Madiba K. Dennie

Opinion contributor

In 1992, William Barr, now President Donald Trump's nominee for attorney general, helped engineer regulations that led to mass incarceration. And last week’s Senate confirmation hearings made it clear: In this new age of bipartisan criminal justice reform, calls for more progressive policing and efforts to lower incarceration, Barr is not the man to tear down what he built up.

At no point was that clearer than during an exchange Tuesday with Sen. Cory Booker, D-N.J.

When Booker asked about racial bias within the criminal justice system, and whether Barr recognized how much his policies had damaged the black community, the nominee stated that there may be pockets of racism "but ... overall ... as a system ... it's not predicated" on race and racism.

That's a shocking statement from a candidate for the top law enforcement office in the United States. In order to ensure equal protection under the law, one has to recognize that such protection is — and historically has been — unequal. Barr has failed to do so.

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Near the end of the exchange, Booker stated that he was worried about some of the language that he heard Barr using that ignored data.

And with good reason.

In the nearly 30 years since the nominee's first stint as attorney general under President George H.W. Bush, mass incarceration has disproportionately robbed black people of freedom, separated black families, increased black poverty, and decreased black voting power.

More whites use drugs in the USA, but more than half of the people in state prisons on drug offenses are people of color. The lifetime likelihood that an individual born in 2001 will end up in prison also varies greatly by race. It's one in 17 for white males and one in three for black males.

When Barr was attorney general in the 1990s, dogmatic, tough-on-crime policies held virtually the same position that progressive policies do now, and Barr led the charge toward tightening the grip on young black men, a group perceived as "superpredators." But even then, some people recognized that too many Americans were being incarcerated.

Barr disagreed. In the 1992 Department of Justice report “The Case for More Incarceration,” Barr argued, “We are incarcerating too few criminals.” He further claimed that black Americans would disproportionately “enjoy” the benefits of increased incarceration.

On Tuesday, Barr acknowledged that his policies created today's mass incarceration problem, but he failed to completely renounce them. Instead, he justified them as necessary to address 1990s crime rates.

He also neglected to state that the decades-old war on drugs was a failure — a point now recognized through policies that treat opioid addiction as a public health crisis.

His approach indicates no understanding of the nexus of race and law in America.

Two months ago, Barr co-wrote an op-ed that promoted the “Ferguson effect,” a flimsy theory that protests against police violence in Ferguson, Missouri, were leading to crime waves across the country. The piece also bemoaned officers becoming afraid of prosecution.

When questioned during the hearings about former Attorney General Jeff Sessions' memo that made it harder for the Justice Department to enter into consent decrees to address police misconduct, Barr stated he agreed with Sessions' decision.

Barr did seek to assuage some concerns about his criminal justice record by testifying that he would implement and enforce the FIRST STEP Act, a bipartisan law allowing some persons incarcerated in the federal prison system to be released early.

But a promise to follow the law is the bare minimum that should be expected of an attorney general. In light of this administration’s attacks on people of color, including the indefinite detention of immigrant children, a candidate should demonstrate a robust commitment to justice and proactively challenge ills within the system, including mass incarceration.

Barr got some things right during the hearings: He made it clear that he would not be bullied, not even by the president; he stated that he didn't think special counsel Robert Mueller's investigation was a witch hunt, and that he would not try to impede it; he came out in support of efforts to protect women from violence.

In all likelihood, he will again be confirmed as attorney general. He will be granted a second chance to get things right on criminal justice (unlike many victims of mass incarceration and mandatory minimum drug sentencing).

But, despite the newly passed FIRST STEP Act, I (just like Booker) am troubled by Barr's statements about race, the justice system and incarceration. I fear that criminal justice reform and policing may be taking several steps back.

Madiba K. Dennie, an attorney and freelance writer committed to racial and gender justice, hosts the podcast Barred and Boujee.