Criminal Justice in President Trump's First 100 Days

April 20, 2017

This analysis looks at what the president and his team have done so far to address crime and justice, and what the country can expect in the weeks and months ahead. 

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Executive Summary

In his Inaugural Address, President Donald Trump pledged to address the rising specter of “American carnage” — “the crime and gangs and drugs that have stolen too many lives and robbed our country of so much unrealized potential.” The last time a president addressed rising crime in his inaugural address was 1997. Then, with crime near historic peaks (at 4,891 offenses per 100,000 people), President Bill Clinton spoke of the need to “help reclaim our streets from drugs and gangs and crime” so that “our streets will echo again with the laughter of our children, because no one will try to shoot them or sell them drugs anymore.”

Trump’s dark portrait of America, however, comes at a time when the national crime rate is near historic lows — 42 percent below what it was in 1997. As his first 100 days near an end, what has the president done to address crime and criminal justice? And what can the country expect in the weeks and months ahead?

So far, many of the administration’s actions are symbolic. But they evidence a clear return to the discredited “tough on crime” rhetoric of the 1990s, and suggest a significant departure from the Obama administration’s approach to criminal justice. Trump’s turn also directly contradicts the emerging consensus among conservatives, progressives, law enforcement, and researchers that the country’s incarceration rate is too high, and that our over-reliance on prison is not the best way to address crime. As crime remains near historic lows — despite local, isolated increases — these proposed changes are, ultimately, solutions in search of a problem. Taken to an extreme, they would set back the national trans-partisan movement to end mass incarceration.

This analysis documents the following key shifts in federal policy since January 20th:

  • Misguided Fears of a New Crime Wave. President Trump has repeatedly cited misleading statistics to push a false narrative about rising crime and call for urgent, drastic action. This focus on fear over fact, unprecedented for a modern president, helps justify the administration’s most controversial policies. Trump and his new attorney general, Jeff Sessions, insist that they must “Make America Safe Again,” citing outside forces that have brought in drugs and violence — justifying a travel ban, a border wall with Mexico, and mass deportations. The administration has also issued several executive orders focused on combatting this phantom crime wave, without offering solutions to solve the real and serious localized problems of violence in Chicago and Baltimore. The taskforces created by these orders may recommend new federal criminal laws or new mandatory minimums, especially for crimes against police officers and drug offenses. This new tone from Washington also risks derailing a decade-long bipartisan effort to reduce prison populations in states. If the public incorrectly believes that crime is rising, there may be less support for state and local reform.
     
  • A New War on Drugs? President Obama and Attorney General Eric Holder took several steps to reduce the federal imprisonment rate, which dropped by 9.5 percent since 2007. In 2013, the Justice Department deprioritized prosecuting nonviolent marijuana cases, providing more latitude to states, and issued a directive to federal prosecutors to reduce charges in lower-level nonviolent drug cases. Now, Sessions is poised to reverse those reforms. He has been one of the most vocal opponents of bipartisan criminal justice reform. He derailed a Republican-led, modest sentencing reform bill last year, and opposed many of Holder’s initiatives. Since taking office, Sessions has given several speeches calling for a return to harsher federal charging policies, and issued memoranda directing U.S. Attorneys to stand by for such major policy shifts. Sessions could revoke key Holder-era initiatives, directing federal prosecutors to pursue maximum penalties in drug cases even in states where marijuana is legal. Notably, the administration has shown interest in expanding treatment options for opioid addiction, which disproportionately affects white, rural communities, while increased marijuana prosecutions would more affect communities of color.
     
  • Increased Immigration Enforcement and Detention. Shortly after the election, Trump pledged to deport as many as 3 million undocumented immigrants. He has since issued several executive orders directing the Justice Department to more vigorously enforce immigration law. Sessions responded by fast-tracking the hiring of new immigration agents, ordering all U.S. Attorneys to prioritize immigration cases, and threatening to strip funding from cities that do not cooperate with federal immigration authorities (i.e. “sanctuary cities”). The Department of Homeland Security is also expanding its detention capacity.
     
  • Decreased Oversight of Local Police. Historically, the Justice Department has played a key role overseeing and regulating civil rights violations committed by local police departments. Under Obama, the Justice Department opened more than 20 investigations into police misconduct and enforced more than a dozen “consent decrees” with local police departments. These settlements, overseen by a federal court, require officers to work with communities and improve policing practices. Sessions outright rejects this role for the federal government, labeling it as part of a broader “war on police.” He has directed a review of all existing consent decrees and attempted to stall pending agreements. This trend will likely continue, potentially emboldening police departments to become more aggressive.
     
  • Increased Use of Private Prisons. Sessions recently revoked an Obama-era memorandum that directed a wind-down of federal use of “private prisons” — correctional facilities operated by private corporations on behalf of the Bureau of Prisons. Now, BOP is free to continue and expand the use of private prisons, a signal that Sessions expects the federal prison population to grow.
     
  • Possible Federal Sentencing or Reentry Legislation. Last year, Republicans, including Sens. Chuck Grassley (R-Iowa) and John Cornyn (R-Texas), and House Speaker Paul Ryan (R-Wisc.) led a bipartisan effort to pass the Sentencing Reform and Corrections Act (SRCA). The bill would have reduced mandatory minimums for some nonviolent and drug crimes. Then-Senator Sessions led an effort to defeat the bill, labeling it a “criminal leniency bill.” In response, Senate Majority Leader Mitch McConnell declined to bring the bill to a floor vote despite overwhelming support for the initiative, fearing a split within his own party. In January 2017, Grassley and Ryan committed to reintroducing some version of the law, yet are rumored to be waiting for the administration to announce its position before moving forward. In March, Trump dispatched senior advisor and son-in-law Jared Kushner to meet with Grassley and Sen. Dick Durbin (D-Ill.) to discuss sentencing and reentry legislation. Kushner, whose father spent two years in prison for white-collar offenses, supports criminal justice reform. Notably, Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.

 

Criminal Justice in President Trump's First 100 Days by The Brennan Center for Justice on Scribd