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Attorney General Eric Holder Speaks at the National Association of Criminal Defense Lawyers 57th Annual Meeting and 13th State Criminal Justice Network Conference


Philadelphia, PA
United States

Remarks as Prepared for Delivery

Thank you, Norman [Reimer], for those kind words – and for your exemplary leadership as Executive Director of the National Association of Criminal Defense Lawyers.  It’s a pleasure to share the stage with you this morning.  And it’s a great privilege to stand with dedicated leaders like NACDL President Jerry Cox and so many distinguished jurists, passionate public servants, members of the defense bar, and engaged citizens.

I want to thank this organization’s entire leadership team, staff, and membership for bringing us together this morning – and for everything this group has done, in the 57 years since your founding, to help expand access to justice; to strengthen the rule of law; and to draw America’s legal system ever closer to the values – of equality, opportunity, and justice – that have defined our profession, and shaped this nation, for more than two and a quarter centuries.

Since 1958, the attorneys and staff of NACDL have exemplified the finest traditions of service and advocacy, striving to ensure justice and due process for those who stand accused of crime and misconduct.  You’ve long stood at the forefront of our efforts to improve the administration of justice for all litigants.  And you’ve worked tirelessly to educate practitioners, the public, and the judiciary about matters ranging from mass incarceration to the indigent defense crisis – consistently standing up and speaking out for populations that are too often overlooked and too often underserved. 

Especially today, as we commemorate the 50th anniversary of the Criminal Justice Act of 1964 – a landmark measure President Lyndon Johnson signed into law half a century ago this month to codify the Sixth Amendment right to counsel – it’s appropriate that we pause to reflect on the invaluable contributions, and the many sacrifices, that this Association’s members and so many others have made to ensure equality under the law.  But it’s just as important that we mark this anniversary, and honor the legacy of the Supreme Court’s historic decision in Gideon v. Wainwright, by recommitting ourselves to the work that remains unfinished – and the significant challenges now before us.

As we speak – more than five decades after Gideon , and 50 years after the Criminal Justice Act established a framework for compensating attorneys who serve indigent federal defendants – millions of Americans remain unable to access or afford the legal assistance they need.  Far too many hardworking public defenders are overwhelmed by crushing caseloads or undermined by a shameful lack of resources.  And it’s clear that, despite the progress we’ve seen over the years, a persistent and unacceptable “justice gap” remains all too real.  It poses a significant threat to the integrity of our criminal justice system.  And meeting this threat will require bold action and renewed efforts from legal professionals of all stripes.

As my predecessor, Attorney General Robert F. Kennedy, reminded a gathering of legal professionals 50 years ago next week, it’s incumbent upon us to ensure that “the scales of our legal system measure justice, not wealth.”  That’s why this Administration – and this Justice Department in particular – is committed to doing everything in our power to address the indigent defense crisis.  Over the last four years, in spite of sequestration and other deep budget cuts, the Department of Justice has committed more than $24 million in grants, initiatives, and direct assistance to support indigent defense work around the country.  The President’s budget request for Fiscal Year 2015 would do even more in this regard.  And thanks to the hardworking men and women of the Department’s Access to Justice Initiative – an office I launched over four years ago to improve access to counsel, increase legal assistance, and bolster justice delivery systems – we’re working closely with state, local, tribal and federal officials, as well as members of the bench and bar, to extend our outreach efforts; and to broaden access to quality representation in both the criminal and civil justice systems.

Last summer, we took a significant step forward by filing a Statement of Interest in a class action lawsuit – Wilbur v. City of Mount Vernon – asserting that the federal government has a strong interest in ensuring that all jurisdictions are fulfilling their obligations under Gideon .  In December, in a pivotal decision, the U.S. District Court found that there had, in fact, been a systemic deprivation of the right to counsel – and mandated the appointment of a public defender supervisor to monitor the quality of indigent defense representation.  These and similar efforts will help us meet our constitutional and moral obligations to administer a legal system that matches its demands for accountability with a commitment to due process.  And they are only the beginning.

Moving forward, we must continue to come together – across aisles that divide counsel tables and political parties – to ensure that America has a criminal justice system that’s worthy of its highest ideals.  To make certain that those who pay their debts to society have fair opportunities to become productive, law-abiding citizens.  And to empower justice professionals to meet 21 st -century crime challenges with 21 st -century solutions.

With this goal in mind – one year ago – I launched a new “Smart on Crime” initiative, which includes a series of targeted, data-driven reforms that are designed to advance these goals.  Since that time, my colleagues and I have implemented a range of meaningful changes – by increasing our focus on proven diversion and reentry strategies; by making criminal justice expenditures both smarter and more productive; and by moving decisively away from outdated and overly-stringent sentencing regimes.

I want to be very clear: we will never stop being vigilant in our pursuit of justice and our determination to ensure that those who break the law are held rigorously to account.  But years of intensive study – and decades of professional experience – have shown that we will never be able to prosecute and incarcerate our way to becoming a safer nation.

As you know, the Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes – so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case.  This means that the toughest penalties will now be reserved for the most serious criminals.  Over the last few months – with the Department’s urging – the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent.  Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses.  And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.

Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases.  But the reality is that nothing could be further from the truth.

Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence.  As veteran prosecutors and defense attorneys surely recall – and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues – sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences.  With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate.  It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions.  And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.

Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion.  That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place – so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.

Beyond this work, my colleagues and I are also striving to restore justice, fairness, and proportionality to those currently involved with our justice system through an improved approach to the executive clemency process.  In April, the Department announced new criteria that we will consider when recommending clemency applications for President Obama’s review.  This will allow us to consider requests from a larger field of eligible individuals – who have clean prison records, who do not present threats to public safety, and who were sentenced under out-of-date laws that are no longer seen as appropriate. 

I’m pleased to report that we’ve already established an extensive and rigorous screening mechanism.  We’ve facilitated efforts to engage assistance from pro bono attorneys, including many in this bar.  We have detailed a number of lawyers within the Justice Department to temporary assignments in the Pardon Attorney’s Office.  And we’ve taken important steps to establish a process by which we will consult with the U.S. Attorney’s Office and the trial judges who handled each original case – so we can evaluate every clemency application in the appropriate context.

I am particularly grateful for the assistance of dedicated criminal defense attorneys in and beyond this room – as well as nonprofit lawyers – who have stepped forward to answer the call for experienced pro bono counsel.  As our process unfolds, these associated groups, including NACDL, and individuals – who stand more than a thousand attorneys strong, and call themselves “Clemency Project 2014” – will work with incarcerated people who appear to meet our criteria and request the assistance of a lawyer.

Your efforts in this regard – and your partnership in strengthening our criminal justice system across the board – have been in keeping with the most critical obligation entrusted to every member of our profession:  not merely to represent clients or win cases, but to see that justice is done.  Every day, in courtrooms from coast to coast, criminal defense attorneys take on cases that are fraught with difficulty and often controversy – because you understand that, for our criminal justice system to function at all, every accused individual must have effective representation.  And every defendant’s right to due process must be guaranteed. 

Yet with the integral role that defense attorneys play in our justice system comes a tremendous responsibility: to uphold the highest standards of conduct in every single case.  Prosecutors and defense lawyers can agree that we all must act in good faith in discovery, including refraining from alleging discovery violations as a routine practice.  Our overburdened court system is ill-served by such unfounded tactics.  And the interests of justice demand that legal professionals look to their ultimate obligations: to strengthen the system as a whole; to address the disparities and divides that harm our society; to confront conditions and choices that breed crime and violence; and to harness innovative tools – and new technologies – in effective and responsible ways.

Over the past decade, we’ve seen an explosion in the practice of using aggregate data to observe trends and anticipate outcomes.  In fields ranging from professional sports, to marketing, to medicine; from genomics to agriculture; from banking to criminal justice, this increased reliance on empirical data has the potential to transform entire industries – and, in the process, countless lives – depending on how this data is harnessed and put to use.

With programs like CompStat – the New York City Police Department’s management tool, which has been replicated and deployed in a number of police departments across the country – we’ve seen that data gathering can lead to better allocation of police resources.  On the federal level, we know that the development of risk assessments has, for years, successfully aided in parole boards’ decision-making about candidates for early release.  Data can also help design paths for federal inmates to lower these risk assessments, and earn their way towards a reduced sentence, based on participation in programs that research shows can dramatically improve the odds of successful reentry.  Such evidence-based strategies show promise in allowing us to more effectively reduce recidivism.  And ultimately, they hold the potential to revolutionize community corrections and make our system far more effective than it is today – by better matching services with needs;  by providing early warnings whenever supervised individuals stray from their reentry plans; by incorporating faster responses from probation officers to get people back on track; and by yielding feedback and results in real-time.

It’s increasingly clear that, in the context of directing law enforcement resources and improving reentry programs, intensive analysis and data-driven solutions can help us achieve significant successes while reducing costs.  But particularly when it comes to front-end applications – such as sentencing decisions, where a handful of states are now attempting to employ this methodology – we need to be sure the use of aggregate data analysis won’t have unintended consequences. 

Here in Pennsylvania and elsewhere, legislators have introduced the concept of “risk assessments” that seek to assign a probability to an individual’s likelihood of committing future crimes and, based on those risk assessments, make sentencing determinations.  Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice.  By basing sentencing decisions on static factors and immutable characteristics – like the defendant’s education level, socioeconomic background, or neighborhood – they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.

Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct.  They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.  Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.  And that’s why, this week, the Justice Department is taking the important step of urging the Sentencing Commission to study the use of data-driven analysis in front-end sentencing – and to issue policy recommendations based on this careful, independent analysis.

At the state level, data-driven reforms are resulting in reduced prison populations – and importantly, those reductions are disproportionately impacting men of color.  We should celebrate this milestone – a turning point – and hope that front-end applications can also result in both public safety and racial justice.  Careful study of the issue is warranted.

We are at a watershed in the debate over how to reform our sentencing laws.  A generation ago, the “truth in sentencing” movement of the 1970s and 80s sought to mete out equal sentences across the board, but sent the prison population soaring.  By contrast, the idea of sentencing defendants based on risk factors may help to reduce the prison population, but in certain circumstances it may run the risk of imposing drastically different punishments for the same crimes.  Neither approach may, by itself, provide the answer.  Instead, policymakers should consider taking the good parts of each model.  The legacy of the truth-in-sentencing era is the lesson that the certainty of imposing some sanction for criminal behavior can indeed change behavior.  And the “Big Data” movement has immense potential to make the corrections process more effective and efficient when it comes to reducing recidivism rates.  A blending of these approaches may represent the best path forward.

Of course, whatever the outcome of this debate, there’s no doubt that these are complicated questions that implicate extraordinarily difficult issues.  We seek – and we are bringing about – nothing less than a paradigm shift in our approach to criminal justice challenges.  Ultimately, we’re striving to turn the page on an era, and an approach, that relied on incarceration over rehabilitation; that emphasized punishment over outcomes; and that too often discounted the ability of our justice system to prepare criminal defendants to reenter their communities as productive members of society.  Through the Smart on Crime initiative, we have already achieved a tremendous amount.     As we move forward together, my colleagues and I will continue to rely on leaders like you to advance, to hone, and to grow this work.

This morning, as I look around this crowd of passionate professionals and dedicated public servants, I cannot help but feel confident in our ability to do just that; to develop smart solutions to the toughest problems we face; to protect the rights of everyone in this country, no matter their salary or their skin color; and to further enshrine the ideals of American justice into the annals of American law.  The very existence of organizations like NACDL reminds us that – no matter how complex the challenges or how contentious the debate – there will always be men and women who do not shrink from the responsibility to bring this country closer to its highest principles and deepest values.

Even in the face of great trial and challenge, despite criticism and public scrutiny, you have for nearly six decades remained faithful to your mission to ensure justice, foster integrity, and promote the fair administration of our criminal justice system.  I thank you, once again, for your inspiring commitment to these efforts.  I applaud your dedication to principled and inclusive leadership of America’s legal community.  And I look forward to all that we’ll achieve together in our ongoing efforts to deliver on the promise of equal justice under law.

Thank you.

Updated August 18, 2015