Almost a year ago, the Brennan Center for Justice asked potential presidential candidates what they thought needed to change in America’s criminal justice system.
Fifteen public figures responded. They included Ted Cruz, Hillary Clinton, Marco Rubio, Chris Christie, Rick Perry, Rand Paul and Joe Biden—all of whom wrote essays in the 164-page collection, Solutions: American Leaders Speak Out on Criminal Justice, which the Brennan Center, in its summary of their views, described as amounting to “a clear political shift on crime and punishment in America” from the tough-on-crime era of the 1980s and 1990s.
That should have been encouraging for criminal justice reformers—except for one notable absence. Donald Trump did not write an essay.
At the time, even though he ran to be the presidential nominee of the Reform Party in 2000 and has flirted with running again in successive cycles, Trump wasn’t considered someone who could win a major party nomination for president.
Today, Trump is the clear GOP frontrunner—and reformers as well as pundits are making up for their earlier failure to take him seriously by poring over the positions the billionaire real estate tycoon has taken on issues like crime, policing and drugs during his race for the nomination and before.
But he has eluded easy definition. At a time when there’s growing bipartisan consensus that much of today’s justice system is badly in need of reform, Trump remains an enigma.
He has not opposed the reform consensus—he’s just avoided talking about it. Until recently, when asked for comments on the issue, Trump responded by threatening to get “tougher” on criminals, or by defending police.
In that respect, he’s very similar to his closest rival in the race, Texas Sen. Ted Cruz—who has signaled to law enforcement (as well as the military) that as president, “I will have your back.”
Most of our justice system is controlled by state and local authorities, but the actions and policies of the president—and the federal government, particularly through the Department of Justice—have an enormous impact.
If elected, would Trump’s “tough on crime” rhetoric transform into policy changes that doom meaningful justice reform? Or are his evasive and ambiguous responses to specific policy questions a skillful way of keeping his options open?
In an effort to find answers, The Crime Report examined the record, and interviewed a wide range of scholars, commentators and advocates.
One thing seems clear.
Trump’s refusal (so far) to echo the bipartisan consensus on justice reform that has emerged on both the federal and state levels fits well with a campaign strategy that pits him against the Washington political establishment.
House Speaker Paul Ryan was the most recent Republican leader to join that consensus last week, declaring he was a “late convert” to the idea of focusing on “redemption” rather than punishment. It’s an interesting dynamic because Trump is able to look anti-establishment when his “tough on crime” rhetoric is not much different than the actual policies of previous administrations.
“Reforming our system is sort of a concession that the cops and the prosecutors are not playing fair with the rest of us,” said Douglas Berman, a law professor at The Ohio State University who runs the widely read Sentencing Law and Policy blog,
“When there is a much more appealing tough and tougher right-wing dynamic that’s dominated our policy for years.”
Where’s the Beef?
Trump doesn’t have a detailed criminal justice platform. The Crime Report reached out to the Trump campaign to ask about where he stands on a variety of issues. They referred us to his website saying only that “All of Mr. Trump’s positions can be found” there.
Nor did the campaign respond to a request for information on who is advising Trump on criminal justice issues.
But based on Trump’s public statements during the campaign so far, and in years past, this much can be determined:
- He’s strongly in favor of the death penalty;
- He favors at least one mandatory minimum sentence, where using a gun to commit a crime results in a five-year sentence;
- He’s a strong supporter of law enforcement, “we have to give power back to the police, because crime is rampant” he has said (even though crime has been on a sharp decline for over a decade.)
- He wants to triple the number of Immigration and Customs Enforcement (ICE) officers to enforce immigration laws against 11 million undocumented immigrants; a position that also includes building a wall on the U.S.-Mexico border (at his announcement speech he said Mexico is “sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”
- He said that creating such borders would ensure “No drugs are coming in.” Yet in 1990, he said the only way the U.S. would ever win the drug war was to legalize drugs.
Most experts we talked to say it’s hard to distinguish the rhetoric from the policies.
“[The Trump campaign] has not issued a platform yet, so I’m not sure that I’d take anything that he’s been saying as an actual criminal justice policy,” said Inimai M. Chettiar, director of the Brennan Center’s Justice Program.
“What’s really frustrating, is that (he’s) like a cardboard candidate; you know what his pitch is but you don’t know anything else beyond that,” said Prof. Laurie Levenson of Loyola Law School.
“And maybe he doesn’t either.”
Berman suggests half-jokingly that there’s a “simple answer” to the question of what Donald Trump believes about criminal justice.
“Who the hell knows?” he said.
On many policy issues, Trump has sidestepped detailed responses by pointing to his experience in real estate and suggesting that good dealmakers keep their positions ambiguous at the start of any negotiation. That seems to apply to his approach to justice as well.
Asked about specific criminal justice reforms, Trump often changes the subject back to supporting police or vague answers about needing to be “tough.”
For example, asked on MSNBC’s Morning Joe if our country locks up too many non-violent offenders, Trump said, “In terms of our cities, and in terms of our violent offenses, we have to get a lot tougher.”
But when asked if he thinks a youth caught with marijuana should be thrown in jail, he replied, “I don’t really think so and I think that maybe the dealers need to be looked at very strongly.”
That puts him in the same camp as a significant segment of conservative and liberal opinion which welcomes the growing movement in states to decriminalize marijuana use or possession.
Would a President Trump instruct his justice department to prosecute violators of federal narcotics laws in states where possession is legal?
“He leaves (such questions) open,” said Ames Grawert, a counsel for the Brennan Center’s Justice Program, about that morning show appearance. “It’s not really clear where he stands.”
When he’s been asked specifically about racial disparities in the justice system, Trump changes the subject.
Trump recently sat down with the editorial board of The Washington Post and was asked more than once if he thinks African Americans are treated differently by courts, police and prisons.
The first time, he responded, “Well I’ve never really see anything that—you know, I feel very strongly about law enforcement.”
The second time, asked specifically if he believes there are disparities, he replied, “I’ve read where there are and I’ve read where there aren’t. I mean, I’ve read both. And, you know, I have no opinion on that.”
The third time, asked if he was concerned that a disproportionate number of African Americans were in prison, he said, “That would concern me … It would concern me. But at the same time it can be solved to a large extent with jobs.”
‘Reading Tea Leaves’
David Dagan, a freelance journalist who co-authored the upcoming book, “Prison Break: Why Conservatives Turned Against Mass Incarceration,” compared analyzing Trump’s criminal justice positions to “reading tea leaves.”
Dagan said the lack of detail has worked out for the candidate so far.
“He’s not running on policy, he’s running on a feeling. It does him no good to be specific,” said Dagan.
Still, Trump’s success so far in attracting support from a broad base of conservative and independent primary voters suggests he could adopt a more explicit reform-oriented criminal justice strategy during a national election campaign with little cost.
The U.S. Justice Action Network released a poll in February of voters in six primary states (Florida, North Carolina, Nevada, Kentucky, Missouri and Wisconsin) that found Republicans and Democrats want reform. An overwhelming number of voters were in favor of specific reforms to change how non-violent criminals are sentenced.
In a poll commissioned by the American Civil Liberties Union last year, a majority of Republican and Democratic voters said it was important for the country to reduce its prison population (69 percent overall; 81 percent of Democrats; 71 percent of independents, and 54 percent of Republicans).
Another poll in January commissioned by Pew Charitable Trusts found that six in 10 Republicans think changes to the current system are needed.
During the primary races, Trump has used “tough on crime” rhetoric to squeeze his rivals Cruz, for instance, has backed away from a bill he co-sponsored last year to reduce sentences on nonviolent drug offenders. In an apparent response to Trump’s rising ratings, Cruz reversed his position and voted against a bill with even more modest reforms than the bill he originally backed.
Dagan says Trump’s approach so far to criminal justice issues has less to do with substantive policy positions than with his strategy of distinguishing himself from Washington insider politics.
“The more the Trump base senses that something [Trump says] is approaching orthodoxy or something in the Republican mainstream, the more vulnerable he is to attack,” observed Dagan.
Candidates of both parties have addressed issues such as incarceration, police-use-of force policies and the growing opioid epidemic. Hillary Clinton, once a strong supporter of tough policies on sentencing and juvenile crime, now concedes such policies have damaged many communities.
Bernie Sanders promised to end America’s position as the world’s largest jailer. New Jersey Gov. Chris Christie, writing in the Brennan Center book, charged that the U.S. locks up too many nonviolent “and sometimes innocent” people.
Trump’s missing history on these subjects is something that at least one criminal justice expert is excited about.
“Having somebody who comes in without any historical political baggage or really any historical political experience … makes it hard to not be weirdly excited to imagine what he might do,” said Berman.
He argued that Trump’s electoral success so far is due at least in part to the fact that he is a blank slate.
“Anybody can pour their hopes into him, their hopes for something different and better,” said Berman.
‘You Have to Legalize Drugs’
If Clinton and Trump are the major party nominees, Trump could pick up anti-establishment votes from all sides of the political spectrum, on the issue of drugs.
“He has an opportunity to beat up on the Clintons for being drug warriors,” Berman said. “He might be in a unique position to say, ‘We’ve spent 40 years in war on drugs, it’s a war we’re never going to win, I’m open to a completely new paradigm.’”
As far back as 1990, Trump was on the record condemning the war on drugs, at a time when such views were rarely expressed by mainstream political figures.
“We’re losing badly the war on drugs,” he said at a Miami Herald luncheon that year. “You have to legalize drugs to win that war. You have to take the profit away from these drug czars.”
At the same time, Trump has been a harsh critic of federal justice policies.
The Trump campaign website appears to call for stricter penalties for dealers: “Drug dealers and gang members are given a slap on the wrist and turned loose on the street. This needs to stop.”
At a New Hampshire Town Hall in February, Trump charged that “every single one” of the 6,000 nonviolent federal drug offenders granted early release last fall following a decision by the U.S. Sentencing Commission to apply retroactively new guidelines reducing sentences for certain drug offenses would return to selling drugs.
The majority of those inmates released at the end of October went to halfway houses and would continue under supervision even after they returned to their communities. (One third were foreigners and were scheduled for deportation.)
Nevertheless, Trump toughened the point in later comments reported by TIME magazine: “These people are babies that think differently….Frankly, I don’t even think they care, it’s almost like they don’t like the country. But out of those 6,000, every single one of them will be back selling drugs. It’ll be very rare for one that doesn’t.”
Breathing Space for Reform?
Nevertheless, the fact that he hasn’t singled out bipartisan proposals under consideration in Congress to reform sentencing and corrections has in effect “blessed the reform movement” by not making it a debating issue between Trump and his rivals, said Dagan.
Similarly, many conservative reform supporters say they are not worried that a Trump candidacy—or presidency—will derail the reform momentum.
In an email, Marc Levin, policy director for Right on Crime said he hasn’t heard Trump say much on corrections policy, but that “regardless of the outcome of the presidential campaign, we fully expect conservatives to continue embracing reforms…”
It is still unclear when, or whether, the Trump campaign will release detailed positions on criminal justice issues—or announce criminal justice advisors.
But under pressure from conservatives, the Trump campaign announced recently it would release a list of “five or 10” people whom Trump would consider nominating to the Supreme Court.
He also announced a few weeks ago that Alabama Sen. Jeff Sessions would advise him on foreign policy—and that more advisors would be announced soon.
Yet if the two most prominent public officials who have endorsed him are any indication of the criminal justice policies Trump would enact if elected, reformers might be in trouble.
“(New Jersey Governor Chris) Christie and Sessions are both former federal prosecutors, both prominently vocal for their tough-on-crime histories,” said Berman.
That’s one reason many criminologists admit they would be happy if Trump continues to stay silent on the issue of reform. Dagan said criminal justice reformers must always engage in a delicate balancing act: Building a movement without attracting too much attention that could trigger a backlash among voters.
It’s too early to tell whether a national political contest in which Trump is a presidential contender will advance the emerging consensus on justice reform—or destroy it.
“It might be a good season (for reformers) to just hunker down and stay indoors until the storm blows over,” said Dagan.
Adam Wisnieski is a contributing editor of The Crime Report. Readers’ comments are welcome.
An earlier version of this story incorrectly said Trump was a Reform Party candidate for president in 2000. He ran for the Reform Party nomination but later dropped his bid.