Attorney General Barr Got It Wrong

The importance of evidence-based policies in the criminal justice system

Posted Aug 13, 2019

The U.S. Attorney General spoke yesterday before the Fraternal Order of Police. He spent time talking about how difficult the job of the police is and what an important role they play – all true – but he took the opportunity to lob criticism at some city District Attorneys who he labeled “social justice” reformers.

Barr described these duly elected District Attorneys as anti-law enforcement DAs, who let criminals off the hook and refuse to enforce the law. He characterized them as demoralizing to law enforcement and dangerous to public safety.

To quote Barr, who is the chief law enforcement officer in the nation: “Once in office, they have been announcing their refusal to enforce broad swaths of the criminal law. Some are refusing to prosecute various theft cases and drug cases. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.”

Barr’s description of what these progressive, reform-minded District Attorneys are doing is simply wrong. Moreover, Barr’s admiration for tough on crime policies is profoundly misguided.

I have been studying progressive District Attorneys and their role in criminal justice reform for several years. I am currently in the process of interviewing progressive DAs around the nation. I can report firsthand that their primary goal is to enhance public safety by implementing smart, evidence-based policies for reducing crime, recidivism, and victimization. To say that these prosecutors are anti-law enforcement and that their policies will result in more crime and more victimization simply shows how ill-informed Barr is regarding crime and criminal justice. 

Indeed, many prosecutors are electing to not prosecute cases involving small amounts of marijuana and in some cases, minor theft. Others are developing pretrial diversion programs for individuals involved in lower-level crimes and those with mental illness and substance abuse problems. Progressive DAs are also developing policies that keep offenders out of jail awaiting disposition of their cases.

There is nothing in these policies that will increase crime and victimization. On the contrary, scientific evidence shows that these policies will enhance public safety.

Since the facts about progressive DAs do not support Barr’s characterizations, I’m left with the possibility that this is just another attempt to politicize criminal justice policy. Here’s the translation – progressive DAs are soft on crime; Trump and Barr are tough on crime. 

Tough on crime gave us the world’s largest and most expensive criminal justice system, the hallmark of which is the highest rate of correctional control (prison, jail, probation, and parole) and a $1 trillion price tag. We have prosecuted a war on drugs that any casual observer would admit has been a profound failure, and extraordinarily expensive (another $1 trillion).

We continue to use the criminal justice system as the dumping ground for our inability or refusal to adequately fund public health. Today, 50% of those in the justice system are mentally ill, 80% have a substance use disorder and the majority has some cognitive dysfunction. 

Recidivism measures how many offenders are rearrested after they have been through the criminal justice system at least once before. Today the recidivism rate is 85%!

What these vilified District Attorneys are trying to do is implement smart on crime policies that avoid or reduce some of the negative effects of criminal prosecution and pretrial detention, and link individuals to important services such as mental health treatment. My belief is that they are true visionaries who are relying on valid scientific evidence in order to enhance public safety and save money.

We tried tough on crime back in the 1980s, 1990s, and early 2000s. We know how well that worked. Mr. Barr, wake up. It’s 2019.

Kelly is a professor at the University of Texas at Austin and the author of four recent books on criminal justice reform.