Some criminal justice reformers predicted big changes under President Barack Obama, but most of them didn’t happen. The outlook for the key issue of reducing the federal inmate population is much bleaker under President-elect Donald Trump, who ran a “tough on crime” campaign that featured stronger support of police and prisons than did Hillary Clinton.
Prospects for any significant change may depend on the climate in Congress and on Trump’s key personnel choices, particularly Attorney General. Republicans have retained control of both houses of Congress.
The primary vehicle for reform in recent years has been a bipartisan Senate bill that would reduce some mandatory minimum prison sentences and give more help to federal inmates trying to re-enter society successfully. Similar measures are pending in the House, where Speaker Paul Ryan has expressed his support.
After the Senate Judiciary Committee approved it on a divided vote, the bill never even made it to the floor. Senate Judiciary Committee Chairman Charles Grassley (R-IA) says that Republicans facing re-election fights this year didn’t want to deal with yet another controversial issue. Trump didn’t weigh in on the specifics of the legislation, but his main voice in the Senate, Jeff Sessions of Alabama, opposed the bill, as did presidential candidate Ted Cruz of Texas, meaning that the measure could be dead now.
A movement called Right on Crime has enlisted many conservatives to embrace an agenda that features more effective rehabilitation for inmates and less reliance on long prison sentences.
One of Trump’s key supporters, former House Speaker Newt Gingrich, has endorsed Right on Crime’s program of “reforming the system to ensure public safety, shrink government, and save taxpayers money,” but there is no certainty that Trump will go along.
Marc Mauer of the Washington, D.C.-based Sentencing Project said that Trump’s “record on criminal justice policy is not encouraging, to say the least.” Referring to a sensational case in New York City, Mauer said that, “In 1990 he took out a full page newspaper ad calling for the death penalty for the Central Park 5, five young men of color accused of a brutal rape of a woman jogger. His message only served to inflame a media frenzy around the case, leading to the conviction of all five youth, who were subsequently exonerated when the actual perpetrator confessed to the crime.”
Mauer added that, “During this campaign Trump has issued a call for ‘law and order’ without offering any details of what that might entail, and has seriously misrepresented data on crime trends. One can only hope that he might come to appreciate the complexity of these issues when he takes office, and recognize that liberals and conservatives alike have largely moved beyond the ‘tough on crime’ era.”
The federal prison population steadily rose in recent years under mandatory minimum terms set by Congress for drug cases and other categories to a high 219,298 in 2013. The total has dropped to 191,579 as of last week, including about 22,000 in private facilities that the Obama administration wants to stop using but Trump may continue.
Trump won’t follow in Obama’s footsteps by commuting federal sentences. The President ended prison terms of 944 inmates, most of whom were convicted on low-level drug charges—with more expected before he leaves office.
Trump has criticized Obama’s commutation program, warning against releasing people convicted of drug crimes back into communities.
“Some of these people are bad dudes,” Trump told an August campaign rally in Florida. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”
The Justice Department traditionally has been led by prosecutors, whose career interest has been to put more people in prison, not fewer. Near the end of his term, Eric Holder, Obama’s Attorney General, embraced criminal justice reform, as has his successor, Loretta Lynch and her deputy, Sally Yates.
Trump, who is not himself a lawyer, would be likely to rely on advisers such as former New York Mayor Rudy Giuliani and New Jersey Gov. Chris Christie to shape his Justice Department. Giuliani, who held the number 3 position at DOJ during the Ronald Reagan administration, could be Attorney General himself, although he may rule himself out because he is in his 70s. Christie, a former U.S. Attorney for New Jersey, could also be tapped as Attorney General, although his reputation was sullied in the “Bridgegate” scandal that has resulted in convictions of three of his former top aides.
Will the FBI’s Comey stay?
Another justice personnel issue for Trump is James Comey’s leadership of the FBI. Trump has railed against Comey for opposing prosecution of Clinton for her mishandling of government emails and has urged her indictment. Although Trump was pleased that Comey briefly reopened the investigation before the election, the Republican likely will take a dim view of Comey’s remaining as head of the bureau.
The nation’s largest police union, the Fraternal Order of Police, backed Trump. FOP president Chuck Canterbury said Trump “understands and supports our priorities and our members believe he will make America safe again.”
Based on a talk with Trump, Canterbury told NPR in September that the Republican “wants to work on the systemic causes of high crime, and Mrs. Clinton wants to work on police reform. And reform in a profession that doesn’t need to be reformed is not the answer to fight crime.
“What we need to do is have people that will partner with us in these neighborhoods, help reduce unemployment, get people jobs. Doing a police reform package that she’s been discussing in the campaign is – in our minds, falls way short of a real plan to attack crime.”
Much federal policy on policing has been guided by the far-reaching agenda laid out last year by Obama’s Task Force on 21st Century Policing. It’s not clear how much of that report would be embraced by Trump.
Because policing is mostly a local matter, Washington’s influence is centered on civil-rights enforcement by the Justice Department and on spending federal money.
Trump may not continue DOJ’s strong oversight role over local police departments and is unlikely to devote much federal aid to local police, which has not been popular among many Republicans since the creation of the Community Oriented Policing program by Bill Clinton and Congress in 1994.
Clinton favored gun control measures like stronger background checks for firearms buyers but Trump, who was endorsed by the National Rifle Association, is staunchly opposed. Pro-gun scholar John Lott expressed the opposition view when he wrote yesterday in the Washington Post that in all four presidential debates, Clinton and Kaine pushed for background checks on private transfers of guns. Clinton says this will “keep guns out of the hands of those who will do harm.”
Lott said that, “Theory and practice don’t always match. Too often, gun bans or background checks don’t stop criminals and instead disarm law-abiding citizens, particularly poor minorities. This only makes life easier for criminals.”
One controversial criminal justice issue that will see no movement on a federal level under Trump is capital punishment. The Obama Justice Department has sought executions in cases like the Boston Marathon bombing and the currently pending South Carolina church shootings.
Even as the death penalty loses ground in some states because of wrongful convictions that have cast doubt on a number of murder prosecutions, it will not disappear on a federal level.
An issue involving criminal-justice policies across the board is whether Trump will adopt Obama’s practice of basing practices on scientific evidence. Laurie Robinson, who Assistant Attorney General for Justice Programs under Obama, was instrumental in applying this approach to criminal justice, said that, “While state and local criminal justice practitioners have become increasingly sophisticated in embracing science-based approaches in recent decades, a key question is whether a Trump Administration will align its policies and spending with the tough-on-crime language from his campaign. If so, we’re looking at a retrenchment back to the 1980s.”
Editor’s Note: For a summary of Trump’s crime and justice views, see TCR story by Victoria McKenzie, “Trump Vows to Fix Rising Crime.”
Ted Gest is president of Criminal Justice Journalists, and Washington bureau chief of The Crime Report. Readers’ comments are welcome.