Remarks as prepared for delivery
Good afternoon. It’s a pleasure to be here in Chicago. I want to thank Bill [Fitzpatrick] for that kind introduction and to wish him luck on his upcoming term as president of the National District Attorneys Association (NDAA). I also want to recognize the outgoing president, Michael Moore, for his work and commitment to this organization. For more than six decades, the National District Attorneys Association has provided a strong, clear voice for our nation’s local prosecutors. It’s a voice that’s needed now more than ever and it’s a privilege to join you as we work to advance the cause of justice across this country.
I started as a line prosecutor in Atlanta in September of 1989 and I’ve been with the Department of Justice ever since. During that time, I have had the pleasure of working closely with a number of local prosecutors, in Georgia and elsewhere. This led to some extraordinary collaborations between federal, state and local law enforcement—genuine partnerships that demonstrated our shared dedication to safeguarding our nation and the rights of its citizens. Over the course of my career, I’ve been lucky to meet and befriend so many public servants who care deeply about doing this job well.
Simply being here at this conference demonstrates your commitment to our profession and to the never-ending efforts to improve the work that we do. I don't think that there is a better job than being a prosecutor. We get to do the right thing—to be on the side of truth and justice—every day in every case. What an opportunity and what a responsibility.
Of course, doing what’s right isn’t always easy or popular. But that’s part of the reason why organizations such as NDAA are so crucial: to represent the efforts of hard-working prosecutors and to ensure that those in Washington and around the country are aware of all the good work that you do.
But more than that, NDAA helps prosecutors operate at the highest possible level, so that they’re prepared for whatever challenges they face. By developing best practices, sharing information and creating strong relationships across the country, you create an environment where dedicated prosecutors can thrive. I’m grateful for your efforts and I hope you continue to do the great work you’re already doing. Know that the Justice Department shares your dedication to these ideals and that we’re committed to deepening the ties with our state and local partners.
Now, as someone who worked as an Assistant U.S. Attorney, I recognize that folks sometimes view the “feds” a bit warily. But we have so much more that unites us than divides us. The best thing we can do is to develop and nurture open lines of communication, so that we’re aware of each other’s concerns and so that we’re able to respond effectively when disagreements arise. In fact, this is so important to me that I have established in my office a liaison to state and local law enforcement. Scott Hulsey, who is here today, was our drug chief in the Atlanta U.S. Attorney’s Office and previously served as an Assistant District Attorney in Atlanta. He has joined my staff in Washington and a big part of his job is to make sure that these lines of communication are open between DOJ and our state counterparts. Please know that my door is always open, and that I’m eager to engage this community as we confront a range of challenging issues in the coming months and years.
About seven months ago, after spending most of my career in the U.S. Attorney’s office in Atlanta, I was given the opportunity to come to Washington for a new role. It has been the honor of a lifetime. As the Deputy Attorney General, I’m responsible for the day-to-day operations of the Department ofJustice, an agency with more than 110,000 employees across the United States, including everyone at FBI, DEA, ATF, The Marshals Service and the Bureau of Prisons.
What’s so rewarding – and sometimes challenging – about my position is that I get to see the department from all angles and to help coordinate a unified response to a complex problem. I thought I would use the rest of my time to talk about two issues that I’ve been working on—and which I think are of mutual interest to the Department of Justice and to state and local law enforcement.
The first is the problem known as “going dark.” At its most basic level, the “going dark” problem is that, due to technological changes made by some technology companies, law enforcement officers are increasingly unable to obtain critical electronic information even though they have court authorization to do so.
I know that many of you are familiar with the issue. For some of you, the first time you heard the extent and seriousness of the problem may have been at yesterday’s panel discussion. For others, you are living this issue every day in your criminal investigations and prosecutions. Unless we do something soon, it could seriously undermine our ability to protect the community.
I recognize that some out there in the public are not as convinced that this issue is a real threat to public safety. I understand that skepticism. But it is up to us in law enforcement to do a better job explaining to the public why we believe this issue is so serious. It’s part of the reason why the Senate Judiciary Committee held a hearing on this subject two weeks ago—a hearing where I had the opportunity to testify alongside FBI Director James Comey.
That same day, the senators also heard from Cy Vance of the Manhattan District Attorney’s Office, who shared the perspective of a prosecutor who confronts this problem on a daily basis. In his testimony, District Attorney Vance described a number of concrete examples where going dark has had a real impact on law enforcement efforts. One example that he mentioned comes to mind. He recited the actual words of a defendant, speaking on a jail phone to a friend outside of the facility. The defendant was describing recent examples of technology companies issuing new encryption software that made it impossible for police to search his phone. According to the defendant, this new technology was and I quote, “another gift from God.”
But we all know this is no gift—it is a risk to public safety. We must continue to educate the public about going dark and the challenges law enforcement faces in obtaining information in specific cases. As members of the law enforcement community, we are the only ones who can effectively do this. We see the threats and risks and we have an obligation to tell our fellow citizens what we observe.
I do not have the answer to the going dark problem as I stand here today. But finding a solution will require the joint efforts of law enforcement officials at every level, including federal, state and local officials. It is our job to use our collective—and powerful—voice to educate others about going dark and to encourage the tech companies to work with us to design solutions that will permit law enforcement access to the critical evidence we need while protecting cybersecurity and privacy. I hope that you all will join me in this project.
The other issue of mutual interest that I want to discuss is sentencing reform. I know this is a topic that stirs a lot of debate in law enforcement circles and thoughtful people can reasonably disagree on the right approach. But I want to talk about why I support certain proposals to recalibrate our federal drug sentencing laws and why I think these changes will make our prosecutors more effective, not less.
With Congress closer than ever to bipartisan agreement, the issue is getting plenty of attention these days. But it’s hardly a new topic. For years, states have been grappling with the high costs of incarceration and working hard to find solutions. In places like Texas and Georgia, where I’m from, we’ve seen legislatures enact bold, bipartisan laws, which have reduced prison populations without increasing crime rates. In many ways, the federal government is simply hoping to copy the successes already happening at the state level.
In Georgia, between 1990 and 2011, the prison population more than doubled and spending on corrections soared from $492 million to more than $1 billion annually. Recognizing the problem, Georgia enacted sweeping criminal justice reforms in 2012 and since that time, prison admissions have fallen eight percent. Importantly, the violent crime rate decreased as well to the lowest it has been since 1980. As another example, in Texas, the prison population increased by 300 percent between 1985 and 2005. In 2007, Texas enacted legislation to reduce sentencing terms for drug offenders. In the period after Texas implemented its reforms, the violent crime rate declined by 20 percent between 2007 and 2011.
DOJ is now confronting similar issues. While the U.S. population increased by about a third since 1980, the federal prison population grew by almost 800 percent during that time. Nearly half of all federal inmates are serving long imprisonment terms for drug-related offenses. There can be little doubt that our current levels of incarceration are extraordinary and have been over the past 30 years.
Prisons and detention now account for roughly one-third of DOJ’s budget. Every dollar that we spend incarcerating non-violent drug offenders is a dollar that we can’t spend investigating today’s emerging threats, from hackers to home-grown terrorists. These costs are swallowing up funds that would otherwise be available for other programs, including federal grants to state and local law enforcement.
This has a real impact on the work we all do. In fiscal year 2000, DOJ spent 27 percent of its budget on prisons and detention and 26 percent on grants, including COPS hiring grants and Byrne JAG grants to state and local law enforcement. By 2015, prisons took up 30 percent of the budget and these grants dropped to only eight percent. Based on current trends, by 2024, we should expect that prison costs will eat up 37 percent of our budget, with a mere five percent for grants that could go to state and local law enforcement. This could result in hundreds of millions of dollars less for grant funding programs across the country.
But that only captures part of the debate. Behind the budget numbers and the sentencing statistics are those affected by our policies and practices.
We all know the terrible toll that illegal drugs have taken on our society. We recognize the many lives ruined by the drug trade—from rural villages in Colombia and Mexico to the streets of Oakland and Newark. It’s part of the reason why the Justice Department so aggressively pursues high-level traffickers.
But in our honest efforts to rid this country of dangerous drugs, we have imprisoned many drug defendants who wouldn’t fit anyone’s definition of a high-level trafficker. Some of those defendants deserve long sentences. But some are serving terms longer than their crimes require. At its most basic, the problem with our existing drug mandatory minimums at the federal level is that they fail to adequately distinguish between those deserving the most severe sanctions and those who do not; between the Mexican cartel leader and the street-level courier. To be sure, both deserve punishment. But the punishment they deserve is different.
I’m concerned that this lack of proportionality in our federal drug sentences reduces the public’s confidence in what we do. You all know as well as I that, in our line of work, it’s critical that what we do not only be fair, but be perceived as fair. I want to improve both the reality and the perception of our federal drug sentences.
I understand that this view isn’t shared by everyone. There are some who want to keep things as they are. The most common concern is that long sentences for low-level offenders are the only way to secure cooperation against the worst criminals. Not only is this inconsistent with my experience, it is rebutted by the data that we've gathered since recalibrating our drug charging policies in 2013. As I expect you know, the department has directed prosecutors not to charge mandatory minimums for lower level, non-violent drug offenders. And although some feared that defendants would stop pleading guilty and stop cooperating, our experience has been just the opposite. The percentage of defendants pleading guilty and cooperating has remained the same or even ticked up slightly. That makes sense, because the data from the U.S. sentencing commission also demonstrates mandatory minimums are not necessary to inspire cooperation. For example, federal defendants have typically cooperated at a higher rate in bribery cases, which do not carry mandatory minimums, than in drug trafficking cases, which do.
I look forward to engaging with you on both going dark and sentencing reform. Your voices matter to this debate. You have the knowledge and credibility to shape public opinion and congressional action and I hope you’ll make yourselves heard.
These are, of course, only two of many issues confronting law enforcement today. Over the last few days, you’ve had the opportunity to discuss many more. I look forward to finding new areas of collaboration between federal, state and local law enforcement and to building on the many successes we’ve achieved in recent years. There is much work that we can do together, and I’m excited about how we can uphold the principles of justice across all levels of government.
As prosecutors, we are not members of some ordinary profession. We are tasked to make decisions that affect the lives and liberties of our fellow citizens. The sacrifices that you and your offices make are substantial. And yet in spite of these demands, you do noble and extraordinary work. Each of you has made our country safer and more secure. It’s a pleasure being here today and it is an honor to work with you and alongside you.
Thank you again for inviting me to speak. Have a wonderful afternoon and a safe trip home.