As prepared for delivery -
Thank you, Dean [Matthew] Diller, for that kind introduction. It’s a great privilege to be here with you and so many members of the Cardozo community this evening.
Even though I have lived and worked in Washington, D.C., for more than 20 years, there is no place I feel more at home than in New York City. I was born in Manhattan and grew up in Queens. I went to Newtown High School in Elmhurst, and then to Columbia College and Columbia Law School. My story is similar to the stories of many New Yorkers who grew up here in the 1960s and 70s. My parents had immigrated to the United States from Europe in the 1930s, my mother from Germany and my father from Austria. My mother wasn’t allowed to go to high school in Germany, and both my parents arrived in Queens with not much more than a desire to have a better life, in a country they hoped would treat them better than the ones they left. They met in Manhattan and eventually moved to Elmhurst, where my brother and I grew up.
Now, whether you are a 1L just beginning your New York odyssey, or a more hardened New Yorker, you know that this city can be unforgiving in certain ways. But, I like to think that living in New York prepares you for anything. Even for living in Washington.
It is a true honor to be delivering the Cardozo Law School Dean’s Lecture this year. I feel privileged to be here and look forward to having an active discussion with all of you afterward.
I plan to speak with you this evening about the role of the Criminal Division in reforming the criminal justice system. First, though, let me tell you something about the division, because it is not always obvious, even to Justice Department lawyers, how the Criminal Division differs from the U.S. Attorneys’ Offices. You are all, I’m sure, aware that there is a U.S. Attorney’s Office here in Manhattan, which is run by friend and partner Preet Bharara, and that there is also a U.S. Attorney’s Office in Brooklyn, which is run by another friend and partner of mine, Loretta Lynch. Each of these U.S. Attorney’s Offices is responsible for prosecuting federal crimes occurring within its jurisdiction. There are 94 such U.S. Attorney’s Offices in the United States, including in Guam, the Virgin Islands and the District of Columbia.
The Justice Department’s Criminal Division is distinct from each of these. It is based in Washington, D.C., and has nearly 600 lawyers, who are spread across more than a dozen sections or offices. Division lawyers prosecute a broad array of federal crimes, from public corruption (in our Public Integrity Section), to genocide (in our Human Rights and Special Prosecutions Section), to violent criminal gangs and the mafia (in our Organized Crime and Gang Section), to Medicare fraud (in our Fraud Section), and many others as well. We also have lawyers stationed overseas, who assist foreign countries in building up the capacity of their own judicial, prosecutorial and investigative institutions.
In addition to prosecuting cases on their own, throughout the country, Criminal Division prosecutors very often partner with local U.S. Attorneys’ Offices on their cases. So, for example, in the trial of financier Robert Allen Stanford, which concluded last week in convictions on 13 of 14 counts, prosecutors from the Criminal Division’s Fraud Section teamed up with the U.S. Attorney’s Office in Houston, and we tried the case together. We have similar partnerships with many of the U.S. Attorneys’ Offices across the country.
Because of its unique, national role, the Criminal Division is also responsible for handling certain issues that affect many prosecutions nationwide, no matter which U.S. Attorney’s Office is prosecuting them. For example, the Division’s Office of International Affairs, or OIA, handles all extraditions for the Department of Justice, regardless of whether the Criminal Division is prosecuting the defendant. Indeed, OIA actually handles extraditions for all local and state prosecutors across the country. As another example, when a federal law enforcement agency – such as the FBI – wants to request the authority from a federal court to tap a suspect’s phone, or bug his house, it is required to submit an application to the Division’s Office of Enforcement Operations, which has a unit dedicated to reviewing such requests.
Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement. Naturally, this is not the nuts and bolts work of a federal prosecutor, and there aren’t too many Law and Order episodes about criminal code reform. But it is an essential aspect of my work as Assistant Attorney General to try and advance not only individual criminal cases, but also, along with others in the Department, to advocate for broader reforms in the criminal justice system.
Today, I want to tell you about one example in particular, involving sentencing policy.
Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses. Under the law, a defendant convicted of selling just five grams of crack cocaine was subject to a five-year mandatory minimum sentence, whereas he would need to have been convicted of selling 500 grams of powder cocaine to earn the same sentence. Similarly, a defendant convicted of selling 50 grams of crack was subject to a ten-year mandatory minimum, but he would need to have been convicted of selling five kilos of cocaine to be subject to the same sentence. This 100:1 ratio in sentencing was also reflected in the U.S. Sentencing Guidelines.
Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans. For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.
As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced. But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.
Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.
The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.
Of course, our work in the area of sentencing is not done. As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing 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 v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud. With increasing frequency, federal district courts have been sentencing fraud offenders – especially offenders involved in high-loss fraud cases – inconsistently and without regard to the federal sentencing guidelines. For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size. This is another challenge in sentencing that we will need to address in the coming months and years.
The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair. Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.” In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for. That was indeed the case with respect to the Fair Sentencing Act. At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.
Now, as law students, many of you in the audience are no doubt less concerned with sentencing policy than with wondering what to do with your legal education, and where it will take you. These are uncertain times in the legal job market. And student loans and other realities often play important roles in the choices we each make. I vividly recall, nearly 30 years ago, when I was trying to decide whether to go to the Manhattan DA’s office after graduation or whether to join a law firm. My mother made no bones about her preference. But in what may have been my older brother’s only good piece of advice to me, he put the salary difference between the two jobs in perspective: “You’ve never had any money,” he said, “so you won’t know the difference.” I ultimately took the DA job, and have been grateful for that experience ever since.
Having later joined a law firm, and then gone back into public service at the White House, and then back to a law firm, and now being in the Justice Department, I certainly understand that there are no right answers here. You must do what feels right. From my perspective, though, you can take comfort in knowing that you are studying at a great law school, and one steeped in an excellent tradition of public service, beginning with Justice Cardozo himself.
If public service is something you care about, you have no shortage of opportunities here in New York. Or, if you can bear to leave New York City behind you, I invite you to come to Washington. Either way, I think each of you is in the enviable position of studying law with excellent legal minds and, perhaps more importantly, of having the chance to choose your path forward.
Thank you for your warm welcome. I am delighted to have had this opportunity to speak with you today and look forward to your questions.