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William Barr : A 'Caretaker' Attorney General Proves Agenda-Setting Conservative

June 21, 1992|Ronald J. Ostrow | Ronald J. Ostrow has covered the Justice Department since 1966 for The Times

A: I can't specify how much time I think it would take. If we decide to go forward with indictments, then we want to be sure we have built a strong case that will prevail in court. Any time we're taking now would be necessary to developing such a case. I am in contact with the prosecution team, have talked to them about the investigation they're conducting and am convinced that they are proceeding as expeditiously as possible.

Q: What we ' re hearing is the investigators have encountered Garrity problems (officers being required to answer questions for an earlier internal inquiry with the guarantee that the information cannot be used against them as evidence or leads to evidence in a criminal prosecution).

A: I won't comment on that.

Q: My reason for asking is the theory that there might have been some deliberate use of an administrative inquiry to stonewall the criminal--

A: I have no comment.

Q: I wanted to ask you about fairness and justice as they're perceived in the minority communities. You testified recently that you did not see the nation's criminal-justice system as purposely discriminatory or biased. How do you account for the large number of blacks in prison?

A: . . . My view is that, overall, I think our system is fair and does not treat people differently. Obviously, our national criminal-justice system is a diverse broad one, and incorporates state systems and county systems.

I'm not suggesting that somewhere in the system there are not people who are biased. But I'm saying, taken in its totality, the system seems to operate fairly. We should be vigilant and look for potential discrimination, and you can always make improvements in the system. But the empirical studies I see suggest that people are treated equally in the system. That is, if a black and a white are charged with the same offense, generally they will get the same treatment in the system, and ultimately the same penalty. There are some laws that may have a disparate impact on minorities--laws that are not intentionally discriminatory, but as a practical matter, impact minority populations more than others.

Let me give you two examples. One would be the mandatory minimum for crack cocaine, which is a very low threshold. Five grams of crack cocaine gets you a five-year mandatory minimum sentence. Because of the use patterns and distribution patterns of crack cocaine, that penalty falls heavily on minority populations. But it's not because of discriminatory intent. It has a disparate impact.

Another example are the differences in the laws among different geographic regions or states. Many of the large cities, with a high proportion of minorities, are in states that have heavier penalties or tougher criminal-justice systems and are less apt to grant probation, more apt to impose stiffer prison sentences. The application of those laws in those states may have a disparate impact on minorities because there are more minorities. . . .

Q: Along with every other attorney general since the Ethics in Government Act was passed in '78, you're no fan of appointing outside prosecutors. Yet you have named two special counsels of your own in particularly sensitive matters. Does this appointment by you of people who report to you, but nevertheless are outside the mechanism of the department, does that undercut your argument?

A: No, in fact I think it highlights the weaknesses of the independent counsel statute as it presently is structured. I think the problem with the statute now is that there's no accountability. An individual is set up as a power unto themselves . . . I think there have to be some constraints.

Part of the constraints that exist in the Department of Justice are a set of policies, an institutional ethos about the proper role of a prosecutor, and the fact that we have here experienced prosecutors who see many cases and well understand the proper functioning of a prosecutor. What the statute does is set someone outside that milieu, not necessarily controlled by policies, not controlled or influenced by the ethos of the department, and with no accountability. No supervisor or anyone to make sure there's no abuse of power going on. And unlimited resources. I think that any person concerned about civil liberties should be concerned about that kind of a structure.

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