Trump Has Already Demolished Obama's Criminal-Justice Legacy
It didn't take long for a big fan of cops, the death penalty, and hating on immigrants to change the system.
Left photo by Jeff Swensen/Getty Images). Right photo by Jim Watson/AFP/Getty Images
This story was published in partnership with the Marshall Project.
On criminal justice, Donald J. Trump’s predecessor was a late-blooming activist. By the end of President Barack Obama’s second term, his administration had exhorted prosecutors to stop measuring success by the number of defendants sent away for the maximum, taken a hands-off approach to states legalizing marijuana and urged local courts not to punish the poor with confiscatory fines and fees. His Justice Department intervened in cities where communities had lost trust in their police.
After a few years when he had earned the nickname "Deporter-in-Chief," Obama pivoted to refocus immigration authorities—in effect, a parallel criminal justice system—on migrants considered dangerous, and created safeguards for those brought here as children. He visited a prison, endorsed congressional reform of mandatory-minimum sentences, and spoke empathetically of the Black Lives Matter movement. He nominated judges regarded as progressives.
In less than a year, President Trump demolished Obama's legacy.
In its place, Attorney General Jeff Sessions has framed his mission as restoring the “rule of law", which often means stiffening the spines and limiting the discretion of prosecutors, judges and law officers. And under President Trump’s “America first” mandate, being tough on crime is inextricably tied to being tough on immigration.
“I think all roads in Trump's rhetoric and Sessions’s rhetoric sort of lead to immigration,” said Ames Grawert, an attorney in the left-leaning Brennan Center’s Justice Program who has been studying the administration’s ideology. “I think that's going to make it even harder for people trying to advance criminal justice reform because that's bound up in the president's mind, in the attorney general's mind, as an issue that they feel very, very passionately on—restricting immigration of all sorts.”
Here are nine ways Trump has transformed the landscape of criminal justice, just one tumultuous year into his presidency.
He changed the tone
Words matter, and Trump’s words were a loud, often racially charged departure from the reformist talk of being “smart on crime” and making police “guardians, not warriors.” His response to a New York City terrorist truck attack last year reflects the new tone:
“We... have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now,” Trump said. “They'll go through court for years. And at the end, they'll be—who knows what happens. We need quick justice and we need strong justice—much quicker and much stronger than we have right now. Because what we have right now is a joke and it's a laughingstock. And no wonder so much of this stuff takes place.”
The president’s rhetoric seemed to trickle down. Ed Gillespie, the Republican candidate for governor of Virginia, adopted what many call “Trumpism” during his fall campaign, vilifying Democrat Ralph Northam as being soft on crime. His ads accused Democrats of restoring the voting rights of a child pornography collector—targeting one man out of the 168,000 former felons who had had their voting rights restored.
In a hotly contested Alabama senate race, Trump accused the Democrat—a prosecutor who had won convictions against two Klansmen who helped plot the 1963 church bombing that killed four black girls—of being “soft on crime.”
While both of the Republicans lost, prisoner advocates worry the discourse has re-sparked irrational fears and will spook conservatives who have in recent years joined the reform movement. And Trump has not limited his target set to Democrats. He has attacked members of his own party, like Arizona senator Jeff Flake, as “weak on crime and border.”
He wants to keep the “mass” in mass incarceration
Of all the moves Sessions made in 2017, none brought as much consternation from all sides of the political spectrum—from the Koch brothers and Rand Paul to the ACLU and Cory Booker—as this: He revoked the Obama-era instruction to federal prosecutors to be more flexible in charging low-level, nonviolent offenders. Under this policy, federal prosecutions had declined for five consecutive years and, in 2016, were at their lowest level in nearly two decades, according to the Pew Research Center.
Sessions ordered prosecutors to seek the maximum punishment available, prompting widespread fear of a return to the late 1980s and early 1990s, when the federal prisons filled with drug offenders. In what it is calling a budget cut, the Bureau of Prisons has also ordered the closure of several halfway houses, which can extend the length of time soon-to-be released prisoners are spending behind bars.
The administration has also cast doubt on the prospect of legislation aimed at reducing mandatory-minimum sentences and encouraging diversion to drug treatment and mental health care. Governors and advocates who boast of success at reducing state prison populations—notably in red states—met with the president and son-in-law Jared Kushner on January 11 to plead for similar measures in the federal system, but the discussion was largely confined to rehabilitating the incarcerated rather than incarcerating fewer people in the first place. While sentencing reform seems to be fading, there appears to be progress toward a Kushner-led crusade that calls on churches and private businesses to mentor prisoners upon release and help them find jobs and housing. Trump may also look to cut regulations such as licensing requirements that prohibit applicants with felony records from some lines of work.
He made immigration synonymous with crime
Perhaps the most consistent theme of his young administration is that immigrants, especially immigrants of color, are a danger. From the Mexican “rapists” to the “shithole countries” of the third world, the president has played to a base that believes—evidence to the contrary—that immigrants bring crime and displace American workers.
Deportation orders have surged. The Department of Justice said in early December that total orders of removal and voluntary departures were up 34 percent compared with the same time in 2016. Actual removals have not kept pace—in fact, they were at their lowest level since 2006, according to the Transactional Records Access Clearinghouse at Syracuse University—but it is clear the Trump administration is ramping up ways to deport undocumented immigrants.
The declared ending of the Deferred Action for Childhood Arrivals (DACA) program was met with wide consternation from Republicans and Democrats, and is being fought out in courts and bipartisan political negotiations. Trump has given mixed signals as to whether the DACA recipients, brought into the US illegally as children, get to stay, and at what political price. But in the meantime he has ordered an end to protection of refugees from Haiti (at least 60,000) and El Salvador (at least 200,000) who were granted temporary legal status under a bill signed by the first President Bush. And just the other day Sessions limited the power of immigration judges to close complicated cases, a move that could lead to thousands more deportations.
The immigrants-as-menace meme recurs in the argument over “sanctuary cities,” where officials have declined to help in the roundup of the undocumented. Sessions has threatened to withhold federal policing funds from uncooperative venues, so far unsuccessfully.
He rejuvenated the War on Drugs
Sessions’s first major action of 2018 was to issue a memo reminding federal attorneys that marijuana remains an illegal drug under federal law, no matter how many states have legalized the use of marijuana for recreation (eight) or for medical use (29). Sessions has pointed to drugs as a major cause of violent crime, often stating in his speeches that drug dealers don’t file lawsuits to settle drug debts but collect “with the barrel of a gun.” Rescinding a 2013 order that gave states tacit approval to legalize marijuana, he drew fire from the left (the ACLU called it a “regressive agenda”) and the right, where some critics called it a violation of states’ rights. Meanwhile, the opioid crisis rages on. For the second straight year, life expectancy in the United States declined in 2016 because of drug overdose deaths. In October, the Trump administration labeled the epidemic a public health emergency but fell short of allocating significant federal funds to fight the crisis. He seems to think, contrary to informed opinion, that the answer to heroin smuggling is a border wall.
He unleashed the police
Police reform, at least the federal enthusiasm for it, died a sudden death in 2017. The Department of Justice has shown no interest in continuing to seek consent decrees or court orders requiring police departments that have been found to have violated civil rights to reform their practices. A voluntary process known as collaborative reform, where police departments could seek the Justice Department’s expertise to improve its relations and performance with communities, was killed off.
Instead, Sessions has pledged his unwavering support for law enforcement, and in speeches has blamed “divisive rhetoric,” meaning the protests of groups such as Black Lives Matter, for violence against law officers. “So it can come as no surprise when we see rising levels of violence against law enforcement,” Sessions told the National Fraternal Order of Police last year, overlooking the fact that the number of law enforcement officers killed in the line of duty last year dropped to its second-lowest level in more than 50 years.
Civil rights advocates were alarmed by a leaked FBI report on “black identity extremists.” Groups such as the NAACP worry that such labels will be used to discredit anyone protesting police abuse or illegal uses of force—like, to cite a favorite presidential target, NFL players taking a knee or raising a fist against police violence.
The Department of Justice has not backed away from prosecuting individual police officers for abuses. Most notably, last month, prosecutors secured a 20-year sentence for former North Charleston, South Carolina, police officer Michael T. Slager after he pleaded guilty to civil rights violations in the killing of Walter Scott in April 2015.
In another rollback of an Obama move to discourage police excess, Sessions in August removed federal restrictions on what is known as the “1033 program” allowing state and local law enforcement agencies to request surplus Defense Department equipment for police officers. The program had come under fire in 2014 as Ferguson, Missouri, police had used hulking armored vehicles to control crowds during unrest precipitated by the police killing of 18-year-old Michael Brown.
Months later, Obama issued an executive order that prohibited police from acquiring DOD issue bayonets, tracked armored vehicles and grenade launchers. Police say the equipment is necessary as they are facing greater threats and more firepower from terrorists and active shooters while also contending that the value of items such as bayonets has been misconstrued.
But others, including former law enforcement officials, say police should be working harder to make inroads with communities and not be presenting as occupying forces on tanks.
He’s been a boon to for-profit prisons
The private prison industry saw a quick turnaround with the election of Trump. In August 2016, former interim attorney general Sally Yates signaled a phasing-out of the federal government’s use of private prisons in light of a shrinking prison population and a scathing inspector general’s report on conditions. Nearly six months later, Sessions reversed Yates's order, saying it “impaired” the Bureau of Prisons’ ability to meet future needs.
It soon became clear that the federal government plans for private prisons were meant for immigration detention, said Lauren-Brooke Eisen, author of "Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration." More than 60 percent of immigration detention beds are operated by private prisons.
Arrests along the southern border of the United States have actually decreased, Eisen said, most likely because people looking to breach the border have been scared away by the government’s aggressive policies. Much of the immigration enforcement and detention is occurring in the interior of the country, which private prisons view as a “boon” for the industry, Eisen said. ICE is proposing five new private detention centers in cities such as Detroit, Chicago, St. Paul, Minnesota, and Salt Lake City.
He wants more executions
Obama’s first attorney general, Eric Holder, opposed capital punishment, and President Obama had misgivings. Donald Trump has been a death-penalty enthusiast since at least 1989, when he bought full-page ads demanding capital punishment after the rape of a jogger in Central Park.
In recent weeks, the Department of Justice has indicated that it will seek the death penalty in two federal cases. Executions at the state and federal levels have been on the wane over the last several years. The last time a federal prisoner was put to death was 2003. Public support for the death penalty, meanwhile, remains at its lowest level since 1972, according to a Gallup poll.
He makes the NRA very happy
The mass shooting at Columbine High School in 1999 was seen as a turning point in the public tolerance of gun violence, but after last year it doesn’t even rank among America’s ten deadliest mass shootings in modern history. On October 1, 58 victims were killed and more than 500 injured outside the Mandalay Bay Resort in Las Vegas. A month later 26 people were killed and 20 more were injured in the First Baptist Church of Sutherland Springs, Texas. For an instant, it seemed as if this time Congress might pass some type of gun control measure. The National Rifle Association even took a rare stance, saying the "bump stock" that had basically transformed the Las Vegas shooter’s semiautomatic weapons into automatic rifles should be regulated. But as soon as there were bills that sought to do so, the organization opposed them, saying the legislation was overreaching and that the ATF should review bump stocks to see if they comply with federal law.
Once again, any talk of gun control was dead. On the contrary, Republicans and the NRA are pushing a law that would require all states to recognize a gun owner’s concealed carry permit. The bill passed the US House in December.
Paradoxically, Trump, while a hero to the NRA, has not been great for gun manufacturers. Gun sales dipped last year. It seems sales soared when owners were afraid Obama would be coming after their weapons.
“The NRA and the industry used Obama to scare gun owners into thinking the President and the federal government were going to come after their guns or otherwise severely restrict gun purchases,” said Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research. “Obama would regularly talk about gun control and the NRA and industry would twist it into a move to come after folks’ guns. There may be some saturation of the market post-Obama and few have fears of serious gun control under Trump and a Republican Congress.”
He’s remaking the US court system
If there is one area where Trump has made the greatest and most lasting impact, it’s the judiciary.
The confirmation of Neil Gorsuch as a justice of the Supreme Court may be Trump’s most conspicuous prize, but it’s the lower courts the president has been busily stacking with conservative nominees. Six of his appointees have been confirmed to the federal district court while he has filled the appellate court with 12 new judges. More than 100 federal judgeships remain to be filled by the end of his term. Given the ages of Justices Ruth Bader Ginsberg, 84, and Anthony Kennedy, 81, Trump could get at least one more chance to appoint a Supreme Court nominee.
The Trump administration is also helping to enrich the court system. In December, Sessions informed court systems across the country that he was revoking a letter the Justice Department had sent out in 2016 that urged court systems to be cognizant of court fees and fines and defendants abilities to pay them. The letter outlined what it called constitutional principles, instructing court systems not to jail indigent defendants who were unable—not unwilling—to pay fees and fines and to consider alternatives.
In revoking the letter, as well as several other Obama-era guidelines, Sessions said he was stopping yet another overreach of government power. He said Congress sets the fees and fines and any instruction to sidestep that was “improper” and “unnecessary” guidance.
Postscript: Where reform lives on
For all the rollbacks Trump has instituted, reforms are continuing at the state level—even in states like Louisiana, once considered the world’s “prison capital.” In 2017, 19 states passed 57 pieces of bipartisan reform legislation, according to the ACLU.
Here are some of the changes states instituted in their penal systems last year, according to the Pew Public Safety Performance Project, which works with states on reforms:
-Louisiana lowered mandatory-minimum sentences, extended parole eligibility and removed some crimes from violent crime classification.
-Utah allowed families to monitor low-level juvenile offenders rather than remove them to state custody, strengthened supervision and treatment for youth and lowered time under state supervision or custody for some juvenile crimes.
-Arkansas required crisis intervention training for law enforcement, allowed for the creation of mental-health crisis stabilization units and changed rules to decrease jail time for technical or misdemeanor probation violations.
-Georgia limited probation terms to end supervision sooner for good behavior, and reduced the number of probationers.
-Montana reduced mandatory minimums for theft and drug offenses and created early probation discharge opportunities for those judged low risk.
-North Dakota allowed agencies to prioritize prison and jail admissions if facilities exceed capacity, expanded behavioral health services, expanded probation use, established medical parole for people with terminal conditions and repealed the denial of food stamps for people with certain drug convictions.
-Rhode Island established a batterer’s intervention program, expanded the type of expenses crime victims can be reimbursed for and increased the statute of limitations to file claims, and granted judges more discretion.
A version of this article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.