We are finally at the point where the public, the experts, and many (perhaps most) elected officials and policy makers agree that there is something seriously wrong with the American criminal justice system.
While the concerns vary, there is general agreement that our “tough-on-crime” experiment has not been successful. We’ve spent approximately $1 trillion on trying to punish bad behavior out of people with little effect, and another $1 trillion on failed efforts to control the supply of drugs. That investment has bought us an 85 percent recidivism rate.
Another sobering element in this pessimistic picture is the broader social and economic costs of our hardline crime and criminal justice policies, estimated to be $1 trillion a year.
The current movement for criminal justice reform is relatively new, born out of the recession of the late 2000s and concern by state governments over the cost of incarceration. But it has been gaining significant traction.
Whether the concern is recidivism, the price tag, mass incarceration, racial inequality, the excessive use of pretrial detention, the failed war on drugs, police use of force, or dozens of other issues, reform has become a central theme in the media and policy circles, among an ever-increasing number of non-profits and advocacy groups, as well as in many state legislatures and Congress.
Yet we are facing a throwback to the “lock ‘em up and throw away the key” policies that seemed on their way to the drawer of failed ideas.
His name is William Barr.
The former Attorney General whom President Trump has nominated to return to his old job is, at best, likely to preside over a continuation of the policies of his official predecessor Jeff Sessions— who, among other things ordered U.S. Attorneys to charge the maximum offense in federal prosecutions, ramped up the war on drugs, and opposed sentencing reform.
There are good reasons to expect more of the same from Barr.
The 68-year-old Barr served as the 77th U.S. Attorney General from 1991 to 1993 in the administration of the late President George H. W. Bush, who made tough on crime a central theme (the Willie Horton ads are exhibit A). In this, Bush was following the lead of President Ronald Reagan, who facilitated the massive expansion of state and federal prison populations, the implementation of state and federal mandatory sentencing and truth in sentencing laws, and ramping up the war on drugs.
William Barr was a perfect fit for that era.
Americans should be asking whether he belongs in this one—at a time when the momentum for changing the policies of the past four decades has never been stronger.
Barr was one of the chief architects for the incarceration boom, writing in The Case for More Incarceration in 1992:
Ask many politicians, newspaper editors, or criminal justice “experts” about our prisons, and you will hear that our problem is that we put too many people in prison. The truth, however, is to the contrary; we are incarcerating too few criminals, and the public is suffering as a result.
Barr also was responsible for expansion of drug control policies. During his tenure, the budget for the war on drugs increased by 140 percent.
After Barr left the Attorney General’s office, he worked in Virginia to eliminate parole, expand the prison population, and increase prison sentences.
Time does not appear to have softened his views about crime and punishment.
He co-authored (with Edwin Meese and Michael Mukasey) an op ed in The Washington Post on November 9, 2018 that sang high praise for Jeff Sessions and his accomplishments as Attorney General. Among other things, they lauded Sessions’ record on federal prosecution and targeting drug offenders.
Barr also went public in his opposition to the federal Sentencing Reform and Corrections Act (SRCA). The SRCA is a bipartisan bill that would reduce federal mandatory sentences and mandatory minimums, reduce sentences for possession of crack cocaine, and require the Bureau of Prisons to provide more rehabilitative programming to reduce recidivism.
(This week, in a hopeful sign, Senate Majority Leader Mitch McConnell agreed to give the long-stalled bill a floor vote.)
In a system like ours, where justice is for the most part administered at the state and local levels— only about 12 percent of all prisoners in the U.S. are federal inmates— some might think that the impact Barr could have on criminal justice reform is limited to the relatively small federal criminal justice system.
I believe that’s overly optimistic.
Among other things, federal law and policy set standards for others to follow. If nothing else, an attorney general determined to defend and implement the discredited policies of the past could act as a dampening influence on comprehensive criminal justice reform.
The evidence is clear that Barr has been and will continue to be a tough-on-crime advocate.
Chances are he will pass through his nomination hearings easily, although Democrats vow to ask him tough questions about his approach to the Mueller Commission probe into the links between the Russians and the Trump election campaign.
For many, an establishment figure like Barr might be a welcome moderating force in an administration that shuns science and sets policy based on gut feelings.
But considering the high stakes of our justice challenges, Americans deserve better.
Kelly is professor of sociology at the University of Texas at Austin and the author of four books on criminal justice reform. He discussed his latest book, co-written with U.S. District Judge Robert Pitman, “Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform,” in a recent conversation with TCR’s J. Gabriel Ware.