Remarks as Prepared for Delivery by Deputy Attorney General James Cole at the New York State Bar Association Annual Meeting

Good afternoon.  Thank you, Judge Dwyer, for that kind introduction.  And, thank you to the New York State Bar Association for having me here.  I am honored to be among so many friends, colleagues, and leaders in the legal profession.  Thank you for serving the profession and community for well over a century.

I want to talk with you today about the crisis we have in our criminal justice system.  A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime.  This crisis is the crushing prison population. 

While the United States comprises only five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.  And while the entire U.S. population has increased by about one-third over the last thirty years, the federal prison population has increased at a staggering rate of 800 percent—currently totaling nearly 216,000 inmates.  It currently operates at 33 percent over capacity system-wide, and in the high security prisons the overcrowding rate is even higher.  We have a greater percentage of our population in prison than any other industrialized country, and the cost to maintain this is unsustainable. 

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release – and then the cycle repeats. 

In addition, there is a basic truth that dollars are finite.  Every dollar we spend at the Department of Justice on prisons - and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide.  We have embraced a three-part strategy that focuses our efforts not only on enforcement, but also on prevention and reentry – evidence-based programs and services that are designed to provide an off-ramp to those who find themselves in the vicious cycle of crime and to help reduce recidivism for those who are incarcerated. 

On the front end, the Justice Department is committed to crime prevention.  We have established programs like the National Forum on Youth Violence Prevention, where DOJ hosts national dialogues about youth and gang violence and has created a new model of federal and local collaboration, encouraging partners on all sides to change the way they do business by sharing common challenges and promising strategies. 

Through our “COPS” program, we have encouraged community-oriented policing – policing that focuses on problem-solving and partnering with the community, not just arrests and incarceration, and that addresses all aspects of threats against public safety. 

And we have encouraged the use of drug courts as an alternative to incarceration for people who can benefit from being given a chance to escape the grip of drugs.  By treating drug addiction as a disease instead of a crime, we provide a better outcome for the defendant, the criminal justice system, and society. 

Reentry is another key component to this strategy.  Each year, more than 600,000 people are released from state and federal prisons and, unfortunately, the rates of recidivism are unsustainably high.  Certainly we need to hold accountable those who commit crimes, but we also need to provide prisoners the opportunity to receive treatment and to learn the skills they need to successfully reenter society and stay there.  We cannot simply release more than half a million people back into society —some of whom have limited skills and inadequate education—and expect that, on their own, they will be able to put their lives together, obtain jobs paying a livable wage, obtain housing, and become supportive and productive members of their community. 

When I became Deputy Attorney General, I discovered that the Justice Department had an old policy in place that discouraged prosecutors from participating in reentry programs.  I changed that practice.  Now, federal prosecutors are working with their communities to strengthen reentry strategies and programs – and these programs are beginning to produce results.

In addition, every U.S. Attorney’s Office now has a prevention and reentry coordinator.  These coordinators, among other things, initiate outreach to potential employers to explain the opportunities and advantages in hiring former inmates and make sure that former inmates continue the treatments they started in prison to sustain their recoveries.  In this way, the Justice Department has embraced the fact that if we are to have a real impact on stopping crime, reentry must be a major part of the effort.

We have also realized that reentry is not just a law enforcement responsibility.  Different government and non-governmental agencies play key roles in addressing the challenge of helping prisoners reenter society.  Recognizing this, the Attorney General has brought together over 20 federal agencies to develop policies and programs designed to:

• Reduce barriers to housing, employment and education for those coming out of prison and

• Increase their access to healthcare and treatment.

These efforts across the federal government have borne fruit – from helping incarcerated military veterans get back on track, to assisting children of the incarcerated so family bonds are maintained during incarceration, and reducing unnecessary collateral consequences of a conviction.

These and other programs are a necessary part of our efforts and responsibilities.  Without them, we are putting band-aids on a problem and not dealing with the underlying causes.

But although we have employed this strategy for a number of years, we realized that we needed to do more.  The Department of Justice recently took a fresh look at our practices and policies on charging decisions and sentencing recommendations.  We examined whether our approach to prison terms was appropriately tailored to the four goals of sentencing: (1) punishment, (2) protection of the public, (3) deterrence, and (4) rehabilitation. 

We modified our charging policies so that certain low-level, nonviolent drug defendants, with no significant ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses triggering mandatory minimum sentences. Instead, they will be charged with offenses that allow prosecutors and defense counsel to argue for, and judges to impose, sentences better suited to their conduct.  In addition, we reconsidered the use of optional sentencing enhancements for repeat offenders, which can double a defendant’s sentence for certain drug crimes.  Under our new policy, those enhancements are to be used only in those cases warranting the most severe sanctions.  By making these changes to our policies, we intend to make smarter use of our limited and costly prison space and reserve the longer sentences for the most serious, high-level or violent drug offenders. 

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.  

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws. 

This brings me to another issue I want to address with you today and ask for your help.  The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.  

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated.  I don’t want to minimize the impact of their behavior.    Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions.  They were properly held accountable for their criminal conduct.  However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct.  For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system. 

Common sense legislative reform is one way to deal with this issue.  Last week, the Attorney General urged Congress to pass the bipartisan Smarter Sentencing Act introduced by Senators Dick Durbin and Mike Lee – which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.   This bill would also provide a new mechanism for some individuals – who were sentenced under outdated laws and guidelines – to petition judges for sentencing reductions that are consistent with the Fair Sentencing Act.  Such legislation could not only increase confidence in our criminal justice system, but also save our country billions of dollars in prison costs while keeping us safe.

But aside from legislation, the President also has the ability to take executive action to positively impact the criminal justice system.  A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe—and out of date—mandatory minimum sentencing laws.  Convicted of crack cocaine offenses, each of these individuals had served more than 15 years in prison at the time of release, but most were serving life sentences. 

To be clear, these commutations were not pardons, they were not exonerations, they were not forgiveness.    Rather, as the President said, they were an “important step toward restoring fundamental ideals of justice and fairness.”  He noted that “many of [these individuals] would have already served their time and paid their debt to society” had they been sentenced under current law.   

Even the sentencing judges in many of these cases expressed regret at having to impose such harsh sentences.  They noted their frustration with mandatory sentencing laws that, at the time, did not allow flexibility to impose punishments that more appropriately fit the crime.

But the President’s grant of commutations for these 8 individuals is only a first step.  There is more to be done, because there are others like the eight who were granted clemency.  There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today.  This is not fair, and it harms our criminal justice system. 

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice.  It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration. 

This is where you can help.  We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. 

We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions -- ones which provide a focused presentation of the information the Department and the President need to consider -- in order to meaningfully consider clemency for similarly situated petitioners.  You each can play a critical role in this process by providing a qualified petitioner—one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law—with the opportunity to get a fresh start.   We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of—nor had any significant ties to—large-scale organizations, gangs, or cartels.  We would also look for petitions from first-time offenders or offenders without an extensive criminal history. 

Going forward, the federal Bureau of Prisons will begin advising inmates of the opportunity to apply for sentence commutation.  The Bureau of Prisons can also provide inmates with information about bar associations who are willing and able to help them with their petitions.  But it is our hope that organizations like yours can help by recruiting interested and skilled lawyers and training them to assist qualified inmates with these petitions.  This can be done in a number of ways, including providing guidance to your members—with direction from the Pardon Attorney’s office—regarding the clemency process and the standards for consideration for clemency petitions.  A member of my staff, in the Office of the Deputy Attorney General, will serve as your primary contact.

Our discussion here today is an initial step in this process and the first of, what I hope, will be an ongoing dialogue.  Through our collective efforts, we can safeguard public safety while ensuring “fundamental ideals of justice and fairness” in our criminal justice system.  Department of Justice attorneys take pride in the fact that it is our duty to make sure we deliver justice.  The men and women of the Justice Department have worked toward that objective throughout its history.   Having also spent time as a defense attorney, I know that you on the defense side share that goal.  I am now asking you to assist us in that pursuit.

Thank you for having me here, and thank you for the great work you have done over the years.  I look forward to continuing our partnership.