Thank you, Dean [Matt] Diller, for that kind introduction, and for inviting me to deliver the McNamara Memorial Lecture here at Fordham. For more than 100 years, Fordham Law School has been educating generations of students to become leaders of the bar, not just here in New York City but across the country. It’s a privilege to join you here tonight.
We are at a unique moment in our nation’s history. Last week, Americans elected their 45th president. The long campaign revealed a divided nation, with deep disagreements about our country’s policies. But I’m not here tonight to focus on those divisions. I want to talk about the values we share and the principles that unite us. And I want to talk about how, over the past eight years, we put those principles into action. Because whether you’re a Republican or a Democrat or an Independent, you believe in the core values of justice, fairness and the rule of law. At the Justice Department, those values guide our decisions, as we seek to create a better, safer, more secure society for everyone in our country, regardless of race, religion or status.
In a few minutes, I’ll sit down with Dean Diller and we’ll discuss some of the work we did at DOJ in recent years. But during my prepared remarks, I want to focus on one particular issue: criminal justice reform. It’s not just that this is an issue close to my heart. It’s also an issue that garners broad bipartisan support, and I hope it’s a topic where we can find common ground in the months and years ahead.
All across our country, there is a growing consensus that we need to adjust our approach to our criminal justice system. Our incarceration levels have exploded over the last 30 years, reaching a point that is simply not sustainable. Even more importantly, our overreliance on incarceration without sufficient investment in meaningful prevention measures and prisoner reentry is undermining the safety of our communities and the public’s confidence in their criminal justice system. We can’t jail our way into safer communities, and our country will not be as safe or as just as it can or should be until we are as willing to invest in preventing crime as we are in prosecuting it.
I get that I might seem like an unlikely advocate for criminal justice reform. I’m a career prosecutor. I believe in holding people accountable when they violate the law, and I believe that there are some very dangerous people out there who need to be locked up for a long time. But it’s because I’m a prosecutor, not in spite of it, that I believe so strongly that we need to adjust our approach. I have seen first-hand the impact that our over-reliance on incarceration can have on communities, families, financial resources and public confidence in our criminal justice system. In my view, our responsibility to seek justice requires that we step back, take a look at the full range of our criminal justice system and recalibrate.
Let’s start with the numbers. Our country comprises only five percent of the world’s population, but we have 25 percent of its prisoners. We have four times as many people in prison as China. We keep more people behind bars than the top 35 European countries combined.
How did we get here? It hasn’t always been this way. In 1980, we had half a million people in our country in prison. Today, we have more than four times that many—2.2 million. The federal prison population alone has grown by over 800 percent during that time.
While there are a variety of factors that have contributed to the prison explosion, the growth is due in large to our shift in how we treat drug offenses. In the late 80s and 90s, all across the country, states and the feds enacted harsh mandatory minimum sentencing laws and three strikes laws that resulted in an explosion in the prison populations sending some non-violent offenders to prison for 20, 30, 40 years – even life for drug offenses. As a result, almost half of the inmates in federal prison today are serving time for drug offenses.
While the stated congressional purpose of those laws was to focus on the newly emerging South American drug cartels and the leaders of drug organizations who were responsible for large quantities of drugs, as we look back, it has become clear that these harsh sentencing laws cast too broad a net. Under the current sentencing regime, our mandatory minimum laws are a blunt instrument and don’t consistently calibrate a defendant’s sentence to match the threat that he or she poses to our safety. At its core, one of the basic problems with our mandatory minimum system is that it’s based almost exclusively on one factor – drug quantity.
Consequently, we have a hard time distinguishing the cartel leader who needs to be in prison for a long time from the low level courier who doesn’t. As a result, we have some defendants serving far more time in prison than necessary to punish and deter, and in the words of our former Attorney General, we “warehouse and forget.” This comes with great costs – costs to operate our prisons system, costs to our families and communities, and costs to the public’s confidence in the fairness of their system of justice.
These aren’t just hypothetical cases. Take for example the case of one defendant whose record I recently reviewed. This particular defendant, who only had a sixth grade education, was a veteran of the Army and honorably discharged. He was convicted of selling crack on the street, in a case that may not even be a federal case today. Although he didn’t possess a gun or have any history of violence, he was sentenced to mandatory life in prison because he had two prior state convictions for selling cocaine, one of which involved just one ounce of cocaine. Should this individual be punished – absolutely. Should he die in prison for three small time drug sales? I don’t think so.
From a dollar and cents standpoint, our country now spends $80 billion per year keeping people in prison. The Justice Department’s prison and detention costs have increased by almost three billion dollars in the past decade alone and now account for roughly one third of the department’s budget. This comes with significant public safety consequences because the growing BOP budget is crowding out everything else we do at the department. Every dollar that we spend imprisoning a non-violent drug offender for longer than necessary is a dollar we don’t have for investigating emerging threats, from hackers to home-grown terrorists. And it’s a dollar we don’t have to support state and local law enforcement with more cops on the street and crucial programs for prevention, intervention and reentry.
But in addition to the fiscal costs, there are human costs to our current system as well.
Over- incarceration has taken a huge toll on our communities, and particularly communities of color. Importantly, these costs aren’t just born by defendants. Too many children, over 2.7 million in the United States, have a mother or father behind bars -- one in nine African- American children. This cuts deeply into our society, and we must not pass this legacy to the next generation.
More broadly, when we impose longer-than-necessary prison sentences in the name of public safety, we undermine the public’s confidence in the fairness of the criminal justice system. It’s not enough to have a system of justice that holds wrongdoers accountable. The system must also mete out punishment in a manner that is fair, reasonable and tailored to the facts and circumstances of the crime. If it does not, then we risk losing the community’s faith in the institutions we represent. In the long run, that loss of faith could prove more costly to our nation’s future than any dollars and cents spent on the criminal justice system.
In looking for solutions, I am encouraged by the great innovations occurring at the state level. As Deputy Attorney General, I have had the opportunity to learn more about a wide variety of exciting programs, from drug courts to recidivism reduction programs. These efforts have been part of a broader shift away from thinking of incarceration as the only answer to prevention as the first response. Across the country, states as varied as Texas, Ohio, North Carolina and my home state of Georgia, have confronted exploding prison costs by enacting bold criminal justice reforms.
These new, more focused approaches to combating crime will enhance, not undercut, our ability to enforce the law and protect the public. For example, one of the most common concerns raised about sentencing reform is that long mandatory sentences for low-level drug defendants is the only way to get them to cooperate against more serious offenders. Not only is this inconsistent with my personal experience as a prosecutor, it is inconsistent with the data that we have gathered since the Justice Department changed our drug charging policy three years ago. As some of you may know, three years ago, as part of the Smart on Crime Initiative, the department directed federal prosecutors not to charge mandatory minimum sentences in cases involving lower-level, non-violent drug offenders. Since that time, the department’s has charged mandatory minimum drug offenses 20 percent less frequently. Although some feared that defendants would stop pleading guilty and stop cooperating, the data has shown otherwise, and defendants are pleading guilty at the same rates as they were before we instituted Smart on Crime and the rates of cooperation have remained the same or even ticked up slightly.
Another important component of reducing crime is reducing recidivism, and that requires that we ensure that when individuals are released from prison, they have the tools they need to be successful law abiding citizens. We have done a deep dive at how we’re handing this at BOP, and later this fall we are going to be announcing some significant reforms in prison education, programming and halfway houses that I believe will be truly transformative. And, to date, through the clemency initiative, the President has commuted the sentences of 944 nonviolent drug offenders, including the individual I described to you earlier, many of whom were serving life sentences. But we’re not done. There are more commutations to come before the end of the Administration.
But to make lasting change, to make systemic change, Congress needs to act to establish a new sense of proportionality to our sentencing laws. We are at a unique moment in time when a broad coalition of strange bedfellows has come together, from the Koch brothers to the ACLU, to advocate for recalibrating our sentencing laws. There is legislation pending in the Senate, whose sponsors include Chuck Grassley and John Cornyn on the right and Pat Leahy and Cory Booker on the left, that would do just that. There are corresponding measures in the House. So we have an opportunity, right now, to do something concrete to make our system more fair and more effective. Indeed, this is one of the rare issues in Washington on which there is bipartisan agreement. But just because there’s bipartisan consensus, and just because it makes sense, that doesn’t mean it will happen.
So I hope that you’ll let your voices be heard. As leaders of our profession committed to the integrity of our justice system, I hope that you will demand meaningful change. Change that will allow us to devote critical resources to making our communities safer; change that will make our system more fair; and change that will ensure that our criminal justice system lives up to its promise of equal justice under the law. That’s something we can all agree on, regardless of which party is in power, and I hope that the work we started during the Obama Administration continues on in the years ahead.