared to the really awful stuff that goes on. So if the only punishment that we are giving people is the loss of freedom, then why put them in prison as opposed to somewhere really posh and nice with video games and entertainment?
Bernard Kerik: Well, here’s the way I’ve tried to explain it. Unless you’re an institutionalized animal, the deprivation of freedom is far more profound than anything you could imagine.
People have said to me, “Well, you were in a minimum security camp and a minimum security camp is considered a country club.” It’s considered Club Fed as some people have said. Well that is true. That may be true if you’re somebody that has been institutionalized.
But I can assure you somebody that has never been in prison before, going into a minimum security camp, it’s not the country club you would expect. I once told this to a room full of reporters. If you think it’s that posh and you think it’s that much of a country club, then pick out one of the best hotels in New York City, Four Seasons, The Ritz, whatever. Go down to that Four Seasons and I can assure you that the bathroom is bigger than the cubicle I lived in. My cubicle was about 12 by 8. Go into that bathroom that is made of pure granite and marble and has all the luxuries of modern day. Lock the door. Come out in a year and tell me how posh it was, how great it was. Tell me what you think of it then because I can assure you the deprivation of freedom is far, far more profound than anything you can imagine, especially if you have children, especially if you have family, if you have things you’re concerned with on the outside.
I’ve tried to explain to people and an inmate once told me this. I would have never understood it before going into prison. Prison is like dying with your eyes open. That’s what it’s like. Your whole world goes on without you in it and there isn’t a damn thing you can do about it. The good, the bad, the ugly, no matter what it is, that’s what prison is like.
Trevor Burrus: Now From Jailer to Jailed, which the title explains that exactly, and as you mentioned, you were – what would the title – you were running Rikers …
Bernard Kerik: I was the correction commissioner for New York City before I was the police commissioner.
Trevor Burrus: And your attitude or your idea of prison when you were commissioner, how much of that – did that change? I mean I’m sure it changed a lot. But did you think it was worse after you went through it or did you see how bad it was when you were at Rikers? What was the biggest surprise?
Bernard Kerik: Well, there’s a difference between what I did at Rikers and a prison system. Rikers Island is a jail system. My average length of stay at Rikers was about 45 to 54 days. I had 133,000 inmate admissions per year. When I took over the department, we averaged 150 stabbings and slashings per month.
Trevor Burrus: A hundred and fifty?
Bernard Kerik: A hundred and fifty stabbings and slashings per month. On the month I became police commissioner, we had one. So I reduced stabbings and slashings and inmate‐on‐inmate violence by about 93 percent and created a number of other efficiencies that basically turned it into an international model for efficiency and safety.
Aaron Ross Powell: Just quickly how – I mean that’s such an enormous difference …
Aaron Ross Powell: … slashings and stabbings before that. So I mean how do you cut it from 150 to 1?
Bernard Kerik: Basically there was a program. I [0:10:00] don’t know if you guys are familiar with the CompStat Program on how crime was monitored and addressed in New York City. I created the same sort of program on overseeing the agency and basically what that is, is daily data collection on addressing hot button issues, such as violence, slashings, stabbings, assaults, inmate‐on‐inmate assaults, staff assaults, staff abuse, things like that.
Instead of looking into that stuff quarterly or biannually the way it used to be looked at, I looked at it daily. So I address the issues daily. That’s number one.
Number two, removing the weapons, getting the weapons out of the facilities, more searches, searches of visitors coming into the institutions, preventing the contraband from coming in.
Trevor Burrus: Would the more searches exacerbate the interactions between correctional officers and the inmates which can lead to violence? I mean that seems to be …
Bernard Kerik: Here’s – that’s a really good point because some correction administrators will tell you that. It’s all about first line supervision. You can have more contacts between the inmates and staff with more searches.
If you have the right supervision, you have the right oversight, you have the right people, that you have – everything is videoed and that’s what we did, then you don’t have those incidents. You don’t have those problems.
In fact, the confrontations between staff and inmates reduced. It was reduced during this time. But the other thing I did that historically had not been done – this came to light when I first took over as the first deputy commissioner. I once had a – I had two inmates that held a guy down on the ground and they took a turkey bone or a chicken bone and they carved “LK” into his back for “Latin King,” like 180 stitches.
I asked one of my guys at the time. What happens to this guy? What do we charge him with? They basically look to me and said, “What? He doesn’t get charged? He goes to a special housing.”
But I said, “You mean to tell me that that guy just committed an atrocious assault, maybe attempted murder, and we do nothing?” He said, “Well, the prosecutors look at it like this is jail. That’s what happens in jail.”
I basically said, “I don’t give a damn what the prosecutors say. That’s an assault. Outside the facility, if I nicked you with a razor blade, it would be an assault with a deadly weapon. It would be all these charges. But inside a jail, you let them do what they want? Jail and prison cannot be a safe haven for criminal activity. It can’t.”
So we started instituting charges, internal charges, on guys that committed crimes within the system. If you cut somebody, if you assault them, you’re charged. If you burn down a cell or light somebody on fire, you get charged with a crime.
That immediately, immediately dropped inmate‐on‐inmate violence by 40 percent …
Trevor Burrus: It’s so simple.
Bernard Kerik: You know what, Trevor? It’s simple stuff that historically was overlooked with the mindset that that’s the way we’ve always done it. That’s the way we do it. That’s the way it has always been. So nobody changes it.
If you look at the other things that we did within the system, why does it take an inmate six hours to see a physician?
Trevor Burrus: Wow.
Bernard Kerik: Six hours it used to take to have an inmate in the New York City Department of Correction to see a physician. One, the inmate puts in a notice 24 hours in advanced. It’s not like you don’t know they’re going. You don’t know – it’s not like you don’t know how many inmates are going to be seeing the doctors the next morning in that facility. You know.
So why do you have an inmate moved out of his housing area, taken to a place, who sits around for six hours, in most likely an unsecure or less secure spot, waiting to see a doctor that he could see in 30 to 45 minutes if the movement was done correctly? Well, we changed that.
How many hours it took for attorneys to see – you can’t – six hours, four hours for an attorney to come see a client on Rikers, which I thought was atrocious considering that attorney is getting paid by the hour.
Trevor Burrus: I was just saying they’re getting paid the whole time for reading a magazine or whatever.
Bernard Kerik: I will tell you – and this goes to – this is sort of accountability 101 and this is – well, you said it seems so simplistic. I put up signs in all the visit rooms for the attorneys and it said – the sign said, “If you don’t see your client within 45 minutes after you arrive on site, then you were to call this number.” That number was the cell phone from my chief of staff.
Well, I can promise you that only happened once or twice after and then it’s over. Then the inmates see their attorneys within 45 minutes and there’s no problem. It’s all about accountability and if there’s not leadership and accountability, you’re going to have all this other stuff that creates problems within the system.
Aaron Ross Powell: What’s the reaction from the staff to these reforms?
Bernard Kerik: I have – when it first started, there was outcries, especially the unions.
Trevor Burrus: I have a question here about the union.
Bernard Kerik: Any change in a system, in a big system like that, any major change, the union is going to have an issue with it. OK? It’s going to hurt my guys. It’s going to impact them. They’re going to be punished. The bottom line is – if you go back and you look, in 1990, 60 Minutes and Mike Wallace, they did a full blowout feature of Rikers as being one of the worst, most violent jail systems in the nation.
In 1998, Mike Wallace and 60 Minutes, the same exact team, came back into Rikers when it was under my command. The reason he came back is he saw an article in the New York Times and he called me and said he didn’t believe it.
He did not believe the article that said Rikers was a completely different environment. Rikers had been tamed, so to speak. Mike Wallace says, “I want to look at it. I want to see,” and he went back in and he actually talked to staff and ironically, he also talked to inmates that had been in the system then.
Both the inmates and staff said the exact same thing. It’s safer. It’s cleaner. Everything is better than it was and we benefit from those changes. That was inmates and staff alike. So at the end of the day – you know, when you have a change in a big organization like that, you’re going to have outcries especially from the union. But it’s to their benefit that those changes are made.
Once they understand that, once they see it – today, Rikers Island has 10,000 to 12,000 less inmates than I had on a daily basis and they have constantly increased their violence, scandals, corruption and a multitude of other things and all the COs that were there under my command …
Trevor Burrus: CO is …
Bernard Kerik: Correctional officer. They were all begging me for – to come back. So it was to their benefit.
Trevor Burrus: It’s interesting exposing these two sides and that’s one of the reasons I’m really happy you’re here on the show because the prison seems like a black box to a lot of people. We don’t even want to think about it and there are a lot of things you can …
Aaron Ross Powell: Something we like watching on TV shows …
Trevor Burrus: Yeah, exactly. We like watching TV shows and everything. But there’s a lot of – you know, out of sight out of my mind seems to be a big part of this and you’ve seen both sides of it. A lot of these reforms seem very commonsensical that you can just – accountability, just charging people with crimes, having accountability to the correction officers.
Bernard Kerik: Right.
Trevor Burrus: Another thing you talk about in your book is having the correction officers treat prisoners with respect, which I think is very important. Can you talk a little bit about that?
Bernard Kerik: It’s sort of like I said before. The punishment is the deprivation of freedom. The punishment is being away from your family. The punishment is the lack of employment. The punishment is a number of things. What the punishment is not supposed to be is mental torture.
You have staff for the most part that do their job. It’s like I said a very dangerous job at times. But you also have staff out there that they feel – there’s something in them that thinks – they feel that it’s their job to impose punishment.
So they do everything in their power to demean you, demoralize you, degrade you. This goes back to accountability.
Trevor Burrus: How do you get that to change? That’s the question.
Bernard Kerik: It’s all about first line supervision.
Trevor Burrus: OK.
Bernard Kerik: Every CO, depending on your housing area where you work, you have a first line supervisor, whether it’s the federal system or state system and it’s those first line supervisors that oversee the people under them, the squad of correctional officers or a platoon of correctional officers, however many that is.
It’s their job to oversee them and if the warden is doing his job – and I say the warden specifically because when I took over Rikers, I remember walking as the first deputy commissioner around Rikers Island, and going through a housing area with a warden, who the inmates in that housing area had [0:20:00] never seen before.
Now, I went up to an inmate and I asked him.
“How long have you been in the facility?”
“I’ve been here four months.”
“You’ve been here four months. And you don’t know who that guy is? The guy with the white shirt and the stars right there. You don’t know who that is?”
Well, that afternoon, that warden was transferred. He was gone. You mean to tell me for four months, that inmate never saw you pass this housing area? And believe me, if they did, you would know.
So the bottom line is, if the warden is not making his rounds, if the first line supervisors, if the deputy wardens aren’t walking those facilities to see what the problematic issues are, well then things like that are going to happen. You could have COs that abuse their authority, that do things they shouldn’t do, that create conflict and many times, create violence. So you have to have supervision. You have to have accountability.
Trevor Burrus: I talk a little bit about how the – I don’t like using the word [0:21:01] [Indiscernible] too much, but it definitely fits your situation about how you found yourself in prison, because someone is probably listening to this and saying, “Oh, I’ve heard this guy. He’s the corrupt guy and he’s now a convicted felon,” and all those stuff.
It’s not so much a matter of guilt and innocence I think when you found yourself on the – wrapped around prosecutors and your own attorneys. It’s not so much guilt and innocence anymore. It’s whether or not you can maintain a staring contest with the government. They have way more resources.
Bernard Kerik: Let me talk about the staring contest. First of all, if you’re indicted by the federal government, that indictment says the United States of America versus whatever your name is. I promise you, it’s the United States of America. It’s the whole United States of America. It’s the prosecutor’s office. It’s all their attorneys. It’s every agency, any agency they want involved. It’s everybody and it’s everything and it’s all their money and I really don’t care who you are unless you’re Warren Buffett, Bill Gates, Carlos Slim or a couple other guys I know that have wealth in the billions. There’s not much you can do to fight the American government.
There’s passages in my book that I talk about this and the one thing that I concluded and I believe in strongly is that you as an American citizen don’t have the actual constitutional rights you think you have if you don’t have the money to pay for it.
I will tell you I was the more fortunate of many, that I had money. But even then – I will give you an example. On a monthly basis, I was billed between $100,000 to $150,000, to $200,000 a month for 18 to 20 months.
In October of 2009, one month, a 30‐day period, my legal bill for that 30‐day period was $476,000. How long can you last? So the staring contest doesn’t last that long at some point. It’s more or less a business decision whether you’re going to keep trying to go forward and survive. You can’t. You just can’t.
Trevor Burrus: Well, they have all the cards. They have …
Bernard Kerik: Well – and then to get back to my charges, specific charges, people just – they hear about the case and he was charged with corruption. Well, one, I wasn’t convicted of corruption. There was no corruption. There were false statements and tax charges.
The false statements, I was not under oath as I’ve heard many say. He liked under oath. No, I did not. I didn’t like under oath. It was a false statement made on applications for a vetting process.
Trevor Burrus: For the secretary.
Bernard Kerik: The secretary and for a committee. It wasn’t even the secretary. One of them was for a committee. That being said, my charges initially started with an ethics violation in the Bronx. The ethics violation that was – it was an 18‐month grand jury investigation, 18 months that resulted in two ethics charges. One, I didn’t put something on a financial disclosure and two, that I accepted apartment renovations – I accepted a gift in the form of apartment renovations from a contractor attempting to do business with the city.
The Bronx grand jury concluded their investigation with those two charges. The Bronx DA admitted and told the judge in court there was no quid pro quo between me and the contractor.
Trevor Burrus: Yeah, it was all news to you …
Bernard Kerik: There was no corruption. Immediately after I plead guilty to those two things and paid a $221,000 fine, then the federal government came in and charged me all over again with the same – on the same issue.
Trevor Burrus: Because you said the G word. You said “gift” in your plea, right?
Bernard Kerik: Right. And that’s – that was the thing. The government used my plea, the words in my plea against me to start a new investigation. I’m not saying I did nothing wrong. I’m not saying anything that I pled guilty to was wrong.
Here’s what I have a problem with. There isn’t one thing I was charged with and pled guilty to that couldn’t have been handled civilly or ethically. In fact it already was. It was handled ethically by the state.
For those that have any doubts, most of my charges are related to my tax stuff around my children’s nanny. OK. At the same exact time that I was actually being prosecuted and investigated, Timothy Geithner was being confirmed by the United States Senate for the position of treasury secretary after he admitted that he didn’t pay tax for like two or three years. Tom Daschle was up for secretary under President Obama, $180,000 in tax issues that he had over a three‐year period for a car and drivers.
You had Zoe Baird, President Clinton’s attorney‐general nominee. Kimba Wood, Clinton’s attorney‐general nominee. All of them – and specifically those nanny issues just like mine. There was no grand jury investigation. There was no investigation period. There was nothing.
So anybody that believes or thinks that there aren’t selective and political prosecutions, you got to be pretty naïve.
Aaron Ross Powell: So why you? I mean what – why would they come after you and not those other people?
Bernard Kerik: Well, I think at the time – and I talk about this in the book. I think at the time Rudy Giuliani was my friend, my partner, somebody I worked with for eight years. In 2006, he announced he was running for president. He started his pack, made his announcement and from that point forward, he was on a roll. If you go back in time, you look at every single article that I was in, he was mentioned. If you look at every article about him and his campaign, I was in it.
So there was this constant political driving force to besmirch him or dirty him up as a result of me. I think that had a lot to do with it.
Trevor Burrus: Then your – the whole story gets kind of bizarre too because as you said, the prosecutors here – I always have this question about federal prosecutors and I want to ask you some later questions about some of the people you met in prison. But you kind of wonder what they’re doing. Why ridding you – ridding the menace and getting you off the streets is what they actually need to be doing right now, to make the world a better place, right?
Bernard Kerik: You know what? Listen, I can’t speak for the prosecutors, my specific prosecutors, other than to say what I’ve said in the book. I believe that there was enormous overreaching. I believe that it was politically‐driven and I want to be clear.
I’ve worked with some of the best prosecutors in this country on state and federal cases. Some of the most notorious drug investigations in – cartel investigations in New York. The best prosecutors in the country I feel I’ve worked with and I know and they did their job by the book. But there are prosecutors out there that they believe they’re doing God’s work in some way and it blinds them to the injustices that they’re really committing.
They’re supposed to be working based on evidence, based on going after really bad people. They’re not supposed to win cases by supporting perjury, suppressing evidence, extorting testimony, things like that. But it does happen.
Horribly, horribly, it is happening at an increase in this country, worse than anybody has seen in years. So bad that out on the West Coast, just a few months ago, you had the chief judge, the chief federal judge, out in the ninth district …
Trevor Burrus: Kozinski, yeah.
Bernard Kerik: Kozinski. Basically banished an entire office, the entire United States attorney’s office and called on the Justice Department to get people in there that weren’t going to be engaged in this conduct. [0:30:00] That is horrendous. I mean – we’re seeing it all over. But I think that was a major, major example of what’s going on and increasing around the country.
Trevor Burrus: But they have a lot of tools at their disposal, for example, an incredibly long criminal code. There are a lot of things they can do to really …
Bernard Kerik: Well, listen, it’s not even about the criminal code anymore. You have – depending on who you talk to. I just came from somewhere else where 40, 50 people sitting in a room talking about over‐criminalization and the bottom line is these were all experts in the field. Nobody can tell you how many crimes are on the books actually.
Nobody can tell you and where they’re at. Worse than that – and this goes back to the people I met in prison. Being involved in a crime, a criminal investigation, a real crime, is one thing. But that commercial fisherman that caught too many fish, that was a regulatory issue. The guy that sold a whale’s tooth on eBay, that’s regulatory.
We’re taking regulatory and civil issues and ethical issues and we’re locking people up criminally. We’re turning them into career criminals basically for this stuff that’s on the books as regulatory issues.
That’s a big, huge problem and the American public, they don’t have a clue. They read a headline and they don’t think of – in the context of what that really means for them, what it means for this country and also what it means for their pocketbook, because you could have handled ethically or – not ethically but regulatory‐wise, you could have handled that commercial fisherman that caught too many fish. You could have suspended his license. You could have fined him. Take his fish or something, to hold him accountable. We didn’t do that.
We take his license. We take his boat. The people on the boat lose their jobs. He loses his job. He loses his license forever. He can never work again. Who pays for that? We do, the American taxpayer. So it’s a bizarre process.
Aaron Ross Powell: But don’t our laws, our regulations, need teeth? I mean so – someone could interpret what you’re saying as, well, they were really hard on me and they’re hard on these other people and I wish that they had gone easier on me. I wish they would go easier on these other people. But isn’t the goal of the regulation to the criminal law or whatever these things are that we’re charging people under, to prevent people from doing this stuff? So if we went easier on them, more of them would do it.
Bernard Kerik: All right. Two things. One, this isn’t about me. I’m done. Whatever happened to me, happened. This is about the future of this country. Don’t tell me that the only way to hold that commercial fisherman accountable is to put him in prison. That’s a ludicrous statement to make. Anybody that believes that is stupid because you can hold that guy accountable in a number of different ways. You could suspend his license. You could fine him.
Trevor Burrus: Probation.
Bernard Kerik: Take his fish.
Trevor Burrus: Probation, whatever.
Bernard Kerik: Suspend his license, put him on probation. Do whatever you want to do. But you don’t turn him into a criminal and remove him from the workforce. All these guys – you had this – the Obama task force in the financial world looking at the banks. They were looking at the banks, the heads of the banks. Well, what happens? All the brokers on the bottom that were violating these regulatory issues, they locked them all up. They locked them up. They didn’t touch anybody in the banks. Everybody went about their business, but the small guys, they locked them up. They turned them into criminals. Why not fine them? Why not suspend their license? Why not take them out of the workforce?
Suspend their license for two years, a year, whatever. Make them pay restitution for whatever they think the loss was. We don’t do that. So here’s the problem you have. On those regulatory issues and the ethical issues and things like that, these are tens of thousands of people that were doing this to. We’re permanently taking them out of the American workforce.
We are creating a permanent underclass of American citizens, permanent underclass in the millions. There are millions of people in this class now, which is a second class citizen. They have diminished civil and constitutional rights. They have 40,000 different collateral consequences that they have to deal with until the day they die and they never get their civil and constitutional rights back in full, never. They’re never empowered as a full American citizen again. That is not the way the system was supposed to be looked at.
Aaron Ross Powell: I agree with everything you’ve just said. But sitting here in the Libertarian Cato Institute, it leads me to – I have to ask. So how does that sort of argument apply to the thing that is perhaps the largest driving factor of destroying people’s lives, taking away their livelihood, turning them into criminals through prison time and all that, which are drug penalties for non‐violent offenders.
I mean our jails and prisons are overflowing with non‐violent people who are in there just because they bought and sold some chemicals that make you feel funny.
Trevor Burrus: You mentioned a guy Eric. You met in prison serving – I presume that’s just anonymous, but serving 36 months for nine grams of cocaine, his first offense. Non‐violent who was working two jobs and had a family.
Bernard Kerik: Well, listen, it’s worse than – it’s far worse than Eric’s situation. I met young black kids out of Baltimore, 5 grams, 10 years, 15 years.
Trevor Burrus: With crack cocaine though. Is that …
Bernard Kerik: No, no, no. Because they – they get tacked on to a conspiracy.
Trevor Burrus: Oh, geez.
Bernard Kerik: And the conspiracy enhancements killed them. OK? Or somebody used a gun in a transaction. It had nothing to do with them. They get hit with the enhancement. There are all these things in the federal system that can enhance your penalties. The reality is the kid never had a problem with the law. It was a non‐violent offense. It was a first‐time offense. Now he’s doing 8 to 10, 15 years.
Trevor Burrus: And he went away when he was 19 and he’s getting – his whole career …
Bernard Kerik: His whole life. But here’s the problem I think that we have in the legislature and in the general public at large. I think this goes to your question. There are people that will listen to this and say, “Oh, drugs are a bad thing. You’re dealing drugs. People get killed because of drugs. So that guy, whatever happened to him happened to him. He deserves what he gets.”
What I would tell those people – and I’ve had these conversations at like town hall meetings, at book signings and things that I’ve been at. Don’t be so quick to think that’s a benefit to you and society because here’s what you’ve done and here’s what I don’t think people understand. You take that young kid that has never had a problem with the law and you stick him in prison for 15 years, which means he’s going to do 12.
If he’s doing 12, he’s not going to a minimum security camp. He’s going to a lower medium. He’s going to learn how to steal, cheat, lie, manipulate, gamble, con. Most importantly, he’s going to learn and he’s going to believe very strongly that if he gets into a verbal altercation with anyone, it ends with somebody getting cut or somebody getting beat to a pulp.
That’s what you teach him and then you send him back home into society with no education, no vocational skills, no life improvement skills, and you send him back and as one kid said to me, “I’m black and I’m a convicted felon. What good does my GED do?”
The bottom line is, I know guys with doctorates, masters, bachelors. They can’t get jobs because of a conviction, because of their conviction. What’s that kid going to do? You’ve guaranteed – in most times, you’ve guaranteed he’s coming back as a convicted felon, back into the system. He has no choice. He has got nowhere to go. He has got no job. He’s not going to get a job, especially after a 15‐year sentence in a federal prison. It’s not happening. We do that.
Instead of taking those kids and get them before a drug court, and putting them in a mandatory boot camp or something that teaches them respect and discipline and the parenting goes beyond conception and getting them a GED and getting them on the right track, and most importantly, if they pass that boot camp, dismiss their conviction. Get their conviction off the record because with that conviction, I really don’t care what you do to them. I don’t care what you do for them. They’re doomed to failure. Ninety‐five to ninety‐nine percent of the time, they’re doomed to failure and we’re creating it.
Trevor Burrus: Now when you walked the beat when you were on the NYPD and you walked the beat in your uniform and plain clothes and that was in the 80s, right when the drug war was getting ramped up and all those things. Did you think about the same stuff for the people you were interacting with? Did it strike you as much when you were a uniformed …
Bernard Kerik: No, no. Here’s the problem. It’s not going to, to anybody on law enforcement. You’re given a [0:40:00] penal code. You’re getting a set of laws. You’re told to go out and enforce these laws. Nobody should blame the cops. Nobody should blame the federal agents for what’s going on in today’s criminal justice system. Don’t blame them. Blame the system. Blame the legislators. Blame the people that create the laws and the punishments that we have to live by now. That’s what the problem is.
It’s not the cops and the federal agents. They’re doing their job. They’re doing what they’re supposed to do. They’re doing what they’re told to do. That’s the problem. Nobody in law enforcement, no cop or federal agent or state trooper or any of those guys – they’re not thinking of the end result. You just don’t. But that’s not your job. Your job is to take the bad guys off the streets and the law says this guy is a bad guy and that’s what you have to do.
They do what they’re supposed to do and the rest is through the system. The system has to change.
Aaron Ross Powell: Knowing what you know now, would you have done things differently when you were a beat cop?
Trevor Burrus: Like let people off, maybe let them go if you saw them smoking marijuana or something.
Bernard Kerik: You know what? First of all, I don’t – I really don’t think I ever locked up anybody for smoking marijuana.
Trevor Burrus: That’s good.
Bernard Kerik: Yeah. Most of the people I locked up were bad guys that did bad things. I was a very aggressive cop. Would I do anything different? I don’t know.
Here’s the problem you have and this is the problem – you had 50 cops sitting in this room right now, listening to this interview or – and this is a real example. I’ve sat in rooms with a bunch of cops, talked to them about the system as it stands today and they basically admit. You know what? You’re right? You’re absolutely right. There’s something wrong.
They don’t have the authority to change it because here’s what happens. They get that guy selling a dime bag of cocaine. They take the cocaine. They rip it up. They throw it on the ground. Guess what. I promise you, there’s a prosecutor that’s going to lock up the cop.
Trevor Burrus: Really?
Bernard Kerik: Yeah. They don’t have the ability to do anything about it. They can’t let people go. They can’t do that. So that’s a problem. You have to change the laws.
Aaron Ross Powell: What about – what are your thoughts on then – during nullification? I mean – so if the legislators are willing to change things or the prosecutors aren’t willing to stop prosecuting, we empower the people to – or educate the people to just refuse to convict on these sorts of things.
Bernard Kerik: You know what? I think that’s nice. It sounds nice. The reality is, it’s never going to happen. The reason it doesn’t happen is because of the way the prosecutors get to present their cases.
Trevor Burrus: Yeah.
Bernard Kerik: That won’t happen.
Trevor Burrus: And also almost no case goes to a jury anymore. I mean it’s all …
Bernard Kerik: Well, look, in the federal system. I mean – I just did this recently. I asked a group of people. Give me a company or give me a government agency, any government agency that has a perfect record, anybody. They were all sitting around. They were all thinking. Well, maybe Apple. Well, it’s not really perfect, but maybe this or that.
Give me 20 different things. None of which can come close to the record of the United States Justice Department. None. Ninety‐seven percent of the criminal cases in the Justice Department are pled out, 97 percent. Out of the three percent that aren’t pled out, 98 percent of those to 99 percent are found guilty. Perfect record. Really? I don’t know.
Trevor Burrus: That seems a little bit beyond what you could reasonably expect without …
Bernard Kerik: Well, when you look at state prosecutions that are 65 to 75 percent. I don’t know.
Trevor Burrus: Well, they can – with the police system, they can put as many screws to you as you want and we go back to the staring contest.
Bernard Kerik: Listen, in the – I’m not saying this. You have Supreme Court justices, former attorneys‐general, and present day judges, federal judges that call the police system a corruption‐prone system. It’s corrupt.
Anytime you could sit somebody in a room and tell them, “Look, you’re looking to 25 to life,” when the reality is that’s a complete exaggeration of what they could really get. But you tell them that anyway. You’re looking at 25 to life. So we’re going to give you a break if you take 10. You got to be an idiot. The guy is going to take 10.
I know tons of guys that took pleas to things they did not do because they were scared to death after being threatened with these crazy sentences.
Trevor Burrus: Now your plea you took, I mean you had a lot of considerations about your lawyers constantly getting dismissed by a judge who seemed to be a little bit biased. I got to pause there easily. So eventually you just kind of threw up your hands, right?
Bernard Kerik: Well, in my case, look, I was actually days from going to trial. I was going to trial and my judge, in my case, basically said he was inclined to disqualify my attorneys.
Trevor Burrus: This would have been the third time.
Bernard Kerik: This would have been the third time. Disqualified the prior and the first one was conflicted out, who eventually – I don’t know how it worked. The prosecutors got him to cooperate in the case against me, unbeknownst to me and without telling my lawyer.
Trevor Burrus: Your first attorney was to testify against you.
Bernard Kerik: Right.
Trevor Burrus: That’s a little bit crazy.
Bernard Kerik: A little bit? Let me tell, when you’re standing up in the courtroom and the federal prosecutor starts to tell the judge that they had all these conversations with your attorney, your prior attorney, and you have no idea what he’s talking about, it’s more than crazy.
But I was actually five days from trial and once he said he was inclined to disqualify my legal team at that point, I was already remanded. I’m already in solitary confinement. I’m going to have sit there for another year, a year and a half, until my new legal team comes up to speed and I had no more money for a retainer for new legal counsel. What do you do? I quit. So that’s it.
Trevor Burrus: So what do we do? We have a system that’s broken in so many different –
Bernard Kerik: I think it’s – look, this is – there’s nothing – there’s one answer and the one answer is the legislators. There are hundreds if not thousands of advocacy groups around the country that do all kinds of great work, the Cato Institute included. Phenomenal advocacy work on criminal justice reform.
If we don’t change the laws, you guys are going to be doing what you’re doing for the next hundred years in this arena. The laws have to be changed. The mandatory minimum sentencing guidelines have to be repealed, revamped, abolished, whatever.
Let the judges judge. The mentally ill, the addicted, stop putting them in prison. They don’t belong in prison. They belong in treatment centers.
Trevor Burrus: You saw a lot of that.
Bernard Kerik: I saw a lot of that. I mean really horrendous cases of that. Programs. We need real programs that are going to reduce recidivism and get people back into society as productive citizens. We don’t have that. It’s just not happening and lastly, at some point in time, you pay your debt to society because it stands right now – as it stands, you never pay your debt to society. This stuff goes on forever and it has a negative impact on you by some 70, 80, 90 percent.
You’re never remade a whole citizen again and I think it’s wrong. There are some people that that may have to happen. Some people go to prison for a long time. Some people, you have to put them away for life to keep society safe. I get that.
But when you pay your time, you do your time, whatever you want to call it. You’re off probation and you become a model citizen. Well, then, all right. Get it over with. End the punishment because as it stands right now, the punishment goes on for a lifetime.
Trevor Burrus: It seems like we can reform a lot of this or the prison you were at in Cumberland, Maryland. Federal prison camp? Is that …
Bernard Kerik: Right.
Trevor Burrus: Which was supposed to be – the way you first described it, it was supposed to be kind of open and …
Bernard Kerik: I mean, look, a minimum security camp is pretty much a non‐secure facility. There’s no fence. There are no locks on the doors. You could literally walk off site anytime you wanted. I could have a visitor come on a Saturday and Sunday. I could walk out to the track, get in the car and drive off. It’s an honor system.
So here’s my question. Here’s what I think people are missing. When I push for programs in the system, people say, “Well, you need money. You need real money.” Oh, you need real money? Well then take the 27,000 people that are sitting in these minimum security camps …
Trevor Burrus: Who are like white collar criminals, non‐violent …
Bernard Kerik: Non‐violent, first‐time – many first‐time offenders, low level drug offenders, 27,000, 28,000 of them sitting in federal prison camps.
Trevor Burrus: At the [0:50:00] cost of about $30,000 a year.
Bernard Kerik: At the cost of $30,000 a year and more, especially the older guys. They could be $60,000 a year because of all the medical stuff. You know, get them – send them home on home confinement. Do something that benefits society versus destroys it.
I don’t know what the number is. You just reminded me of this. I don’t know what the actual number is. You know how many prisoners are in the federal prison system on death row? Not on death row but they’re dying.
Trevor Burrus: Oh, OK.
Bernard Kerik: They’re dying. They’ve got cancer. They’ve got this. They’ve got that. They’re not murderers. Many of them are not violent criminals.
Trevor Burrus: And they’re infirmed.
Bernard Kerik: And they’re infirmed. Get them out. Send them home. The guy is dying for God’s sake. Let him die with dignity with his family instead of just forcing the issue to let him rot in prison, as they say. Why do you do that? Why? I don’t get it.
Anyway, there’s plenty that can be done. The Cato Institute does an enormous amount as do others and I think time will tell.
Trevor Burrus: Well, that’s the crazy thing is – the thing that upsets me the most about this is the sort of common sense element. I feel like most people would agree with you, that these people should not be in prison. The people …
Bernard Kerik: But here’s the …
Trevor Burrus: So what’s the problem with convincing them?
Bernard Kerik: Education.
Trevor Burrus: Is it education?
Bernard Kerik: The problem with convincing them is educating. Nobody – listen, if every American citizen saw what I saw, they would be angry. They would be outraged and they would be changed. They don’t know. I know they don’t know because I didn’t know.
Trevor Burrus: Thank you for listening. If you have any questions, you can find us on Twitter at FreeThoughtsPod. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www.Libertarianism.org.