Attorney General Holder’s Speech Has Broad Application

Attorney General Holder’s Speech Has Broad Application

 This article was reprinted with permission from FCPA Professor

On Monday, Attorney General Eric Holder delivered this speech at the Annual Meeting of the ABA House of Delegates.

Below are snippets from his speech.

“It’s time – in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach.”

“[W]e must face the reality that, as it stands, our system is in too many respects broken.  The course we are on is far from sustainable.  And it is our time – and our duty – to identify those areas we can improve in order to better advance the cause of justice for all Americans.”

“[W]e need to examine new law enforcement strategies – and better allocate resources.”

“I’ve also issued guidance to ensure that every case [the DOJ] bring serves a substantial federal interest …”.

“As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime …”.

“The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation.  To be effective, federal efforts must also focus on prevention and reentry.  We must never stop being tough on crime.  But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.”

“Today – together – we must declare that we will no longer settle for such an unjust and unsustainable status quo.  To do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation.  Instead, we must recommit ourselves – as a country – to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear.”

“This is our chance – to bring America’s criminal justice system in line with our most sacred values.  This is our opportunity – to define this time, our time, as one of progress and innovation. This is our promise – to forge a more just society. And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers:  to open a frank and constructive dialogue about the need to reform a broken system.”

Holder’s speech focused primarily on the war on drugs, violent crime, and incarceration rates.

However, the above quotes have broad application, including in the FCPA context.

Disparity?  See here, here, here and here for previous posts.

Broken? As highlighted in this post, how many former high-ranking DOJ officials and/or former DOJ FCPA enforcement attorneys does it take before the current DOJ realizes that its FCPA enforcement policies and procedures are, in certain cases, broken?  See also here.

Better allocate resources?  There is a way to do that in the FCPA enforcement context while at the same time best advancing the laudable objectives of the FCPA.  See here.

Cases that serve a substantial federal interest?  Perhaps you’ve heard that a substantial majority of the top FCPA enforcement actions in terms of settlement amounts have been against foreign companies based on sparse U.S. jurisdictional allegations.  See here for instance.

A system that fails to deliver outcomes that deter and punish crime?  As highlighted in this prior post, the DOJ itself has acknowledged that it does not even know if NPAs and DPAs in the FCPA context deter.

As highlighted in this previous post, there is a way forward in the FCPA context - a system that will better promote compliance and hold wrongdoers accountable.

It will however require courage and bold leadership to – in the words of Holder “open a frank and constructive dialogue about the need to reform a broken system.”


I also drew inspiration from the following in Holder’s speech.

“[T]o question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.”

These are among the reasons why I write about the FCPA and related topics.

Read more articles on the FCPA by Mike Koehler at FCPA Professor.

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