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President Donald Trump wants to take America back to the 1980s and ’90s.
At least, that’s what Trump and his administration have indicated through their rhetoric and policy proposals regarding crime. Over the first 100 days of the new presidency, Trump and his attorney general, Jeff Sessions, have accomplished little on specific criminal justice policy. But they have spent a lot of time warning about high crime — even though crime is actually near historic lows in America — and pushing the kind of “tough on crime” and “war on drugs” policies that lawmakers enacted in response to the crime waves and drug epidemics of the 1960s through 1990s.
“There’s a lot of interest of returning to the policies of the ’90s,” John Roman, a criminal justice expert at the University of Chicago, told me. “So three-strikes [laws], mandatory minimums, stop and frisk, [and] more of a National Guard and federal law enforcement presence.”
Trump’s rhetoric continues much of what he said on the campaign trail, from his early warnings about immigrants being criminals and “rapists” to his call for new mandatory minimum sentences for drug dealers.
But it’s a striking shift in tone from President Barack Obama’s administration, which acknowledged that crime was near record lows, and pushed for “smart on crime” initiatives and other criminal justice reforms to reduce mass incarceration and change how policing works. Obama was the first president in 36 years — since Jimmy Carter — to leave office with a lower federal prison population than the one he inherited.
Trump, at least based on his administration’s comments and actions so far, is steadily moving toward reversing the criminal justice policies of the Obama era.
Trump’s actions have been limited, but they signal a shift toward “tough on crime” policies
Nearly 100 days in, the most concrete policy that the Trump administration has done on criminal justice issues has been its abandonment of federal oversight of the police.
Under Obama, the Justice Department was uniquely aggressive at investigating police for misconduct and abuses. His administration investigated more police departments than its predecessors, often finding horrific abuses.
In Ferguson, Missouri, the Justice Department found a police department that was encouraged to crack down on petty offenses to raise as much revenue from fines and court fees as possible — often in a way that targeted black residents. In Baltimore, it found a police department that regularly violated residents’ constitutional rights throughout virtually every aspect of policing, at times encouraged racist practices, and frequently did nothing when it uncovered wrongdoing within its ranks. And in Chicago, it found that police often used excessive force and treated black residents “as animals or subhuman.”
The point of these types of investigations was typically to establish consent decrees, in which courts would supervise an agreement between the federal and local government to oversee sweeping reforms at police departments. These efforts have a mixed record of success (in large part due to limited financial resources to carry out reforms), but they were a serious attempt to stop bad practices by police that had terrorized residents, particularly minority Americans.
Trump and Sessions, however, have vowed to put an end to these investigations and consent decrees. In February, Sessions announced that the Justice Department will “pull back” on civil rights lawsuits and investigations against police. And last month, the Justice Department tried to get a court to halt the consent decree in Baltimore, with Sessions arguing it could lead to “a less safe city” — only for a judge to enforce the federal-local agreement anyway.
Baltimore, however, was a unique case in that the Obama administration and the city had negotiated the consent decree before Trump took office. With Trump and Sessions now in charge, it’s going to be practically impossible for cities to move ahead with these negotiations — including Chicago, which the Justice Department investigated right before Trump took office but never fully negotiated a consent decree.
This will effectively allow police to be more aggressive — and, based on the Justice Department’s investigations, continue racist practices.
This meets what Trump called for: On the campaign trail, he advocated for more police departments to adopt stop and frisk, which was ruled unconstitutional in New York City because it was used to target minority residents. He said at a Republican primary debate that police officers are “absolutely mistreated and misunderstood.” And he even suggested that Black Lives Matter protesters may need to be investigated by the Department of Justice.
Besides police, the only other major criminal justice policy that Trump and Sessions have enacted is continuing the federal government’s use of private prisons. These prisons make up a small minority of the Bureau of Prisons facilities (around a dozen of 120-plus federal prisons), but this move has drawn criticism from liberals and criminal justice reformers who view private prisons as a hotbed for abuse in the name of profiteering.
Trump is trying to move forward with a push back to the criminal justice police of the 1980s and ’90s
Beyond consent decrees and private prisons, Trump has so far not enacted many specific criminal justice changes, but he has set the groundwork for some dramatic shifts in the next three or so years. His Department of Justice has launched reviews of its current policies. And Trump signed executive orders that established task forces to propose strategies to reduce crime (particularly “illegal immigration, drug trafficking, and violent crime”), protect police from violence, and combat drug cartels.
Again, what exactly any of this will lead to remains unclear. But based on Trump and Sessions’s rhetoric, we can expect these reviews and task forces to push toward old “tough on crime” policies — the kind that Obama and his Justice Department tried to move away from by, for example, sending out memos that asked prosecutors to avoid going after low-level drug offenders.
Before the 2016 campaign, Trump dedicated an entire chapter in his 2000 book, The America We Deserve, to promoting “tough on crime” ideas. He wrote about a looming crime wave (which never happened). And he discussed in detail his support for aggressive policing, longer prison sentences, and broader use of the death penalty. He framed all of these ideas as part of “the most important form of national defense”:
Tough crime policies are the most important form of national defense. Government's number-one job is to ensure domestic tranquillity [sic], and that means tranquilizing the criminal element as much as possible. Aggressive anticrime policies are the best social program, because they allow citizens in all neighborhoods, and especially the tougher ones, to live and work in a safe environment. They also protect children from the predatory mob that brutalizes them at every turn.
On the campaign trail, Trump advocated for raising mandatory minimum sentences for drug offenses as a response to the opioid epidemic, praising Vice President Mike Pence for doing so as governor of Indiana. He criticized the Obama administration for pushing for reforms to help end mass incarceration. He said that police should be far more aggressive than they are today.
After Trump was elected, he warned that he might “send in the Feds” to deal with crime in Chicago. Time and time again, he completely mischaracterized the US murder rate, suggesting it’s at a 45-year high to make the case for his “tough on crime” policies — when, in reality, the murder rate is nearly half of what it was at its peak in 1991.
We see some of this in Trump’s executive orders as president. One of the orders hints at new mandatory minimum sentences for anti-police crimes, calling for the attorney general to decide if the US needs “legislation defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence against Federal, State, tribal, and local law enforcement officers, as well as for related crimes.”
Sessions has also continued pushing the “tough on crime” line as Trump has shifted his attention to other issues. Sessions said that America has built “too much of a tolerance for drug use — psychologically, politically, morally.” He seemed to argue that hardline criminal justice policies were necessary for drugs because treatment “often comes too late” and that he had “seen families spend all their savings and retirement money on treatment programs for their children, just to see these programs sometimes fail.”
Meanwhile, one of Sessions’s top advisers has said that the federal criminal justice system, which incarcerates people largely for drug offenses, “is not broken” and is “working exactly as designed.”
Sessions has also perpetuated some of the same myths about crime as Trump. In a statement last week, his Justice Department argued that “New York City continues to see gang murder after gang murder, the predictable consequence of the city's ‘soft on crime’ stance.”
But, as Roman of the University of Chicago pointed out, “That’s a story from 1989. That is no longer true.”
Crime in New York City is at record lows. In particular, total murders in 2016 in the city were 335 — down from 352 in 2015 and 673 in 2000. (The city’s murder rate has even fallen below the national average in recent years.)
Trump and Sessions have also invoked fears about immigrants committing crime, even establishing an office and hotline that collects reports of immigrant crime.
The reality, based on a century of research, is that that immigrants, unauthorized or not, are less likely to commit crimes than native-born citizens. As a 2013 study found, “[I]mmigrants to the US are less likely to engage in violent or nonviolent antisocial behaviors than native-born Americans. Notably, native-born Americans were approximately four times more likely to report violent behavior than Asian and African immigrants and three times more likely than immigrants from Latin America.”
There’s a racial element to much of this: By suggesting that inner cities and immigrants are out of control with crime, Trump is dog-whistling to white Americans that minority communities are out of control — and that these minority communities need a strongman like him to fix them up and keep the rest of America safe. This is a tactic that Republican presidents have deployed before, from Richard Nixon’s “Southern strategy” to Ronald Reagan’s own “tough on crime” campaign to Trump himself. It’s one way that Republicans, including Trump, have held on to white voters as they’ve lost minority voters.
The result, however, is there are massive racial disparities in the criminal justice system — from police shootings to incarceration rates. And Republicans like Trump don’t seem very interested in resolving these disparities or other issues that have popped up as a result of decades of “tough on crime” policies. Instead, they seem more interested in continuing such aggressive approaches to criminal justice.
There are some glimmers of hope for reformers
There are, however, some signs that Trump may not move fully toward a “tough on crime” approach.
For one, there’s his commission to study the opioid epidemic. To head this task force, Trump appointed New Jersey Gov. Chris Christie, who has repeatedly advocated for treating drug addiction as a public health, not criminal justice, issue. And the group is at least partially geared toward studying drug treatment, as one of its major goals is to locate places that have limited drug treatment options.
At the same time, the Justice Department’s newly confirmed deputy attorney general, Rod Rosenstein, has taken a much softer approach to criminal justice than his boss. In a 2016 editorial at the Baltimore Sun, for example, Rosenstein called the opioid epidemic a “public health crisis” and argued that the government needs to help people with drug use disorders: “Enforcement efforts are more effective when they are part of a larger strategy to prevent addiction by educating potential drug abusers, and ensuring that help is available to people who become addicted.”
Trump himself also promised on the campaign trail that he would spend more on drug treatment, suggesting that he doesn’t see a criminal justice approach as enough.
Still, Sessions, as head of the Justice Department, holds the most power to shape criminal justice policy from within the administration, and he’s a “tough on crime” hardliner. Trump’s budget blueprint, meanwhile, did not propose an increase of drug treatment, while he’s proposed cuts to mental health block grants that go to some treatment centers.
But, at the very least, it does seem like there’s some internal conflict about how the Trump administration should react to the latest drug crisis. That’s a bit different than the all-out “tough on crime” reaction to the crack epidemic of the 1980s and ’90s. (Of course, race might have something to do with that.)
Ultimately, the Trump administration probably won’t have much of an impact
The good news for criminal justice reformers is, ultimately, nothing Trump does on criminal justice may be that important — because the federal government plays a fairly small role in criminal justice issues.
“It’s very hard for the federal government to do much of anything” on criminal justice, Roman said. “Policing is, of course, a state and local matter, as are corrections policies.”
Consider incarceration, the big target of reform efforts. In the US, federal prisons house only about 13 percent of the overall prison population. That is, to be sure, a significant number in such a big system. But it’s relatively small in the grand scheme of things, as this chart from the Prison Policy Initiative shows:
One way to think about this is what would happen if Trump used his pardon powers to their maximum potential — meaning he pardoned every single person in federal prison right now. That would push down America’s overall incarcerated population from about 2.2 million to 2 million.
That would be a hefty reduction. But it also wouldn’t undo mass incarceration, as the US would still lead all but one country in incarceration: With an incarceration rate of about 629 per 100,000 people, only the tiny island country of Seychelles would come ahead.
Similarly, almost all police work is done at the local and state level. There are about 18,000 law enforcement agencies in America — only a dozen or so of which are federal agencies.
While the federal government can incentivize states to adopt specific criminal justice policies, studies show that previous efforts — such as the 1994 federal crime law — had little to no impact. By and large, it seems states will only embrace federal incentives on criminal justice issues if they actually want to adopt the policies being encouraged.
Criminal justice policy, then, is going to fall almost wholly to cities and states. There’s evidence that cities and states want to continue doing that work: Even some of the counties and states that voted for Trump supported ballot initiatives that shortened prison sentences and prosecutors who took softer views on crime, conservative organizations like the partially Koch-funded Right on Crime have continued to push for reform, and Republican governors like Georgia’s Nathan Deal and Oklahoma’s Mary Fallin have trumpeted reform efforts.
So while it’s hard to say exactly what Trump’s actions and rhetoric will lead to, it seems unlikely that his moves alone will change the bipartisan tide toward reform that has risen over the past few years.
Trump’s push to go back the 1980s and ’90s, then, may simply be too little, too late.
