Last month, Merriam-Webster selected “justice” as its 2018 word of the year. Defined as “the principle or ideal of just dealing or right action,” the increased interest in justice is ironic as the Department of Justice, the only cabinet-level agency named after an ideal, struggles to pursue its mission under the weight of an administration that misconstrues its purpose.
This week, the Senate Judiciary Committee will consider the nomination of William Barr to become the next attorney general of the United States. Mr. Barr’s positions faced closer scrutiny after news outlets discovered a memo he wrote less than six months ago criticizing the Mueller investigation. Beyond that, there are more reasons to be concerned.
Barr has called his predecessor, Jeff Sessions, “an outstanding attorney general” and praised policies like Mr. Sessions’ 2017 prosecutions memorandum that directed federal prosecutors to charge and pursue offenses that carried mandatory minimum sentences, despite evidence showing that mandatory minimums do not increase public safety. In many ways, Mr. Sessions’ time as attorney general at DOJ is both a reflection of Mr. Barr’s previous tenure and a forecast of things to come.
Mr. Sessions doubled-down on the disastrous tough on crime strategy once promoted by Mr. Barr, even going so far as to suggest the death penalty for drug crimes. His alleged orchestration of the “zero tolerance” border policy mirrors Mr. Barr’s controversial record on the detention of asylum seekers. Mr. Barr oversaw execution of a policy that sought to prevent the entry of Haitians fleeing mass executions and resulted in the detention of 12,000 asylum seekers at Guantanamo Bay.
During this week’s hearings, set for Tuesday and Wednesday, the Senate must bring Mr. Barr’s positions on important civil rights issues into sharper focus. Though Mr. Barr has at least acknowledged that minority communities suffer discrimination in the form of disparate impacts, as the Trump administration accelerates efforts to roll back the use of important civil rights regulations, his position on this and other civil rights issues must take center stage.
For his part, Mr. Sessions was openly hostile to civil rights, revoking 25 DOJ guidance documents in December 2017, the majority of which provided state and local actors with clear instructions for meeting various civil rights obligations. Mr. Sessions revoked an additional 24 guidance documents in July 2018, most dealing with civil rights in education and improving operation of the nation’s juvenile justice system.
One particular guidance document revoked by Mr. Sessions sought to prohibit incarceration and other punishments for individuals based solely on their poverty and inability to pay court-imposed debt. In revoking the fines and fees guidance, Mr. Sessions made it clear that the DOJ was abdicating its role in ensuring fairness and equality for indigent defendants who are often pawns in the profit-making schemes of local courts and the private corrections industry.
Municipalities across the country have fueled mass incarceration with the repeated arrests of those who cannot afford to pay court-imposed fines, fees and costs associated with minor offenses like expired vehicle tags, seat-belt violations, poor property “up-keep” and even juvenile status offenses like skipping school. The municipal court in Ferguson, Mo., derived 20 percent of its revenue from court-imposed fines and fees. In Tempe, Ariz., courts collect $2.56 in fines and fees “for every $1 expended on court operations.” In Arkansas, a judge’s “zero tolerance” collections policy for mandatory $100 per month payments results in the jailing of hundreds of poor Arkansas each year — often for 30 or more days at a time.
Rather than rejecting the use of the criminal justice system as a tool for collecting cash and balancing municipal budgets on the backs of the poor and disenfranchised, Mr. Barr appears poised to continue along the same path. He has previously championed the corrosive policing-for-profit ideology embraced by Mr. Sessions when he reinstated harmful asset forfeiture rules. His criticism of Obama-era efforts to reform policing is in lock-step with Mr. Sessions’ parting memorandum limiting the use of consent decrees that inject necessary accountability and integrity into troubled police department across the nation.
Theologian St. Augustine once mused that in “the absence of justice, what is sovereignty but organized robbery?” It is then no wonder that the United States’ “use of the legal system, not to promote justice, but to raise revenue” caused the United Nation’s Special Rapporteur on Extreme Poverty to describe our criminal justice system as “effectively a system for keeping the poor in poverty.”
As Americans increasingly search for the meaning of justice, the removal of Jeff Sessions provides an opportunity to reestablish the DOJ as the guardian of what Thomas Jefferson described as the most sacred duty of government; “to do equal and impartial justice to all its citizens.” The nomination of William Barr is not the answer we have been searching for.
Myesha Braden is the director of the Criminal Justice Project at the Lawyers’ Committee for Civil Rights Under Law.Twitter: @MyeshaBraden.