When William Barr served as attorney general in the early 1990s, the war on drugs and the public panic it generated was reaching a fever pitch. In the years that followed, intensifying law enforcement and mandatory minimum sentencing for drug crimes caused prison populations to explode, devastating communities of color and making the United States the most incarcerated country on the planet. Now, president Trump has nominated Barr to serve as attorney general again.
Has Barr changed since the early 1990s? Civil rights groups demanded to know in the lead-up to the confirmation hearing before the Senate Judiciary Committee on Tuesday. Now they do.
While it appears that some of Barr’s views have evolved, his testimony revealed a proponent of heavy policing and mass incarceration. He also dodged questions about voting rights cases and parroted the limited interpretation of civil rights law that former Attorney General Jeff Sessions used to roll back protections for LGBTQ people and transgender students established by the Obama administration.
During the hearing yesterday, Republicans and even some Democrats appeared pleased by Barr’s performance, particularly after he repeatedly pledged to allow special counsel Robert Mueller to finish his investigation of Russian election meddling and the Trump Organization. Civil rights groups and progressive Democrats, still frustrated by Sessions’s tenure, were anything but pleased.
“William Barr had the opportunity today to prove to all of us that he could be the independent, fair Attorney General America needs right now. He failed,” said Kristine Lucius, executive vice president for policy at The Leadership Conference on Civil and Human Rights, in a statement on Tuesday.
Were there any bright spots? Not really.
Barr did acknowledge that harsh mandatory prison sentences for crack cocaine offenses had harmed Black communities by locking huge numbers of vulnerable people up in prison, though only after being schooled on mass incarceration by Sen. Cory Booker. Although Barr opposes marijuana legalization, he promised to leave state-compliant marijuana businesses alone. He pledged to implement a watered-down prison reform law, even though he has opposed similar initiatives in the past. None of this is surprising. In 2019, these positions are readily adopted by politicians on both sides of the aisle.
However, during the hearing, Barr repeatedly defended his past push for “more incarceration,” and showed little interest in treating illegal drug use as a public health issue rather than a crime. Barr made it clear that he would continue fighting the failed war on drugs and supports an expanded “barrier system” along the southern border, echoing President Trump’s call for a border wall. He said that such a barrier would reduce the influx of “illegal aliens,” a racist and dehumanizing term for undocumented immigrants he used repeatedly throughout the hearing.
“This is an area where, again … I don’t know how it’s functioning, I don’t know how the drug war is being coordinated, but I think [the Justice Department] can play a big role in pushing for partners like the State Department, the Defense Department, intelligence agencies and so forth to help deal with this,” Barr said. “It’s not, to me, just a law enforcement problem, it’s a national security problem.”
Democrats, frustrated by President Trump’s ongoing refusal to sign a funding bill to reopen the government without money for his border wall, pointed out that most drugs enter the country through legal ports of entry rather than remote areas where walls and fences do not yet exist. Barr later clarified that his idea of a “barrier system” could include technology beyond what Trump calls the “big, beautiful wall,” but his views on immigration were right in line with Trump and his supporters: The more security, the better.
Whatever the “barrier” looks like, Barr’s testimony suggests that he will continue on the trail forged by Sessions, who breathed new life into the war on drugs and initially defended the Trump administration’s “zero tolerance” policy that tore apart migrant families on the southern border until public disgust reached a boiling point. Like Sessions, Barr has repeatedly opposed even minimal sentencing reforms to reduce the prison population and has a record of sacrificing civil liberties at the altar of mass surveillance and state power.
“The Sessions Justice Department doubled down on the war on drugs, threatened LGBTQ equality, curtailed a key tool to fix unconstitutional conduct, and spearheaded the revocation of DACA and the policy separating children from their parents — and locking them up in cages,” Lucius said. “Barr has shown he will not change course.”
As expected, the hearing was dominated by questions about the Mueller probe, a good sign that the investigation will continue to consume leading Democrats and Trump’s critics in the GOP. A handful of liberal Democrats rushed to address the Justice Department’s role in protecting civil rights toward the end of the hearing. Barr’s responses were generally opaque or congruent with the Trump administration’s past efforts to rescind progress made under President Obama.
Still, there were revealing moments. After being asked whether he would support the jailing of journalists, Barr paused for a moment to collect his thoughts. He then explained that he could “conceive” of a situation of “last resort” where a journalist could be held in contempt of court if a news organization “knows that they’re putting out stuff that would hurt the country.” This set off alarm bells across a media weary of Trump’s attacks on the free press, but Democrats did not follow up to learn more about what Barr meant.
Then there was a line of questioning from the committee’s two Black members, Senator Booker and Sen. Kamala Harris. Booker pressed Barr about a 1992 report he endorsed titled “The Case for More Incarceration,” which argued that the answer to crime was putting more people in cages. The conversation quickly turned to race.
Barr began talking about “violent gangs in the city” and explained that drug trafficking offenses are often the most “readily provable” charges available to prosecutors seeking to get “gangs” off the streets. This response was unmistakably Trumpian.
“So, you can take out a gang on drug offenses, and you could be taking out a lot of violent offenders,” Barr said. “Do you think the murders in Chicago are … they are related to gangs.”
Booker cut Barr off and asked if he was familiar with the data behind mass incarceration, which clearly shows that Black people and people of color are disproportionately targeted and incarcerated for drug crimes compared to whites, even though Blacks and whites use and distribute drugs at similar rates. Booker suggested that Barr do some homework because his language “brings up this language of race.” Booker had plenty of facts from the Bureau of Justice Statistics on hand.
“These are the sort of tropes that make people believe that in inner cities, we should have such high incarceration rates,” Booker said. “And I’d like to ask you specifically about the data, because I think it’s language like that that makes me kind of concerned and worried.”
Barr said that 1992 was a “different time,” and his views in favor of mass incarceration were formed by visit to Trenton, New Jersey, in Booker’s home state. There, he said, members of the African American community “essentially surrounded me” and demanded a tough law enforcement response and harsh prison sentences for drugs dealers and gangs.
Not long after, it was Senator Harris’s turn to ask questions, and she was not happy with Barr’s attempt to speak for the Black community.
“My understanding is that many community leaders of that time … knew and said even then that the crack epidemic was a public health crisis, and that that was really the chorus coming from community leaders, not that they wanted drug-addicted people to be locked up,” Harris said. “And similarly, now, we can find that in most of the communities afflicted by the opioid crisis, they are similarly, these community leaders, asking that it be addressed as the public health crisis that it is.”
Harris wanted to know: Is there a role for the nation’s chief law enforcement officer to play in responding to drug use with a public health response, rather than a “lock them up” response? In the almost 30 years since Barr served as attorney general, Harris said, a “consensus” has emerged that, regardless of the drug in question, the “war on drugs was an abject failure” and locking up people who suffer from a public health problem “is probably not the smartest use of taxpayer dollars.”
Barr’s response was disappointing at best, suggesting that public health concerns should be taken up by the Department of Health and Human Services, not the Justice Department, which exists to enforce drug prohibition.
What else should we expect? After all, Barr was nominated by a president who has used the boogeymen of “gangs,” “violent criminals” and immigrants to rile up right-wingers who are fearful of white displacement. When it comes to issues facing anyone else, Barr appears no different from Sessions, and indeed, no different from Trump himself.