Remarks as prepared for delivery
Mr. Chairman, Senator Leahy, distinguished Members of the Committee – thank you for holding this hearing on sentencing reform. It is an honor to be here to discuss an issue that is so important to our country and our system of justice.
My perspective on sentencing policy is informed by my 26 years of experience as an Assistant United States Attorney (AUSA) in the trenches, as a U.S. Attorney and now as the Deputy Attorney General. It is because of my commitment to public safety and the fair administration of justice that I believe that it is critical that we enact meaningful sentencing reform. I have seen first-hand the impact that our current system and particularly our drug sentencing laws, has on our ability to carry out the department’s mission. And I believe we can and must do better.
We all know the facts that bring us here today. While the population has only grown by one-third since 1980, the federal prison population has grown by 800 percent. And half of all federal prisoners are now drug defendants. Our current mandatory minimum sentencing laws don’t calibrate a defendant’s sentence to match the threat that the defendant poses to our safety. At its core, that’s because the mandatory minimum is based almost exclusively on one factor—drug quantity. And because our laws cast too broad a net, we have a hard time distinguishing between the cartel leader who needs to be in prison for a long time from the mope who doesn’t. This comes with great costs — costs to operate our prison system, costs to our communities and families and costs to the public’s confidence in our system of justice.
From a dollars and cents perspective, the exploding Bureau of Prisons (BOP) population means that BOP now accounts for roughly one-third of the department’s budget. These prison costs are crowding out the rest of the Justice Department’s important work. Every dollar that we spend imprisoning a non-violent drug offender for longer than necessary is a dollar that could be spent on prosecutors and agents, cops on the street for a state and local law enforcement and crucial programs for prevention and reentry. Recalibrating sentences for low level non-violent drug offenders will enhance public safety by allowing us to devote our scarce resources in a manner best designed to keep our communities safe.
But in addition to the fiscal costs, there are human costs as well. Unquestionably, those who violate the law should be held accountable and there are some offenders who are so dangerous that they should go to prison for a very long time. But we need to ensure a sense of proportionality to our sentencing laws. The punishment needs to fit the crime. Take for example the case of one defendant whose record I recently reviewed. This individual only had a 6th grade education, but served honorably in the Army. After he was discharged, he was convicted of a street level crack deal, in a case that likely wouldn’t even be a federal case today. Although he didn’t have any history of violence – he didn’t even have a gun—he was sentenced to mandatory life in prison because he had two prior small time state convictions for selling cocaine, one of which involved just one ounce of cocaine. Should he have been held accountable for violating our drug laws – yes. Should he spend the rest of his life in prison for it — no.
Importantly, the costs aren’t just born by the defendants. Too many children, one in 27 and one in nine for African-American children have a parent behind bars. This cuts deeply into our society.
Similarly, when we send people to prison for longer than necessary, we risk losing the public’s faith in the fairness of their own criminal justice system. This may prove the most costly price of all.
Our own experience with the Department’s Smart on Crime Initiative demonstrates that more judicious use of mandatory minimums works. Under Smart on Crime, prosecutors were directed not to seek mandatory minimum sentences for lower level, nonviolent drug offenders. Some feared that without the hammer of mandatory minimums, defendants wouldn’t plead guilty or cooperate and we wouldn’t be able to work out way up the chain of drug organizations. But the facts have not born that out. Our use of mandatory minimums has decreased by about 25 percent, but defendants are still pleading guilty and cooperating at exactly the same rate. But to make lasting change, Congress must act.
Congress in Section 3553 of Title 18 set out the factors that a court should consider in fashioning an appropriate sentence and that section opens with the overarching principle: the court shall impose a sentence, “sufficient, but not greater than necessary” to achieve the purposes of sentencing, Sufficient, but not greater than necessary. Anything beyond that is inconsistent with our principles of justice and our system of laws. There is a balance we must strike and I believe the proposed Sentencing Reform and Corrections Act is a good step toward striking that balance.
Thank you again for inviting me to speak here today. With that, I am happy to take your questions