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Assistant Attorney General Lanny A. Breuer Speaks at the American Lawyer/National Law Journal Summit
Washington, D.C. ~ Tuesday, November 15, 2011

Thank you, Robb, for that warm introduction.   I’m honored to be here with you today to kick off this litigation summit.   I’m delighted to have this opportunity to see you again, after having worked so closely with you on the Financial Fraud Enforcement Task Force, and to speak with all of you in the audience this morning.

 

As Assistant Attorney General, I am often asked to speak about specific issues of criminal law, to focused audiences.   Last week, for example, I addressed a national conference on the Foreign Corrupt Practices Act, where I spoke about the Criminal Division’s comprehensive approach to fighting corruption.   On Sunday, I was in Cincinnati to address the annual conference of the Injury Free Coalition for Kids, an organization devoted to preventing injury to our youth, where I spoke about the Justice Department’s approach to protecting children from violent crime.   Later this week, I will travel to Pittsburgh to speak at an awards ceremony for members of law enforcement in Southwestern Pennsylvania.  

 

Today, however, is a little different.   You are all litigators or non-lawyers in the field of litigation, and at this conference you will have an occasion to explore many areas of law and aspects of litigation practice.   You haven’t asked me to address something specific, and   I am frankly grateful for the opportunity to take a step back today and speak to you about an issue of criminal law policy that does not frequently come up in conferences like this one, but that I believe has a significant impact on us all; and that, as people in the field of litigation and, more importantly, as concerned   citizens, you are in an excellent position to join me in thinking about.   That topic is the policy surrounding federal prison sentencing and, more generally, our federal prison population.

 

As the head of the Justice Department’s Criminal Division, I am privileged to lead approximately 600 lawyers, whose collective mission is to enforce the nation’s federal criminal laws, and to help develop and implement our criminal law policy.   Prosecutors in the Criminal Division face a tremendously broad array of threats – from violence along the Southwest Border, to cybercrime, to money laundering, to international narcotics trafficking, to financial fraud, and many other crimes.   We work hand-in-hand with the 94 U.S. Attorneys’ Offices across the country, including here in Washington, D.C.   Ron Machen, the U.S. Attorney for the District of Columbia, is a tremendous public servant, with enormous talent and courage; and it is my privilege to call him a friend and partner.  

 

One necessary consequence of the criminal investigations and prosecutions that my Division and the U.S. Attorneys’ Offices conduct is that people go to prison.   When a criminal defendant is led away from the courtroom in handcuffs after a jury announces its verdict, one chapter ends.   But the next, no less important chapter of incarceration begins.

 

Today, there are approximately 218,000 inmates in the federal prison system in the United States, on top of the approximately two million inmates in state prisons and jails.   Given how significant our prison population is, the policy surrounding prison sentences, and our prison system more generally, is tremendously important for each of us.  Whether you practice civil litigation or criminal law, or even if you are not involved in law at all, the way criminal defendants are sentenced, and what happens to them when they are in prison, matters.   

 

Today, our sentencing and corrections policy faces serious challenges.  

 

The first challenge is the degree to which disparities in federal sentencing have increased in recent years.   More than 25 years ago, Congress passed the Sentencing Reform Act of 1984, creating a set of federal sentencing guidelines that prescribed specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.   In 2005, however, the U.S. Supreme Court decided in the case of Booker versus United States that federal judges were not bound to follow those guidelines.   Not surprisingly, since the Booker decision, judges have increasingly been sentencing defendants to prison sentences outside the ranges prescribed by the guidelines.

 

One area – though by no means the only one – in which we have seen significant disparities in sentencing in the last several years is financial fraud.    With increasing frequency, federal judges have been sentencing fraud offenders – especially offenders involved in high-loss fraud cases – inconsistently.   For example, a defendant in one district may be sentenced to one or two years in prison for causing hundreds of millions of dollars in losses, while a defendant in another district is sentenced to ten or 20 years in prison for causing much smaller losses.

 

The data show that the district in which a person is sentenced can have a huge impact on how much time he or she spends in prison.   For example, in fiscal year 2010, in the Southern and Western Districts of Texas, judges sentenced defendants to prison terms within the ranges prescribed by the guidelines approximately 71.5 percent of time.   At the same time, in the Southern District of New York, judges sentenced defendants to prison terms within guidelines ranges just 32.6 percent of the time.   In short, many prosecutors, defense lawyers, and judges agree that more and more, the length of a defendant’s sentence depends primarily on the identity of the judge assigned to the case, and the district in which he or she is in.

 

Of course, disparity in sentencing is not necessarily an indication that sentencing policy is broken.   Indeed, as Attorney General Holder has said, “ we must . . . be prepared to accept the fact that not every disparity [in sentencing] is an unwelcome one.”  

 

Nevertheless, there is evidence that unwarranted sentencing disparities have been increasing in recent years.   In a report released last year, the U.S. Sentencing Commission found that certain demographic factors – including race and ethnicity – were “associated with sentence length to a statistically significant extent” in the post-Booker era.   The Commission found that in the period just before the Booker decision, controlling for relevant factors, “black male offenders received sentences that were 5.5 percent longer than those for white males,” whereas, in the period immediately following Booker, “black male offenders received sentences that were 15.2 percent longer.”   More recently, the Sentencing Commission found that “black male offenders received sentences that were 23.3 percent longer than those imposed on white males.”   It goes without saying that these findings are very troubling.   We must work to end such baseless disparities.

 

The second, related, challenge in sentencing and corrections policy I want to discuss with you relates to the effect of today’s budget environment on our prison system and, consequently, on public safety.  

 

As I mentioned, at present there are approximately 218,000 federal prisoners.   That represents an increase of approximately 8,000 prisoners over last year, which is consistent with the general trend.    As a result of increasing federal prison populations, prison spending has naturally also been increasing.   Given today’s economic realities, however, federal funds available for law enforcement are decreasing, and are likely to continue doing so for the foreseeable future.   Consequently, maintaining the expanding federal prison population will necessarily consume larger shares of available funds in the years ahead.  

 

Prisons are essential for public safety; and the federal Bureau of Prisons, or BOP, performs an absolutely necessary role in federal law enforcement.   Our prisons must be safe and secure, and we must – as I know we will – maintain our capacity to imprison society’s offenders.  

 

The challenge we face today is how to maximize public safety without maximizing prison spending.   On one hand, we need to be able to maintain sufficient numbers of agents and prosecutors to investigate and prosecute those who commit federal crimes.   At the same time, we need to mete out sentences that are appropriate to the conduct of individual defendants.

 

At the Justice Department, we have been operating under a general hiring freeze for nearly one year, which means that we cannot fill vacant positions for investigators, prosecutors, and other necessary law enforcement personnel.   In the meantime, we already face significant concerns over prison funding.   As the former BOP Director testified in March, the Bureau of Prisons is currently operating at 35 percent over rated capacity.   Overcrowding is of special concern at prisons housing the most serious offenders; as the former BOP Director testified, there is 50 percent overcrowding at high security facilities and 39 percent overcrowding at medium security facilities.  

 

The challenges in sentencing and corrections policy that I have been discussing today have, happily, been accompanied by consistently decreasing crime rates.   Over the past 20 years, violent crime and property crime have decreased substantially, and this trend has continued in recent years as well.   According to statistics compiled by the FBI, violent crime decreased 5.3 percent nationwide in 2009, and an additional 6 percent in 2010.   These decreases are the remarkable achievement of federal, state, and local law enforcement.  They are also attributable, at least in part, to strong sentencing policy.

 

Nevertheless, particularly as budget conditions seem unlikely to improve in the immediate future, we need to continue reforming our criminal justice practices and policies.  

 

One important way in which the Justice Department has been working to reduce crime – and must continue to – is by assisting prisoners with their transitions back into society, through substance abuse treatment, employment and housing assistance, mentoring programs, and in other ways as well.   These efforts are necessary to give released prisoners an opportunity to turn their lives around and, more importantly, to steer them away from committing more crime.

 

Last year, the Justice Department awarded close to $100 million under the Second Chance Act to support reentry programs; the Department has announced that it will award $83 million dollars in Second Chance Act grants this year.   Our preliminary assessment is that these programs are succeeding.   As Attorney General Holder said when he convened the second meeting of the federal inter-agency Reentry Council with several other members of the Cabinet two months ago, “We must use every tool at our disposal to tear down the unnecessary barriers to economic opportunities and independence so that formerly incarcerated individuals can serve as productive members of their communities.”   

 

Many states are grappling with the same issue of how to reform sentencing and corrections policy in an austere fiscal environment.   I do not have all the answers.   Indeed, only if all stakeholders – judges, litigants, law enforcement, policymakers, and others – put their minds to finding solutions will we be able to arrive at them.

 

 The passage of the Sentencing Reform Act of 1984 was a unique bipartisan moment.   Senators Kennedy, Thurmond, Biden, Hatch, and others joined together to address then-skyrocketing crime rates and unwarranted, and severe, sentencing disparities.   The solution was not perfect, but it did help to reduce crime and ease unwarranted sentencing disparities.  

 

Today, we are facing new problems in sentencing and corrections policy.   Unwarranted disparities in federal sentencing are increasing once again.   At the same time, the federal prison population is increasing, while overall federal law enforcement expenditures are decreasing.   This means that a larger share of the federal law enforcement budget must go to supporting federal prisons – making it more difficult for the Justice Department to hire additional agents, prosecutors, and other personnel to investigate and prosecute offenders in the first place.   In short, the time to have candid discussions about sentencing and corrections reform is now.   I invite those discussions.  

 

Federal sentencing policy has broad implications.   In the 1980s, the federal sentencing regime underwent significant changes, which contributed to the subsequent decreases in crime that we have all benefited from over the past two decades. Today, we are at another critical juncture.   As you go forward today and tomorrow, and participate in discussions about best litigation practices, and emerging trends in areas of interest to you, I urge you also to think about the policy challenges I have described here this morning – if not to solve them, then to consider the need for others to seek solutions.   Sentencing and corrections policy affects everyone in society, and I am confident that the more people are thinking about it, the easier it will prove to arrive at solutions.

 

It is an honor to inaugurate this litigation summit, and it has been my privilege to address you today on a topic of great concern in criminal law policy.   I know that you have many important topics to discuss over the next two days, and I wish you a very productive conference.  

 

Thank you.

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