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September 26, 2020

Some notable quotables from a high-profile speaker sounding like an advocate for criminal justice reform

A colleague made sure I checked out the full text of an interesting speech given by a high-profile speaker earlier this month.  Some of the lines from the speech struck me as particularly "quote-worthy" for federal criminal justice reform advocates and especially federal defense attorneys.  Here are some of the quotes that caught my reform-oriented eye:

People facing federal investigations incur ruinous legal costs and often see their lives reduced to rubble before a charge is even filed.... 

[Prosecutorial] power ... must be carefully calibrated and closely supervised.  Left unchecked, it has the potential to inflict far more harm than it prevents....

It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated, and prosecuted to the Nth degree.

Our system works best when leavened by judgment, discretion, proportionality, and consideration of alternative sanctions....

Individual prosecutors can sometimes become headhunters, consumed with taking down their target....

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, [DOJ has] advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and [DOJ] must stop doing it....

The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage....

[I]t is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.  

As I read these quotes, I was tempted to wonder if this was really from a talk given at the Brennan Center or the ACLU by a leading criminal justice reform advocate.  For example, the statement that "our system works best when leavened by judgment, discretion, proportionality, and consideration of alternative sanctions" serves as a lovely account for why severe mandatory minimum sentencing provision are a very bad idea.  And the statement that "the criminal law is supposed to be reserved for the most egregious misconduct" sounds like a prelude to advocating for legalizing marijuana and perhaps decriminalizing all drug possession offenses.

But, as readers will discover if they click through here to see who recently spoke these words, most of us do not generally think of this speaker as a leading criminal justice reform advocate.

September 26, 2020 at 04:35 PM | Permalink


While watching the Barr speech on C-Span, I found nothing to disagree with. On this speech and on the Roger Stone commutation I find there is little air between my views and those of William Graham Otis. In this time of partisan politics, it's always a great comfort to find areas of agreement. Thanks for this post.

Posted by: beth curtis | Sep 26, 2020 10:46:03 PM

Sounds like a warmup for Trumps sentencing hearing.

Posted by: George | Sep 26, 2020 11:12:50 PM

The ultimate question is whether Barr's concern about over-aggressive prosecutors goes beyond charges against politicians, white collar offenders, and businesses. I think there is a difference between 1) prosecutors being overly creative to get people on the fringe of criminal activity or to criminalize a civil violation; and 2) prosecutors pursuing criminal charges against conduct at the core of a criminal statute duly-enacted by the legislature that covers something other than the stereotypical crimes that are the core of pop culture portrayals of criminal activity. The first should be closely scrutinized. The second is about treating certain categories of people as being exempt from criminal law and invades the legislative branches rights to define the law.

Posted by: tmm | Sep 28, 2020 10:50:01 AM

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