President Obama talked with Bill Keller of the Marshall Project on the criminal justice system. He said Thursday “that the Black Lives Matter movement had given voice to the anger and discontent over policing and incarceration that has long been a fact of life in the black community.”
“The African-American community is not just making this up…It’s real and there’s a history behind it,” the president said. “I think the reason that the organizers use the phrase ‘Black Lives Matter’ was not because they were suggesting nobody else’s lives matter. Rather, they were suggesting that there is a specific problem that is happening in the African-American community that is not happening in other communities.”
President Obama discussed the country’s historical struggle with race and current debates over policing within references to his own experiences: “As a young man, there have been times where I was driving and I got stopped and I didn’t know why.”
But the President also urged the public not to blame law enforcement for the country’s high incarceration rate — which disproportionately affects black communities — by explaining that the “problem of racial justice or injustice in society has been a running theme in this country’s history for a very long time.”
He added that, historically, black communities have also dealt with “under-policing,” and “everybody wants strong, effective law enforcement.”
Here’s the full transcript of the panel discussion followed by the video:
THE PRESIDENT: Well, first of all, Bill, thanks for moderating this. Thank you to the Marshall Project. I am particularly grateful to folks in law enforcement, some members of Congress who are here, people in prosecutors’ offices –all of whom have taken a great interest in this.
And as I said backstage before we came out, I do think that we’re in a unique moment in which, on a bipartisan basis, across the political spectrum, people are asking hard questions about our criminal justice system and how can we make it both smart, effective, just, fair.
You’re right, Bill, that reform encompasses a whole bunch of stuff, and not everybody is going to have the same views on every issue. But I do think there are certain principles that my administration -our esteemed Attorney General Loretta Lynch and her deputy and others –are pursuing. And there I do think that there’s some rough agreement.
Number one, I think there’s a recognition that our criminal justice system should treat people fairly regardless of race, wealth, station; that there has to be a consistency in the application of the law. I think that’s an area where people agree.
And so when I came into office, and we saw a huge variance in how crack cocaine was being treated versus powder cocaine, people immediately asked the question, why is that –particularly given that there might be differences in demographics in terms of who uses it, and that would be an example of an area where we had to reform it. And we still haven’t gotten it where it probably needs to be, but we made a change. So, one is fairness.
Number two, proportionality. I think one of the things that has come up again and again in the discussions of reform is, in any criminal justice system we want to make sure that the punishment fits the crime. And if we know, for example, that someone engaged in a non-violent drug crime should be punished but that their sentence should not probably be longer than a rapist or a murderer, and yet that’s not what our sentencing guidelines reflect, then that’s a problem. So, proportionality is the second issue that I’m concerned about.
Number three is a recognition that incarceration is just one tool in how we think about reducing crime and violence and making our communities safe. And if that’s the only tool –if we think we only have a hammer, then everything becomes a nail –then we’re missing opportunities for us to create safer communities through drug diversion and treatment, for example, or through more effective re-entry programs, or getting to high school kids or middle school or elementary school kids earlier so that they don’t get in trouble in the first place, and how are we resourcing that. So that’s a third area.
Connected to that is where are we spending our money? We know we’re spending $80 billion a year incarcerating folks. If, in fact, we had smarter sentencing, we thought about how we’re dealing with drug offenses more intelligently, we are working on evidence-based approaches to rehabilitation and reducing recidivism, and that leads us to save money that then, in turn, we can put on the streets to have a greater police presence, to cultivate better community-police relations, to focus prosecutors’ attention or police officers’ attention on the truly dangerous criminals, then aren’t we better off and isn’t that what we should be pursuing?
So those are the kinds of areas where I think there is actually rough agreement. Now, obviously, the devil is always in the details here, and there are going to be some disagreements on how successful is drug diversion, and can we, in fact, significantly reduce the prison population if we’re only focusing on non-violent offenses where part of the reason that in some countries –in Europe, for example –they have a lower incarceration rate because they also don’t sentence violent offenders for such long periods of time.
Those are all legitimate debates. And I think that part of what our administration is trying to do is look at the data, figure out what we know works, what we don’t.
And the final point I’ll make –and I’ve said this before with respect to criminal justice reform -we can’t put the entire onus of the problem on law enforcement. I think there’s been a healthy debate around police-community relations and some of the episodes that we’ve seen around the country, but we, as a society, if we are not investing in opportunity for poor kids, and then we expect just the police and prosecutors to keep them out of sight and out of mind, that’s a failed strategy. That’s a failure on our part, as a whole.
And so part of what we’ve also been trying to do –and this goes to the prevention issue –is think about where are the communities that are most vulnerable. I was in West Virginia yesterday, talking about the opioid epidemic. Heartbreaking stories that you’d hear from parents about their children first getting OxyContin or Vicodin maybe from a medicine cabinet, and suddenly they are hooked. They move on to heroin. And there was a consensus we need to spend more of our time on treatment and not just on incarceration as a strategy.
And I pointed out to them that part of what makes this an area where maybe those of us who are better off or middle class are more sympathetic is because it seems more like our kids are vulnerable, as well. But, of course, that’s illusory. If kids in the inner city are not getting treatment and opportunity, that’s as much of a problem as if it’s happening to our kids. And we’ve got to think of all our children in that same way.
And I’m encouraged by the fact, in particular, that law enforcement is making this point over and over again –because they have the credibility because of the courage and the hard work and they’re on the frontlines.
So, with that, I should probably make sure that the Chief actually gets a word in. (Applause.)
- KELLER: There’s a lot in there that we –I’d like to pick up on as we go through the allotted time. And I think I’ll start with the question of sentencing, these Draconian sentences that we apply to so many crimes, in part because that’s the subject matter of the legislation that just today passed out of the Senate Judiciary Committee.
A few decades ago, when crime rates were higher and when the only way to get elected to office was tube tougher on crime than your opponent, Congress began restricting the license the judges had in making their sentences. They established mandatory minimum sentences for a number of crimes. They tightened up the safety valve. And that seems to now be recognized as the pendulum having swung too far in one direction. So it’s beginning to swing back a little bit in the other direction.
The bill that passed out of the Senate Judiciary Committee today does some modest reductions in mandatory minimums. And –sorry, having a senior moment on my thought –but prosecutors love mandatory minimums, as a rule. So this is really a question for you, John. Prosecutors love mandatory minimums because they can use them as leverage to drive plea bargains, because they can use them to turn low-level offenders and get them to rat out their bosses. How far can you go in eliminating or reducing mandatory minimums, do you think? Why not just eliminate them altogether?
- WALSH: Well, let me first start out by thanking the President and also the Attorney General for their incredible leadership in this area. Part of the reason we have a moment where all of law enforcement and the entire political spectrum are supporting changes to the sentencing regime is the leadership that you have shown and the people in this room have shown, including Chief Beck.
Mandatory minimums are an important part of how the federal system is set up, but since 2013, when the Smart on Crime policy was announced by then-Attorney General Holder, federal prosecutors have been instructed not to use mandatory minimums except in cases that really merit their attention –in other words, aggravated felons; leaders of drug organizations; violent people. And what’s that’s meant is that our use of mandatory minimums has probably dropped by about 25 percent in that time. But so far, we have not seen a corresponding drop in the willingness of lower-level conspirators to cooperate with us.
In other words, what we’re seeing in the Smart on Crime policy is a direct ability to reduce mandatory sentences while still protecting the public. So the bottom line is –you ask the question, should we eliminate mandatory minimums entirely, and I think the answer to that is no. But we have to reserve their use for the most severe, dangerous and violent offenders who are out there.
- KELLER: Why not eliminate them, though? Why not just have sentencing guidelines the way we have now and have had it in the past, and leave it to the discretion of judges?
- WALSH: Well, I certainly think that –part of what prosecutors do is advocate to judges. That’s our job. We’re used to it and I think we’re confident about the results we can get. Having said that, there’s something to be said for those most aggravated, top-level criminals knowing that they’re going to get hit if they get caught with a very severe penalty. But that’s different than saying we’re going to use mandatory minimums to drive what has turned out to be mass incarceration of relatively low-level offenders in the federal system.
Similarly, I think on the state side –and I would turn this over to Chief Beck –some of the laws that were enacted on the state side in the 1980s and early ‘90s also had very heavy penalties. Whether those are necessary in every instance to accomplish the goals of public safety –that’s a question that we could debate.
But the bottom line is, I think that from a federal prosecutor’s point of view, keeping mandatory minimums for the most serious offenders still makes sense. But using them very sparingly for less serious offenders also makes sense. That’s part of what Smart on Crime is about.
- KELLER: Chief, do you want to pick up on that?
CHIEF BECK: Well, just very briefly, if you view the criminal justice system as a response to a sickness in America, if you view it through the medical aspect, then you have to look at sentencing as a dosage. And I think that we are now experiencing a time in the United States where crime is at a level where we require a different dosage. And we have to recognize that all crimes do not carry the same weight.
And some crimes involve addiction and mental illness and have other pathways that can be more effective than incarceration. And in states across the nation, some of our prisons and jails are schools for criminality. And to put young people –and it’s mainly young people –into those schools for criminality based on minor offenses doesn’t make any sense.
So I think we need to stop wasting money and start investing money. And when I talk about investing money –I’m remiss, I should say that I’m privileged to speak for so many chiefs, so many great chiefs in the audience here –over 50 of them –and we all believe in the same thing, that we need to invest in our future, not continue to use money to lock the future of the United States up. We need to invest in that so that we can move to a place where many of these offenses are looked upon as the illnesses that they are.
- KELLER: Your state has been sort of a laboratory in this regard. You’re now in the fifth year of a court order to reduce prison populations. Last year, California passed Prop. 47, which reduced a lot of felonies to misdemeanors. How has that played out? What lessons are there for the rest of the states in your experience?
CHIEF BECK: So I think there’s some really, really good lessons to be learned. And California often leads the way and sometimes we get things absolutely right and sometimes things need adjustment. And I think it’s important to recognize that what California did in 47 is take several hundred felonies, largely drug-related, and move them to misdemeanors. And a couple of things probably should have been included in that. We also took away progressive prosecutions, so, in other words, you can be arrested and rearrested and re-arrested again for the same crime. And even though it’s a misdemeanor at this point, there’s no enhanced sentencing or enhanced ability to get folks into treatment.
And the other piece is, is there needs to be a stronger lever for the courts to encourage folks to go into treatment. We’re realizing that we’re dealing largely with addicts here and they don’t have self-determination enough to do it, so there needs to be a way to help do that. And then, thirdly, and most importantly, there needs to be adequate programs for people to be diverted into. And it does no good in my estimation to arrest for these offenses over and over and over again with no place for them to go but back onto the street to continue that cycle.
And so one of the things that I would love to see in this discussion is that we all acknowledge the fact that this is not a cost-saving measure. I don’t believe that reducing incarceration should be looked at as a way to save money for the state or for the federal government. I think that should be looked at as a way to develop money to reinvest into the futures of young people, and then that will, in turn, eventually save money. But in the short term, you’ve got to have another pathway.
- KELLER: In your first answer, Mr. President, you touched on the two –what I think of as the two biggest myths about criminal justice reform. One of them Chief Beck has just addressed, which is the idea that in the end, you can save a lot of money by letting people out of prisons without reinvesting that money. The other is that you can significantly reduce the populations of prisons by letting out low-level drug offenders.
It’s true at the federal level, nearly half of the people who are incarcerated are there for drug crimes. But at the state level, where most people are incarcerated, it’s more like 17 percent. Are Americans willing to consider rolling back the sentencing for people who are violent criminals?
THE PRESIDENT: Well, first of all, I think it’s important to look at the evidence –and there’s some conflicting data, but here’s what we know –that we increased our prison population fourfold from1980. And the best social science seems to indicate that, initially, locking up folks who were violent for more certain, longer stretches reduced violence on the streets, but that there was a diminishing return at a certain point and it kind of flattened out. But we just kept on locking folks up without, at that point, it being the main driver of violent crime reductions.
And we have seen incredible, historic reductions in crime over the last 20 years. I know that there’s been some talk in the press about spikes that are happening this year relative to last year, and I’ve asked my team to look very carefully at it –Attorney General Lynch has pulled together a task force –and it does look like there are a handful of cities where we’re seeing higher-than-normal spikes. Across the 93 or 95 top cities, it’s very hard to distinguish anything statistically meaningful.
Now, that doesn’t mean that we don’t take seriously what’s happening in those cities. But the bottom line is, is that I think there’s a strong consensus in the United States of America that you shouldn’t be hit over the head when you’re walking down the street, that you don’t want somebody breaking into your house and threatening your family, that somebody who commits violence, we don’t have a lot of tolerance for.
I would distinguish between those situations and whether or not giving somebody who’s 25 year sold a 40-year sentence versus a 15-year sentences is the smart thing to do, particularly because we know that young people do stupid stuff and as they get older, they get a little less stupid. I speak from experience. (Laughter.) That at least was my experience. And now I’m watching my teenage girls, and they’re a lot smarter than me, but there are still some gaps in judgment. (Laughter.)
So here’s the bottom line. I think it’s smart for us to start the debate around non-violent drug offenders. You are right that that’s not going to suddenly half our incarceration rate, but if we get that –if we do that right, and we are reinvesting in treatment, and we are reinvesting resources in police departments having more guys and gals on the street who are engaging in community policing and that’s improving community relations, then that becomes the foundation upon which the public has confidence in potentially taking a future step and looking at sentencing changes down the road.
So I don’t think there’s anything wrong with us saying, you know what, violent crime we want to keep down. We are going to be a little more hesitant initially in how we think about sentencing on violent crime than we are on non-violent crime. If we can reduce the prison population by 5 percent in an initial stretch -and by the way, that’s not a goal I’m setting, I’m just –that was off the top of my head –but 5 percent, when you’ve got 2 million prisoners, that’s a lot of people and that’s a lot of resources that could be going into other areas.
So I think that this is a staged process. We will lose the public if we try to do everything at once without having data and evidence, and suddenly you see big spikes in crime again and then suddenly we’re back into the politics of lock them up.
If, on the other hand, we do it systematically, methodically, we see what works, we see what doesn’t -the Chief’s point and John’s point about reinvesting I think is absolutely critical. If we do those things well and we can duplicate what happened last year, which was the first time in 40 years that both the prison population and the crime rate went down at the same time –we start seeing the same kinds of patterns as we’re seeing in some of these other states, and the experience we’re seeing in the U.S. Attorney’s Office where we’re not telling prosecutors you’re going to be promoted based on how many maximum sentences you get, but rather based on how wise your use of prosecutorial discretion –if all those things prove that we’re still doing a good job controlling crime, then I think we’ve got something to build on.
- KELLER: One other drug question. John, you work in a state that was one of the first two to legalize recreational use of marijuana. Should Congress take marijuana off the Schedule I list of illegal drugs?
- WALSH: So I’ve learned that I always get a marijuana question. (Laughter.)
- KELLER: Sorry to be so predictable.
- WALSH: I want to reiterate something that I think that the President and the administration has made clear, is that the administration is not in favor of the legalization of marijuana. And the decision to move marijuana from Schedule I to a different schedule is really –there’s a process behind that –it has to do with the medically accepted uses for the drug.
I will make this comment about the situation in Colorado. One of the things that’s been a tremendous, positive development in Colorado is that the state regulatory system has become clearer so that the local law enforcement has a good sense of where its lines are and what enforcement action it can take. And that’s made our ability to partner with local law enforcement in federal enforcement of marijuana very much clearer. So we see an evolving situation where I think, again, as in so many things, the key is federal-state law enforcement cooperative effort to make sure the system works.
- KELLER: I’d like to ask both Chief Beck and John Walsh, are there things that the leader of the free world could be doing on his own without the permission of Congress over the next year and change of his administration that would make this problem better? Less of a problem?
THE PRESIDENT: Let me just amend that question –(laughter) –because I’ve got some outstanding members of Congress here and I want to work with them to get stuff done. (Applause.) I get into enough trouble with Congress without Bill trying to stir things up. (Laughter.)
- KELLER: That’s why I asked the other guys.
CHIEF BECK: First I have to say that I’m amazed by the depths of the President’s understanding of this issue. I mean, the first answer that you gave covered so many of the points that John and I have talked about in private, and it’s obvious that you understand the way that the chiefs in this room and the prosecutors in this room feel about this issue. So that’s a huge start, in my opinion.
But I think that one of the things that we need to look at is remember that this system is made up of three parts, this criminal justice system. It’s a federal level, which we’re talking about directly here, but most folks are affected by state-level prosecutions, state-level incarceration, or even local –even on the local level.
And so when we talk about having treatment available, when we talk about diversionary systems that we can use to get less people in the jail system, it needs to apply to all three. It can’t just be for the use for the federal system. It has to go down to the state system –because many of the states and all the municipalities now struggle economically, and putting money into community-based organizations or to some of the things that the states and the counties run is very difficult. And so if we could get some federal help with systems that are off-ramps for people that are addicted, and off-ramps for people that are arrested for low-level crimes –because the arrests aren’t stopping. I mean, the chiefs in here represent tens and tens of thousands of low-level drug offense arrests, my organization included. But we’ve got to have somewhere for them to go. And it can’t just be 48 hours in the local lockup and then right back on the street corner where they came from. It just can’t be that.
- KELLER: John, have you got any requests of the President?
- WALSH: The one thing that I would really emphasize –so much of law enforcement really depends on local law enforcement, and our partners in police departments and sheriff’s offices all over the country on the federal side we value tremendously. We can’t get our federal work done without the partnership between federal law enforcement and state law enforcement.
One area where over the years we’ve seen a decrease in federal assistance to state and local law enforcement is in the COPS area, the community policing grants. We have fewer officers on the street with federal money than we used to have. And that’s an area that I think would go a long way to enabling the police departments and sheriffs’ offices to engage in that community-oriented policing that really will help prevent crime, so that we’re not confronted with the situation of trying to decide how much of a sentence to give a violent offender because maybe we prevented some young person from going down that road in the first place.
CHIEF BECK: And just not to ignore the opportunity, I have to say that the kinds of programs that I know the President wants, I know the police chiefs out here want, the kind of programs that have maximum community interaction where people know the officer on the street, where officers are not there just to enforce the law but they’re there to build community, those are the most resource-intensive programs that we have.