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By Scott Hechinger and Tracie M. Gardner
This week, William Barr, Trump’s pick for attorney general, draws ever closer to his confirmation. It seems increasingly unlikely that Democrats have the will or the votes to block his nomination. But make no mistake, Barr is not fit to be the nation’s next top law enforcement official. And he has already told the American public precisely why.
During Barr’s Senate confirmation hearings in January, Barr was asked whether he believed race and racism plays any role in the American criminal legal system. This should have been a softball question for the nominee. The evidence that racism has been a prevalent, pernicious and profound force within our system of justice is well known and well-documented.
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And yet, the response from the presumptive attorney general — and former attorney general from 1991–1993 under then-President George H.W. Bush — was a swing and a miss. Rather than acknowledging the fact that black and Latinx people are disproportionately targeted and harmed by the criminal legal system, Barr answered as if the past three decades of increased surveillance, violent policing, bloated jails and prisons and ever-expanding criminal laws and mandatory sentencing schemes that have devastated communities and perpetuated social and economic instability never existed.
Barr answered as if the past three decades of increased surveillance, violent policing, bloated jails and prisons and ever-expanding criminal laws and mandatory sentencing schemes never existed.
When asked directly by New Jersey Senator Cory Booker about prior statements denying the existence of “racism in the criminal justice system,” Barr was defensive and stood by his belief that the system was still working “overall.” Barr could barely bring himself to acknowledge that the system “harmed the black community” at all, ultimately only willing to admit that “incarceration rates” for drug crimes did so. Barr “commit[ed] to studying” the issue of race disparities in criminal justice once confirmed, but the fact that he had not even bothered to do so prior to his confirmation hearing is shocking.
Whether Barr’s response was due to a lack of understanding or interest, or a willful disregard for the truth, it should be disqualifying. In the 30 or so years since Barr’s last tenure as attorney general, the tentacles of the criminal justice system have damaged nearly every aspect of American society. Mass incarceration is vast and deeply racist, all while failing to achieve its purported goal of reducing crime or improving public safety. He should know better.
Barr himself was one of the chief architects and proponents of mass incarceration, and bears responsibility for its devastating effects on people of color. As attorney general in the early 1990s, he famously signed off on the tough-on-crime handbook, “The Case for More Incarceration,” then helped design and implement many of the harsh laws and policies that would escalate the war on drugs and expand the use of pre-trial detention. “The Case for More Incarceration” served as a model throughout the country, and Barr got his wish — America’s prison population nearly tripled over the following two decades, all at the disproportionate expense of people of color.
Perhaps it is his complicity that made Barr defensive while reiterating his belief that the system was still working “overall.”
So, what does Barr believe has “worked” about mass incarceration? Today, as this country boasts the highest rate of incarceration in the world, African Americans are more likely than white Americans to be arrested and six times as likely to be incarcerated for the same crime. In fact, if black and white people were incarcerated at similar rates, the U.S. prison population would drop by a staggering 40 percent.
Annually, our country spends over $180 billion financing mass incarceration — funding that could instead be allocated to improve infrastructure, invest in poverty alleviation and community building, and strengthen local schools in the communities most devastated by the war on drugs that Barr helped wage.
And these costs only include the arrest, prosecution and incarceration of individuals. They do not come close to calculating the lifelong health, economic and social damage caused by interactions with the system — damage that again has been disproportionately wrought on people and communities of color.
Arrest statistics showing targeted policing of communities of color, for example, are unable to account for the trauma of unnecessary, targeted and unconstitutional stops and frisks, the horror of feeling imprisoned in your own neighborhood, the longterm erosion of trust in law enforcement and the opportunity cost of exacerbating rather than solving public health issues like addiction, mental illness, homelessness and poverty.
And these costs only include the arrest, prosecution and incarceration of individuals. They do not come close to calculating the lifelong health, economic and social damage caused by interactions with the system.
These negative consequences do not only affect those convicted of crimes. Despite the presumption of innocence, an allegation alone can lead to jobs lost or suspended, unnecessary ACS involvement and forced child separation, evictions from public housing and deportation.
Similarly, we know that 89 percent of people currently locked up awaiting trial on Rikers Island —because they cannot afford bail — are black or Latinx. But what is less often talked about is how wealth-based detention results in jobs and housing lost, school missed, bills left unpaid, people in need of caretaking left without caretakers and families devastated.
Lastly, conviction and incarceration rates say little about the lifelong punishments that begin upon release, fueled by 47,000 laws nationwide restricting critical rights and opportunities like voting and access to housing, employment, benefits and college loans for those with criminal justice involvement.
This is why public defender offices, like Brooklyn Defender Services, are increasingly focusing on the deep intersectionality of the justice system with issues like substance use disorders, mental health, youth justice, housing, and family defense, and working both in the court system and in the community to provide meaningful representation. Public policy organizations like Legal Action Center are increasingly focusing on reforming laws and policies that perpetuate segregated systems of healthcare and criminal justice, and working with directly impacted individuals, providers and legislators to shift the focus from punishment to treatment.
This is also why if we have any hope of ending the mess we are in, we need leaders who are not just able to do the bare minimum of acknowledging and understanding how the decisions, laws, and policies that drive mass incarceration have been a massive, expensive and damaging failure. No, we need leaders who are willing to do something about it. By this measure, Barr is uniquely ill-equipped for the task. While bipartisan efforts have been underway at the local, state and federal levels to reform sentencing laws and expand alternatives to incarceration, all while saving money and reducing crime, Barr appears to be all too comfortable with the status quo.
Given the robust evidence that mass incarceration has systematically destroyed the health and well-being of black and Latinx communities; created barriers to opportunities that impede upward mobility for generations; and made communities less safe, Barr’s assertion that the system is working “overall” makes him wholly unsuitable to lead the Department of Justice.