Attorney general nominee William Barr mixed defiance and conciliation at his confirmation hearing Tuesday when presented with his past praise for mass incarceration, ultimately signalling a greater openness to criminal justice reform ideas than his record might suggest.

Barr helped shape the early-1990s public policy consensus on crime and punishment that yielded vast racial disparities across all phases of the U.S. justice system. It was obvious throughout his testimony that he’d come prepared to defend his past advocacy for stringent policing and prosecution strategies and for sentencing laws he acknowledged were “draconian.”

When Sen. Cory Booker (D-NJ) and others sought detailed answers on the subject in Tuesday’s confirmation hearing, Barr demonstrated that he is going to be a hard man to persuade — but not an immovable object.

Booker asked Barr about his 1995 statement that no statistical evidence of racist justice even existed at that time.

“There’s no doubt that there are places where there is racism still in the system,” Barr said. “But I said overall, I thought that as a system, it’s working. It’s not predicated on race.”


Booker, holding up a stack of printed studies from the U.S. Sentencing Commission, the Brookings Institution, and others, laid out the many statistics that now show Barr was wrong in 1995 — that black offenders are more arrested, more harshly charged, and more stringently sentenced than white peers charged for similar conduct.

Barr acknowledged he doesn’t know those numbers, and promised Booker he would seek all the information he can about how the policies he helped craft have played out.

It is distressing that a veteran law enforcement official on the cusp of becoming the country’s top cop for a second time has not kept up to date with the numbers here. But Booker opted not to excoriate Barr, to bear with him instead and try to teach him the things he shouldn’t have to teach anybody who’s up for this job.

Watch the full exchange between the two here:

As anyone might when told their actions have fostered a nightmarish outcome, Barr insisted on defending his past work as a product of their moment.


“I think 1992 was a different time, senator. The crime rate had quintupled over the preceding 30 years,” Barr said. Moments later, when Booker’s time was up, Barr expounded on that simpler-time explanation.

Black leaders in Trenton, New Jersey, had come to him in 1992 “when blood was running on the streets of the United States” to implore him to deliver public safety in crime-riddled inner-city neighborhoods, Barr said. “My attitude was, let’s stop arguing past each other, let’s target root causes, and get tough on crime.” He characterized the severity of the justice policies he helped shape as a response to crisis — and then, more unusually for an architect of that policy response, allowed that it might be time to change some of the stuff that made sense at that time.

“I think the neighborhoods are — the crime rate has gone down,” he said. “I make a distinction between the way we treat these chronic violent offenders, and the drug penalties. The drug penalties, as I said, [are] very high and draconian, and in some cases that might have been necessary but I supported revisiting the penalty structure.”

Booker maintained his more-flies-with-honey approach, telling Barr he believes his “intentions are well” and predicting they could have productive conversations down the line.

Barr’s past contention that nobody can prove racism in the system wasn’t the only place he sought to simultaneously defend and update his positions. Barr has contended in the past that black people would benefit more than any other group from the unequal enforcement of drug laws in their communities and the decision to treat crack cocaine as inherently more violent than its powdered cousin. There, too, Booker flat-out asked if he still thinks the past 30 years of drug and gang policing has been good for black people.

“I think that the reduction in crime has, since 1992,” Barr said, but I think that the heavy drug penalties, especially on crack and other things, have harmed the black community. The incarceration rates have harmed the black community.”


Barr is partially correct that the calls that brought racist policies into federal criminal law came from inside the house. But where many of his peers have wielded the fact of black outrage about drug violence in the 1980s as a weapon against latter-day criticism — often conveniently omitting that those leaders also asked for carrots along with the sticks — Barr used the history to signal he’s an open-minded guy who’s ready to entertain the idea of change.

Considering that the man who’s trying to hire him routinely harps on the very same 1990s tropes that Barr today acknowledged might just be out of date, even the blandest concessions from the nominee are striking. He’s replacing a guy who blamed civil libertarians and black criticism of police departments for murders and routinely stymied the progress Booker and a bipartisan group of lawmakers have sought over the past few years.

In one earlier exchange with Sen. Richard Durbin (D-IL), Barr’s signalling that he might be willing to break from the president who raged about “this American carnage” in his inaugural address became particularly bold.

“When the crack epidemic first hit it was like nuclear weapons going off in the inner city. As I think you’ll recall, a lot of the community leaders at the time were saying, this is killing us, you have to do something,” Barr said to Durbin.

“Now the same leaders are saying to us, this has been devastating, generation after generation of our people have been incarcerated and lost their lives because of this, and you have to change the policies,” he said.

“I think that we should listen to the same people we were listening to before.”