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Criminal Justice in President Trump’s First 100 Days

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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AnchorExec­ut­ive 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