Deputy Attorney General Sally Q. Yates Delivers Remarks at Harvard Law School on Sentencing and Prison Reform

Thank you for that kind introduction, and for welcoming me here today.  In the two years since its launch, the Criminal Justice Policy Program at Harvard Law School has quickly established itself as a significant force in national reform efforts – shining light especially on the link between the criminal justice system and defendants’ economic status.  We’re grateful for all of the good work that you do.  

In 11 days, the Obama Administration comes to an end.  The change in administrations also marks a personal change for me: the end of my 27-year career in the Department of Justice.  I joined the department in 1989 as an Assistant U.S. Attorney, and I’ve been there ever since.  I’m a career prosecutor.  I believe in holding people accountable when they violate the law and victimize our fellow citizens, and I have sought long sentences, including life sentences, for dangerous people who threaten the safety of our communities.  I became a prosecutor in Atlanta a month after the New York Times called our city the most dangerous in America.  I know the fear that so many people felt, both in Atlanta and in so many other communities across the country.  

But looking back, we can more clearly see problems with the effectiveness and fairness of laws that were passed in response to that crisis.  Said most simply, we can’t jail our way into safer communities.  It takes an equal commitment to prevention and recidivism reduction.  My years with the department have given me the opportunity to see both the strengths of our federal criminal justice system and the places where it needs improvement.  And so as the Obama Era draws to a close, I thought I would use today’s event to reflect on what we’ve done to reform our criminal justice system, and to offer some thoughts on where we go from here.  

Over the last several years, we’ve seen the formation of an unprecedented, bipartisan movement to reduce unnecessarily long prison sentences.  Republicans and Democrats – from the Koch Brothers to the ACLU – have united over a shared commitment to restoring proportionality in federal sentencing policy and to correcting some of the excesses of an earlier era.  This effort has been paired with an equally strong movement to reform our prison system, so that those who do spend time in prison return are equipped with the tools they need to reenter society ready for productive, law abiding lives.  Taken together, we have been moving – haltingly but unquestionably – toward a system that imprisons individuals for no longer than necessary to keep our communities safe and invests in crime prevention through effective recidivism reduction programs.  That is, in my view, the only responsible path forward – a path that protects public safety, reduces unnecessary public spending and ensure the fairness of our criminal justice system.  

In the past, the politics of this movement would have been unthinkable, but we have made progress because Americans are increasingly recognizing that thoughtful criminal justice policies aren’t just the domain of budget hawks and activists:  they actually make our country safer.  The reforms we’ve made – and which we’ll hopefully continue to make in the future – allow the Justice Department and other law enforcement officials to focus our limited resources toward the most serious threats.  Now the goal is to build on those efforts, and ensure that this bipartisan consensus does not dissolve as quickly as it came together.  

But first, it’s helpful to put our current efforts into context and take a step back and see how we got here.  It’s no surprise that our country’s views on crime and punishment have changed over the years, often in tandem with broader trends in our society. 

Things were very different from today in the middle of the last century.  In 1950, the Federal Bureau of Prisons (BOP) housed fewer than 17,000 inmates nationwide.  Nearly half of all inmates entering federal prison were sentenced for property offenses, mostly auto thefts.  There were as many people serving sentences for violations of federal liquor laws – beer-smuggling and moonshine-making – as there were inmates imprisoned for narcotics violations.  And due to parole and probation, most people only spent a portion of their sentence behind bars: the average sentence for someone convicted of a drug crime was less than three years, and even those prisoners typically served less than two-thirds of their sentence.  

There was also an emphasis on rehabilitation.  BOP was in the midst of instituting what at the time were revolutionary changes: establishing new and better ways to classify inmates according to security level, and building housing that encouraged more interaction between prisoners.  Around that time, Congress amended the Youth Corrections Act, which made new services available for juveniles in the federal system.  The following decade, President Johnson signed the Prisoner Rehabilitation Act, making halfway houses and work-study releases available for adult inmates.  

Then things started to change.  In the 1960s, crime rates began to rise.  In 1971, President Nixon declared a “war on drugs.”  By the 1980s, as South American cartels brought both drugs and violence to our shores, politicians and policymakers on both sides of the aisle had firmly linked the exploding drug trade with the rise in violent crime, especially in hard-hit urban areas.  In 1984, Congress tried to bring the crisis under control, establishing federal sentencing guidelines that hit drug offenders with particular force.  They abolished parole.  And then, two years later, they handed the Justice Department a particularly blunt instrument to address the growing drug problem – mandatory minimum sentences – and they ratcheted up the penalties in the following years.  Defendants faced mandatory life sentences for certain drug crimes – not a murder, not a crime of violence – but for drug trafficking alone.  

Now, years later, more and more people are looking back and realizing that the pendulum swung too far in one direction, especially with the focus on lengthy mandatory minimum sentences.  At its most basic, the problem with the structure established in the 1980s is that it linked a defendant’s mandatory minimum sentence to the weight of the drugs involved, often to the exclusion of every other factor, including the dangerousness of the offender.  And while drug weight can be a useful proxy, it can’t distinguish between a cartel boss who needs to be in prison for a long time from the courier who doesn’t.  These laws passed in the ‘80s and ‘90s swept so broadly, and resulted in inmates serving such long sentences, that it began to crowd out resources for other parts of the Justice Department.  The impact was particularly severe within the Bureau of Prisons itself.  Between 1980 and 2013, the federal prison population grew by nearly 800 percent, and BOP now accounts for about a third of the entire Justice Department budget, often costing as much or more than the entire Federal Bureau of Investigation (FBI).  

But even the billions of taxpayer dollars poured into BOP weren’t enough:  federal prisons filled with inmates faster than Congress funded the construction of new facilities or the hiring of new correctional officers.  Stretched thin, BOP was forced to reassign staff from crucial rehabilitative and education services to more traditional patrol duties.  Many institutions were forced to scale back programming for prisoners, resulting in more idle time.  Street gangs expanded their influence inside prisons, and disturbances sometimes turned to riots.  Correctional officers needed ways to control the inmate population, and placing the most disruptive inmates in solitary confinement – also known as “restrictive housing” – was often considered the quickest and most effective solution.  Eventually, the inmate population became too large for BOP to handle on its own, and the agency turned to private contract facilities to house inmates.  This was part of a broader trend toward privatization within BOP, which had already turned over operation of all federal halfway houses to the private market in the early 1980s.  

The rise in the prison population coincided with another important trend:  a decades-long transformation in how the United States treated people with serious mental illness.  In the 1950s, more than half a million Americans lived in public mental hospitals.  In the following decades, the federal government undertook a well-intentioned effort to transition people out of inpatient psychiatric facilities and into community-based treatment centers.  They achieved their goal, at least on paper:  by 1980, there were fewer than 150,000 Americans still living in mental health facilities.  The problem was that Congress failed to fund these community-based centers adequately, meaning that there were inadequate resources for mental health and substance abuse programs nationwide.  In the absence of a strong safety net, many of these individuals found themselves caught up in the criminal justice system.  Across the country, correctional systems began reporting far higher numbers of inmates with mental health issues.  Rather than treating mental health issues on the front end, lawmakers essentially tasked our prison system with managing it on the back end.  It goes without saying that a prison cell is not the best place to treat someone with serious mental illness, and the costs of attempting it put even greater burdens on prisons already stretched to capacity.  

The cumulative effect of these trends was overwhelming – the results of which I now witness every day.  As Deputy Attorney General, I’m responsible for the day-to-day operations of the Justice Department and its $27 billion budget.  That includes not only thousands of lawyers and prosecutors, but also law enforcement agencies like FBI, DEA, ATF and the Marshals Service, the federal prison system, and the grant-making agencies that award billions of dollars every year to support state and local law enforcement.  Unlike most state systems, which have separate agencies responsible for investigations, prosecutions, and incarceration, we’ve got all three under one roof, all governed by a single budget.  Prisons alone now consume nearly a third of that budget, with the possibility of it growing further in future years.  Every dollar we spend incarcerating a non-violent drug offender for longer than necessary for public safety purposes is a dollar that we can’t spend on other emerging threats and a dollar we can’t provide to our law enforcement partners around the country.  In a world with many competing priorities, we are restrained every day by policy decisions made decades ago.  And those decisions are having a serious and negative impact on our ability to protect the public’s safety going forward.      

But the impact extends beyond just dollars and cents.  There is a human cost as well.  When you combine the state and federal systems, over 2.7 million children have a parent behind bars.  Approximately one in nine African-American children has a mother or father in prison.  This cuts deeply into our society.  And when we impose sentences that are longer than necessary for public safety purposes, we undermine the public’s confidence in the fairness of our criminal justice system.  It’s not enough to have a system of justice that holds wrongdoers accountable; it must also mete out punishment in a manner that’s fair and proportional, and that is tailored to the specific facts of each case.  If it doesn’t, we risk losing the public’s faith in their system of justice.  And in the end, that loss of faith could prove costlier to our nation than any amount of money spent on the criminal justice system.  

President Obama understood this, and upon taking office, he appointed an Attorney General, Eric Holder, who shared his commitment to reforming our criminal justice system.  The Department of Justice made extraordinary progress during the past eight years, as the President’s law review article last week described so eloquently and comprehensively.  Rather than try to summarize it, I want to focus on a few key initiatives, and how they’ve affected our prison system.

It’s now clear that the summer of 2013 was an important inflection point.  That year, the federal prison population hit its peak, with nearly 220,000 inmates in BOP custody.  Approximately 15 percent of those individuals – nearly 30,000 inmates – were being housed in privately operated prisons.  On any given day, more than 12,000 BOP inmates were being held in solitary confinement or some other form of restrictive housing.  The agency’s annual operating costs were more than $7 billion and growing. 

In August of 2013, former Attorney General Holder announced his “Smart on Crime” initiative, directing that federal prosecutors focus our limited resources on cases that would have the greatest public safety impact to our communities and decline to charge certain low-level, non-violent drug offenders with crimes that would trigger mandatory minimum sentences.  The following April, department and the president announced the clemency initiative, prioritizing clemency applications for non-violent offenders who would have received a substantially lower sentence if convicted of the same offense today.  And then in July of 2014, the U.S. Sentencing Commission voted to make retroactive an amendment to the federal sentencing guidelines that reduced the recommended length of most federal drug sentences – a policy known as “Drugs Minus Two,” which resulted in tens of thousands of federal inmates receiving reduced sentences.  

These changes reflected an important recalibration in federal sentencing policy.  But they also had an important impact on the federal prison system itself.  For the first time in three decades, the federal prison population started to decline.  As of today, there are fewer than 190,000 federal inmates, down nearly 30,000 from its peak.  The declining prison population frees up capacity at the Bureau of Prisons, and has opened a door for us to undertake reforms that are long overdue.  

This past August, for example, I issued a memo to BOP, directing the agency to reduce and eventually end the use of private prisons.  Private prisons do not provide the same level of services and programs as our own BOP facilities; they do not save substantially on costs; and they do not maintain the same level of safety and security.   The reduction in the overall prison population has allowed us to move quickly to significantly reduce our reliance on private prisons.    

With the inmate population declining, the burdens on correctional officers is starting to ease.  In recent years, we’ve seen a decline in inmate-on-staff violence.  And we have issued new policies on the use of restrictive housing, and the number of inmates in restrictive housing has already been reduced by 25 percent from its peak several years ago.  

Importantly, while there’s still a long way to go, the declining prison population also frees up staff and resources for critical recidivism reduction programming for inmates.  If we are truly committed to public safety, we have to be willing to make long term investments, not just build prisons.  From the moment inmates enter BOP custody, we should be preparing them for their return to society.  We know that more than 95 percent of prisoners will eventually be released, and the way things are now, about one third of federal inmates and about two thirds of state inmates will reoffend in three years. We should be using whatever time inmates spend in our custody to ensure that they have the tools they need to be successful upon their release – tools and opportunities that far too often, they never had in their lives.  That’s why over the last two years, we have made a number of transformative changes within BOP designed to reduce recidivism and strengthen public safety.

For example, one of the most important needs of our inmate population is education.  Research is clear that inmates who participate in meaningful correctional education have 43 percent lower odds of returning to prison than those who do not, and that every dollar spent on prison education saves four to five dollars on the costs of re-incarceration.  Last month, we announced that we are building a semi-autonomous school district within the federal prison system – one that will offer programs for adult literacy, high school diplomas, postsecondary education and expanded opportunities for individuals with learning disabilities.  Today, I’m issuing a memo to the director of BOP implementing these changes and laying the groundwork for expanded efforts in coming years.  Among other things, we’re launching a pilot project at two BOP facilities that will blend in-classroom instruction with online education, using tablets customized for the prison environment.   

We’ve also worked with BOP to overhaul the federal halfway houses, otherwise known as “Residential Reentry Centers,” which provide housing to approximately 80 percent of inmates during the final six months of their federal sentences.  As I mentioned earlier, since the early 1980s, the ownership and operation of these facilities have been fully privatized, with BOP relying on a mix of for-profit companies and nonprofit organizations.  But over time, we realized that this private market wasn’t functioning properly – there were no uniform standards for the operation of these facilities, and BOP was not collecting good data about which halfway houses were performing well and which ones were not.  So last month, we took a number of steps to fix these problems, leveraging BOP’s purchasing power to impose standards, improve outcomes, and strengthen this private market.  

To help us with these and other reforms, BOP retained a number of outside consultants to analyze the agency’s operations and make recommendations, particularly with regards to education, inmate programming, and halfway houses.  The reports were received – from Deloitte, Boston Consulting Group, and the Bronner Group, an education consulting firm – were thorough, candid and incredibly helpful.  While we typically wouldn’t release these types of internal analyses, we decided to post them on our website, so we could help educate others about what we’re doing and, more importantly, what more needs to be done.  They’re all online at justice.gov/prison-reform.

This all leads to an important question:  what comes next?  Fifteen days from now, a new team will be in charge.  It will be up to them to decide what direction our criminal justice system takes.  But here’s why I’m hopeful.  Support for criminal justice reform isn’t limited to Democrats or liberals or any single interest group.  Rather, there is a strong, bipartisan consensus, from both ends of the spectrum and every point in between, that we need to adjust our approach.  And that’s because fiscal realities, public safety and basic fairness demand it.

Our current incarceration levels are simply not fiscally sustainable.  Our prison populations have exploded to the point that we now comprise only 5 percent of the world’s population, yet have 25 percent of its prisoners.  Due in large part to lengthy drug mandatory minimum sentencing and three strikes laws, our country now spends over $80 billion a year on keeping people in federal and state prison.  Even if we wanted to continue down this path, we just can’t afford it.  

Second, diverting so much of our public resources to incarceration is undermining, not enhancing, public safety.  By devoting so much of our criminal justice budget to incarcerating non-violent drug offenders for longer than necessary, we don’t have sufficient resources to address the most serious crime threats facing our communities.  Nor do we have the resources necessary to prevent crime from happening in the first place.  When we do a better job of diverting people who don’t belong in the criminal justice system, and if they do end up there, ensuring that they return to society more prepared – not less – to lead law-abiding lives, our communities are safer.  

Finally, I am hopeful about the future of criminal justice reform because I think that the all the citizens of our country, both Democrats and Republicans alike, believe that our criminal justice system must be fair and proportional.  I saw that every day when I was a line prosecutor and I watched my fellow citizens called for jury duty take so seriously their responsibility to weigh the evidence and determine if we had proved our case beyond a reasonable doubt.  They took pride in our system’s promise of fairness and justice.  As a country, we have the same obligation as those jurors to do everything we can collectively to ensure that our criminal justice system lives up to that promise.    

Each of you also has a role to play in what happens next.  The next generation of public servants is here today in this room and rooms like it all across the country.  Solving our country’s challenges takes passion, determination and a deep commitment to the cause of justice.  So as current and future leaders in a profession dedicated to the integrity of the law, I hope that you will let your voices be heard and that you will demand meaningful change, and most importantly that you will act at every opportunity to effect the changes that are required to make our communities safer and our system more faithful to its core principle of justice.      

Thank you.