Assistant Attorney General Lanny A. Breuer Speaks at the National District Attorneys Association Summer Conference

Thank you for that warm introduction, Scott.  This marks the second year in a row that I’ve had the privilege of addressing the NDAA summer conference, and I’m delighted to be with you again. 

Since we met together in Idaho last year, I’ve been fortunate to develop relationships with a number of you.  I see Jan Scully in the audience, who, along with Scott, visited me at the Justice Department last December.  And I have relationships with others of you, including Cy Vance in New York, who has been doing a terrific job fighting crime in Manhattan.

I value our continuing dialogue tremendously and would be delighted for any of you to call me and visit when you are in Washington.  I believe we have lots to work on together, and I am eager to partner with you wherever we can.  Indeed, I noticed that after lunch today you are scheduled to hear a presentation called, “Dealing with the U.S. Attorney’s Office.”  I’m glad you don’t have one called, “Dealing with the Criminal Division!”

Last year, I raised the issue – familiar to all of you – that we are living in an austere fiscal environment – one that demands that we do more with less.  That demand – at the federal level, as well as in the states and at the local level – remains pressing.  And it shows no sign of lifting in the near future.  Today’s fiscal austerity presents significant challenges for law enforcement. 

This morning, I submitted, along with a colleague, the Criminal Division’s annual report to the U.S. Sentencing Commission.  In that report, we argue that recent reductions in public safety spending mean that the remarkable public safety achievements of the last 20 years are threatened unless reforms are instituted to make our public safety expenditures smarter and more productive.  In short, we are at a crossroads.

Today, I want to talk to you about that thesis.  Over the past 50 years, the United States experienced an extraordinary increase, followed by an equally extraordinary decrease, in the number of Americans victimized by violent crime.  Between 1960 and 1992, according to the FBI’s Uniform Crime Reports, the number of violent crimes in the United States increased nearly seven-fold, from approximately 288,000 to more than 1.9 million.   

The country reacted to this startling increase with a series of far-reaching reforms.  These included increasing the number of police on the streets, committing to reduce illegal drug use and drunk driving, and strengthening efforts to reduce recidivism and promote effective prisoner reentry initiatives.  In addition, the country substantially reformed criminal sentencing policy.  At the federal level, Congress passed the Sentencing Reform Act of 1984, which created a set of federal sentencing guidelines that prescribed specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors.  Many states enacted similar guidelines and determinate sentencing schemes.  Moreover, with these policy changes came significant increases in funding for criminal justice efforts at all levels of government.  According to data from the Bureau of Justice Statistics, state and local criminal justice spending rose from approximately $32.6 billion in 1982 to $186.2 billion in 2006.  Federal criminal justice spending increased even more dramatically, from approximately $4.2 billion in 1982 to $41 billion in 2006. 

The net result of these reforms and investments has been a steep decline in violent crime across the country – essentially the opposite of what occurred in the 1960s, ’70s, and ’80s.  According to the Bureau of Justice Statistics, approximately 10 million Americans were victims of violent crime in 1991, whereas less than half that many – approximately 3.8 million – were victims of violent crime in 2010.  This downward trend has continued in recent years.  Last month, the FBI reported that in 2011 violent crime fell by four percent across the country.  This follows an even larger decrease the year before.  These achievements – for which, as a nation, we can, and should, all take credit – are nothing short of spectacular.  The steep decline in violent crime over the past 20 years is a law enforcement success story worth dwelling on and worth celebrating.

The fiscal climate of the past several years, however, has led to significant cuts in state and local government spending, including on criminal justice initiatives.  At the Justice Department, our budget has remained essentially flat, and we have been operating under a general hiring freeze since January 2011, which means that we are challenged in filling vacant positions for investigators, prosecutors and other necessary law enforcement personnel.  This places additional burdens on current employees and, given natural attrition, means that, over time, our resources will be stretched even thinner.

At the same time that federal criminal justice spending has stayed roughly flat, the number of federal prisoners has increased, and our prison and detention spending has increased along with it.  This has resulted in prison and detention spending crowding out other criminal justice investments, including aid to state and local law enforcement and spending on prevention and intervention programs.  And, even with this disproportionate spending, our federal prison system is over capacity, with 53 percent overcrowding at high-security facilities and 49 percent overcrowding at medium security facilities. 

The combination of flat budgets, and ever increasing prison and detention spending, is at odds with achieving further gains in our nation’s crime-fighting efforts.  Prisons are essential for public safety.  They must be safe and secure, and we must maintain our capacity to imprison those who commit crimes.  But, we must also recognize that a criminal justice system that spends disproportionately on prisons – at the expense of policing, prosecutions and recidivism-reducing programs – is unlikely to be maximizing public safety. 

Our collective challenge, in my view, is to figure out how to control prison spending without compromising public safety, so that we can afford to fund other measures that are proven to lower crime rates, including prevention and intervention programs, and initiatives designed to assist prisoners reentering society with finding employment after they get out.  Indeed, I believe that our ability to increase the productivity of public safety spending of all kinds will largely determine whether we build on the reductions in crime that we’ve experienced since the early 1990s, or whether we see setbacks.

There are no easy answers.  Particularly in a time of declining public safety budgets, striking the right balance between prison and detention spending and other criminal justice spending requires thoughtful solutions. 

The Justice Department recently put forward two legislative proposals that aim to maximize public safety while also controlling prison costs.

The first of these, the Federal Prisoner Recidivism Reduction Programming Enhancement Act, would allow prisoners who successfully participate in programs that have been demonstrated to reduce recidivism to earn an incentive of up to 60 days per year of credit toward completion of their sentence.  Research shows that prisoners who participate in programs designed to provide reentry skills – such as equivalency degree programs, educational programming, and educational and vocational training – are less likely to engage in misconduct while incarcerated, and they demonstrate lower rates of recidivism than inmates who do not. 

This legislation would expand upon an existing statutory provision, which allows inmates to earn early release from prison upon successful completion of the residential drug abuse program, or RDAP.  A rigorous evaluation of RDAP has demonstrated that offenders who participate in the program are16 percent less likely to recidivate than inmates who do not.  The proposal would also provide, however, that no inmate could accrue credit toward service of his or her sentence – through “good time” credits, participation in the RDAP, or other recidivism-reducing programs – in excess of 33 percent of the sentence imposed.

In addition, we have put forward the Federal Prisoner Good Conduct Time Act, which would increase the amount of time a federal prison inmate could earn off his or her sentence, for good behavior, by approximately seven days per year – from roughly 47 days to 54 days.  The decision of whether to award such “good time” credit is, by statute, based upon the prisoner’s compliance with institutional regulations, and takes into consideration whether he or she has made progress in working toward a high school diploma or equivalency degree.  We believe that providing prisoners with clear incentives toward positive behavior – such as “good time” credits – will improve public safety while also having a measurable effect on prison costs.

These are just two proposals.  But, as we told the Sentencing Commission this morning, federal sentencing policy should be reviewed systematically and on a crime-by-crime basis through the lens of public safety productivity.  Looked at through such a lens, it is clear that there are many areas of sentencing policy that can and should be improved. 

Many states of course face similar, or worse, problems of prison overcrowding than the federal government.  There are approximately 218,000 inmates in the federal prison system, whereas there are approximately 2 million people incarcerated in state prisons and county jails across the country.  To help ease the problem of crowding in California, last year the U.S. Supreme Court ordered the state to release thousands of inmates, because, “Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve.”  Regardless of whether you agree with the Supreme Court’s decision, it represents a dramatic effort to help solve one problem:  prison overcrowding in a period of fiscal austerity. 

At the same time that we search for ways to overcome budget constraints, however, we need to continue striving to find solutions that also promote public safety.  The legislative proposals I’ve discussed with you today are designed to do both – reduce prison costs, and reduce recidivism, by encouraging inmates to better prepare themselves for life after prison.

We believe this is smart policy.  It is not in the public’s interest for inmates to reenter society without any skills or while still dependent on drugs.  Because the research shows that such inmates are likely to commit additional crimes and wind up back in prison.  It is better to incentivize them, through modest reductions in their sentence, to gain the skills they will need to become productive members of society.  And, critically, these proposals will save taxpayers many millions of dollars in prison costs.

As a country, we have made enormous gains fighting violent crime over the past 20 years – unprecedented gains.  But, in an era of declining public safety budgets, we are forced to come up with new solutions to the existing crime problem.  That is a challenge we will all face in the years ahead.

As I said last year, and often tell people, the four years I spent as an ADA in New York City right after law school were among the most formative of my career.  I loved working in the DA’s office, and I feel privileged to participate in this conference with all of you today.  Thank you for inviting me again this year.  I wish you a very productive conference.