Attorney General Holder Delivers Remarks at the National Press Club

Remarks as prepared for delivery

Thank you, President [John] Hughes, for that kind introduction – and for your leadership, and stewardship, of this venerable institution.  I’d also like to thank past President Donna Leinwand Leger, of USA Today, for inviting me to be here this afternoon; the National Press Club’s officers, and your entire Board of Governors, for their critical work; and all of the journalists, both in and beyond this crowd, who contribute so much to our national discourse. 

It is a pleasure to stand today among so many distinguished members of the Fourth Estate.  And I am humbled to follow in the footsteps of the remarkable men and women who have addressed this organization since its founding, over a century ago.  Before we open the floor for questions this afternoon, I’d like to take a few minutes to discuss the latest developments in the Justice Department’s ongoing efforts in the field of criminal justice reform – as well as the significant and extremely promising results we’re beginning to see just 18 months after the launch of our Smart on Crime initiative. 

When I took office as Attorney General, a little over six years ago, I came to the job having seen America’s justice system from a number of angles – primarily as a prosecutor, but also as a judge, and as an attorney in private practice.  I’d had the great honor of serving alongside – and learning from – countless dedicated lawyers, brave men and women in law enforcement, and leading criminal justice experts of all stripes.  I’d served under Administrations led by presidents of both political parties.  I knew that, despite the laudable progress we’d brought about – over the past two decades – in lowering the overall crime rate, real and daunting challenges remained before us.  And I understood that few of these challenges were more pressing than the need to strengthen the federal criminal justice system – and reduce America’s overreliance on incarceration. 

After all, although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of its prisoners.  While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown by almost 800 percent over the same period.  And on the day I took office, as a result of often well-intentioned policies designed to be “tough” on drugs, nearly half of all federal inmates were serving time for drug-related offenses. 

As many of you have so thoroughly reported, this state of affairs not only had serious financial ramifications for our country – occupying roughly a third of the Justice Department’s budget in recent years; it exacted a human and moral toll that’s impossible to calculate.  Studies showed that the policies that imposed these costs had not had a significant impact in making our communities measurably safer.  And the persistence of this status quo demanded that national criminal justice leaders closely examine our institutions and reorient our practices to create the more perfect Union that our founders imagined – and the more just society that all Americans deserve.

With these aims in mind, under President Obama’s leadership, we began to push for serious changes.  In 2010, as the result of our efforts – and the close partnership of leaders from both parties on Capitol Hill – the President was able to sign the Fair Sentencing Act, which reduced the inappropriate and unjust 100-to-1 sentencing disparity between crack and powder cocaine.  Over the years, we’ve also worked to strengthen reentry policies aimed at reducing recidivism – and to advance a host of other targeted improvements like drug courts.  In early 2013, I took these efforts to a new level by initiating an unprecedented, exhaustive and targeted Justice Department review of the federal criminal justice system as a whole – to identify obstacles, inefficiencies, and inequities, and to address ineffective policies.

This review culminated, about 18 months ago, with the launch of our groundbreaking criminal justice reform initiative known as Smart on Crime.  Smart on Crime was a catch-all term for a range of reforms we implemented simultaneously in the summer of 2013, each significant in its own right.  Among other steps, we made major changes to the department’s charging policies related to nonviolent drug offenses; we put sensible limits on when it was appropriate to seek stiffer sentences based on a defendant’s prior criminal record; and we took steps to improve reentry processes in order to reduce the chances that incarcerated individuals reoffend after they exit prison.  Taken together, these reforms reflect the department’s age-old commitment to a criminal justice system that is fair; that deters serious criminal conduct; that holds people accountable for their crimes; and that utilizes incarceration wisely – to punish, deter, and rehabilitate - not merely to confine and forget.

Over the last year and a half – as my colleagues and I have implemented new crime prevention efforts, more effective community policing policies, and promising diversion and reentry strategies – I’ve spoken extensively about the changes we’ve made and the vision that is driving us forward.  I’ve pointed to the favorable results we’ve seen on the state level – in places like Kentucky, Texas, Ohio and Pennsylvania – where governors and legislatures of both parties have provided a model for others to emulate by directing funding away from prison construction and toward programs designed to reduce recidivism.  And I have placed particular emphasis on two of the most vital reforms at the heart of our Smart on Crime initiative: the prioritization of cases within each U.S. Attorney’s Office and a critical change to the Justice Department’s charging policies.

Late last year, we began compiling data to help us measure the impact of our criminal justice reforms.  This data is preliminary.  But it shows that the Smart on Crime initiative is working exactly as intended.  It is having a real and measurable impact on the decisions made by federal prosecutors from coast to coast.  The changes we’ve implemented are firmly taking hold.  And our key reforms appear to be successful by every measure we’ve seen so far.

The numbers are particularly encouraging in three areas. 

First, among the central components of Smart on Crime is an effort to reduce unnecessary incarceration by asking federal prosecutors to exercise discretion – and make smart and targeted decisions – about which cases warrant federal prosecution.  As I said in a speech to the American Bar Association, in August of 2013, not every drug case should be brought in a federal court.  Accordingly, I directed our United States Attorneys to develop specific, locally-tailored guidelines – consistent with national priorities – for determining when federal charges should be filed, and when cases should be handled at the state or local level.  Today, I am pleased to report that our federal prosecutors are heeding that call.  And they are being more selective in bringing certain drug prosecutions.  Between 2013 and 2014, the number of defendants charged with drug trafficking offenses declined by nearly 1,400 individuals – a reduction of more than six percent. 

Second, I instructed our prosecutors that, in the course of weighing which types of drug cases merit federal prosecution, they should focus on the worst offenders and offenses.  The data from last year proves that, as a result of this shift, today, our prosecutors are focusing their attention – and their resources – on the most serious cases.  In 2013, before Smart on Crime was implemented, the average guideline minimum for federal drug prosecutions – in other words, the average suggested minimum prison term for an individual being charged for a drug crime – was 96 months.  A year later, while the number of drug trafficking prosecutions has dropped, the average guideline minimum has actually risen to 98 months.  This demonstrates that the most serious drug crimes are now attracting the highest scrutiny – and that our limited resources are being used in ways that provide the greatest possible benefit to public safety. 

Third, in August 2013, I also ordered a modification of the Justice Department’s charging policies to ensure that people accused of certain low-level, nonviolent federal drug crimes will face sentences appropriate to their individual conduct – rather than excessive mandatory minimum sentences that may be better suited to violent criminals or drug kingpins.  This change was founded on the belief that, by reserving mandatory minimums for cases where they are warranted, we could better promote public safety, deterrence and rehabilitation, while making our expenditures smarter and more productive.  Today, it’s clear that we are making significant progress toward this goal.  In the year before our Smart on Crime charging policy took effect, roughly 64 percent of federally-charged drug trafficking offenses carried a mandatory minimum sentence.  Last year, the new policy brought that number down to approximately 51 percent – a reduction of 20 percent relative to the prior year.  Put another way, we have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two.  That’s a major reduction.  In fact, it is historic.  The Sentencing Commission confirms that these numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record.

This figure, perhaps more than any other, shows the significant impact that our policy reforms are having.  While other factors may play a role in the drop we are seeing in the overall number of drug cases, a decline this pronounced in the rate at which our prosecutors pursue mandatory minimum sentences can only be attributed to the changes we announced in 2013. 

These are extremely encouraging results.  And they demonstrate that, since we launched the Smart on Crime initiative, the federal criminal justice system has begun to operate more efficiently, by reducing its involvement in low-level criminal activity; more effectively, by targeting the most serious crimes, and more fairly – by ensuring that those who are convicted of crimes receive sentences that are commensurate with their conduct.

Now, some have suggested – since I announced these important reforms – that reducing our reliance on mandatory minimums might negatively impact the ability of our prosecutors to elicit cooperation from federal defendants.  They asserted that, without the threat of a mandatory minimum sentence, a defendant in a drug case would have substantially less incentive to provide information or testimony about others who might be engaged in criminal enterprise.  Some critics even worried that prosecutors would be less able to obtain guilty pleas, and that court dockets would overflow with defendants who might previously have pleaded guilty to avoid a mandatory minimum sentence but suddenly had less incentive to shorten the process. 

I never considered these concerns persuasive.  Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I knew from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence.  With or without the threat of a mandatory minimum, it will always be in the interest of defendants to cooperate with the government.  And I am gratified – but by no means surprised – to announce today that our Smart on Crime approach has been vindicated by the data we’ve gathered. 

Even though mandatory minimums have been charged significantly less frequently under our new policies, the percentage of cases in which we receive substantial cooperation from defendants has remained exactly the same.  This also holds true of the ability of our prosecutors to secure guilty pleas in these cases.  In the year before Smart on Crime took effect, our prosecutors won guilty pleas in approximately 97 percent of drug trafficking cases.  A year later, despite significant reductions in our uses of mandatory minimums, this percentage stands at 97.5.  So the notion that the Smart on Crime initiative has somehow robbed us of an essential tool is contradicted not only by our history – but by clear and objective facts.

This newly unveiled data shows we can confront over-incarceration at the same time that we continue to promote public safety.  Already, in Fiscal Year 2014, we saw the first reduction in the federal prison population in 32 years.  Meanwhile, since President Obama took office, we’ve presided over a continued decline in the overall crime rate.  This marks the first time that any administration has achieved side-by-side reductions in both crime and incarceration in more than 40 years.

All of this progress is remarkable, and all of it is noteworthy.  These concrete results illustrate the tremendous – and very real – promise of the work that Smart on Crime is making possible.  They signal a potential paradigm shift in the way our nation approaches vital questions of fairness and justice.  And in the preliminary data we’ve seen – and the growing, bipartisan consensus surrounding the work that’s underway – they prove unequivocally that criminal justice reform is an idea whose time has finally come. 

Remember: for years prior to this administration, federal prosecutors were not only encouraged – but required – to always seek the most severe prison sentence possible for all drug cases, no matter the relative risk they posed to public safety.  I have made a break from that philosophy.  While old habits are hard to break, these numbers show that a dramatic shift is underway in the mindset of prosecutors handling nonviolent drug offenses.  I believe we have taken steps to institutionalize this fairer, more practical approach such that it will endure for years to come. 

We can all be proud of these efforts, and encouraged by the steps that we’re taking every day to strengthen America’s justice system across the board.  Thanks to the work of my dedicated colleagues; the valor of our brave men and women in law enforcement; the thoughtful leadership of bodies like the Judicial Conference of the United States and the United States Sentencing Commission; and the partnership of Republicans and Democrats in Congress and in so many state governments, the goals and the values of the Smart on Crime initiative have been codified and put into practice at every stage of the criminal justice process – from prosecution, to sentencing, to rehabilitation and reentry. 

The work we have done is nothing short of groundbreaking.  But this is no time to rest on our laurels.  Significant challenges remain before us.  And a great deal of work remains to be done.

Our prisons are still overcrowded.  Across the country, far too many people remain trapped in cycles of poverty, criminality, and incarceration.  Unwarranted disparities are far too common.  Law enforcement is distrusted in far too many places and cops are not appreciated for the tough job they do so well.  And if we hope to build on the record we’ve established so far – and to make the Smart on Crime initiative not only successful, but permanent – it will be incumbent upon all Americans—most especially our Congress—to work together to ensure that all of this is just the beginning.  From critical improvements to the juvenile justice system, to a range of back-end criminal justice reforms, we must continue to advance promising, bipartisan legislation to make our communities safer, treat individuals more justly and allow more efficient use of law enforcement resources. 

Our efforts over the last six years have laid a strong foundation for a new era of American justice.  Congress can help us build on this foundation by passing important, bipartisan legislation like the Smarter Sentencing Act, which would give judges more discretion in determining sentences for people convicted of certain federal drug crimes.  And going forward – with measures like this one, and with the tireless work of our United States Attorneys and their colleagues, the strong leadership of our outstanding new Attorney General and Deputy Attorney General, and the robust engagement of the American people – I believe there’s good reason for confidence in where this work will lead us.

In the coming weeks, as you know, my time in the Obama Administration – and my formal career in public service – will draw to a close.  But even now, as I prepare to open a new chapter in my life – with pride in all that my colleagues and I have accomplished, and deep gratitude for the opportunities I’ve been afforded – I know that, for me, this effort will continue.  Whatever I do next, and wherever my own journey may take me, I will keep seeking new ways to contribute, to remain engaged in the effort to improve our institutions, and to build trust in those who serve them.  And although I will soon leave the Justice Department, I will never leave the work that has become the mission – and the single greatest honor – of my professional life: advancing the cause of justice and building a brighter future for the country I love. 

I want to thank you all, once again, for the opportunity to speak with you this afternoon – and for the work you do every day to strengthen our democracy and inform our national dialogue.  I look forward to your questions.