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Eric Holder’s Keynote Address: Shifting Law Enforcement Goals to ​Reduce Mass Incarceration

Attorney General Eric Holder delivered the keynote address at the Brennan Center’s full-day conference on the need to reduce mass incarceration by reforming law enforcement practices and federal funding structures.

September 23, 2014

Thank you, Jim [Johnson], for those kind words; for your friendship over the many years we’ve known one another – since we served together in the Clinton Administration; and for your leadership, along with Doug Jones, as co-chair of the Brennan Center’s Blue Ribbon Panel. 

I’d also like to thank the Brennan Center’s distinguished president, my friend Michael Waldman, and your entire staff – particularly the Justice Program – for bringing us together today.  It’s an honor to take part in this important conference.  It’s a privilege to be at NYU Law School for the second time in as many weeks.  And it’s a great pleasure, as always, to be back home in New York City. 

For nearly two decades, the Brennan Center has provided indispensable leadership on issues ranging from campaign finance and voting rights to national security and equal justice.  You’ve offered rigorous research and expert guidance to policymakers at every level of government.  And with this conference – and the report you’re unveiling today – you’re taking yet another step to advance our efforts to address some of our nation’s most critical challenges – few of which are more complex, or more urgent, than the need to strengthen America’s criminal justice system and reduce our overreliance on incarceration.

As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative – a series of important changes and commonsense reforms I set in motion last August.  Already, these changes are fundamentally shifting our response to certain crime challenges – particularly low-level, nonviolent drug offenses.  And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.

After all – as I’ve often said – the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.  We must never, and we will never, stop being vigilant against crime – and the conditions and choices that breed it.  But, for far too long – under well-intentioned policies designed to be “tough” on criminals – our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities – particularly communities of color.

In recent decades, the effects of these policies – and the impact of the “truth-in-sentencing” mindset – have been dramatic.  Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of its prisoners.  The entire United States population has increased by about a third since 1980.  But the federal prison population has grown by almost 800 percent over the same period.  Spending on corrections, incarceration, and law enforcement has exploded, consuming $260 billion per year nationwide.  And the Bureau of Prisons currently commands about a third of the Justice Department’s overall budget.

Perhaps most troubling is the fact that this astonishing rise in incarceration – and the escalating costs it has imposed on our country, in terms both economic and human – have not measurably benefited our society.  We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades – thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America.  But statistics have shown – and all of us have seen – that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.

In fact, the opposite is often true.  Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates – performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 – shows that states with the most significant drops in crime also saw reductions in their prison populations.  States that took drastic steps to reduce their prison populations – in many cases by percentages well into the double digits – saw crime go down as well.  And the one state – West Virginia – with the greatest increase in its incarceration rate actually experienced an uptick in crime. 

As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.”   And this has been borne out at the national level, as well.

Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent.  This is the first time these two critical markers have declined together in more than 40 years.  And although we have a great deal of work to do – and although, last year, some states continued to record growth in their prison populations – this is a signal achievement.

We know that over-incarceration crushes opportunity.  We know it prevents people, and entire communities, from getting on the right track.  And we’ve seen that – as more and more government leaders have gradually come to recognize – at a fundamental level, it challenges our commitment to the cause of justice.

Fortunately, I can report today that we are finally moving in the right direction, at least at the federal level.  Over the past year, the federal prison population declined by roughly 4,800 inmates – the first decrease we’ve seen in many ‎decades.

Even more promising are new internal projections from the Bureau of Prisons.  In a dramatic reversal of prior reports – which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe – taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months – and by almost 10,000 in the year after.‎

This is nothing less than historic.  To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity.  Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity.  But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect. 

Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus – a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul – we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. 

Of course, for these changes to become permanent, we’ll need to rely on the dedication – and the leadership – of federal prosecutors in Washington and in all 94 of our United States Attorney’s Offices.  As a career prosecutor myself – and as former U.S. Attorney for the District of Columbia – I have always had the utmost confidence in, and respect for, these hardworking men and women.  And that’s why, as Attorney General, I’ve consistently advocated policies that push discretion out into the field.

The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities – and the judgment – of our attorneys on the front lines.  And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.

As I know from experience – and as all veteran prosecutors and defense attorneys surely recognize – defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence.  Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway.  As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients – and for defendants to cooperate with the government in exchange for reduced sentences.

Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion. The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts.  After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.” 

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate – or appropriate – to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view. 

As the Brennan Center and many others have recognized – and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear – it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success.  This means developing a new system of assessment – because, as you’ve noted, what gets measured is what gets funded and what gets funded is what gets done.  That’s why I want to commend this organization – and each of our Blue Ribbon Panelists, including some of our very best sitting and former U.S. Attorneys – for examining new ways for the Justice Department to leverage our resources to better serve America’s communities.

Your concrete recommendations – that federal prosecutors should prioritize reducing violence, incarceration, and recidivism – are consistent with the aims of the Smart on Crime initiative.  The new metrics you propose – such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate – lay out a promising roadmap for us to consider.  And my pledge to you today is that my colleagues and I will not merely carefully study this critical report – we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures – with the aim of cementing recent shifts in law and policy.

One of the key points underscored by your report – and emphasized under the Smart on Crime approach – is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data.  This is something that we – and especially our Office of Justice Programs and Bureau of Justice Assistance – have taken very seriously throughout the Obama Administration.  And nowhere are these ideals more fully embodied – or more promisingly realized – than in our Justice Reinvestment Act and Second Chance Act programs. 

As we speak, the states that participate in Justice Reinvestment are making fundamental policy reforms that aim to reduce unnecessary confinement, save taxpayer dollars, and reinvest funding in strategies proven to enhance community safety.  A report issued in January highlighted 17 states that are projected to save $4.6 billion over 10 years.  Another study, in June, highlighted seven states that have achieved substantial reductions in three-year recidivism rates.  And these successes are notable not only for their magnitude, but for the political consensus that drove them. 

Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year.  That, on its own, is an extraordinary indication of the power and importance of this work.  And this additional funding is allowing us to launch a new challenge grant program – designed to incentivize states to take the next major step in their reform efforts. 

Today, I am pleased to announce that five states – Delaware, Georgia, Louisiana, Ohio, and Oregon – will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options.  I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism.  Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals.  And each will be eligible for an additional $2 million over the next two years if they do so. 

In addition to these and other Second Chance awards, our Office of Juvenile Justice and Delinquency Prevention is providing $7 million in Second Chance Act funding to support reentry demonstration programs and other important efforts at the juvenile level.  A further $1.8 million will support a new Juvenile Reentry Legal Assistance Program through our partners at the Department of Housing and Urban Development.  And we’ll soon be launching a broader partnership with HUD – a partnership rooted in the Pay for Success model championed by the Brennan Center – to focus on finding permanent supportive housing for those returning from incarceration. 

The Justice Department has transferred $5 million to HUD for this program, which will announce the competition in the coming months.  Together, these exciting efforts reaffirm our commitment to strengthening America’s justice system at every level.  They underscore our determination to help people get back on the right path.  But they’re only the beginning – because, beyond our Smart on Crime reforms and our emphasis on evidence-based practices, I believe the federal government has an even broader and more critical role to play in securing the fundamental promise of equal justice under law. 

As we saw all too clearly last month – as the eyes of the nation turned to events in Ferguson, Missouri – whenever discord, mistrust, and roiling tensions fester just under the surface, interactions between law enforcement and local residents can quickly escalate into confrontation, unrest, and even violence.  These tensions simmer every day in far too many communities across the country.  And it’s incumbent upon all of America’s law enforcement officers and leaders to work with the communities they serve to defuse these charged situations by forging close bonds, establishing deep trust, and fostering robust engagement. 

The situation in Ferguson has presented leaders across the nation, and criminal justice and civil rights leaders in particular, with a moment of decision – and a series of important questions that can no longer be avoided.  Will we allow this time – our time – to be defined by division and discord?  Or will we summon the resolve, the fortitude, and the vision to reassess – and even to remake – our system, through cooperation, consensus, and compassion? 

Will we again turn a blind eye to the hard truths that Ferguson exposed, burying these tough realities until another tragedy arises to set them off like a powder keg?  Or will we finally accept this mandate for open and honest dialogue, reach for new and innovative solutions, and rise to the historic challenge – and the critical opportunity – now right before us?

These questions are not rhetorical.  And as we seek to address them, we must take into account the preconceived notions that certain people may bring to interactions with police – preconceptions that may be informed by generations of experience; by the totality of what it has meant to be a person of color in the United States.  We must consider corresponding notions that police may bring to interactions with certain communities and individuals.  And we must never lose sight of the immense and unyielding difficulties inherent in the law enforcement profession – from the training they receive to the risks these brave men and women incur every time they put on their uniforms; from the dangers they face, and the split-second decisions they often must make, to the anguish of family members who awaken at night to the sound of a ringing telephone – hoping for the best, but fearing tragic news about a loved one out walking the beat.

As the brother of a retired law enforcement officer, I understand well how challenging – and how thankless – their vital work can be.  As our nation’s Attorney General, I will always be proud – and steadfast – in my support for law enforcement personnel and their families, who make tremendous and often unheralded sacrifices every single day to keep us safe.  And as an African-American man – who has been stopped and searched by police in situations where such action was not warranted – I also carry with me an understanding of the mistrust that some citizens harbor for those who wear the badge.

So today, it’s time to ask ourselves – as a nation – are we conducting policing, in the 21st century, in a manner that is as effective, as efficient, as equitable, and as just as is possible?  It’s time to build on the outstanding leadership that so many local police are providing – and the reform efforts that are underway in St. Louis County and elsewhere – by making this work a focused, national priority.

Just last week, the Justice Department launched a substantial effort to do just that – by establishing a National Initiative for Building Community Trust and Justice to promote credibility, to enhance procedural justice, to reduce implicit bias, and to support racial reconciliation.  Separately, President Obama has directed federal agencies to carefully review programs that may provide military equipment, or funding for military equipment, to local police – a process that remains ongoing.  Through a range of other programs like the President’s My Brother’s Keeper initiative – and the department’s regular interactions with exemplary law enforcement executives across the country – my colleagues and I are doing important work to resolve tensions and promote mutual understanding;  to bridge divides and spark constructive dialogue; and to ensure – above all else – that everyone who comes into contact with the police is treated fairly.

This is important, and in some cases life-changing, work.  But I believe we need to take these efforts even further.  That’s why, under the leadership of our COPS Office, the Justice Department is working with major police associations to conduct a broad review of policing tactics, techniques, and training – so we can help the field swiftly confront emerging threats, better address persistent challenges, and thoroughly examine the latest tools and technologies to enhance the safety, and the effectiveness, of law enforcement.  Going forward, I will support not only continuing this timely review, but expanding it – to consider the profession in a comprehensive way – and to provide strong, national direction on a scale not seen since President Lyndon Johnson’s Commission on Law Enforcement nearly half a century ago.

In this ongoing effort, and in so many others – as we seize this important moment, renew our determination to combat crime, and accept the historic opportunities now before us – my colleagues and I will continue to look to the Brennan Center, and each of the leaders in this audience, for guidance; for edification; and for frank and honest advice.  We will continue to rely on the experience, and the thoughtful consideration, that you have brought to today’s discussion – and to countless others over the past two decades.  And we will always be both proud and humbled to count you as partners, and as essential allies, in the considerable work ahead.

I want to thank you all – once again – for your leadership, your vision, and your unwavering commitment to the mission we share.  I look forward to building on this dialogue in the weeks and months to come.  And I am optimistic – despite the challenges we face, and the obstacles we must confront – about where your efforts will take us, and all that we will achieve – together – for the exceptional nation we all love.

Thank you.