Deputy Attorney General Rosenstein Delivers Remarks at the ABA Criminal Justice Section Awards Luncheon

Remarks as prepared for delivery

Thank you, Sandy, for that kind introduction.  It is a privilege to be here this afternoon as the American Bar Association honors five distinguished lawyers—Nina Marino, Heather Cartwright, Richard Schmack, Robert Zauzmer, and Ellen Podgor. 

Today’s award recipients have devoted their careers to pursuing justice, and I congratulate them on their accomplishments.  Heather and Bob are long-serving Department of Justice lawyers, and I am pleased to call them colleagues.  

REPRESENT THE UNITED STATES

I have served in a variety of roles under five Presidents and nine Attorneys General during my career at the Department.  I always keep in mind the pride that I felt the first time I stood up in court to announce that I represent the United States of America.  I encourage all federal prosecutors to always remember that feeling.  And, I tell them to stay at the Department only so long as they are grateful for the privilege to say those words.  I remain grateful. 

HEROES

As I walk the stately hallways of the Main Justice Building, I am reminded that giants of the law like Attorneys General Robert Jackson and Edward Levi once walked the same halls. They confronted the challenges of their era in the same rooms where Attorney General Sessions and I deal with the issues of our time.  Their portraits hang proudly in my conference room. That is a source of comfort and inspiration. 

Of course, it is not just the famous Department leaders who inspire me. Some of my heroes are men and women who never ascended to the top leadership positions, but who demonstrated a steadfast commitment to the rule of law.

Priorities change over time, but the principles of the Department of Justice are timeless. We will defend those principles, and we will pass them on to future generations.

ROLE OF DEPUTY

The Deputy Attorney General serves as sort of a chief operating officer for the Department of Justice.  I oversee the daily operations of the most important domestic institution, in the most important legal system, in the most important nation the world has ever known. 

I work with brilliant people of the highest integrity who strive every day to achieve justice. It is a great privilege to serve in the Department of Justice, and it is a weighty responsibility.

PROSECUTORIAL DISCRETION

Robert Jackson spoke in 1940 about the role of the prosecutor. Jackson said that a prosecutor should play fair and follow the rules. Those provisos are obvious.

But Jackson also remarked that prosecutors should temper zeal with kindness, serve the law, and approach the task with humility.

A prosecutor exercises considerable discretion. To quote Judge Richard Posner, “The Department of Justice wields enormous power over people’s lives, much of it beyond effective judicial or political review.  With power comes responsibility, moral if not legal, for its prudent and restrained exercise; and responsibility implies knowledge, experience, and sound judgment, not just good faith.”

Or, in a remark variously attributed to either Voltaire or – for those of you who are about my age – Spiderman’s Uncle Ben: “With great power comes great responsibility.”

Power should be wielded in good faith and with good judgment.

Judge Learned Hand said, “If we are to keep our democracy, there must be one commandment:  Thou shalt not ration justice.”

Prosecutors must pursue justice. Justice is not just about winning any particular case, or sending any particular person to prison. It is about a fair and impartial process.

TRUTH

A prosecutor’s zeal must extend not only to advocacy, but to the pursuit of truth, which is central to the pursuit of justice.

In the words of a 19th century Philadelphia doctor, “sincerity of belief is not the test of truth.”

Truth is about solid evidence, not strong opinions.  Many people sincerely believe things that are not true.

That is why there is a constitutional right to counsel.  We need advocates who are just as zealous and dogged on the defendant’s side of the courtroom. 

Good defense attorneys scrupulously examine each piece of evidence, each step in logic, each issue of law, and each decision a prosecutor makes.

Defense attorneys are the best insurance against a prosecutor’s mistakes—trust me when I tell you that they will let you know if you make a mistake.

BOSTON MASSACRE

Being a criminal defender can be a thankless job. It involves representing some very unpopular clients. It sometimes requires representing people you do not like.  It means struggling to mount the best defense possible in the face of long odds. But, as our nation’s founders well understood, the role is essential to safeguarding justice.

Consider the Boston massacre in 1770.  Five Bostonians died after British soldiers fired on a crowd. A captain and eight soldiers were charged with murder.

Most lawyers were unwilling to represent the suspects, but John Adams agreed to do it. Adams said that he had “no hesitation in answering that Council ought to be the very last thing that an accused Person should want [for] in a free Country.”

In other words, if we value liberty and prize due process, then no criminal defendant should be required to face prosecution without a defense attorney.

Adams proceeded to win the acquittal of the British captain. He later represented eight other British soldiers who were involved in the shootings. Six soldiers were acquitted and two were convicted of manslaughter.

Incidentally, the two convicted soldiers were sentenced to have the letter “M” branded on their thumbs. Keep in mind that the trial of those soldiers in 1770 did not occur in the United States. It took place in the Royal Province of Massachusetts Bay, a royal colony governed.

Under British law at that time, first offenders could claim a right known as “benefit of the clergy.” It guaranteed that if they were ever again prosecuted, the judge would know that they could not claim leniency. Branding of the thumb was sort of the 18th century equivalent of a criminal record. Britain abolished it in 1779.

During his famous argument for the defense, Adams observed:  “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

Yes, facts are stubborn indeed.  And as I learned in the Maryland U.S. Attorney’s Office, so are all good defense attorneys.

PRIORITIES

The Department of Justice has more than 115,000 employees scattered throughout the world.  They all share the goal of  protecting the American people. 

Combating terrorism remains the Department’s top priority.  As the recent attack in New York make clear, evildoers who are determined to disrupt our way of life continually threaten us.  National security is an important part of my work. We must remain vigilant in our efforts to identify terrorists and disrupt them.    

Violent crime also occupies a lot of our time, because our nation has been suffering a significant increase in violent crime.  The nationwide violent crime rate increased by 3.4% in 2016 and 3.3% in 2015.  Those increases each represented the largest single-year spikes in violent crime since 1991. 

Most troubling, the national murder rate increased by 20% over the last two years.  Some of our major cities experienced even larger increases.  President Trump and Attorney General Sessions have directed the Department to reverse that trend.      

To that end, we created the Task Force on Crime Reduction and Public Safety.  The Task Force made a series of recommendations to the Attorney General, and the Department is working to implement them.  

The Attorney General recently announced a reinvigorated Project Safe Neighborhoods program.  The PSN violence reduction initiative was first launched in 2001.  It encourages federal law enforcement officials to work with their state and local counterparts to take violent offenders off the streets. 

I know from my time as the U.S. Attorney in Maryland that PSN works.  And, my personal experience is backed up by data showing that PSN reduced violent crime in the communities where it was effectively implemented.  The revamped PSN program will save lives.  

To further assist in our struggle against violent crime, the Department is hiring new Assistant U.S. Attorneys. 

Speaking of U.S. Attorneys, the Administration is committed to nominating talented lawyers who respect the rule of law and understand the Department’s unique role in the legal system.  The President has nominated 54 U.S. Attorneys so far, and the Senate has confirmed 24 of them. 

We are filling U.S. Attorney positions at a rapid pace. I understand that the last Administration had made 29 nominations at this point. 

Our U.S. Attorneys will face challenges resulting from the unprecedented opioid crisis.  The news is full of heartbreaking stories of parents burying their teenage children, of Neonatal Intensive Care Units overflowing with opioid-addicted babies, of EMS workers racing from one drug overdose to another, and of medical examiners running short of resources to handle the somber extra business.     

The overdose numbers are astounding.  In 1990, there were 8,000 deaths. The rate was relatively constant as a proportion of the American population for decades.  Then it increased approximately 700% over the next 26 years.  In 2016, more than 64,000 Americans died of drug overdoses. 

Opioids are driving this increase in overdose deaths.  The opioid problem began several years ago when doctors—aided by pharmaceutical companies and pharmacies—began overprescribing and diverting powerful prescription opioids. 

In some instances, the doctors were untrained and unaware of the addictive nature of the drugs they were prescribing.  In other instances, the doctors were little more than drug dealers with advanced degrees.  They operated “pill mills” where medical care was nonexistent, cash was king, and prescription opioids flowed freely.  

Our newest challenge is fentanyl, a synthetic drug produced primarily in China. It is up to 50 times more potent than heroin.  It is so powerful that a quantity equal to a few grains of table salt can kill a person.  

Chinese chemists try to stay a step ahead of law enforcement by making chemical analogues of fentanyl, such as carfentanil, which is known as an elephant tranquilizer.  It is 100 times more potent than fentanyl and 10,000 times more potent than morphine.  In fact, carfentanil is intended as an elephant tranquilizer.  Instead, it is being manufactured in Chinese laboratories, shipped to the United States or Mexico, mixed with heroin, and then sold to addicts who are often unaware of what they are ingesting. 

Last week the President declared the opioid crisis a “public health emergency.”  This declaration will remove red-tape and redirect federal resources to help fund treatment efforts. 

If I had more time, I would discuss the Department’s many other programs and priorities. But I promised to stop in time to take a few questions.

Let me conclude by noting that principled disagreement is important in a democracy. If prosecutors and defense attorneys agreed all the time, I would be very concerned.

One of the most frequently quoted remarks mocking lawyers is from William Shakespeare’s play, Henry VI.  You know the line: “The first thing we do, let’s kill all the lawyers.”

Shakespeare did not mean for it to be taken literally. On the contrary, the remark is intended to be ironic. The speaker is a criminal. Shakespeare’s point is that without lawyers, nobody would need to follow the law.

That would be good for criminals. But it would be bad for a society founded on the rule of law.

In a time of strong political passions, I think that lawyers have a responsibility to adopt the right tone, and demonstrate why law is so essential to the peaceful resolution of disputes.

We should conduct our debates in good faith, based on an objective analysis of the evidence and an honest discussion of the merits.

The Department of Justice will continue to engage in dialogue with the ABA, and the Criminal Justice Section in particular, on future projects. 

Congratulations again to the award recipients. I wish you continued success.  

Thank you very much.