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Analysis

Five Steps for William Barr on Criminal Justice Reform

The newly confirmed attorney general defended policies in the 1990s that sent more people to prison. Will he repeat his mistakes?

February 11, 2019

Update February 14: William Barr has been confirmed by the Senate as the next attorney general.

”The Senate is scheduled to vote on William Barr’s nomination for attorney general this week. If confirmed, as is expected, he will become the United States’ chief law enforcement officer for the second time.

Barr first served as attorney general from 1991 to 1993 under President George H.W. Bush, and advocated for policies that sent more people to prison. A lot has changed in the nearly 30 years since. Crime rates are down, and there’s bipartisan consensus on the need to reduce mass incarceration and to address racial inequality in the justice system.

Here are five key things the Brennan Center believes Barr should do to show he’s moved away from more incarceration and is committed to needed reforms:

Proactively Implement the FIRST STEP Act

If confirmed, Barr takes the helm at DOJ amid the biggest changes to federal sentencing laws in a generation. The FIRST STEP Act passed Congress with overwhelming bipartisan support and was signed into law by President Trump last year. Among its provisions, the bill reduces some mandatory minimum sentences, gives judges more discretion to deviate from mandatory minimums, and lets incarcerated individuals receive slightly higher sentence reductions based on good behavior than were previously allowed.

In the past, Barr has supported increasing imprisonment, but when questioned about the bill by Sen. Chuck Grassley (R-Iowa) during his confirmation hearing, he said: "I have no problem with the approach of reforming the prison structure and I will faithfully implement the law."

Barr’s commitment to the FIRST STEP Act will be tested immediately. Because of a technicality in the way the law was written, a federal judge has said that incarcerated individuals with enough good-time credits to get out under the new law cannot be released until DOJ implements a separate part of the law. By pursuing a solution quickly, Barr can make sure the letter of the new law aligns with the goals it was written to achieve.

Allow Federal Prosecutors to Use Discretion

Former Attorney General Jeff Sessions dismantled some common-sense reforms during his tenure, including one that gave prosecutors discretion to seek lower charges to avoid overly-punitive mandatory minimum laws. The directive had also recalibrated resources so the DOJ could focus enforcement efforts on individuals accused of more violent offenses.

Blanket, one-size-fits-all sentences helped lead to mass incarceration in the first place. Barr should quickly reinstate a policy that encourages appropriate discretion. Lawmakers, law enforcement leaders, and advocates across the political spectrum support a more tailored approach — one that takes into account the needs and circumstances of each individual case.

Decline to Interfere in State Marijuana Laws

As the damage inflicted by mass incarceration become clearer, law enforcement has slowly moved away from over-enforcement of drug offenses. Until Sessions, that is. He reversed DOJ guidelines that had encouraged prosecutors to stay away from marijuana enforcement in states where recreational use is legal.

“Every dollar spent on enforcing marijuana is a dollar not spent helping combat opioid use, murders, violence, and serious financial crimes,” said Inimai Chettiar, director of the Brennan Center’s Justice Program. “This decision could jeopardize public safety in the long run.”

At his confirmation hearing, Barr said he would “not go after companies that have relied on the Cole memorandum” — the policy that Sessions revoked. But he can go a step further and reinstate it as a formal guidance for attorneys in the department.

Reestablish Guidance on Criminal Justice Fees and Fines

Barr should also reissue directions on rethinking criminal justice fees and fines, which are too often required of people who can’t afford to pay at all, or not adjusted to what an individual can reasonably afford.

Obama-era guidance provided court officials with ideas on how to change these policies at the local level. But in December 2017, Sessions nullified it. His decision ran counter to research that has, over the years, been used to inform changes in policy and practice across the country.

When people default on a payment, they can become more entangled in the criminal justice system than they were after their original offense. “It’s a perverse, profit-based framework that helps spin the revolving door of the criminal justice system,” said Lauren-Brooke Eisen, senior fellow in the Brennan Center’s Justice Program.

Discontinue the Use of Private Prisons

Barr should also quickly recommit the Justice Department to reducing its use of private prisons, as then-Deputy Attorney General Sally Yates did in 2016. Her decision was almost immediately reversed by Sessions after he was confirmed.

As incarceration increased in the 1990s, so did the need to build more prisons. This helped give rise to private prisons — facilities run by for-profit companies who are awarded contracts from state, local, and federal governments. A report from the Justice Department inspector general found “in most key areas, contract prisons incurred more safety and security incidents per capita” than prisons run by the federal Bureau of Prisons. And private prisons, Yates said, fall short of the bureau when it comes to preparing individuals for life after release.

Once again, years of data shows that a new approach is needed. And Barr has the power to make the change.

(Image: Chip Somodevilla/Getty)