A conversation with Mr. Barr about how his thinking about criminal justice issues has evolved since he first served as Attorney General in the early 1990s, as well as a conversation about the themes of justice as depicted in popular culture.
Guest: United States Attorney General William Barr
Kary:
This is the Crime Story Podcast with Kary Antholis where we have conversations about how and why narratives of crime and justice are told.
Attorney General Barr:
… To me justice is the right outcome… I believe a sense of justice is hardwired into human beings. Don’t ask me why, but it is there…
Kary:
On today’s podcast we have a conversation with United States Attorney General William Barr.
Attorney General Barr:
There’s that scene in Dirty Harry where… Dirty Harry asks, “Where is she?” And the… guy smirks at him and he shoots him in the leg or something and the guy tells him where it is. I say, Now was that an unjust or morally repellent act? Is the reason the audience applauds when that happens because the audience is morally bankrupt? Or is there something else going on there?
Kary:
Attorney General William Barr and I met when he was on the Board of Directors of Time Warner. I was working for HBO and its sister channel Cinemax at that time and we connected over his appreciation of a Cinemax show that I worked on called Banshee. Banshee is a violent, pulpy series that tells the story of an ex-con who comes into a small town, and through a series of events, assumes the identity of the town’s sheriff.
Kary:
I interviewed Jonathan Tropper, the co-creator of Banshee, for a Podcast that we will release later in the season. Tropper said that the show is about “a guy who doesn’t follow the rules, who has his own moral code and isn’t caught up in the letter of the law, and in some strange way becomes a much more effective sheriff than the one who would.”
Kary:
As I was planning Crime Story, I knew that we would be focusing on the human impact of criminal justice and the narratives presented around it. Many of our stories will shed light on inherent inequities in the system that leave individuals of color and of limited means at a distinct disadvantage.
Kary:
And so, I sought an interview with the Attorney General to discuss how his thinking about these themes and issues has changed since he first served as Attorney General in the early 90s.
I also wanted to ask him what it was about the themes of justice in the Banshee series that appealed to him.
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On June 5, 2019 the Attorney General graciously agreed to sit down with me in his office in Washington, DC. We were joined by Deputy Chief Of Staff & Counselor To The Attorney General, John Moran, though Mr. Moran does not speak during the interview.
Kary:
First, Mr. Barr, let me say that I appreciate this opportunity, and I’d like to begin by getting your thoughts about the First Step Act, which the President signed into law last year, as well as your thoughts on criminal justice reform more generally.
Attorney General Barr:
I guess my thoughts on reform go back to my first tenure as Attorney General in the early ’90s. I studied crime and the law enforcement system for a long time, and came to the conclusion that most predatory violence is committed by a relatively small group of repeat, chronic offenders. And, generally speaking, they start usually committing crime as juveniles. After a number of crimes they get on this conveyor belt where it’s very hard, statistically, to turn them around.
In 1992 crime was at its highest level in American history, violent crime, and it had tripled over the preceding 30 years. At the same time, the prison population was decreasing. I argued for putting the emphasis on incapacitating chronic violent offenders. Identify the repeat and chronic violent offenders and put them in prison for a long time, especially those who committed serious crimes using firearms and so forth.
Attorney General Barr:
From that time forward, the American prison population steadily increased to where it is today and the crime rate has gone down, and been halved in that period. So, when people say today that, “Gee, we have a record number of people in prison but our crime rates are lower,” to me it’s not a but, it’s because of the strategy of incapacitation our crime rates are lower.
Attorney General Barr:
At the same time, I felt that the lower crime rates give us an opportunity to fine tune our enforcement policies. I have said that I support making sure that we reserve our prison space for the people who are the truly chronic violent offenders who continue to pose a threat to society.
Attorney General Barr:
I generally support the goal of the First Step Act and most of its provisions. If you have someone who has essentially paid their debts to society, you’ve been able to observe them for an extended period of time, and they appear to be reformed, keeping them in prison, someone who has served 20 years, keeping them in prison another five or 10 years may not make much sense if they no longer pose a threat.
Attorney General Barr:
So, I think that the process we’re going through now of trying to identify nonviolent offenders and reduce their sentences, get them back out and back into the world as productive citizens, is a good step to take. We have almost a full employment economy now, so there are opportunities for people. And so, I think the First Step Act with its focus on that, but also starting to focus on programs that actually help reentry into society and suppress recidivism, are things we should be doing and I’ve supported it.
Attorney General Barr:
The discussion over whether someone’s a violent offender sometimes obscures the point that there are many very violent and dangerous people in prison who were not convicted for violent crimes simply because the quickest way of getting them off the street and stopping the bloodshed was to get them on serious drug trafficking charges. But it may be as part of an organization that was committing many murders and so forth. So, I think most experienced prosecutors, especially in many of our urban centers, would say that some of the people who are being characterized, not under the First Step Act necessarily because the situation hasn’t been brought to my attention, but some people may be tempted to characterize a particular inmate as nonviolent when in fact continues to pose a danger. That’s one of my areas of concern.
Attorney General Barr:
I also think there are areas where mandatory minimums are important as a deterrent, but I also favor a safety valve that permits a prosecutor to depart from a mandatory minimum in an appropriate case. I’m generally opposed to giving too much discretion to the judges in that regard, because what happened historically as you started to get such disparity across the country that you had another kind of unfairness crop up. There was not only forum shopping, but you had people in adjacent states or on the other side of the country getting vastly different sentences for the same crime.
Kary:
How does empowering prosecutors to have flexibility in what they charge differ from empowering judges on what they sentence?
Attorney General Barr:
I think the legislature should basically be setting the standard of what the punishment is. I don’t view it as a judicial act, I view it as a legislative exercise. I think that allowing departure for specific reasons, which the prosecutor is in a position to judge, all these things are approved by the court ultimately. But allowing the prosecutor to, for example, you generally allow a departure if someone has cooperated. Judging the level of cooperation or the ability of the person to cooperate is frequently a decision that the prosecutor is able to see just from their knowledge of the case, and the gang that’s involved, and so forth. So, whereas sentencing that provides broader discretion to a judge to take into account factors beyond that ultimately leads to the nullification of the public’s judgment as to how serious the crime is. That’s my concern.
Kary:
During your confirmation hearings you indicated that you weren’t familiar with the notion of implicit bias in law enforcement and you would task the justice department with looking into it. Have you done so?
Attorney General Barr:
Yes, but I’m not going to get into that question.
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Kary:
During your confirmation hearing you said that heavy drug penalties and heavy sentencing have harmed the black community. I think you touched upon some of this earlier, but I’d love for you to lay out what you meant by that and where … Because the context of … It was a fairly short answer, the forum was not conducive to your digging into that. I just wondered what your thoughts were on that.
Attorney General Barr:
My thoughts were that the original, draconian penalties were adopted because of the outcry from the black community. That was my recollection of the events. In those days, there were conspiracy theories that crack and other things were a conspiracy by people who were racist to destroy the black community, and the pastors and others within the black community with the loudest voices were having to attack this. As is frequently the case, laws are passed to respond to the crisis of the moment, and they were very stiff penalties put into effect, which I supported at the time and supported for a long time. And still, I generally support tough penalties for trafficking and dangerous narcotics, and right now we have 70,000 people overdosing a year. It’s just unbelievable the damage that drugs are doing. I do think we need tough penalties.
Attorney General Barr:
The crack cocaine penalties were, in relation to other drugs, very onerous. Over time, a very high percentage of young African-American males ended up with not only incarceration but police records, which affected their ability to reenter society and get good jobs and so forth. So, cumulatively over a long period of time it became a … It caused damage to the black community itself. There’s also damage being done by drugs, so I haven’t opposed rebalancing the issue and listening to the local community leaders, such as the pastors and others who have called for a reduction in those sentences, particularly for lower level street distribution.
Kary:
The idea of the creation of a risk assessment tool in working on sentencing, can you talk about that and who you’ve tasked with doing that and what your thinking is on that?
Attorney General Barr:
I mean the First Step Act calls for the department to prepare and adopt a risk assessment tool to be used in helping to identify the best means of preparing inmates for reentry into society, and also assessing which ones continue to pose a risk and which ones it makes more sense to release. It’s an area that I’m not an expert in, so I think the act calls for a panel of experts to help the AG sort his way through this. It also calls for… I think it’s the National Institute of Justice, right? Yeah, to help do the work to prepare one. We’ve brought in outside consultants from NYU to work internally with the Department. Then we selected a think tank, Hudson, which had proposed a panel of experts to serve as the advisory board for this.
Kary:
And I guess specifically, why Hudson?
Attorney General Barr:
We considered three different vendors. And they all gave examples of what they thought would be a good, balanced committee. Frankly, there wasn’t much difference among them in terms of who the members would be. I know Hudson is considered a more conservative group, but the fact is I think all the bidders essentially came up with pretty much the same cast of characters or similar cast of characters that we thought were good faith and balanced. What we did was eventually we brought in one of the groups, the NYU people, who were considered in the center of things, and we brought them in to help us internally actually design the tool. Then we brought in Hudson to have them as the advisory group.
Kary:
And where are you in the creation of the tool time wise?
Attorney General Barr:
I think it has to be done by next couple of months or so. Yeah, it’s a very fast timeline.
Kary:
On July 19 the Department of Justice delivered the risk assessment tool that we discussed in our interview.
The tool is known as PATTERN, short for the Prisoner Assessment Tool Targeting Estimated Risk and Needs.
Brett Tolman, a former U.S. Attorney who’s now a leading advocate for sentencing reform, told the American Bar Association Journal that he wants to know more about how the risk assessment tool will be used before judging it.
Kary:
In a Post op-ed, you and a couple of other former Attorney Generals talked about the notion of the Ferguson Effect. Can you explain what … I think it’s this notion that protests like Black Lives Matter can lead to police backing off law enforcement and can lead to an increase in crime. Is that something you subscribe to?
Attorney General Barr:
I don’t know if the idea is that protests lead to that. I think the idea is that if police feel that they are going to be unfairly treated or unjustly disciplined for something they felt was a righteous act of self defense, and there’d be what they feel is unfair Monday morning quarterbacking, they will not take those risks. They will not confront crime where they think it can put them in danger, and the biggest losers of that can be people in high crime neighborhoods.
Kary:
Can we talk for a minute about Banshee and what it was… obviously it was an entertaining show, it was a lot of fun. I’m very proud to have been a part of it and was excited by your enthusiasm for it. What do you think it was about that show that engaged you in a way, because you said at the time you liked Strike Back but the show you really liked was Banshee. What was it about the show that you think you liked?
Attorney General Barr:
Well, to be honest, the first thing that drew me to the show was, I think, the writing, the quality of the acting, the plots, sort of the unexpected story line and so forth. But it does have undergirding it this basic tension between justice in the sense of the ultimate outcome versus justice as a process. I’ve often talked about that, which is, I think, to me justice is the right outcome. That’s what really justice is, that’s what we have a longing … I believe a sense of justice is hardwired into human beings. Don’t ask me why, but it is there and it’s satisfying to see justice done. And we feel angry when we see injustice that isn’t rectified. So, Americans have tended recently to view it more as a process, as if the criminal justice process is justice, and it isn’t. It’s a process that’s supposed to achieve justice, but very frequently doesn’t. As we were talking earlier, that’s the theme in the Dirty Harry movies and so forth. Even that. What was that movie with Bronson? Death…
Kary:
Death Wish.
Attorney General Barr:
Death Wish, yeah. That kind of thing that gives people a sense of satisfaction when they see it. There are a lot of issues that come up even today in fighting terrorism and other things where these issues are pitted against each other.
Attorney General Barr:
There’s that scene in Dirty Harry where I think the guy has kidnapped somebody who is running out of oxygen, has a few minutes to live. Dirty Harry asks, “Where is she?” And the other guy smirks at him and he shoots him in the leg or something and the guy tells him where it is. I say, now, was that an unjust or morally repellent act? Is the reason that the audience applauds when that happens because the audience is morally bankrupt? Or is there something else going on there? So I think these are interesting issues.
Kary:
I so deeply appreciate your time.
Attorney General Barr:
Oh, sure.
—
Kary:
There were two questions that I had planned to ask the Attorney General, but did not have the time. So I followed up with written questions to John Moran, who was with us for the interview.
Kary:
I asked whether the Attorney General has any plans to offer guidance to states on reforming bail policies to alleviate the onerous effects on those who face incarceration pending trial simply because they are poor?
Kary:
Although Mr. Moran indicated that he would try to get me a response to this question, none was forthcoming by the time we finished editing the podcast.
Kary:
I also asked for the Attorney General’s thoughts on for-profit prisons.
The Justice Department declined to respond to that question.
Kary:
This has been the Crime Story Podcast with Kary Antholis. The podcast was produced and edited by Jason Pugatch.
Kary:
For more Crime and Justice storytelling, news and narrative analysis, head over to crimestory.com.
Thank you for joining us, and we hope you will come back again for the next Crime Story Podcast.
