Sally Yates Delivers the 2017 Philip A. Hart Lecture at Georgetown Law
November 2, 2017
On November 1, 2017, Former Deputy Attorney General and Acting Attorney General Sally Yates delivered Georgetown Law’s Philip A. Hart Memorial Lecture: “Criminal Justice Reform: How We Got Here, Why We Need It, and the Path Forward.” Read the full transcript below.
JOHN MIKHAIL: Good afternoon. I’m John Mikhail, associate dean for research and academic programs here at Georgetown Law. It’s my pleasure to welcome you to this here’s Hart Lecture. It’s named for Phillip Hart, who served as a United States senator for the State of Michigan from 1959 until his death in 1976. Senator Hart graduated from Georgetown University and then went on to receive his law degree from the university of Michigan law school. He was known for his strong support of civil rights, as well as consumer and environmental protections. In 1964, Senator Hart served as deputy to Senator Hubert Humphrey, who was the floor leader of the effort to pass the 1964 Civil Rights Act. The following year, Hart himself served as floor leader and chief strategist of the Voting Rights Act, bringing the Bill to passage after six weeks of filibuster. Because of these activities and his strong political convictions, Senator Hart was known as the conscience of the Senate. Among his many honors, one of the Senate office buildings here in Washington DC is named after him.
JOHN MIKHAIL: As your program indicates, over the years, we’ve had a remarkable list of scholars and public figure give the Hart Lecture. This year is certainly no exception. We’re honoured to have Sally Yates with us today to deliver this year’s Hart Lecture, and I will now turn the microphone over to Dean Treanor, who will introduce her to you.
DEAN WILLIAM TREANOR: Well, thanks very much, John. I just want to recognize John Mikhail for having done such great work in putting together today’s event. Round of applause for John.
DEAN WILLIAM TREANOR: And even though they’re not in the room, Chris Hammer and our special events team. They really also did have a fabulous job. Kudos to them as well.
DEAN WILLIAM TREANOR: So as you just heard from John Mikhail, this is the Hart Lecture, named after Senator Philip Hart. We’re in the Hart Amphitheatre, named after Senator Philip Hart. So weed a Georgetown Law are all in on Phillip Hart.
DEAN WILLIAM TREANOR: And the reason why we’re honouring him, really in these two powerful ways, is exactly the reason identified by John, which he was known as the conscience of the Senate. And he really embodied what this law school is about. You know, he distinguished himself as someone of deep personal conviction and integrity. He took stands on issues, even when they contradicted, they were deeply at odds with his own political self-interest. And this year’s lecturer, Sally Yates, we’ve had many, many Hart Lectures but I’m just particularly honoured to be recognising Ms Yates today, because she embodies the same values of conscience and conviction that senator Hart championed. So welcome to Sally Yates.
DEAN WILLIAM TREANOR: Not yet. Not yet. So I could call to you the stage now but I’ve got a speech…
SALLY YATES: Not so fast.
DEAN WILLIAM TREANOR: Not so fast. So after she graduated from law school, Sally practiced litigation. President Obama nominated her to be US Attorney, and upon her confirmation, she was the first woman to hold that position in the northern district of Georgia. And as a path breaker, you’re following in family footsteps, because your grandmother was one of the first women to gain admission to the Georgia bar.
During her time as US Attorney, Ms Yates prosecuted a wide variety of white-collar and public corruption matters. She was, among other things, the lead prosecutor in the case against Olympic bomber Eric Rudolph. She was also appointed to serve as vice chair of the Attorney-General’s advisory committee. She was appointed deputy Attorney-General in the Obama administration in January 2015 and served in that position through January 2017.
As deputy Attorney-General she was responsible for the day-to-day operation of the department, overseeing all facets of the department’s work, including foreign law enforcement — four law enforcement agencies, the department’s prosecutorial litigating, national security components and the federal bureau of prisons. She also spearheaded changes at the department focused on criminal justice reform. As somebody who worked in the Department of Justice and has many friends who still work there, I just heard again and again what an impact you made in that area.
A few notable accomplishments during her tenure as deputy AG. She authored the policy known as the Yates memo, which prioritized the prosecution of executives for corporate crime. Believing that “the Department of Justice has a responsibility to do everything we can to ensure that our criminal justice system is fair and impartial”, she implemented implicit bias training for all the department’s 23,000 law enforcement agents, and 6500 prosecutors, directing the federal bureau of prisons to phase out the use of privately funded prisons, and exploring the link between federal prison reform and sentencing reform.
And as everyone knows, Ms. Yates briefly served as acting Attorney-General and was dismissed by the Trump administration after ordering the Justice Department to not enforce his first travel ban. Very courageous step.
And we’ve just been honored this semester to have Sally or Ms Yates join our faculty as a distinguished lecture er from government and I have to say, her involvement has really been extraordinary. She’s been incredibly involved member of the community, guest lecturing in numerous class, attending alumni events and hosting weekly lunches with small groups of students and we had 600 people signed up for today’s event. So you are our Hamilton.
SALLY YATES: I can’t sing!
SALLY YATES: And your time here, you have embodied the goal of today’s Hart Lecture, to promote continued dialogue at Georgetown Law. So it’s my pleasure to welcome Sally Yates to give this year’s Philip A. Hart Memorial Lecture, criminal justice reform, how we got here, why we need it and the path forward.
SALLY YATES: Thank you. Thank you very much. Thank you for that incredibly generous introduction. I’m glad I sat back down. I would’ve hated to have missed that.
SALLY YATES: I also want to thank you for inviting me to be part of the Georgetown community, and to thank all of the faculty and students here who have been so welcoming to me.
This is a remarkable place. And you have opened your arms wide for me and I really appreciate that and have been loving every minute of this.
I’m particularly honored to be here today to deliver the Hart Memorial Lecture. As I thought about what to talk about here today, I considered the namesake of this lecture and I went back and I read accounts of senator Hart from his day and red his obituary in the New York Times. It was clear from that that he was universally revered, not as somebody who was out there grabbing a lot of headlines or for fiery rhetoric but for really his unshakeable integrity and his commitment to justice.
And when I read in the New York Times about his being known as the conscience of the Senate, and it noted that this really was not a description that was conferred lightly for an institution of, as they said, a hundred generally larger than average egos.
SALLY YATES: And I also read that of all the work that he was involved in throughout his career, the work that he was most proud of was the behind the scenes work that you mentioned there. His behind the scenes work to shepherd, really critical civil rights legislation through, the Civil Rights Act of 1964 and the Voting Rights Act and so as I thought about senator Hart, I couldn’t step but wonder what he would think about our criminal justice system today. What would he think about a system where the prison population has exploded in our country to now imprison over 2. 2 million Americans, at a cost of over $80 billion a year.
What would he think about a system that too frequently relies almost exclusively on prison, when there are other alternatives there, where there’s treatment or other alternatives that would be more effective? What would he think about a system that has laws that sometimes require disproportionate sentences, sentences that not only keep people imprisoned than longer than is necessary for public safety but then also shatter families and communities and breed distrust in our criminal justice system?
What would he say about all of that? And even more importantly, what would he DO? And so as I thought about how I would spend my time here today, I thought I would talk a little bit about why I believe that criminal justice reform is so essential.
A little about how we got to the place that we are today, and why, despite the fact that this administration has a very different perspective on criminal justice reform than I did, why I don’t think criminal justice reform is dead. It may be on life support, but I don’t think it’s dead
Now, criminal justice reform itself, it’s a really broad topic. It includes a whole lot of facets. But given the limited time here today, I thought I would focus on two important and interrelated components of criminal justice reform, and that is, overincarceration. Too many people being imprisoned for too long. And also, the issue of prison reform. How we will use an inmate’s time while he or she is in prison to ensure that they have just the basic tools that they need to be able to be successful when they’re released from prison.
Now, I’m going to acknowledge to you right out of the gate here, I might seem like an unlikely advocate for criminal justice reform. I was a career prosecutor for over 27 years, as US Torn in Atlanta and then later as deputy Attorney-General. I believe in holding people accountable when they violate the law.
I have sent people to prison through my prosecutions for long sentences, sometimes even seeking life sentences when those individuals were dangerous and threatened the safety of our communities.
But it’s precisely because I was a prosecutor and not in spite of that, that I believe so strongly in our need for criminal justice reform. It’s because I was a prosecutor that I know that it’s vitally important, both for the safety of our communities and the fairness of our criminal justice system.
I became a prosecutor back in 1989, at the risk of really dating myself, back in 1989, and this was at a time when the New York Times had just named any hometown of Atlanta as the most dangerous city in America. Violent crime rates were through the roof and people all across this country were scared.
In response to that fear, many States and Congress then adopted really draconian drug sentencing law, what they called three-strikes laws then. But looking back now, we can see that the policies that they put in place to address crime went too far. And they resulted in far too many people being imprisoned for too long.
So exactly where are we today? Let’s take a quick look at what the numbers are. We have more people in prison than any other country in the world. We have only 5% of the world’s population, but over 25% of its prisoners.
We have a higher incarceration rate in the United States than they have in China. And more people in prison in the US than the top 35 European countries combined.
It hasn’t always been this way. Back in 1980, there were only half a million people in prison in the United States. Today, as I mentioned, it’s 2. 2 million. One out of every hundred Americans.
Now, during this time, from 1980 to today, the federal prison population alone has grown by over 700%. And today, as a country, we spend over $80 billion a year to keep people in prison. But beyond the dollars and cents, our incarceration levels have a dramatic impact on our families as well. Over 2. 7 million children in the United States have a parent behind bars. One in nine African American children have a mother or father in prison. This cuts really deeply into our society.
Well, how did we get here? In the middle of the last century, things were really very different than they are today. In 1950, the federal bureau of prisons housed fewer than 17,000 inmates nationwide. All across the country, only 17,000. Nearly half of the people that were in prison back in 1950 were there for property crimes, mostly car thefts. And we had just as many people in prison back in the 50s and 60s for violation of our liquor laws as we did for drug violations. Moreover, because then we had parole and probation in the federal system, most people really only served a portion of the sentence that they received. The average sentence for someone convicted of a drug crime back then was about three years. And the individual usually only served about two-thirds of that.
Now, it was kind of surprising to me to learn that there was actually an emphasis on rehabilitation in the federal bureau of prisons at that time. BOP was in the midst, the federal bureau of prisons was in the midst were instituting what were at the time some revolutionary changes in the prison system. They were establishing new and better ways of classifying inmates, based on their security level, and they were building facilities that would encourage interaction among inmates.
They began making new services available for juveniles that were in the federal system, and Congress then passed the Prisoner Rehabilitation Act, making halfway houses, which are essential in those months after a sentence, making halfway houses and work study programs available to federal inmates.
But then things started to change. In 1971, President Nixon declared a war on drugs. By the 1980s, as the South American drug cartels brought more drugs and violence to our shores , politicians and policy-makers on both sides of the aisle had firmly linked the exploding drug trade with the rise in violent crime, particularly in our hard-hit cities. And against this backdrop, policy makers all across the country, States and Feds enacted harsh drug sentencing laws, and recidivist enhancements, known as three-strikes laws that. On top of that, in 1984, Congress established the federal sentencing guidelines that hit drug offenders with particular force, and then they abolished parole. And then two years later, in 1986, they handed the Justice Department a particularly blunt instrument – a blunt instrument to address the growing drug problem that we had in our country, and that was mandatory minimum sentences.
And then they ratcheted up the penalties in the years after that, 10 to 20 years and sometimes even life for a drug-trafficking crime alone. Not murder, not a crime of violence; just drug trafficking.
As a result of all of this, there was an absolute explosion in the federal prison population, sending some non-violent drug offenders to prison for decades.
Now, today, more and more people are recognizing that, back in the 80s and 90s the pendulum swung too far in one direction. The stated congressional purpose, if you go back and read the legislate tiff history of these mandatory minimums, the stated congressional purpose was to address the newly emerging South American drug cartels and the leaders of those cartels who were responsible for bringing vast quantities of drugs to our country.
But looking back, these laws cast too broad a net. And that’s primarily because mandatory minimums focus almost exclusively on one factor, and that’s drug quantity.
This one factor really, almost to the exclusion of all other factors, including the dangerousness of the defendant, and while drug quantity can be a useful proxy, it really can’t distinguish between the cartel leader, who needs to be imprisoned for a long time, versus the courier, who doesn’t.
And as a result of this, we ended up having far too many individuals doing more time in prison than is necessary to punish and deter, and instead, in the words of former Attorney-General Eric Holder, sometimes instead, we would merely warehouse and forget.
Now, this isn’t just theoretical stuff. Think about, for a moment, an example of a case that I reviewed as part of the clemency initiative. This was an individual who had a sixth grade education yet he served in the army and was honorably discharged. He told crack on the street in a case that probably wouldn’t even be prosecuted federally today. There was no gun or violence involved in his off fence. There’d been no gun or violence involved in his history. Yet he received a mandatory life sentence because he had two prior street-level drug sales, one of which was for an ounce of cocaine. He had two prior convictions for street-level drug sales.
Now, do I think that he should be prosecuted and punished for this offense? Yes, I do. Do I think they should die in prison for it? No.
Not only are some of these sentences unjust, but over-incarceration makes us less safe, not more safe. As I mentioned a minute ago, our country is spending over $80 billion a year on incarceration alone. DOJ’s prison and detention costs have increased exponentially over the last few decades, to now account for between a quarter and a third of the entire DOJ budget. And when I talk about the DOJ budget, as Dean Treanor told you, that includes not just prosecutors and laws all over the country, it includes the FBI, the marshal service and importantly the grant-make departments that we had that make grants to State and local law enforcement. To be able to put cops on the street.
It’s now between a quarter and a third of that entire budget is going to the bureau of prisons. Well, this comes with significant public safety consequences. Because every dollar that we spend keeping a non-violent drug offender in prison for longer than he or she needs to be there, for public safety purposes, is a dollar that we don’t have to be able to pursue the really emerging and serious crime threats we’re facing in our country, everything from cyber crime to terrorism, we don’t have that money.
It’s a dollar that we don’t have to support State and local law enforcement, and really importantly, it’s a dollar that we don’t have to invest in meaningful prevention and prisoner re-entry programs.
Our focus has got to be on how to best and most effectively use our limited public safety dollars. And with the cost of our prisons now accounting for such a large percentage of our DOJ budget, it’s crowding out other work that’s really essential for the public safety of our communities.
But beyond enforcement, if we’re really serious about building safe communities, if we’re really committed to justice as a country, we have to be willing to invest in preventing crime before it starts.
We have to be willing to invest in breaking the cycle of generational lack of access to educational student and economic student.
We have to be willing to invest in giving individuals who are in prison the tools they need to be able to be successful when they ultimately leave prison. Because until we are willing to invest in preventing crime and building prisons, until we are as willing to do that, our communities will never be as safe as they could be, nor will our system be as just as it should be.
And nowhere is this more evident than in somehow our over-reliance on incarceration has drained resources from meaningful rehabilitation programs while in prison. One of the most important things we can do is ensure these individuals have the tools they need to be successful. Now, this isn’t just a social justice imperative. Back in the 60s and 70, we were actually headed in that direction, but as our prison population began exploding in the 80s, prisons were filling faster than we could build new ones or that we could hire staff. BOP began reassigning from rehabilitation work to more traditional patrol duties. Many of the institutions, because of these budget constraints, were forced to scale back on programming for prisoners that resulted in more idle time for prisoners.
Street gangs then increased their influence inside prisons, and disturbances then sometimes turned to riots, and prisons began using solitary confinement then, which is known as restrictive housing as the quickest and most effective way to control inmates.
Eventually, the BOP population became too large for BOP to handle on its own, and the agency then turned to private for-profit prisons to house federal inmates. As if all of that weren’t enough on its own, this all coincided with another trend, a decades-long transformation in how our country treated people with serious mental illnesses.
Back in the 1950s, there were half a million people in the United States living in mental institutions. And in the following decades, the Federal Government undertook a very well-intentioned effort to transfer individuals out of these mental hospitals and into community treatment centers.
They achieved the goal, least on paper, because bay 1908, there were fewer than 150,000 Americans in mental hospitals. The problem was that Congress failed to adequately fund these community treatment centers, meaning that there were inadequate resources for mental health professionals and substance abuse professionals nation wade, and in the absence of a strong safety net, many of these individuals who were released from mental hospitals, and who didn’t have community treatment, found themselves caught up in the criminal justice system, and all across the country, correctional systems began reporting far higher numbers of inmates with serious mental illness.
So rather than treating mental health issues on the front end, Congress essentially left it to our prison systems to try to manage it on the back end, and I think we all would agree that a prison cell is probably not the best place to be treating someone with a serious mental illness.
The cumulative effect of all of this was really overwhelming. So during the Obama administration, we initiated what were some important reforms, and I think that we made some real progress in these areas. Progress to recalibrate our sentencing and reduce our incarceration levels and to address the needs of individuals who were leaving prisons.
While we fought hard for federal sentencing reform, in the absence of congressional action, we changed the charging policies at the Department of Justice. Attorney-General Holder instituted what you may have heard was known as the Smart on Crime initiative, that was focused on ensuring that federal prosecutors were using our limited resources to have the greatest public safety impact in our communities, and directing prosecutors not to charge certain lower-level non-violent drug offenders with plant tree minimum sentence, and as a result, the use of mandatory minimums went down 20%.
Through the clemency initiative, an initiative that I oversaw during my two years as DAG at DOJ, the President commuted the sentences of over 1700 non-violent drug offenders who were serving sentences that were longer than they would’ve received had they been prosecuted today, people like the veteran I mentioned a moment ago. The sentencing commission reduced the guidelines for drug sentencing and made it retro-active. An action that I would note was passed unanimously in the Sentencing Commission by all the Democrats and Republicans and it then resulted in tens of thousands of drug offenders receiving reduced sentences.
These changes reflected a really important recalibration in the federal sentencing policy, but they also had a really important impact on the federal prison population, because for the first time in decades, the federal BOP population actually went down from 220,000 to 190,000 by the end of the administration.
And while recalibrating these sentencing and decreasing the prison population is important, it’s obviously not a complete solution.
Given that 95% of the people who were in prison will eventually be released, we know that we’ve got to do everything we can to maximize the chances that these individuals are successful, but the way that we’re doing things now in our country, about a third of the individuals leaving the federal system and two-thirds of those leaving state systems will reoffend within three years.
So with our declining prison population, we instituted a number of what we believed were important reforms to our prisons. The first thing that we did was we brought in a group of outside experts to take a look at how are we doing things in the Bureau of Prisons and to look at the educational programs and the programming that was there, the vocational education that we had there and our halfway houses. To be experts to come in and take a look at what we were doing right and what we were doing wrong and to make recommendations about how we could best address those shortcomings.
And in the interests of being transparent, we put those reports on the DOJ website, so that anybody and everybody can see what the state of affairs is. And from that, we initiated some critical reforms at the Bureau of Prisons. I will hit a couple of these briefly for you now. For example one of the most important things we can do within a prison is to ensure that the inmate population has meaning. Opportunities for education.
The research is really clear that inmates who engage in serious educational programs in prison are 43% less likely to reoffend. And that every dollar that we spend on education in a prison saves four to five dollars later on the cost of re-incarceration. But we discovered that the only education program that was consistently available to inmates throughout the Bureau of of Prisons was a GED prep program. And even that program had thousands of inmates on a waiting list.
So we began the creation of what was essentially a semiautonomous school district within the Bureau of Prison, one that would offer high school diplomas, since we know that that’s a lot more beneficial for being able to get a job, one that would offer high school diplomas for inmates, that would provide more opportunities for inmates with learning disabilities, post-secondary education. It was built around the system that our school systems use now, such that each inmate would have an IEP, an individualized education plan, that would assess the needs of that inmate and have a plan that would follow him or her throughout their time within the Bureau of Prisons.
We also worked with BOP to revise the programming so that they weren’t just providing the same programs across-the-board to every inmate, whether that inmate needed it or not, but rather, would link that programming to the individual needs of the individual inmates.
We revamped the vocational training program at the Bureau of Prisons to ensure that we were providing opportunities that would be meaningful in today’s job markets.
And, importantly, we initiated some significant changes in the federal halfway house program, which as I mentioned earlier, houses inmates in that critical six months when they’re making the transition from prison back into societies. Some really important changes to make sure that they were getting the services that they needed to be able to be successful.
And then finally, we issued a directive, as Dean Treanor mentioned, to reduce and ultimately end the use of private for-profit prisons in the federal system, because we concluded that they simply were not operating at the same in safety or services as the federal system – the BOP facilities were.
Some of this work was completed while we were there; some of it was in the works. But all of it – all of it – was developed and instituted to build safer communities by reducing recidivism.
But that was then. So what happens now?
There’s still so much more work that needs to be done in criminal justice reform across-the-board. But this administration sees things very differently than we did, and the Justice Department is already rolling back many of the prison reforms, for example, that I just described. In fact, one of the earliest actions that was taken was to revoke the directive on private prisons, presumably to make room for more drug and immigration defendants.
And on the enforcement side, Attorney-General Sessions quickly revoked the Smart on Crime charging policy with respect to mandatory minimums.
So given this different approach at DOJ, does this mean that criminal justice reform is dead? I don’t think so. Primarily for three reasons. First, criminal justice reform is not just a cause of progressives on the left. It is one of the few issues that we have today, one of the very few, where there is a broad bipartisan consensus that we have to change the way that we’re doing things today.
You got everybody from the ACLU on the left to the Coch brothers on the right who have come together to demand this change. And that’s why you saw, for example, the sentencing reform Bill that was introduced last year had an equal number of Democratic and Republican co-sponsors and the Bill was that introduced just a couple of weeks ago, likewise, had an equal number of Democratic and Republican co-sponsors.
When we look across the broad spectrum of people who are calling for criminal justice reform, I think we have to recognize that some people are coming at this for different reasons. Some people, it’s purely fiscal; that, you know, even if we wanted to keep incarcerating people at these same levels, we just simply can’t afford to do this.
Some folks come at it from a faith or a redemption perspective. Some from a social justice perspective, that our current system imposes disproportionate prison sentences that are just unfair and some for a combination of these reasons. I don’t really care what your motivation is or what gets you there; the important thing is that we get there.
Because all across the country, liberals and Conservatives and Democrats and Republicans and fiscal hawks and social activists that are demanding a system that imprisons for people for no longer than public safety and important invests in rehabilitation and prevention to keep our community safe.
I’m also hopeful because more and more law enforcement leaders across the country are calling for reform too. Just three weeks ago, I participated in a summit of law enforcement leaders from all 50 States, and when I say law enforcement leaders, I’m talking about police chiefs and sheriffs and prosecutors State and federal, and individuals from State AG’s office. This was a group aptly named Law Enforcement Leaders to Reduce Crime and Incarceration. And it represents the people who were literally putting their lives on the line every day to keep us safe.
And they were urging that we’ve got to employ more effective alternatives to incarceration. That we’ve got to enact sentencing reform to recalibrate our sentencing, that we’ve got to bolster the relationship between law enforcement and the communities that they serve through community policing.
These are cops telling us this. We need to be listening to it.
And finally, I’m hopeful because of what’s going on at the State level. All over the country, red States and blue States alike are embracing criminal justice reform. Not just States like California, New York and New Jersey, where you might expect it; but also, States as varied as Texas and Ohio and North Carolina and my home State of Georgia. 30 States have already passed meaningful criminal justice reform measures, everything from drug courts and alternatives to prisoner re-entry initiatives.
By way of a quick example – Texas. Not exactly a hotbed of liberal ideas, it was one of the earliest States to adopt really important reform measures reducing its incarceration level there by over 14%.
Rather than investing about half a billion dollars to build three new prisons, they invested that money in prison re-entry and rehabilitation and you know what happened? Not only did they not need to build those three new prisons; they actually got to close three existing prisons that they had, because their incarceration levels went down, and they went down while State as a whole across-the-board has the lowest crime rates it’s ever had. The compelling case for reform has taken root in the States and the fact of the matter is that far more individuals are impacted in the State systems than in our federal system.
So now, we may have to look to the States not just to continue their reform efforts, but to actually be the leaders in criminal justice reform.
And we’ll also need to look to all of you in this room today, both as citizens and as leaders and future leaders of the legal profession. You have the ability to use your voice to demand that we have a criminal justice system that doesn’t stay tethered to failed policies of the past.
A criminal justice system that utilizes the most effective strategies to keep our communities safe. And a system that not only holds wrong-doers accountable, but also metes our punishment in a manner that is proportional. If it doesn’t, then we risk losing the public’s faith in their criminal justice system and in the end, I think that that could prove far costlier than any dollars and cents that we’re spending on prisons.
So I’m urging you to speak up and let your voices be heard. Demand the kind of meaningful change that is essential to make our communities safer and our system more faithful to its core promise of justice. I have to believe that that’s what Senator Phil Hart would’ve done. Thank you all for inviting me to be here today and I look forward to your questions.
DEAN WILLIAM TREANOR: That was wonderful.
DEAN WILLIAM TREANOR: Thank you. That was a powerful lecture on behalf of criminal justice reform.
SALLY YATES: I feel kinda strongly about it.
DEAN WILLIAM TREANOR: Well, Senator Hart would’ve been very proud. We have some questions from students. Most are on criminal justice reform. If you’re in the room, and in retrospect, we probably should’ve guaranteed seats to the students whose questions were selected but if you’re in the room, I hope you’ll stand. Matthew Angelo. Can you describe the current state of discretion prosecutors have in deciding if any charges to bring and how plea bargains work. And how, if at all, it should be reformed, reined in or broadened. Very good question, Matthew.
SALLY YATES: That’s a really good question. I’m not sure I’ve got all the time to answer it or that I have all of the answers. First of all, I feel like a game-show host holding this.
SALLY YATES: Is this on?
DEAN WILLIAM TREANOR: Yeah
SALLY YATES: OK. First I have to acknowledge to you that all of my experience has been in the federal system, and the federal system operates very differently than most State systems, not all but very differently. The prosecutorial discretion that is available today, for example, at DOJ is different than during the last eight years that I was there. It’s one that requires you to charge most serious, readily provable offense under – there’s some limited exceptions to that, but requires you to do that, and requires that you seek mandatory minimum sentences. Now, some might argue that the reason to do that is to ensure consistency, and out of consistency comes fairness. You know, there’s an element of truth in that, I believe, that it’s not fair and it shouldn’t be based on the luck of the draw of which particular prosecutor you have, in terms of what type of charges you face or sentencing recommendation that you face. But I disagree with the notion that the way to address that is to require that you hammer everybody.
SALLY YATES: Because that’s not justice. And while it can be more difficult to administer, I actually believe that prosecutorial discretion is the most important factor to ensure that just system and that prosecutorial discretion that is also checked by the judicial branch. When you think about it, other than the institution of charges, the pleas that are accepted and the sentence that is imposed is not something that is determined unilaterally by a prosecutor but ultimately by the court. But I also think that we have to acknowledge that, as prosecutors, we have an obligation to ensure that the – I’m not a prosecutor any more, I’ve got to get this out of my system.
SALLY YATES: As folks who are prosecutors now, that you have an obligation to ensure that those decisions are being made on the facts and the law and are not being impacted by biases, certainly not conscious biases that would never be acceptable, but also not even by those unconscious biases that all of us carry around. And the fact that all of us have it doesn’t make it any more acceptable and it’s particularly not acceptable when we’re talking about questions of liberty and that was the reason why, as Dean Treanor mentioned, we instituted implicit bias training at the department of justice, to try for every agent and every prosecutor to try to at least make people aware of that issue, of how your own life experiences can impact you in that way and to try to give people the tools that they need to be able to combat that. I’m not pretending that’s a perfect answer to it, but I think it’s an important step in that regard. I try to make the rest of the answers shorter
DEAN WILLIAM TREANOR: That was great. Second question. Since the goals for criminal justice reforms include decreasing the United States prison population, and reducing prison sentences and eliminating mandatory minimum sentences for low-level drug offenders that benefit the criminals, it may seem unfair to the victims of such crimes. So my question is how to balance the interests of the two parts, the criminals and the victims in the process of criminal justice reform. Very good question.
SALLY YATES: Well, you’re right. We always have to be mindful about the rights of victims and the impact of victims of crime in society at large with any policy changes that we’re making. I guess I would say I don’t view the goal necessarily to be reducing our specificalities of incarceration. My concern is that we’ve got to the levels of incarceration that we have by virtue of having some sentences that be unfair and disproportionate. To me the goal should be that sentencing across-the-board is as fair and proportional as we can make it. That will have the effect then of reducing our prison population. I was a prosecutor for a lot of years so I’m not going to tell you that I don’t think people should go to prison because I think a lot of times they should. There are times, though, where there are other alternatives that would be more effective, and I think all victims of crime have an interest in our communities being as safe as they can possibly be.
So it seems to me that should be our goal: what’s going to be most effective and make our communities most safe as well as what’s going to be fair and proportional? And if we do that the incarceration levels are going to go down on their own.
DEAN WILLIAM TREANOR: Very good. Cat Gardiner. How do regulatory agencies effect criminal justice reform? How can we improve programs to correct criminal behaviour by addressing underlying causes like poverty and violence? Good question
SALLY YATES: Yeah. Wow, you guys have thoughtful questions. I was expecting some bunnies here, you know.
SALLY YATES: It’s sort of hard to answer on the regulation side. I mean, I certainly believe that – as I mentioned in my remarks, generational lack of access to education is one of the primary drivers to crime. When you have individuals, for example, who have not learned to read by the time that they’re in third grade. We know now from the research, if you haven’t learned to read by the time you’re in third grade, you’re pretty much done. You’re not going to learn to read at that point, unless you have really specific intervention. And once you hit third grade, you start reading for content, not to just learn to read, and if you can’t do it at that point, it’s almost impossible to catch up, again without really specific intervention. And so if we’re as willing to invest in education as we are in building prisons, I can’t help but believe that we would be in a much stronger position on the prevention side.
And then there are also issues on the backside when it comes to prisoner rehabilitation and I think more about some of the hurdles to re-entry that comes, more from States but some from the Feds as well, like abilities to be have access to public housing or even to be able to get licenses. Did you know you can’t be a barber in many States if you’re a convicted felon? That’s just stupid. I mean, there are all sorts of things that you can’t do, professions you can’t get a license for if you’re a convicted felon. I’m all for keeping people safe but in’s some things out there that just don’t make any sense. So would agree with you, it’s a more comprehensive approach than just what we’re doing on sentencing or what we’re doing within the criminal justice itself
DEAN WILLIAM TREANOR: Alexandra Genoa. Sorry, Alexandra.
SALLY YATES: Wherever you are.
Are you interested in incorporating any restorative justice protocols into a move towards criminal justice reform?
SALLY YATES: Look, I’d be interested in lots of stuff but I’m not in a position to do any of that right now, but you know, restorative justice is is something I haven’t had a lot of experience in except to the extent that in the federal system there are some drug courts that include an element of restorative justice in them to the extent that the individuals who are going through the drug court proceedings interact with individuals that have been impacted by their drug use over their lives. And have to reconcile and to address how they have impacted their lives. So that’s an element of that. You know, I think we need to be open to and experimenting with on at least a trial basis lots of different aspects of it, and certainly, restorative justice would be one of those as well. I don’t know how you do it on a large scale but I think that we certainly should be open to all sorts of alternatives.
DEAN WILLIAM TREANOR: Very good. One from a faculty member. Professor Christie Lopez. What do you think about DOJ decision to end the cops office collaborative reform initiative?
SALLY YATES: That was one of the more disappointing developments out of the Department of Justice from my perspective in the last – since the beginning of administration and for those of you who don’t know, there are two different ways that we addressed police reform in the Department of Justice. One was through pattern and practice investigations out of the civil rights division, and that would often times end up with mandatory consent decrees that were enforced by a court and then the collaborative reform that was done through our COPS office where we have experts and call on experts from all over the country. Those are situations where you have a Police Department or city that literally raises its hand and says, “We’ve got problems here. Not a few bad apples but we have systemic problems here and we need help and area we coming to you DOJ for your expertise and ex per fees from across the country to help us address some of thesis tell Mick problems.” It’s purely voluntary and we at DOJ would work with them, put them together with experts and come up with a program to address these things.
I’m disappointed that that has been eliminated at the department of justice going forward, because you know, as we heard from these law enforcement leaders just a few weeks ago, it’s strengthening the relationship between communities and law enforcement that’s one of the essential components to building safe communities.
DEAN WILLIAM TREANOR: Chris Brock. Again, sorry, Chris. The Senate is currently considering the sentence reform an corrections Act, passed 1917. What are your thoughts on this legislation? What would you change to improve it
SALLY YATES: Well, I’ve really just started to look at this so I haven’t kind the bearing down on the details of it that I would want to do before making a public statement about things that I think that we should address there. I guess – I’ll give you this answer: I remember back at the time I was at DOJ and even when I was US attorney and there were various sentencing reform Bills that were introduced and my initial reaction to some of these would be to say “No! It doesn’t go far enough! We shouldn’t support this!” And I came around on some of that, because one of. Things I learned in the brief time that I was here is that to have a chance of getting anything like criminal justice reform through, in a bipartisan environment, it has to be a product of compromise. And so to me, the litmus test became not what I wanted and what I thought was going to be the best thing, but whether this proposal would put us in a meaningfully better position than we’re in right now. That doesn’t mean that’s the end, and that you should be satisfied that we shouldn’t keep trying for more, but will it be a meaningful improvement? And so that would be my suggestion of how to look at this sentencing reform Bill as well, that that would be the lens that’s going to be the most productive way to look at all of these proposals.
DEAN WILLIAM TREANOR: So one larger question, as I think we’re almost ahead of time, unfortunately, but police often lament the fact that so many of society’s failings create problems that are put on the police. Inadequate mental health care systems, drug addiction, poor housing, unemployment, for example.
SALLY YATES: Right.
DEAN WILLIAM TREANOR: Do you agree that this is the case and if it is, would it make sense to shift some of the resources currently sent on law enforcement to social services to prevent these problems before they occur or do we have the right level of focus on law enforcement?
SALLY YATES: Well, first, I absolutely agree that we have shifted many of our social problems in our country to law enforcement. I talked about mental health. And you know, I’ve talked with law enforcement representatives over and over, and they desperately, for example, in the mental health arena, want there to be more meaningful assistance for individuals. It creates a really dangerous situation for the individual with whom they’re interacting. When you’ve got someone who’s standing there with a weapon, often times that law enforcement officer doesn’t have any way of knowing whether that person is violent and dangerous or mentally ill or they can still be violent and dangerous even though they are mentally ill. So it ends up creating a really terrible burden and situation for them. I’ve talked with cops before that took actions in situations like that that they will now live with for the rest of their lives. That’s not fair to be doing to our law enforcement officers and we just haven’t been willing to sort of buck up as a country and to invest in the kinds of programs that we need to to address these things.
I don’t know that I could say that we should reassign – it’s hard to give the answer, whether you should reassign funds from law enforcement to do that, because so much of that is local and depends on how law enforcement agencies are funded from State to State and jurisdiction to to jurisdiction. It may mean that we may to spend more. I know it’s heresy to say that, but we need to spend more, but ultimately if we invest more on the front end will save us money at the back end.
DEAN WILLIAM TREANOR: That’s where you started, where you talked about the heavy burden of our prison experiences.
SALLY YATES: Right.
DEAN WILLIAM TREANOR: This hour unfortunately has drawn to a close, but I hope you will all join us for a reception outside and I hope you’ll all join me in a round of applause to Attorney-General Yates.
DEAN WILLIAM TREANOR: Thank you. That was amazing. Thank you.