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Assistant Attorney General Lanny A. Breuer of the Criminal Division Speaks at the National Seminar for Federal Defenders
Baltimore ~ Wednesday, June 1, 2011

Thanks, Jim, for that generous introduction.   I’m delighted to be here this morning.   In fact, when Jim invited me to speak with you on the occasion of your National Seminar for Federal Defenders, I was thrilled to accept.   Give up an opportunity to address the most conscientious group of lawyers I know apart from the prosecutors of the Criminal Division?   Not a chance.   Plus, Jim and I have some common history.   We’re forever joined by the fact that we both married up – to women who are smarter than we are, and certainly better looking than we are, who are both named Nancy, and who both went to NYU Law School together.   Beyond that, of course, Jim has done a remarkable job in leading the Federal Public Defender’s office here in Baltimore for the last nearly 13 years.   He’s a tremendous lawyer, and an incredibly nice and interesting guy.   So, that’s my long way of saying, it’s a real delight and privilege to be with you today.    

 

As the Assistant Attorney General of the Criminal Division, I lead nearly 600 lawyers who prosecute cases across the country and who help to develop and implement our criminal law policy.   I was a prosecutor early in my career as well, in the Manhattan District Attorney’s Office.   But until I began my current job, a little over two years ago, I was a defense lawyer, and, I’d like to think, a zealous one.   So I not only have an appreciation for your role in our justice system, but I also understand what you do every day, and how critically important it is.   I am keenly aware of the challenges you face, and have tremendous respect for you and the work you do.

 

The Sixth Amendment to the U.S. Constitution guarantees that, “[I]n all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence.”   But that right was of limited value to the poorest defendants until 1963, when the U.S. Supreme Court decided Gideon v. Wainwright.   In Gideon, the Court, interpreting the right to counsel, recognized that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  

 

In your roles as Assistant Federal Public Defenders, you are the answer to the Court’s concern.   In May 1963, shortly after Gideon was decided, Robert F. Kennedy, who was the Attorney General at the time, testified in support of the Criminal Justice Act, which, as you know, was passed the following year.   In that testimony, he said, “The poor man charged with crime has no lobby.   Legislation to guarantee him an adequate defense is the product of no faction, no section, no political party.”   Nearly 50 years later, in a very real sense, you are that lobby.   You guarantee that defendants without the means to hire their own lawyers will be represented in court – and represented exceptionally well.   For that reason, you play an absolutely essential role in the criminal justice system.   And I know from experience – both as your co-counsel and as your adversary – that you are great lawyers, and aggressive advocates for your clients.

 

In the Criminal Division, we are no less forceful.   We cannot afford to be.   We face a tremendously broad array of threats – from violence along the Southwest Border, to Medicare fraud and money laundering, to international narcotics trafficking, gang violence, and public corruption.   And the American people count on us to help keep them safe by investigating and prosecuting those who commit these and other crimes.  

 

As the prosecutors bringing the cases you defend, our role is obviously different from yours.   But I believe that we have more in common with one another than we have in difference.   You do not do your job for the money, because you could all be earning more somewhere else.   The same goes for prosecutors in the Criminal Division.   You do not do your job for the glory, because there often isn’t any.   The same goes for prosecutors in the Criminal Division.   And you do not do your job because it offers an easy lifestyle, because it doesn’t.   And the same goes for prosecutors in the Criminal Division.    Perhaps more fundamentally, a Criminal Division prosecutor and an Assistant Federal Public Defender are united by the fact that each occupies a critical role in making the adversary system work.  

 

When he was Attorney General, future Supreme Court Justice Robert Jackson told a group of federal prosecutors that “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”   Beginning with Attorney General Holder, that is the message we give to our prosecutors today.   And I think you can see from our actions over the past two years, that even though we will always be aggressive in carrying out our responsibilities, our number one mission is to carry them out fairly.

 

I want to give you two examples, in areas that I know are important to you:   criminal discovery and crack cocaine sentencing.  

 

On April 1, 2009, shortly before I was confirmed as Assistant Attorney General, Attorney General Holder made the decision to dismiss the indictment against former Senator Ted Stevens.   “After careful review,” he said, “I have concluded that certain information should have been provided to the defense for use at trial.   In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial.”  

 

Since then, as a Department, we have taken a series of far-reaching steps to ensure that all federal prosecutors consistently meet their disclosure obligations.   First, in early 2010, the then-Deputy Attorney General issued guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, and directed each U.S. Attorney’s Office and litigating division to develop discovery policies that account for relevant controlling precedent, existing local practices, and judicial expectations.   Second, the Department appointed a full-time national coordinator for criminal discovery initiatives, who leads the Department’s efforts to improve disclosure policies and practices.   Third, the Attorney General instituted a requirement that all federal prosecutors take annual discovery training; this requirement is now reflected in the U.S. Attorney’s Manual.   Fourth, the Department has published a Discovery Blue Book that is now available on the desktop of every federal prosecutor and paralegal.    And there are many additional steps we are taking, including working with the defense community to simplify procedures for disclosing electronically stored information.

 

Because you are zealous advocates, some of you may still think we have not gone far enough.   To that, let me say, I respect your zeal.   But let me also urge you to recognize that the steps we have taken are unprecedented, and go well beyond what any prior Administration has done.   The reforms we’ve made go further than what the Supreme Court requires, and we have taken these steps because our first loyalty is to see that justice is done, not that we prevail in every case.  

 

Will a federal prosecutor ever make another mistake in the course of complying with his or her disclosure obligations?    Of course.   We are human – and in an age when the discovery in a single case may consist of terabytes of information, the challenges are significant.   But an honest mistake is a far cry from intentional misconduct, and I would caution all defense lawyers to be careful about the distinction.   The overwhelming majority of federal prosecutors are, like you, conscientious, diligent, and mindful of their responsibility.   That was true before we instituted these reforms, and it’s true today.

 

In the area of sentencing for crack cocaine offenses, we have also aggressively pursued the fairest path possible.   Twenty-five years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that, among other things, created an extreme difference in sentencing for crack cocaine and powder cocaine offenses.   Under the law, selling five grams of crack cocaine warranted a five-year mandatory minimum sentence, whereas a defendant would have to sell 500 grams of powder cocaine to earn the same sentence.   This 100:1 ratio in sentencing was also reflected in the U.S. Sentencing Guidelines.

 

But in 2010, at the urging of the Justice Department, Congress passed the Fair Sentencing Act, which reduced the disparity in crack and powder sentencing to 18:1.   President Obama signed the Act into law on August 3, 2010.    The U.S. Sentencing Commission subsequently promulgated an amendment to the Guidelines implementing the Act’s directive.

 

Because of the Fair Sentencing Act, today, whether a defendant sells five grams of crack cocaine or five grams of powder cocaine, there is no mandatory minimum sentence.   He or she would have to sell 28 grams of crack to warrant a five-year mandatory minimum.    

 

The Fair Sentencing Act was a significant step forward, and I was proud to have played a role in advancing the legislation, by testifying before the Senate Judiciary Committee in support of it.   I am aware that since the law’s enactment, however, the question of whether a defendant whose conduct occurred before August 3, 2010, should be sentenced under the old or the new sentencing regime has been much on the minds of public defenders and others.  

 

Attorney General Holder has said many times before that in order for the criminal justice system to be effective, it must not only be fair, but it must also be perceived as fair.   That is why – and those of you who have a Google alert for the word “retroactivity” may already know this – at 8:30 this morning, the Attorney General testified before the Sentencing Commission that the Justice Department supports retroactive application of the Sentencing Guidelines amendment implementing the Fair Sentencing Act.   As he explained, we believe that such retroactive application is appropriate, except when it would pose a significant risk to public safety.   Therefore, we support retroactivity except for offenders who have possessed or used weapons in committing their crimes or who have significant criminal histories.   We support retroactivity of the Sentencing Guidelines amendment to this extent because our goal is a sentencing policy that is tough, and enhances public safety, while at the same time it promotes public trust and confidence in our criminal justice system.

 

You and I are on different sides of the adversary system.   My role, and the role of the Criminal Division, is to investigate the range of federal crimes and prosecute offenders whom we believe are guilty beyond a reasonable doubt.   Your role is to defend your clients against those prosecutions, and to do so zealously.  

 

As I said, though, even as adversaries, we have much in common.   I am personally committed to aggressively pursuing the criminal threats we face, but to doing so in the fairest way possible.   I know that you are dedicated to your clients, and to defending them as vigorously as you can, while at the same time recognizing the importance of criminal prosecution to society.   And in representing clients who would not have the means to defend themselves without you, you are essential to our adversary system.  

 

Let me thank you again for your invitation to be here this morning.   It has been an honor to join you.        

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