William W. Mercer
Acting Associate Attorney General
Criminal Chiefs Conference
National Advocacy Center
Columbia, South Carolina
March 8, 2007
Many thanks to you, Rich, and the Criminal Chiefs Working Group. I appreciate your invitation to be here.
I have been able to do a lot of different and interesting things as a DOJ employee. With the exception of 15 months at Treasury, I have been a DOJ employee for my entire career. After a little more than seventeen years at headquarters and in the field, I really love the place, as I know you do.
As the Acting Associate, I do not spend a majority of my time on criminal issues, but I am glad to have the chance to be a part of your conference. You have one of the toughest, but most significant jobs, in the Department. As a line AUSA, I did not appreciate how important and how challenging your job is as Chief. But after nearly 6 years as U.S Attorney in the same district where I served as an AUSA, I have a different perspective.
While the following is not an exhaustive list, it is illustrative of how crucial you are to the Department’s mission and the challenges that you encounter.
- Those who you supervise may be your long time colleagues. Perhaps you were line AUSAs together before you became Criminal Chief. Your family may have relationships with their families, yet you are now your friends’ supervisor.
- You push folks hard to squeeze as much out of them without burning them out - even though you have limited ways to incentivize them.
- You fret about equity - and know that improving those who are not carrying their weight is important so you do not alienate or even lose your top performers.
- You manage change.
- You teach.
- You inspire.
- You are the role model.
- You are an opinion leader. Lawyers and staff listen to what you have to say and how you say it.
- You need to keep their confidences. Do you disclose information about others or opine on the performance of others in a way that might give a person pause about what you are saying about him?
- You are the enforcer of DOJ policies and entrusted to communicate their terms.
- And you need to do this while maintaining relationships with the judiciary and without failing to represent the policies and priorities of the department.
Thank you for what you do - I know that the huge amount of extra pay makes it all worthwhile! Your job isn’t easy, but few things truly worthwhile ever are.
I am here not only to thank you, but to reiterate that you are in one of the best positions to effect change and to optimize performance as you manage and lead. To do that, I intend to cover five topics and then take questions. First, I want to talk about what I do as the Acting Associate and how it relates to what you do. The work of many of the components charged with reporting through the Associate’s Office is directly or indirectly related to your work.
Then I will turn to:
- Strategic Planning;
- 2006: A Year In Review on Sentencing and Sentencing Appeals;
- Priorities of the Attorney General; and
- Professional Responsibility
II. The Work of the Office of the Associate Attorney General
Although all department entities report to the Attorney General through the Deputy Attorney General, thirteen Divisions and offices report to me, and I, in turn, report to the Deputy. This is somewhat different than the reporting structure for EOUSA, which reports directly to the DAG.
This group reporting to the Associate’s office includes many divisions familiar to you – Civil Rights, Civil, Environment and Natural Resources, Tax, and Antitrust. To the extent problems arise in the context of your work with them, you should not hesitate to communicate with me or my staff. Leadership offices are often asked to resolve disagreements between two or more DOJ entities and, in extraordinary circumstances, hear from Counsel for opposing parties on major disagreements on significant questions. On issues involving these five divisions, my office will serve as the initial point of contact even if the issue is eventually to be resolved by the Deputy Attorney General. Given the expansive responsibilities of that office, it is my objective to resolve as many protracted conflicts in my substantive issue areas without further burdening ODAG.
I am pleased to report that in seven months as Acting Associate Attorney General, I have had a minimal number of conflicts to resolve in criminal cases. This suggests to me that the working relationships between the Criminal Sections of the litigating divisions and your offices are strong enough to resolve most case-related conflicts without involving those of us in the leadership offices. Nonetheless, do not hesitate to call upon my office if necessary.
Six other components report to my office including the Office of Information and Privacy, the Foreign Claims Settlement Commission, the Executive Office of U.S. Trustees, the Community Relations Service, and the three grantmaking entities (the Office of Justice Programs, the Office on Violence Against Women, and the Community Oriented Policing Services office).
OJP is a particular interest of mine. Dating back to my time in DOJ’s Office of Policy Development in the early 90's and continuing through my time as the Board Chair of Montana’s state administering agency for Federal funds from DOJ, I have focused on how monies are administered, whether we achieve maximum impact from those dollars, and how to measure and report outcomes resulting from them. In general, I have a long-held view that we need to worry about performance across the continuum. Assume that funds for a task force lead to many successful and important investigations by any measure (regional/international trafficking organizations, appropriate number of cases, etc.). If that substantial productivity is not matched by adequate prosecutorial capacity and commitment and appropriate sentences to advance the purpose of punishment, the investment may be misplaced.
Of importance to your efforts on Project Safe Childhood (PSC), I am working with OJP to finalize a case tracking system for the 46 Internet Crimes Against Children Task Forces (ICACs) funded by the Office of Juvenile Justice and Delinquency Prevention. I will mention the AG’s Priorities in a bit more detail in a moment, but this is a good point to note the prominence of Project Safe Childhood. The Attorney General is driven by the need to increase the safety of our communities by incapacitating child predators and active participants in the child pornography market. We know from Bureau of Prisons’ research and other literature that those convicted of child pornography offenses often admit to committing a substantial number of hands-on sex offenses unknown at the time of sentencing and unknown until disclosed during sex offender treatment programs in prison. I am committed to ensuring optimal case production from our grantees, the ICACs, because the protection of our kids depends on it. One way to achieve this is to be aware of on-going case referrals made by ICACs. As we developed PSC, some ICACs asserted that the U.S. Attorneys’ Offices refused to charge their cases. On the other hand, some U.S. Attorneys’ Offices reported that ICACs never referred cases to them for prosecution. The new case tracking form will help to advance our overall PSC goals.
III. Strategic Planning
The second subject worthy of discussion is strategic planning. I have distributed copies of the 2007 Strategic Plan for the U.S. Attorney’s Office for the District of Montana. I wanted to discuss the importance of strategic planning with you this morning because it is critical to develop a roadmap to address local and national priorities. With support from the AGAC and EOUSA, a number of U.S. Attorneys’ Offices developed strategic plans around 2003. If your office has not developed a strategic plan or has not updated it since it was initially drafted, I encourage you to do so and to distribute it office-wide and to your partners. With limited resources, the identification of resource demands not aligned with your list of priorities can help you reallocate your personnel to address an underserved national or local priority. Although this may not be applicable in all your districts, an example from my district is prosecution of petty offenses on federal lands. For years, my office has viewed this as responsive service for client agencies. On the other hand, it is increasingly difficult to manage this traditional caseload when immigration enforcement, other national initiatives like Project Safe Childhood and Project Safe Neighborhoods, and other local priorities must take precedence. On the civil side, we now have Social Security Administration lawyers appearing as AUSAs in district court cases involving ALJ determinations to deny benefits. Perhaps this model should be replicated in other areas of our criminal work, like the prosecution of petty offenses. At any rate, a well-conceived strategic plan can help to reconcile competing demands.
IV. 2006: The Year In Review
The third category for discussion today is a review of our work in 2006. I intended to mention it at the end of this speech, but one on-going challenge for us is to develop new capacities. Many of you have been AUSAs long enough to remember the original design of Weed and Seed and how it conflicted with U.S. Attorney office human resources. Weed and Seed was designed to launch a public safety program focusing on community policing and incapacitation of violent recidivists in the Weed and Seed site followed by prevention initiatives and social services. The strategy anticipated that the stabilization measures would allow for greater public and private investment and improvements in the community.
The implementation challenge for the Department of Justice was to have a point of contact in each of the 19 U.S. Attorneys’ Offices who could be engaged enough in the local project to ensure both “weeding” and “seeding” were effective and working in concert. However, we soon learned that a U.S. Attorney’s Office typically lacked expertise outside of law enforcement and prosecution. It proved to be an insurmountable challenge to get reliable engagement on the seeding effort from United States Attorneys’ Offices.
Another capacity not necessarily present or possibly hidden in a U.S. Attorney’s Office is a person with an interest in data and the skills to interpret them. We have many sets of data to aid us in our management functions. While I will focus on the newly released Fiscal Year 2006 data published by the Sentencing Commission, you have internal data in LIONS and external data from sources like the Administrative Office of the United States Courts. These are important performance indicators. If you are not adept with statistics and numbers, work to develop that capacity through someone else in the office.
We have distributed to you this morning copies of some tables from the Sentencing Commission’s recently released data for FY2006. All of the documents and many others, including district-specific profiles, can be downloaded at www.ussc.gov. The Sentencing Commission gets this information from the chief judge in each district based upon a statutory directive. The Commission receives presentence reports, charging documents, plea agreements and judgments for each entity and individual sentenced and analyzes these documents in developing their reports. They provide useful information for your consideration in assessing our work across the country.
The first table - - Table 2 - - provides the number of offenders sentenced pursuant to the guidelines per district in FY 2006. Table 10 summarizes whether those sentenced were convicted by a jury or pursuant to a plea agreement. This is a good “at-a-glance” tool for you to approximate how frequently your prosecutors are in trial. It can be used as an indicator to prevent what my criminal chief, Carl Rostad, refers to as the problem of getting prosecutors habituated to work as “pretrial” lawyers as opposed to trial lawyers.
Table 13 breaks down defendants sentenced by category of crime committed. Table N and Figure G confirm the continuing drift away from Guideline sentences. By combining the Fast Track departures, other government sponsored departures, non-substantial assistance downward departures, and Booker variances, 22. 2% of the defendants were sentenced below the guideline range. Whatever you have heard from various commentators, it appears that this percentage of below-guideline-range sentences without substantial assistance motions is four to five percentage points higher than it was when the Congress enacted the PROTECT Act in 2003. Table 25 and 25B provide information on the reasons given by courts in granting downward departures or Booker variances.
Table 26 is perhaps most significant because it sorts cases by district based upon whether the court made deviations from the range at sentencing or whether it imposed a guideline range sentence. Table 26 has been the most important table in the entire Sourcebook for many years. It is the Commission’s analysis of whether defendants were sentenced within the guideline range and, if not, how many sentences were outside the range and, in general terms, what formed the basis for the deviation. A warning: these data are only as good as the information provided to the Sentencing Commission by the district courts and the coding made by the Sentencing Commission staff. Footnote 1 of the table provides a list of districts for which chief judges have failed to provide necessary paperwork to properly code a significant number of cases with departures or Booker variances. As you can see, we continue to experience substantial variability in the application of the guidelines from district to district, circuit to circuit. Starting near the top of the chart, in the First Circuit, without a fast track program or without counting USSG §5K1.1 motions, in Massachusetts, 24.8% of the sentences imposed are below the guideline range. Rhode Island’s rate is nearly the same. 25.8% of the sentences there are below the applicable range. Just up the road in Maine, only 6.8% of the sentences are below the guideline range as a result of judicial findings and not a government motion.
The “within guideline range” sentences are very low in some districts. Fewer than 40% of the defendants were sentenced within the guideline range in FY06 in Vermont, Arizona, Idaho, and Western Washington, although Vermont and Western Washington are the only ones in this group with a large percentage of those sentenced not subject to an early disposition program. At the same time, nine districts had more than 80% of their sentences imposed within the guideline range.
Given the admonition in the Comey Memo that it is the job of federal prosecutors to seek within guideline range sentences, we should be mindful of the continued drift away from guideline range sentences and our role to ensure that the Guidelines continue to serve a vital purpose.
Most of the rest of the tables focus on primary offense areas and what is observed in each area. Tables 31A-31D tie together with what I just discussed with respect to Table 26 and what I am soon to discuss with respect to Table 56.
Table 31A-31D provide a sense of the mean sentences per primary offense category and deviations from the low end of the guideline range in terms of months and percentages when courts make departure or Booker variances. On each table - - and I do not believe these reflect double counting (i.e. , the same defendant counted in both 31A and 31D) - - you will note the number of cases with dramatic percentage reductions from below the low end of the guideline range in the ultimate sentences.
Moving forward now to Table 56A, you will note the relatively small number of government appeals of sentences. If I am correct that Tables 31A-31D suggest a number of Zone C and Zone D defendants who should be incarcerated are getting terms of probation, it is highly questionable whether the sentence has advanced the statutory purpose of punishment in 18 U.S.C. § 3553(a). Section 9-2.170(B) of the U.S. Attorneys’ Manual requires that certain adverse judgments at sentencing, including the ultimate sentence imposed, must be reported to the Appellate Section of the Criminal Division or other appropriate appellate section. Since Booker, the Solicitor General has authorized more than 260 appeals of below-guideline-range sentences. However, as Table 56A suggests, a good number of districts do not seek authorization to appeal. In Middle Alabama, it does not shock me that they do not seek to appeal cases because only 4% of the sentences there in FY06 were below the guideline range. However, I am surprised to see a significant number of districts without a single government appeal or few appeals, when over 20% of the cases in those same districts involve non-substantial assistance downward departures or Booker variances. Please review these data as they relate to your practice.
V. The Attorney General’s Priorities
Let me turn to my fourth point, the priorities of the Attorney General. You heard some about this subject yesterday and I do not intend to replow the same ground. However, it bears repeating that the Attorney General articulated his priorities in his anniversary speech and on other occasions. In order of priority, they include anti-terrorism, violent crime prevention, drug trafficking and abuse, civil rights, cyber crime, public corruption, and corporate fraud. Immigration enforcement is also the subject of greater emphasis as reflected by the weekly reports you file on immigration related offenses. The bi-annual Project Safe Childhood accountability reports, the first of which is due later this month, are a clear indication of the stature of this new program. However, there are a number of other core functions of DOJ that are not necessarily captured by these priorities. Although some of these core functions may not be deemed priorities, we ignore those roles at our peril.
So we have a formidable number of national priorities, local priorities, and core functions, all of which need to be addressed. This re-enforces the need for each office to have a strategic plan and the real probability of the need to jettison areas of practice beyond its scope.
VI. Professional Responsibility
Finally, I would like to shift to my last subject area - - professional responsibility. You will hear from an OPR representative later in the conference, but I wanted to draw your attention to a statistic. Although “failure to comply with DOJ policies” does not make the list of most frequent allegations which trigger an OPR investigation, it does make the list of the most frequent basis on which a negative finding is established. In recent weeks, I have learned about a court order in which a judge has complained about a prosecutor’s failure to seek an enhancement under the Sentencing Guidelines. In the court’s view, the prosecutor failed to comply with the Ashcroft memo.
Whether it is the Justice For All Act’s admonition on the role of DOJ to advance the rights or victims or internal DOJ policy, failure to meet the client’s expectations or obligations assigned to DOJ lawyers can subject them to negative OPR findings. Local training and mentoring is so crucial here because we do not want to see this sort of thing happen to government lawyers.
We are grateful for your substantial contributions to justice - - former Attorney General Robert F. Kennedy had you and your colleagues in mind when he included the following in a speech to graduating students at California-Berkeley in 1963. He said, “You have the opportunity and responsibility to help make the choices which will determine the greatness of this nation. ... You can use your enormous privilege and opportunity to seek purely private pleasure and gain. But history will judge you, and as the years pass, you will ultimately judge yourself on the extent to which you have used your gifts to enlighten and enrich the lives of your fellow man. In your hands, not with Presidents or leaders, is the future of your world and the fulfillment of the best qualities of your own spirit.”