544 FBF: The Need for Criminal Justice Reform with Bernard Kerik

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It's pleasure to welcome Commissioner Bernard Kerik to the show. He is the former NYPD commissioner, former nominee for the head of the US Department of Homeland Security. Author is from jailer to Jailed. My journey from correction and Police Commissioner to inmate number 848-880-54. Bernard, welcome. How are you?

Thank you, sir. I'm good.

This is an amazing story and I think it speaks very deeply to the problems with our criminal justice system, why we have so many people on a per capita basis in this country, incarcerated. I mean, it is just, it's amazing. We're supposed to be the human rights leader of the world, right? Tell us about your story. You know, how did you go from police commissioner of New York City and Department of Homeland Security nominee to a prison inmate? What happened?

Well, in 2004, President Bush nominated me to take over the Department of Homeland Security. And about a week later, I had to admit that I had a nanny, a domestic servant, that I had failed to pay taxes on my wife and I paid her cash over about a two year period. And prior to any investigations.

During that period, I paid the taxes, paid the fines, paid the penalties. But the federal government came in.

In 2006, started an investigation and ultimately I pled guilty to eight counts, many of which had to do with my children's nanny and some apartment renovations. They were tax charges and false statement charges. And I was sentenced to 48 months in prison and I served three years and 11 days. So it all started with my nomination.

Wow, that's unbelievable. So was paying the nanny in cash and not paying what, payroll taxes?

Yeah, I mean, look, it's something that goes on every day in this country and other presidential nominees. Kimballwood, who was nominated by President Clinton.

For Attorney General. Zoe Baird, nominated by President Clinton for Attorney General. Both had nanny issues and many others.

Was your nanny a legal citizen?

No, she was not. I didn't know that at the time, but it really didn't make any difference.

But your nanny was like a full time person, Right. So you couldn't argue that it was an independent contractor doing multiple nanny jobs?

No.

Wow. Okay. And so just to be clear, and we'll move on from this, but what happened after the nanny investigation? I mean, the nanny thing arose, but that triggered a deeper investigation, right?

Well, what happened was as soon as I withdrew my nomination in December of 04, the minute I withdrew, it's like everybody crawled out from under the rock. And I remember the President's Chief of staff, Andy Carr, telling me this. He said, people will come after you. He says, the second you withdraw, you know you're going to get attacked from every personal and professional critic you've ever had in the 35 years I was in law enforcement. And I did. And I was initially investigated for apartment renovations I had paid for. The city said I didn't pay enough. I was charged with an ethics violation. It was a 16, 18 month grand jury investigation. The Bronx DA concluded there was no crime. It was an ethics violation. I had to pay a $220,000 fine. I did that. And immediately after I did that, the federal government came in and charged me again for the same. Started investigating again for the same thing, the apartment renovations and the nanny tax and a few other things. So it seemed like it went on for eternity. It was about five years of state and federal investigations before I pled guilty.

Apartment renovations?

Yeah, somebody came in to do some renovations on my apartment. I paid the contractor, and the city basically said I didn't pay him enough. And, you know, it's a long story, but. And it's all in the book. It's laid out in the book.

Wow. Unbelievable. So, you know, there is a regulation for everything in this country.

Amazes me, Commissioner, that we're all breaking the law. The government has made us all criminals because there are so many laws. I was brought up with my mother saying, jason, ignorance of the law is no excuse. And even back then, there's no way you could know the law. If the law were simple, that would be a legitimate statement. But it's so amazingly complex today.

It's. I don't think anybody in this country understands the extent.

Or the enormity of the legal system. The laws, specifically. I think there's. At last count, I think there's about 4,700 different laws on the books. Nobody can really tell you what they are and where they are exactly. But we have a much bigger problem. And this is something I learned when I went to prison. Look, I've been in this business 30, 35 years. I put a lot of people in prison. Bad guys that did bad things, really bad things. And I thought that's what we did in our criminal justice system. And then I got to prison and I met commercial fishermen that caught too many fish. And I met a guy that sold a whale's tooth on ebay. A young man that enhanced his income in a mortgage application to buy his first home for his new bride.

Or the head of Gibson Guitars.

No. And there's a bunch of that stuff going on. And then on the other side, you have these first time low level nonviolent drug offenses. These kids in the minority neighborhoods, they're getting sentenced to 10 and 15 years for first time low level nonviolent drug offenses.

That's insane.

And I have to tell you, we're creating basically a permanent underclass of American citizen by doing this. Yeah.

Wow, that's. That's just. That is just really sad. Now I gotta ask you, do you think that a lot of this is because we've, you know, we've privatized a large part of the prison? And I don't know what the numbers are on that, you know, but the, but the prison system has become a business, unfortunately. And you know, there have been. I think it was in Pennsylvania. Pennsylvania, a judge who was putting juveniles in juvenile hall and collecting kickbacks from the companies. This is just disgusting.

Listen, you have some of this privatization stuff that's corrupt and it's gone down the wrong path. But I think there's a much bigger picture. And the bigger picture is it's the overall industry, the correction industry.

As a whole. And that's state agencies, federal agencies all over the country. It's an $80 billion a year industry with a B. When you have an industry that size, you have a lot of lobbyists in Washington that are fighting for these laws. You have a lot of lobbyists in Washington that are supporting everything and anything to incarcerate, to violate probationers, to keep people within the system, keep building on the system.

It's literally like they hire lobbyists to make the laws more strict and more draconian so they can get more business. This is insanity. These are people's lives. But how can it be on the public side? See, I can understand it. On the private side, that's Pretty, pretty simple. You know, these prison companies will hire lobbyists and they'll go out and lobby for stricter laws. But of course there are public employee unions and so forth. But I mean, they're not lobbying for tougher. I can't imagine it would be on the government side.

Oh, yes, they are. Really, Believe me. Yeah, listen, if the unions, whether it's in California or New York or wherever the case may be, if the unions feel that they're going to. You're decreasing the staffing ratios in your prisons. If you're going to close down prisons, they're losing members. That's having an impact on their membership. They're going to fight to prevent that from happening.

Wow.

Wow. That has got to be the scariest thing ever. How does this tell us about how the justice system monsterizes young men especially. It's especially a male thing of every race and ethnic background?

Well, here's one of the things I observed and I guess I never thought of before.

I went into the system and I ran two of the largest law enforcement organizations in the country, the NYPD and I ran the New York City Department of Correction, Rikers island, which at the time I took over, it was about. It was probably the most violent jail system in the country. So I know the system, I know what it's supposed to accomplish. But I never looked at the collateral damage to individuals, to families, especially to children. You know, I had a job to do. I focused on the job and I never focused on the aftermath. But the reality is we take these young kids out of the minority communities, we charge them with a first time low level drug offense, nonviolent drug offense. And there are people out there that say, well, they get what they deserve and they belong in prison. Well, what I would say is don't be so fast to lock these kids up in a cage and think that that's a betterment to society. Because the reality is, once they're in, if you give a kid 10 years, he's doing eight and a half in the system and you're going to teach him everything there is to know about criminality, you're going to suck at all the societal values out of this kid. You're going to institutionalize him, you're going to turn him into a monster. And then where's he going? He's going back into society. And then we stand around in Washington in a big circle jerk and want to know why the recidivism rate isn't dropping. Well, it's not dropping because you keep creating Monsters. And that's what you do. You turn these kids into thugs. Even the.

Non drug offenders. I was with a. I had a young man that was 20, 21 years old, a United States Marine sniper who sold a pair of night vision goggles on ebay. His own personal night vision goggles. He sold them on ebay to an international broker that didn't have the right permit. So he gets arrested.

So he's like an international arms dealer. Let me guess, right? Unbelievable, right?

Exactly. So he gets arrested, didn't even know he committed a crime. He does 30 months, he's sentenced to 30 months. The problem is he spent 24 months within the system. And I can tell you, when he came into the system, I knew him, I met him, he came to me, I counseled him. He was a Marine. Yes, sir, no sir. Yes, ma', am, no, ma', am. He was a Marine from head to toe. 24 months later, he was like a little thug. He ran around the camp like an idiot, doing things he shouldn't do, hanging with people he shouldn't hang out with. And I thought, that's what they've done in 24 months to this kid. What do you do after eight and a half years? You send these kids back into society. They're convicted felons. They have no work ethic. They have nothing to depend on when they get out. They can't get a job because they're a convicted felon and they have no other choice but to revert to crime. And we wonder why the recidivism rate's not dropping. Well, you know, we're not doing anything to help it.

This is just a tragic. You know, I would venture to say that this is one of the biggest problems in America. You know, this is just a scary thought. What it amounts to is something where the government, it's like 1984, the book. You know, the government always has something on us. So if they don't like us, if someone wants to fight further their career, you know, a district attorney or whatever, they can use this selective enforcement. And boy, I'll tell you listeners, if you have your own business, you are really in trouble because there's just a zillion little laws that you don't even know about. I mean, is the counter height the right height in your office for ADA requirements? You know, maybe it's an inch too high. And, you know, it may not be jail, but it may, may be a fine.

Yeah, but you know what? You know what, Jason? There's two issues. One, there's a Guy named Harvey Silverglate that wrote a book a few years.

Ago, I had him on the show. Yeah, yeah.

Three. Three felonies a day, basically. Talking about any given. On any given day, any citizen in this country could commit three felonies a day and be prosecuted. But. And listen, that's on the criminal side. Here's the problem, and this relates to what you just said. Today. We're taking people for ethics violations. We're turning them into criminals. Convicted felons. We're taking people that commits a regulatory violation, we make them convicted felons. Civil violations, we make them convicted felons. Somebody goes out hunting and they shoot the wrong animal with the wrong permit or the wrong ammunition, instead of fining them, suspending their license. No, we send them to prison, we turn them into a convicted felon. The commercial fisherman that caught too many fish. Convicted felon. The kid that was sold a whale's tooth. Convicted felon.

You can't get around in society after that. I mean, you know, isn't. I mean, of course, punishment is one of the goals of the correctional system, but also reform, right? Is there even an ounce of reform here?

Well, listen, it's all about accountability. At the end of the day, that commercial fisherman, you could, without any doubt in my mind, you could hold him accountable. You could suspend his license, you could fine him. You could fine him double. You could take all his fish, for God's sakes. There's a number of things you could do without destroying him personally and professionally. And that's what we do. We destroy him. Not to mention all the people on his boat that worked there. The six guys on the boat, they lost their jobs, so they're on unemployment. Who pays for that? We do. His wife worked for the company.

Yeah. And they may turn. They may turn into criminals, too, you know, one or two of them, because they need money. And, you know, there you go.

The wife goes on a public assistance. He goes to prison. He loses his boat, he loses his business. And then now this guy's been fishing since he was 17 years old. He's now 55. He comes out, he's doomed until the day he dies because he can't do the only thing he knows, he can never go back and do what he did.

Why wasn't there another way to hold him accountable? And that's what we're doing. We're creating this permanent underclass of people, of citizens. And two, we're sucking all these people out of the workforce, that we're paying taxes, taking care of the family Taking care of their kids, pillars in the community. We take them out of the workforce eternally.

This has got a huge multiplier effect in a very negative way. You know, what do we do about it? Will this ever? See, the problem you have is you have these iron triangles that are formed when you allow public employee unions to exist. And I'd love your thoughts on that in the first place because I don't know that they should be allowed to exist. I bet you're going to disagree with me on that. I just have a feeling, given your background, but feel free to debate that with me.

Well, listen, one, I think there's pros and cons to the unions and their effectiveness and what they accomplish and what they don't accomplish.

Public employee unions specifically.

But I don't think this is the majority of the problem. The majority of the problem here are the laws. The laws have to change. And we need senators and congressmen that were sworn to do a job. We need them to do their job. Don't be afraid to look soft on crime. Don't be afraid not to do your job because they're going to irritate someone. Do your job. Look at the law for one. Finally come up with a clear cut definition of what the laws are. Take the ethics and civil violations and ethics violations and regulatory violations. Keep them just that. Don't let prosecutors take those things and turn it into criminal conduct.

And you know, there's mandatory minimums and sentencing guidelines. We've evolved into a country now where legalizing marijuana in certain states, yet there are mandatory minimums on the books in the federal statutes where if you get sentenced for dealing marijuana, the judge is mandated to sentence you to like 55 years. They have a kid in Utah sentenced five years ago to 50, 55 years in prison for selling marijuana.

I wonder how big of a drug cartel empire he was running. Did he sell a, you know, a $10 bag to somebody or.

No, no, it was, you know, there were plants. I think they were plants. But this wasn't a cartel. This wasn't a cartel guy. I put a lot of cartel guys in prison for a long time. Oh, I believe you.

It wasn't a cartel guy. That's why I'm saying it's ridiculous.

But I, I have to tell you, and here's what kills me. I've sat in a courtroom, guys that tried to kill people I work with, they got 20 years. 20 years. This guy's selling marijuana. He got 55. Come on. Like it makes no sense.

Yeah, see, that's the other problem, you know, at the beginning of our talk today, we talked about how nobody can understand the law. How, you know, the concept of ignorance of the law is no excuse, but it's impossible to understand because there's too many laws. I mean, every year in the socialist republic of California, we've got like, 900 new laws that come out every January 1st, it seems like, and in every state, it's like that. To a lesser degree. California, of course, is, you know, big on making lots of laws, but, you know, then the state and the federal laws conflict, and nobody knows how to interpret them. You know, it's. I mean, even if you hire these huge, massively overpriced law firms, you know, you're going to spend 50 grand trying to understand how to act and what the law is and what to do.

One last thing I'll tell you, Jason, and I write about this in the book. I've pretty much concluded that you really don't have constitutional rights, or at least the constitutional rights you think you have if you don't have the money to pay for them. And I preface that with this. I was billed 100,000, 150,000, sometimes 200,000amonth. But in October of 2009, when I finally pled guilty and give up, my legal bill for 30 days was $476,000. So don't. If anybody's out there and they think they can, you know, well, I'll just get a good lawyer and I'll pay a lawyer. You have to be Warren Buffett or Bill Gates or one of those guys if you think you're going to fight the US Criminal justice system and get your day in court.

Wow. Wow. You know, what about holding the prosecutors accountable? I mean, we've seen these cases recently where DNA, DNA evidence has exonerated people who spent 30 years of their life in prison and were innocent. And then you find that the story, you know, the case fortunately, was reopened somehow, that the story was that the DA was really ambitious and just trying to further their career and may well have known the poor guy was innocent.

And you know what? We're seeing that increasingly now, increasingly around the whole country, so much to the point that you had a chief judge out in a federal judge out in the 9th district on the west coast that basically slammed an entire United States attorney's office, telling the attorney general he didn't want to deal with anybody in the entire office. And the problem you have here is that out of all the cases that we're seeing where prosecutors are engaged in some kind of misconduct, whether it's aborting perjury, extorting testimony, suppressing evidence, any of that stuff which is criminal or in violation of the law, and where they're breaking the laws to enforce it. Less than 2% of them are held accountable, according to all. Every report I've seen. So that is a major, major problem. And as long as they have sovereign immunity, as long as they can do what they want and nobody's going to hold them accountable, it's only going to get worse.

Wow. You know, this really harkens to kind of the police brutality issue, which, you know, I'd love to get your comments on that, by the way. It seems like, like that's been increasing too, where you've got these people that just don't seem to care. I mean, you know, it's, it's just amazing. Any, any comments on, you know, some of the recent problems with police brutality or, or is it just more in the news now? Maybe it always existed in, in the numbers it did.

Well, I, I think, I think there's two issues. One, it's, it's more in the news. Look, you know, everybody has a camera, everybody has a radio, everybody has some communications device. So we're seeing more of it. But I think what people have to realize, you have, you know, in the past eight, 10 months, we've had five or six incidents that's been publicized arrest that, you know, resulted in death or substantial injury or whatever the case may be. Say there were six major incidents. You got to keep this stuff in context. One, there are about 2 million people arrested.

I mean, in New York City alone, you have 130,000 a year on average. So you have 2 million arrests. You're looking at six different events. And then you broad brush an entire police department or law enforcement in general as bad, corrupt, racist, or whatever the case may be. Keep it in context. Let the judicial system do its job. Let grand juries invest, investigate and do their job and.

Let justice take its course, so to speak.

You make a very good point. I mean, on a sort of per capita basis versus the number of arrests, it's relatively low, for sure. And nobody should be painted with a broad brush. No institution either. But I would first, and I think you'll agree, argue that there shouldn't be so many arrests because there shouldn't be so many things that are illegal.

Yeah, it's just, you know, and it's getting worse. It's getting worse by the year. That's why Congress and the Senate has to do their job.

It really is. It really is. Well, the book is on Amazon, of course, with exceptional reviews. Four and a half stars, 50 reviews already. Do you want to give out a website? Do you have a personal website you want to give out to?

Yeah, I want people to look at this website. American Coalition for Criminal Justice Reform.

American Coalition for Criminal Justice Reform. Go ahead.

Right. Accjr.org accjr.org okay, go to the website. Look at what we're trying to do. You know, basically the mission statement is to fight this fight where it should be fought, and that's in the legislature. You know, get our legislators to do their jobs, change the laws. That was. That's what has to be done. And that's sort of what I'm doing now.

Yeah, yeah. Very interesting. Very interesting. So is that your organization?

Yeah, I founded it right around the time the book came out. So it's brand new. You know, look, there's a thousand advocacy groups in this country that focus on some sort of criminal justice or prison reform, be it rehabilitation or transition or education. The reality is they're all well intended, a lot of them doing God's work, a lot of them doing work that the government really should be doing, but they're not. But at the end of the day, 30 years from now, they'll be doing the same thing if we don't change the laws. So my intention is to take this sort of fight and take this debate to the legislatures. And most importantly, and this goes back to what you said when we started the next presidential candidate. This has to be one of the top five domestic issues on the White House desk, whoever it is.

Yeah, I would totally agree with you. And you know, we didn't start out with some of the maybe stats and we've got to wrap up here, but you know, America has the highest incarceration rate in the world. I mean, on a per capita basis, I hear it's worse than North Korea. This is insanity.

Well, listen, Jason, and here's here's why this debate is important. And all your listeners should have when they go to their legislators or they meet their congressmen or senators, they should ask them one question. How is it possible that we, the United States of America, the free and democratic nation that promotes.

The biggest democracy in the world, how is it possible that we are 5% of the world's total population, but in fact, we house 25% of all the world's prisoners? How's it possible that we have more prisoners per capita than Russia and China? How is that possible.

That is an exceptionally good question. And I'll tell you listeners, if you don't think this is important, this may well and probably will if you have, you know, a reasonably large family affect someone in your family at some time in your or their lives. I mean, this is the government has got something on all of us and that is a scary way to live. It really is. So this is a very, very important issue. I would argue that it's one of the most important issues in the country. Every presidential candidate or every gubernatorial candidate is, you know, let's be tough on crime, three strikes laws. I mean I remember in California when the three strikes laws, you know, when that was in debate and that issue. But you know, you're turning people into criminal. It's just, you know, it seems good on the surface, but it's just it doesn't work out that way, does it?

No, it doesn't. And it's only getting worse.

Well, Bernard Kerik, Commissioner, thank you so much for joining us and thank you for doing this. Good work and getting the word out there. Check out the book From Jailer to jailed. It's on Amazon.com with exceptionally good reviews. It's a new release and already getting a lot of traction. And I just really wish you the best in getting the word out about this. This is a very important issue. So thank you.

Thank you sir.

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