Deputy Attorney General Jeffrey A. Rosen Delivers Remarks at Wake Forest School of Law

Remarks as prepared for delivery

Good morning.  Thank you Matt Martin for your kind introduction and for your leadership in the Middle District of North Carolina.  We have a really incredible group of US Attorney’s across the nation, including Matt. 

I also want to thank Dean Aiken and the Wake Forest School of Law for hosting this important discussion about public safety, the progress we’ve made, and impediments we face to continuing the positive trend of reducing violent crime.

At the Department of Justice, reducing violent crime is one of our top priorities.  To pursue that goal, I have the good fortune every day of working closely with our law enforcement components and our prosecutors in Washington, DC and all across the country, again including Matt Martin and his team here in North Carolina. 

So let me start this discussion about violent crime with this simple observation:  To understand what works in combating crime, one need look no further than the highly successful efforts of state and federal law enforcement over recent decades.  In the early 1990s, crime reached an all-time high.  Violent crime and murder rates in particular had steadily increased over the preceding decades.  Many major American cities and communities were not safe places to live or work.

In response to this troubling trend, legislatures increased penalties for gun offenders, prosecutors pursued stiff penalties for violent criminals, and the Department of Justice did its part by launching a series of nationwide initiatives to stem the tide of rising crime.  For instance, in 1991, the Department created Project Triggerlock, a highly successful program that vigorously pursued firearms cases by targeting the most-violent offenders.  A decade later, the Department launched Project Safe Neighborhoods or “PSN.”  As a crime reduction strategy, PSN focuses federal and state resources on the most pressing violent crime problems in our communities, and each district develops comprehensive solutions to address them.

A common element of both programs – and really the hallmark of any successful crime-fighting initiative – is cooperation among all levels of law enforcement.  Through such programs, federal, state, local, and tribal law enforcement partnered to identify and prosecute the offenders that were driving violent crime rates.  The results were impressive. 

After reaching a peak around 1993, crime steadily declined for the next 20-plus years.  Violent crime was cut in half.  A study published in 2009 concluded that PSN successfully reduced violent crime with case studies showing reductions as high as 42 percent in certain locations.  

Unfortunately, after decades of improvement, a reversal took place, with stunning increases in violent crime in 2015 and 2016.  Homicides alone increased by more than 20 percent.  Concerned that we were at risk of losing ground, the incoming Trump Administration and the Justice Department snapped into action and returned to tried-and-true strategies for reducing crime.

In his first month in office, President Trump issued a series of executive orders “designed to restore safety in America.”  In response, the Attorney General announced the reinvigoration of Project Safe Neighborhood as a centerpiece of the Administration’s strategy to reduce violent crime.  In October 2017, Attorney General Sessions directed all 93 U.S. Attorneys to implement enhanced violent-crime reduction programs and to reinvigorate partnerships with state, local, and tribal law enforcement.

As recent data shows, the U.S. Attorney community put Attorney General Sessions’ words into action.  They joined with local partners to identify and combat the most significant violent crime problems facing their districts.  Since redoubling our efforts in this way, we have increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration.  The joint state-and-federal efforts have worked, and the objective statistics prove it. 

The FBI recently released its annual crime statistics for 2018, and, for the second consecutive year, the number of violent crimes decreased nationwide.  In 2018, the violent crime rate decreased 3.9 percent from 2017, and the rate for nearly every type of violent crime decreased as well.

The lesson from this recent history is clear:  law enforcement works best when federal, state, and local partners work together to vigorously enforce the law and target violent offenders.

Unfortunately, a dangerous trend is emerging that threatens to blunt the progress we’ve made in reducing crime.  Despite the obvious successes, a small but increasing number of state and local district attorneys have vowed not to enforce entire categories of core criminal offenses as part of a misguided experiment in social justice reform.  From Philadelphia in the East to Dallas in the middle and Seattle in the West, a curtain of non-enforcement policies has descended on some unfortunate cities and counties.

It’s a problem Attorney General Barr highlighted in a speech to the Fraternal Order of Police in August.  There, he spoke of “the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

The radical decriminalization policies these social-reform DAs have publicly announced and implemented are truly shocking when they are made transparent.  Despite a decade of record-level drug overdose fatalities, whole categories of drug crimes, including several distribution offenses, are being ignored and not enforced.   Likewise, criminals who commit theft below certain thresholds, such as below $500, are given a free pass.  In several jurisdictions, reform DAs have effectively decriminalized prostitution, making it more difficult to fight human trafficking.  If those weren’t surprising enough, social-reform DAs have announced that the categories of malicious destruction of property, and shoplifting, will go unprosecuted.  The same with regard to criminal threats.  Even offenders who resist arrest and assault law enforcement officials are skating prosecution under these DAs’ non-enforcement policies.  

At the Justice Department, we emphasize working closely with our state and local law enforcement colleagues.  But I am concerned that these social reform DAs are falling down on the job.  A prosecutor’s duty is straightforward — enforce the law fairly and impartially and keep the public safe.  By refusing to prosecute basic offenses, social reform DAs are failing to fulfill that vital obligation.  No society can have justice when stealing has been effectively licensed, open-air drug markets are allowed to flourish, and neither victim nor police officer trust that those who break the law will be held accountable. 

Tragically, at a time when the rest of the country is once again experiencing historic reductions in crime, social reform DAs risk endangering public safety, and crime rates in their communities will inevitably rise.  In one city not that far from here, for example, there has been a four percent increase in the violent crime rate and a 18 percent increase in the murder rate, as compared to this time last year since appointment of their social reform district attorney. 

Not only will these non-prosecution strategies inevitably make communities less safe, they also undermine our constitutional system of separation of powers.  It doesn’t take a law degree from a fine institution like Wake Forest to understand the principle that the legislative branch writes the law; the judicial branch interprets the law; and the executive branch enforces the law.  District attorneys, of course, are part of the executive branch, responsible for enforcing the law.  By refusing to prosecute broad swaths of core criminal offenses, social-reform DAs are ignoring duly-enacted laws in favor of their own personal notions of what they think the law should be.

Several of these DAs aren’t even trying to hide this power grab.  Earlier this year, in an op-ed in the Washington Post, a trio of reform prosecutors openly defied the separation-of-powers principle.  These prosecutors, who swore an oath to uphold the Constitution, proclaimed that they “don’t see the role of prosecutors elected by their communities through this narrow lens” and “proud[ly]” rejected “legislative decisions” they found “troubling” in light of their own personal views.

Now, with regard to these DA’s personal policy preferences, let me turn briefly to the issue of prosecutorial discretion.  There is no question that prosecutors have discretion to decide what cases to prosecute and how to spend their limited resources.  But these DAs are not making individualized decisions based on the facts and circumstances of particular cases.  They are predetermining whole categories of offenses for non-enforcement.  They are effectively legislating through inaction.  And the offenses they are unilaterally striking from the books are not antiquated or rare; they are basic criminal laws directed at maintaining public safety.  These DAs’ decriminalization strategies go far beyond prosecutorial discretion and fly in the face of the fundamental concept that no one part of the government exercises total control of our legal system.  If you believe in the rule of law, that is a problem.

As concerning as that is, it is not the only problem.  Another real tragedy of the social reform DAs’ non-prosecution strategy is its lack of respect for victims.  The refusal to enforce entire categories of criminal laws ignores the often tragic harm exacted upon innocent victims. 

Take the recent case of a woman, who happened to be a lawyer, who was brutally assaulted while walking her dog.  The would-be attacker mistakenly thought the woman was recording him while he and his brother smoked marijuana.  His response was to attack the woman, knocking her to the ground and sending her dog flying.  The woman suffered a skull fracture among other injuries and was left unconscious.  Bystanders bravely held the attacker down until police arrived to arrest him.  The effects of the attack have been long lasting.  The victim is reportedly still coping with speech and vision impairments as well as hearing loss as a result of the brain trauma she suffered.

When it came time for the violent defendant to face justice, the self-proclaimed social reform DA apparently focused on something other than the evidence and the legal elements of the crime.  This DA has publicly stated that she considers it her responsibility to “represent not just the victim, but the defendant and the community.”  Think about that: she says the prosecutor is to represent the defendant.  In this case, rather than pursue a felony conviction, she allowed the defendant to plead guilty to a misdemeanor and recommended a suspended sentence and one year of probation.  According to public reports, the victim “begged” prosecutors not to cut the deal, which she called ‘flagrant, appalling, and disgusting,’ in an e-mail to the prosecutor.

Victims deserve better.  They deserve public officials who will consider the individual circumstances of their case and seek real justice in accord with the laws that are on the books.     

So now let me turn to another angle that is sometimes raised to justify refusals to enforce existing laws.  Some suggest that extreme non-prosecution policies are necessary to fix what they describe as a “broken” criminal justice system.  But why are we to assume that the system is not working?  Violent crime rates in 2018 returned to near historic lows.  And, according to a recent Bureau of Justice Statistics report, national incarceration rates have likewise fallen 13 percent over the last decade to a 20-year low.  And it should never be forgotten that the individuals who are in prison are there only after they were individually convicted of crimes, either by plea or after trial.  While there can be individual cases that deserve further attention or redress, it is a fallacy to focus solely on the number of people in prison, as though they were rounded up en masse, which is not the case.

Some have argued that recent criminal justice reform legislation like the First Step Act represents a repudiation of historical law enforcement practices.  Not so.  There was wide bi-partisan support for the First Step Act.  Among other things, that legislation focuses on reducing recidivism, to help prevent future crimes.  The Department of Justice and our Bureau of Prisons have made implementing that legislation a priority, as Attorney General Barr and I have both emphasized

Let me give you a few illustrations:  In addition to sentence reductions that have resulted in the release of more than 4,700 inmates, we have updated policies for inmates to obtain “compassionate release,” and since the Act was signed into law, 107 inmates have received compassionate release, compared to 34 in 2018.  We launched a pilot program that has allowed over 260 elderly or terminally-ill inmates to transition to home confinement.  We have further individualized drug-treatment plans, so about 16,000 inmates are now enrolled in recovery programs.  And to reduce recidivism, we are advancing re-entry programming to help past offenders find work and relaunch their lives. 

But here is the key point about these improvements from the First Step Act:  It is only because of the success of the law enforcement approaches of the last several decades that we had the opportunity to consider and implement these improvements to the criminal justice system.  And a key part of fighting crime and protecting victims is helping to make sure that when these prisoners are released – as many of them will be, after serving their sentences – we give them the best possible chance at not re-offending.  It’s about public safety, plain and simple. 

It is only because we are strong on fighting crime and protecting victims that we can take the step of trying to help the offenders as well.  Keep in mind that federal prosecutions for violent crime are way up since the start of 2017.  So what this shows is that we can have a system that both vigorously pursues meaningful penalties against those who commit crimes, but also ensures that offenders who demonstrate rehabilitation are given a second chance.  

This kind of balance does not figure into the narrative pushed by social-reform advocates, which is often accompanied by harmful rhetoric that denigrates law enforcement and undermines the rule of law.  And that is another part of the problem with regard to prosecutors who don’t want to enforce basic laws, and who denigrate what law enforcement has accomplished.  When social reform DAs do that, they are sowing the seeds of mistrust by demeaning the very institutions they are supposed to lead.  They are flipping the script by casting criminals as victims and police as villains.  These false claims are demoralizing and foment hostility toward law enforcement.   

At one leading social-reform DA’s election victory party, supporters went so far as to chant profane anti-police slogans in celebration.  This divisive behavior is damaging to public safety and the public trust. 

The good men and women of law enforcement put their lives on the line for modest pay to keep our communities safe.  Decriminalization policies prevent them from doing their jobs, and fail to respect the risks they take to pursue violent criminals.  Such policies embolden offenders who believe they can harass or even attack police with impunity. 

Unfortunately, we’ve already begun to see examples of this.  In one major city, officers are being pelted by plastic buckets and doused with water in a string of incidents that display a total lack of respect.  Even more concerning, according to recent FBI analysis, “[d]ata has shown an increase in ambushes on our nation’s law enforcement officers.”

I am deeply concerned when I hear that some police departments have suffered harms to morale and officers are leaving the force as a consequence of these DAs’ peculiar policies.  Moreover, several social reform DAs have ousted large numbers of career prosecutors as part of their first acts upon taking office.  Those cast aside include experienced former leaders with years of service to their communities.  To ensure that qualified men and women continue to answer the call to serve, we must ensure that such actions are not based on false premises about what works and what doesn’t. 

Finally, let me address one other aspect of the non-enforcement policy problem. Some defenders of reform DAs claim that the non-prosecution strategies merely reflect the will of the communities that elected them.  If that were so, one wonders why those communities’ legislators would not simply change the laws to reflect their constituents’ views.  Indeed, one reason greater transparency about these non-enforcement policies is warranted is that it is far from clear that the public knows and wants prosecutors to tolerate crimes like burglary and theft without enforcement. 

Do you think Americans really want prosecutors who won’t enforce whole categories of laws?  It can be hard to overlook that some of these social reform DAs were elected in low-turnout primaries backed by unusual funding from out-of-state ideological advocates.  But elections are up to voters, so I do not mean to address any individual jurisdiction or any particular DA; my question is what kind of system will we have if our laws are simply to be ignored?  And I am especially focused on the problem that non-enforcement policies present to the goal of continuing to reduce violent crime and make our communities safer.  

That is why it is important to bring attention to the impact radical decriminalization policies have on victims and public safety.  We have achieved important crime reductions nationwide since the beginning of 2017, but that can vary in individual cities or counties.  So now is not the time to retreat from what works. 

The Department of Justice will continue to do what works.  But more than three quarters of all law enforcement resources nationwide are state and local, so the federal government lacks the ability to step in and fully fill the hole created by social reform DAs’ non-prosecution strategies.  To sustain our momentum at reducing crime, state, local, and federal partners must work hand in hand to fight violent crime.  I am pleased to say that cooperation is occurring in most of America.  I hope we will have strong partnerships everywhere.

Those of us who work in the Department of Justice know that it is a privilege to be entrusted with the awesome and humbling responsibility of enforcing the law.  We understand that along with that responsibility comes an obligation to faithfully and vigorously defend the rule of law.  I hope that some of you who are here today will feel the call to public service.  As lawyers, public or private, all of us have a duty to promote the rule of law.  That is the reason for my visit.  Thanks again to Dean Aiken and the Wake Forest Law community for the opportunity to speak here today.