Barr confirmation reveals shallowness of congressional commitment to justice reform

Congress just confirmed an attorney general unwilling to reshape the criminal justice system. William Barr is no reformer, as the hearings and his past indicate. Yet, he is now head of the Justice Department in charge of implementing the First Step Act, passed just two months ago to reform some aspects of federal sentencing, imprisonment and reentry. Barr’s confirmation indicates how shallow the drive to reform is, how easily it will be sacrificed for other goals. 

The First Step Act passed with a broad bipartisan majority. Congress should have demanded an attorney general committed to decreasing the federal prison population, improving re-entry, and limiting prison sentences for minor offenders. It should have demanded an attorney general committed to the spirit of the Act. Instead it settled for someone who will interpret it as narrowly as possible and implement it grudgingly.

But that’s not all. Attorney General Barr should be expected to continue the Jeff SessionsJefferson (Jeff) Beauregard SessionsDemocrats press Nadler to hold Lewandowski in contempt Pelosi: Lewandowski should have been held in contempt 'right then and there' Democrats bicker over strategy on impeachment MORE charging and drug policies. If Congress really cares about changing the federal criminal justice system, it needs to hold his feet to the fire rather than willingly accept empty commitments. 

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Barr’s portfolio on criminal justice issues is broad. The largest single item in the department’s budget is the Bureau of Prisons. Two recent incidents highlight the need for change there: First, Whitey Bulger, a notorious criminal, got mysteriously transferred to another prison where he was killed within 24 hours of his arrival. Then pre-trial detainees held at the Brooklyn Metropolitan Detention Center were held without heat, light, and hot food during a record cold week. Minimally humane standards and safety, combined with accountability, should be a baseline for our prisons. That apparently will require a change in organizational culture. The First Step Act mandates additional reforms to pivot toward rehabilitation and reentry. That will be impossible under inhumane circumstances. 

The First Step Act also asks prosecutors to approach their work differently. To bring sentences down, the attorney general will have to change charging policies and sentencing advocacy. To comply, he’ll need to implement a turnaround in his office and the 94 U.S. Attorney’s offices around the country. His first step in that direction should be rescinding the Sessions charging memos, which are reminiscent of the height of the war on drugs

The First Step Act asks for risk assessments. Those can conceal discrimination behind algorithms. The attorney general needs to be dedicated to racial equality to prevent managerial criminal justice from perpetuating racial inequality. Yet, Barr doesn’t seem to appreciate even glaring racial disparities in our criminal justice system. 

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Jeff Sessions favored local police over minority communities when he rejected federal investigations into police abuses and dismantled Obama-era consent decrees between the Department and local police. Charlotte and Milwaukee, Ferguson and Chicago, need no reminder of tensions between police and minority communities. They may have receded from public spotlight but haven’t been resolved. Barr needs to be willing to use federal power and resources to support local police chiefs who are trying to change institutional culture rather than empower reactionary officers. Federal support for local law enforcement cannot come at the expense of minority and immigrant communities. 

Presidential pardons (unconnected to the Mueller investigation) could play a salutary role in a federal system plagued by overly punitive sentencing. At the times President George H. W. Bush pondered the Iran-Contra pardons, Attorney General Barr was extensively consulted, and he apparently advocated strongly for a pre-trial pardon for Caspar Weinberger, the former secretary of Defense. We don’t know whether he would support a structured, broad-based pardon/commutation system for those with federal convictions. With 180,000 federal inmates, and hundreds of thousands branded with federal convictions, we need presidential clemency. 

The attorney general is much more than the supervisor of the Mueller investigation. He sets the tone for our criminal justice system. Having now confirmed William Barr, Congress needs to assure at a minimum that its criminal justice reform be effectuated.

Nora V. Demleitner is the Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University in Virginia, editor of the “Federal Sentencing Reporter,” and lead author of a casebook on sentencing. Follow her on Twitter @NDemleitner.