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The Halted Progress of Criminal-Justice Reform

Prosecutors are charging protesters with federal crimes, exposing them to long prison sentences, in another example of the Justice Department’s grotesque overreach under Attorney General William Barr.

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, Illustration by João Fazenda

The cause of criminal-justice reform has been, in recent years, a welcome exception to the extreme polarization that has afflicted so much of our politics. Since 2008, the prison population has dropped in most parts of the country, in both red states and blue. It’s gone down sixteen per cent in Louisiana and twenty-two per cent in South Carolina, which is roughly similar to reductions in more liberal places, such as California (twenty-six per cent) and New York (twenty-one per cent). The fight against mass incarceration even engendered a brief moment of bipartisanship in Washington, in 2018, when Congress overwhelmingly passed, and President Trump signed, the First Step Act, which made modest improvements in federal sentencing practices.

But this progress, at least at the federal level, has come to a halt. In the weeks since protests erupted around the nation following the murder of George Floyd, in Minneapolis, on May 25th, the President has returned to the “law and order” bluster that characterized his 2016 campaign. More to the point, the Justice Department, under Attorney General William Barr, has engaged in precisely the kinds of excesses that the reform movement has endeavored to correct. Most of the protests were peaceful, of course, but there was some violence and destruction of property. These sorts of crimes have traditionally belonged in the bailiwick of state prosecutors, who handle most violent crime in the United States. Yet Barr’s prosecutors have stepped in and charged at least seventy people with crimes in connection with the protests. In Mobile, Alabama, a protester allegedly used a bat to break a window of a police cruiser. Such an act is a paradigmatic state crime—an assault—but federal prosecutors contrived to bring a case for “civil disorder,” drawing on a rarely used federal law. Bringing the case in federal court allows Barr to posture against the protesters and, even more important, to make them eligible for longer prison sentences, as is usually the case in federal prosecutions.

The most egregious example of this kind of federal excess is taking place in New York, where prosecutors in Brooklyn may be on the verge of responding to a crime with an injustice. On May 29th, two well-regarded lawyers, Colinford Mattis and Urooj Rahman, participated in protests in Fort Greene. According to the complaint filed in federal court, just after midnight, Rahman stepped out of a minivan driven by Mattis and flung a Molotov cocktail through a broken window of an unoccupied police car. (In another part of Brooklyn, Samantha Shader, a twenty-seven-year-old woman from upstate New York, was charged in a separate Molotov-cocktail attack on a police van; neither attack caused any injuries.)

The two lawyers are both in their early thirties. Mattis is a graduate of Princeton and of New York University’s law school, and he worked until recently at a well-known corporate law firm in Manhattan. He is active in community affairs in Brooklyn, and is responsible for the care of several young family members. Rahman, a graduate of Fordham University’s college and law school, worked at Bronx Legal Services. Neither had a criminal record. (Shader did have a record of various arrests in different parts of the country.) Mattis and Rahman have pleaded not guilty, but the case against them appears strong. According to prosecutors, there is video evidence of Rahman throwing the improvised bomb, and police found the ingredients to make Molotov cocktails in Mattis’s van.

In bringing the case against them, though, the Justice Department has engaged in grotesque overreach. If convicted of the charges in the indictment, Mattis and Rahman face a minimum of forty-five years and a maximum of life in prison. (If they were prosecuted in state court, as they should be, they would likely face five years or less.) The case demonstrates the perversity of mandatory-minimum sentences, which remain common in federal court, despite the changes wrought by the First Step Act. The problems with mandatory minimums only begin with the simple fact that they keep people in prison for too many years. They also concentrate power in the hands of prosecutors and remove discretion from judges, who usually have a broader perspective on the appropriate levels of punishment. Moreover, mandatory minimums warp the entire judicial system, by putting unbearable pressure on defendants (and their lawyers) to enter guilty pleas and avoid the risk posed by a trial. (Prosecutors often waive the minimums if defendants offer to plead guilty.)

The case of Mattis and Rahman illustrates this point clearly. Faced with the certainty of decades of prison time if convicted by a jury, what defendant wouldn’t try to cut a deal for a lesser sentence? In federal court today, a remarkable ninety-seven per cent of defendants plead guilty rather than go to trial. But a system in which practically no one goes to trial gives government prosecutors far too much power. Judges and juries are supposed to operate as a check on prosecutors, and they can’t do that job if nearly every defendant pleads guilty. Too often, prosecutors, like those in the case of Mattis and Rahman, use indictments to extort guilty pleas rather than to achieve justice.

This is, in many respects, a hopeful moment for progress in the criminal-justice system. District attorneys in cities like Philadelphia, Milwaukee, and San Francisco are pulling back from the mindless pursuit of more convictions and longer sentences. Eric Gonzalez, the Brooklyn District Attorney, is also a reformer, which may be a reason that Barr’s minions snatched the Molotov-cocktail cases away from him. The Attorney General has expressed nothing but contempt for more civilized approaches to law enforcement. In a speech in February, he attacked the new generation of prosecutors, asserting, “These D.A.s think they are helping people, but they end up hurting them. These policies actually lead to greater criminality.” This, to put it charitably, is unproven. Reformers have been winning elections around the country not because their constituents want “greater criminality” but because they recognize that we have incarcerated too many people (and particularly too many people of color) for too long.

As usual, Barr is channelling his boss, who has responded to the George Floyd protests with ugly spasms of race-baiting and bigotry. But, as bad as Trump’s invective is on Twitter and elsewhere, Barr’s actions are worse, because individuals and communities will be paying the costs for years, or decades, to come. ♦