In a confirmation hearing before the Senate Judiciary Committee on Tuesday, President Donald Trump's nominee to lead the Justice Department, former U.S. Attorney General William Barr, defended his role in the harsh mandatory minimum sentences that led to mass incarceration, but said he was open to sentencing reforms like those recently passed by Congress.
"During your previous tenure as attorney general, you literally wrote the book on mass incarceration or wrote this report," likely 2020 presidential candidate Sen. Cory Booker (D–N.J.) said to Barr, referring to a 1992 Justice Department memo, "The Case for More Incarceration."
"Do you think, just yes or no, that this system of mass incarceration has disproportionately benefited African American communities?" Booker asked.
"I think that the heavy drug penalties, especially on crack and other things, have harmed the black community, the incarceration rates on the black community," Barr replied.
However, Barr characterized those laws throughout the hearing as a product of their time, and he also credited those long sentences for violent offenders with the historically low rates of crime American is now enjoying.
"I don't think comparing the policies that were in effect in 1992 to the situation now is really fair," Barr told Sen. Chuck Grassley (R–Iowa).
Barr also said that the 100:1 sentencing disparity between crack and powder cocaine was partly a result of calls from communities being ravaged by crack for more action from the government.
"From my perspective the very draconian penalties on crack were put in place initially because when the crack epidemic first hit, it was like nuclear weapons going off in inner cities," Barr told Sen. Dick Durbin (D–Ill.). "The initially reaction was actually trying to help those communities. Over time, those same leaders are now saying to us, 'This is devastating. Generations of us have been incarcerated.' And we should listen to the same people we were listening to before."
However, in a particularly interesting exchange, Booker pressed Barr on whether systemic racism existed in the criminal justice system, which Barr denied:
BOOKER: When you talk about Chicago in the way you just did, it brings up racial fears or racial concerns, and you stated that if a black and a white—and this is quoting you directly—are charged with the same offense, generally, they will get the same treatment in the system, and ultimately the same penalty. You previously quoted, and I'm quoting you again, there's no statistical evidence of racism in the criminal justice system. So you still believe in that?
BARR: No, what I said was that—I think that's taken out of a broader quote, which is, the whole criminal justice system involves both the federal but also state and local justice systems. And I said there is no doubt that there are places where there if racism still in the system,. But I said overall, I thought as a system, it's working. It's not predicated on racism.
In response to questions from several Republican and Democratic senators, Barr assured them he would diligently implement the recently enacted FIRST STEP Act, although he repeated his commitment "keep up the pressure on chronic, violent criminals." Barr's openness—or at least his stated openness—to some sentencing reforms is a notable departure from former Attorney General Jeff Sessions, who was one of the staunchest defenders of mandatory minimum sentencing.
Many criminal justice advocates, though, have opposed Barr's nomination based on his previous record on mass incarceration. "William Barr's record suggests that he will follow Jeff Sessions' legacy of hostility to civil rights and civil liberties," Faiz Shakir, American Civil Liberties Union national political director, said in a statement after Barr's appointment was announced.
"It's hard to imagine an attorney general as bad as Jeff Sessions when it comes to criminal justice and the drug war, but Trump seems to have found one," Michael Collins of the Drug Policy Alliance told PBS NewsHour.