Bernard Kerik was an NYPD Commissioner who was sentenced to 48 months in prison for an ethics violation. For over 30 years, Bernard put bad and violent criminals away, but when he was on the inside he noticed not everyone was bad or even deserved such harsh prison sentences. He tells Jason that the criminal justice system is setup to destroy people’s lives, not to reform them. What should be simple fines or suspension of licenses has turned into lengthy prison sentences. Bernard shares his story and why he firmly believes the criminal justice system needs to change.
Key Takeaways:
[1:54] How did Bernard go from being an NYPD Commissioner to an inmate?
[7:50] Prison has become a business.
[11:15] Prison creates monsters, which is why the recidivism rate won’t drop.
[14:15] Today we’re taking people for ethics violations and we’re turning them into convicted felons.
[20:05] Bernard has concluded that you really don’t have any constitutional rights anymore.
[22:40] Has police brutally always existed or is it just more in the news?
[25:10] Please visit Bernard’s organization at http://accjr.org/.
[26:55] How is it possible that the U.S houses 25% of the world’s prisoners?
Mentioned In This Episode:
From Jailer to Jailed by Bernard Kerik.
Three Felonies a Day by Harvey Silverglate.
Tweetables:
Transcript
Jason Hartman:
It’s my 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 #84888-054. Bernard, welcome, how are you?
Bernard Kerik:
Thank you, sir. I’m good.
Jason:
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 incarcerated. I mean, it is just, it’s amazing. We’re suppose to be the human rights leader of the world, right? Tell us about your story. How did you go from police commissioner of New York City and Department of Homeland Security nominee to a prison inmate. What happened?
Bernard:
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 2006, started an investigation and ultimately I plead guilty to eight accounts, many of which had to do with my children’s nanny and some apartment renovations. They were tax charges and false statement charges. I was sentenced to 48 months in prison and I served three years and 11 days. So, it all started with my nomination.
Jason:
Wow, that’s unbelievable. So, it was paying the nanny in cash and not paying, what? Payroll taxes?
Bernard:
Yeah. I mean, look, it’s something that’s, you know, it goes on everyday in this country and other Presidential law nominees, Kimba Wood, who was nominated by President Clinton as the, for Attorney General. Zoe Baired, nominated by President Clinton for Attorney General, both had nanny issues, and many others.
Jason:
Was your nanny a legal citizen?
Bernard:
No, she was not. I didn’t know that at the time, but it really didn’t make any difference.
Jason:
Your nanny was a full-time person? So, you couldn’t argue that it was an independent contractor doing multiple nanny jobs.
Bernard:
No. No.
Jason:
Wow. Okay, 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 trigger a deeper investigation, right?
Bernard:
Well, what happened was is as soon as I withdrew my nomination in December of 03, 04. The minute I withdrew, like everybody crawled out from under the rock, you know, I remember the President Chief of Staff Andy Card telling me this. He said, people will come after you the second you withdraw, 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 it. 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 of 16-18 months grand jury investigation. The Bronx DA concluded there was no crime, but it was an ethic violation. I had to pay $200,000 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 attorney. It was about five years of state and federal investigations before I plead guilty.
Jason:
Apartment renovations?
Bernard:
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 it’s a long story, but – and it’s all in the book, it’s laid out in the book.
Jason:
Wow, unbelievable. So, there is a regulation for everything in this country. It 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 was no way you could know the law, you know? If the law were simple, that would be a legitimate statement, but it’s so amazingly complex.
Bernard:
Today it is – I don’t think anybody in this country understand the extent or the ignominy of the legal system. The laws specifically, I think there’s, you know, at least 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 35 years. I put a lot of people in prison. Bad guys that did bad things, really bad things. I thought that’s what we did, you know, in our criminal justice system and then I got to prison and I met commercial fishermen that caught too many fish. I met a guy that sold a whale’s tooth on eBay. A young man that enhanced his income on a mortgage application to buy his first home for his new bride.
Jason:
Or the head of Gibson Guitars.
Bernard:
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 10-15 years for first-time, low-level, nonviolent drug offenses.
Jason:
That’s insane.
Bernard:
I have to tell you, we’re creating basically a permanent under class of American citizen by doing this.
Jason:
Yeah, wow, that’s just really sad. Now, I gotta ask you, do you think a lot of this is because we’ve, you know, we privatized a large part of the prison. I don’t know what the numbers are on that, but the prison system has become a business, unfortunately and there have been, I think it was Pennsylvanian a judge who was, you know, putting juveniles in, you know, juvenile hall and collecting kickbacks from the companies. This is just disgusting.
Bernard:
Listen, you have some of these privatization stuff that’s corrupt and it’s gone down the wrong path, but 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 of 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.
Jason:
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 simple, you know, these prison companies will hirer 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.
Bernard:
Oh, yes they are.
Jason:
Really?
Bernard:
Believe me, yeah. Listen, if the unions, whether it’s in California or New York or where ever 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 going to have an impact on the membership. They’re going to fight to prevent that from happening.
Jason:
Wow, wow. That’s got to be the scariest thing ever. How does this, tell us about how the justice system, you know, monsterises, young men especially. It’s an especially a male thing of every race and ethnic background.
Bernard:
Well, here’s one of the things I observed in – I guess I never thought of before. You know, before I went into the system and I land 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 suppose 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, non-violent drug offense. And they’re 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’s a betterment to society, because the reality is once they’re in, if you give a kid ten 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 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 is 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 monster 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 who was 20, 21 years old. A United States Marine sniper who sold a paid 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…
Jason:
So, he’s like an international arms dealer, let me guess, right? Unbelievable!
Bernard:
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, you know, he was a marine. Yes, sir. No, sir. Yes, man. No, man. 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 is not dropping. Well, we’re not doing anything to help it.
Jason:
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, the government always has something on us. So, if they don’t like us, if someone wants to further their career, a district attorney or whatever, they can use this selective enforcement and boy, I’ll tell ya listeners, if you have your own business, you are really in trouble, because there are 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 it may not be jail, but it may be a fine.
Bernard:
Yeah, but you know what, Jason, there’s two issues. One, there is a guy named Harvey Silverglate that wrote a book a few years ago.
Jason:
I had him on the show. Yeah.
Bernard:
Yeah. Three Felonies a Day. Basically talking about on any given day, any citizen in this country could commit three felonies a day and be prosecuted, but 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 with 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 sold the Whale’s tooth, convicted felon.
Jason:
You can’t get around in society after that. I mean, you know, 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?
Bernard:
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 them accountable. You could suspend his license, you could fine, you could fine him double, you could take all his fish, for God sakes. There’s a number of things you can do without out destroying him personally and professionally and that’s what we do. We destroy him. Not to mention all the people on his book that worked, 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..
Jason:
Yeah and they may turn into criminals too, you know, one or two of them, because they need money and there you go.
Bernard:
The wife goes on public assistance. He goes to prison. He loses his boat, he loses his business, and then now, this guy has 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 isn’t there – why wasn’t there another way to hold them accountable? That’s what we’re doing. We’re creating this permanent underclass of people, of citizens, and two, we’re sucking all of these people out of the work force that were paying taxes, taking their family, taking care of their kids, pillars in the community. We take them out of the work force eternally.
Jason:
This has got a huge multiplier affect in a very negative way, you know? What do we do about it? Will this ever – see, the problem that we have is we have these iron triangles that are formed. When you allow public employee unions to exist and I 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.
Bernard:
Well, listen, it’s – one, I think there’s pros and cons to the unions and their effectiveness and what they accomplish and don’t accomplish.
Jason:
Public employee unions specifically though.
Bernard:
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 it irritates someone, do your job. Look at the, for one, finally come up with a clear-cut definition of what the laws are. Take the ethnics and civic violations and ethnics violations and regulatory violations, keep them just that. Don’t let prosecutors take those things and turn them into criminal conduct and 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 and the federal statutes where if you get sentenced for dealing marijuana, the judge has mandated to sentence you to like 55 years. They have a kid in Utah who was sentenced five years ago to 55 years in prison for selling marijuana.
Jason:
I wonder how big a drug cartel empire he was running. Did he sell a $10 bag to somebody?
Bernard:
No, no, they were plants. I think they were plants, but this wasn’t a cartel guy. I put a lot of cartel guys in prison for a long time!
Jason:
I believe you it wasn’t a cartel guy. That’s why I’m saying it’s ridiculous.
Bernard:
I have to tell you, here’s what kills me. I’ve sat in a court room, guys who have tried to kill people I work with, they got 20 years! 20 years! This guy is selling marijuana, he got 55, c’mon. Like, it makes no sense.
Jason:
See that’s the other problem. At the beginning of our talk today, we talked about how nobody can understand the law, the concept of ignorance of 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 first it seems like and in every state it’s like that to a lesser degree. California, of course, you know, big on making lots of laws, but then the state and federal laws conflict and nobody knows how to interrupt them, you know. 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.
Bernard:
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 ave the money to pay for it and I preface that with this, I was billed a $100,000, $150,000 sometimes $200,000 a month, but in October of 2009 when I finally plead guilty and gave up, my legal bill for 30 days was $476,000. So, don’t, if anybody is out there and they think they can, you know, well, I’ll just get a good lawyer and I’ll, you know, 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.
Jason:
Wow, wow. What about holding the prosecutors accountable? I mean, we’ve seen these cases recently where DNA evidence has exonerated people who spent 30 years of their life in prison and were innocent and then you find that the story, the case was fortunately reopened some how, that the story was the DA was really ambitious and just trying to further their career and may well have known the poor was innocent.
Bernard:
We’re seeing that increasingly now, increasingly around the whole country. So much to the point that you had a chief judge, a federal judge out in the ninth district on the West Coast, 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 misconducted whether it’s a aborning perjury, you know, extorting testimonies, suppressing evidence, any of that stuff, which is criminal or in violation of the law where they are breaking the laws to enforce it. Less than 2% of them are held accountable according to every report I’ve seen, so that’s a major, major problem and as long as they have sovereign immunity, as long as they can do what they want and nobody is going to hold them accountable, it’s only going to get worse.
Jason:
Wow. This really harkens to kind of the police brutality issue, which I would love to get your comments on that, by the way, it seems like that has been increasing too where you’ve got these people that don’t seem to care. I mean, it’s just amazing. Any comments on some of the recent problems with police brutality or maybe it’s just more in the news now? Maybe it always existed in the numbers that did.
Bernard:
Well, I think there’s two issues. One, 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, in the past 8-10 months, we’ve had five or six incidents that have been publicized. arrests that, you know, resulted in death or substantial injury or whatever the case may be. Say there were six major incidents. Keep – you gotta keep this stuff in context. One, there are about two million people arrested every year. I mean, in New York City alone you have a 130,000 a year, on average. So, you have 2 million arrests. You’re looking at six different events and then you’re broad brushing 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 jurisdictional system do its job. Let’s grand juries investigate and do their job and let the – you know, let justice take its course so to speak.
Jason:
You make a very good point. I mean, on a sort of a per capita basis versus the number of arrests, you know, 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.
Bernard:
Yeah, it’s just, you know, it’s getting worse, it’s getting worse by the year. That’s why congress and the senate has to do their job.
Jason:
It really is, it really is. Well, the book is on Amazon, of course, with exceptional reviews. 4.5 stars, 50 reviews already. Do you want to give out a website? Do you have a personal website you want to give out too?
Bernard:
Yeah, I want people to look at this website. American Coalition for Criminal Justice Reform.
Jason:
American Coalition for Criminal Justice Reform. Go ahead.
Bernard:
Right, ACCJR.Org.
Jason:
ACCJR.org, okay.
Bernard:
Go to the website, look at what we’re trying to do. Basically the mission statement is to fight this fight where it should be fought and that’s in the legislature. Get our legislatures to do their jobs, change the laws. That’s what has to be done and that’s sort of what I’m doing now.
Jason:
Yeah, very interesting, very interesting. Is that your organization?
Bernard:
Yeah, I founded it right around the time the book came out, so it brand news. 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.
Jason:
yeah, I’d would totally agree with you. You know, we didn’t start out with some of the maybe stats, but we’ve got to wrap up here, but you know, America has the highest incarcerate rate in the world. I mean, on a per capita basis, I hear it’s worse than North Korea, this is insanity.
Bernard:
Well, listen, Jason, here’s why this debate is important and all your listeners should have, when they go to their legislatures or they met 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, you know, 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 is it possible that we have more prisoners per capita than Russia and China? How is that possible?
Jason:
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. Ever 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 criminals. It just seems good on the surface, but it doesn’t work out that way, does it?
Bernard:
No, it doesn’t and it’s only getting worse.
Jason:
Well, Bernard Kerik, Commissioner, thank you so much for joining us and thank you for doing this good work and getting the world 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.
Bernard:
Thank you, sir.
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