Trump’s criminal justice policy, explained

Trump has claimed he’s “tough on crime” and for “law and order.” Here’s what that really means.

President Donald Trump is trying to refashion his 2020 presidential campaign into a 1980s-style “tough on crime” platform. He’s now tweeted “LAW & ORDER!” with no context more than a dozen times. He’s gone to Kenosha, Wisconsin, the site of recent protests and riots after the police shooting of Jacob Blake, only to deflect questions about whether systemic racism is real, argue that people “want the police to be police,” and condemn “dangerous anti-police rhetoric.”

It’s a gamble that seeks to mask Trump’s failures on Covid-19. But if it works to get Trump reelected, it could damage or reverse efforts to reform America’s criminal justice system — even as people continue to march in the streets against police brutality, mass incarceration, and the systemic racism enshrined in both.

Trump has promoted “tough on crime” policies not just since his run for president in 2015 and 2016, but in the decades before. In 1989, Trump ran a local ad calling for the death penalty for the “Central Park Five,” who were falsely accused of attacking and raping a jogger in New York City. In 2000, Trump claimed in his book, The America We Deserve, “Tough crime policies are the most important form of national defense.” He also stated, “Clearly we don’t have too many people in prison. Quite the contrary.”

On the campaign trail last time around, Trump in 2015 argued that “we have to get a lot tougher” on crime. In 2017, he advocated for police being rougher during arrests, claiming he’s told cops, “Please, don’t be too nice.”

Trump’s administration has subsequently ended investigations into local and state police departments accused of misconduct, arguing that cops shouldn’t be shackled by the federal government. It has encouraged federal prosecutors to pursue the harshest possible sentences, including more punitive punishments for lower-level offenses and the death penalty for drug crimes. And it has restarted federal executions.

Trump’s second-term agenda makes zero mention of any kind of criminal justice reform, whether for incarceration or policing. Instead, one section, titled “DEFEND OUR POLICE,” promises more police officers, stricter penalties for assaults on cops, prosecuting drive-by shootings as domestic terrorism, going after “Violent Extremist Groups Like ANTIFA,” and reversing reforms to end cash bail.

As he runs for that second term, Trump has occasionally touted outliers in his record. Trump did sign criminal justice reform, the First Step Act, into law. He commuted the sentence of Alice Marie Johnson, who previously received a life sentence for her role in a cocaine trafficking ring, and later pardoned her. These appear to be contradictions, but in context they seem more like the result of personal favors: The First Step Act was pushed by Trump’s son-in-law, Jared Kushner, and Johnson’s commutation by celebrity Kim Kardashian.

“I view that [the First Step Act] as just the outlier on what would otherwise be a truly abysmal record on criminal justice issues,” Rachel Barkow, a criminal justice expert at New York University, told me.

There’s a racial element to all of this. When literal neo-Nazis and KKK members march in Charlottesville, Virginia, and one of them murders a counter-protester, “law and order” suddenly became “very fine people on both sides.” When a white 17-year-old is charged with murder for killing two people at a Black Lives Matter protest, Trump goes from shouting about chaos and lawlessness in major cities to actually defending a specific act of violence classified as a crime. As was true from the 1970s to the ’90s, “tough on crime” seems geared toward targeting a specific segment of the population with what’s euphemistically called “law and order” more than following a literal interpretation of these phrases.

The social or policy outcomes may not matter to Trump. His main goal is to get reelected, and he will say and do anything he thinks will work toward that goal. A message of “law and order” is meant to appeal to a base with racist views about crime and minority communities — as it has in the past — while maybe grabbing some voters who are genuinely concerned about murders, riots, and disorder in American cities.

If that message contradicts Trump’s support of the First Step Act or Alice Johnson, his campaign doesn’t seem to care, especially if they can still use the First Step Act and Johnson’s commutation to draw minority voters and reassure Trump-skeptical Republicans.

Still, there are possible policy repercussions. Trump has promised to double down on the same “tough on crime” policies that he and his administration have tried to carry out in his first term. If that happens, those policies will, based on the evidence, do little to stop and reduce crime — but could continue to, as such policies have for decades, enable aggressive policing in minority communities and maintain America’s status as the world’s leader in incarceration.

And if Trump wins by doubling down on a “law and order” platform — if that’s enough to get swing voters behind him after failing so disastrously on the Covid-19 pandemic — that also could send a message to other lawmakers that “tough on crime” politics and policy are still potent. That could get more politicians, at the local, state, and federal level, on board with such an approach. It would amount to a huge blow to current protests and reform efforts.

Trump’s approach is stuck in the 1980s “tough on crime” days

Trump has never tried to hide his views on crime and criminal justice. In 2015, he simply described himself as “tough on crime.” In a preview of the rhetoric that he’s continued to use in office, he said, “You look at what’s going on in the inner cities right now, it’s unbelievable. … It’s like the Wild West.” (In 2014, the homicide rate actually hit a historic low.)

When later asked how, exactly, he would fix crime in these cities, Trump called for “tough police tactics.”

“By being very much tougher than they are right now,” Trump said. “They’re right now not tough. I could tell you this very long and quite boring story. But when I was in Chicago, I got to meet a couple of very top police. I said, ‘How do you stop this? How do you stop this? If you were put in charge — to a specific person — do you think you could stop it?’ He said, ‘Mr. Trump, I’d be able to stop it in one week.’ And I believed him 100 percent.”

Trump added, “He wants to use tough police tactics, which is okay when you have people being killed.”

Trump’s administration acted on this. Under President Barack Obama, the US Department of Justice had initiated a historic number of investigations into local and police departments — uncovering abuse after abuse, failure after failure. Trump’s attorney general at the time, Jeff Sessions, halted these investigations, arguing that the Justice Department will not take part in “handcuffing the police instead of criminals.”

Going “tough” has continued to be Trump’s response to just about anything related to crime. In response to the opioid epidemic, for example, Trump called for, and Sessions signed off on, the death penalty for people “dealing in extremely large quantities of drugs.”

Trump also signed various crime-related executive orders, including a series signaling support for “tough on crime” policies and an order that called for harsher prison sentences for people who deface statues (in response to people vandalizing statues during the debate about Confederate figures).

He’s also sent federal law enforcement to harass and arrest Black Lives Matter protesters — most notably in Portland, Oregon, although he’s pushed for separate, different deployments in other cities as part of his broader efforts to escalate policing in response to violence.

As the saying goes, personnel is policy, too. Trump backed “tough on crime” policies on the campaign trail, then nominated Sessions, with his long history of calling for similar policies, as attorney general — and Sessions delivered, repeatedly pulling back efforts by the Obama administration to make the criminal justice system less punitive. After Sessions left the post, Trump replaced him with Bill Barr, who as attorney general for President George H.W. Bush in 1992 published a report titled The Case for More Incarceration.

On the 2020 campaign trail, Trump has continued talking up his support of the “tough on crime” approach. He’s argued that “Democrat run cities are now rampant with crime,” and only he and his “tough” approach can fix it. Vice President Mike Pence made this explicit in his Republican convention speech when he said, in reference to the Democratic nominee for president, “The hard truth is you won’t be safe in Joe Biden’s America.” Both candidates have gone to great lengths to suggest that Democrats are “soft” on crime, leading to more murders in big cities (ignoring that murder rates have also soared in Republican-run cities).

There’s nothing new about this; it’s the same playbook that politicians — of both parties — used in the 1980s and ’90s as violent crime rose and they fell under increasing pressure to do something about it. That included Democrats: Biden, then a senator, went on national TV in 1989 to criticize President George H.W. Bush’s anti-crime plan for not including “enough police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time.”

Since the 1980s and ’90s, empirical evidence has shown that “tough on crime” policies for incarceration and policing aren’t effective. This fact, combined with the high costs of such approaches (incarcerating nearly 1 percent of the population is expensive), led Democrats and Republicans to work on criminal justice reform, particularly as local and state budgets were strained by the Great Recession between 2007 and 2009.

But not Trump. “He is a dinosaur in every sense of the word,” Barkow said. “He has shown no evolution on any of these issues.”

These appeals to law and order were always intertwined with racism. When local news outlets talked about crime and disorder, especially in US cities, the stories often focused on Black and brown people. The war on drugs, mass incarceration, and aggressive policing disproportionately hit Black and brown communities. Under presidents like Richard Nixon, Ronald Reagan, and Bill Clinton, “tough on crime” messages of “law and order” turned into dog whistles for controlling people of color.

“The phrasing that he uses — saying ‘silent majority,’ saying ‘law and order’ — those are catchphrases from a different era with particular meanings that he knows, and he’s using them deliberately,” Barkow said of Trump.

Trump is no stranger to racism and dog whistles. The first time he appeared in the New York Times, in 1973, the Justice Department had sued him for racial discrimination in housing. Trump rose to political prominence after Obama’s 2008 election by promoting racist birther conspiracy theories about the country’s first Black president. He’s continuing his appeals to his predominantly white base with similar messaging about crime and chaos in cities largely populated by minority groups — and that electioneering may be his main goal, more than any particular policy change.

The First Step Act is an outlier, but it says little about Trump

There are two big outliers in Trump’s “tough on crime” history: The First Step Act and the commutation and pardon of Alice Johnson.

The First Step Act was genuine criminal justice reform, pulling back some harsh prison sentences and giving more federal inmates a way to earn an early release. A recent report by the US Sentencing Commission found it let thousands of people get shorter sentences and allowed some of them to get out of prison early.

The law was almost wholly the work of Congress, including both Democratic and Republican legislators. It was in large part a continuation of criminal justice reform efforts that began during Obama’s second term, so much of the law preceded Trump entirely. But after Trump signed it, he’s taken more and more of the credit for it.

The law is also limited, only affecting a fraction of federal inmates (and only about 12 percent of people in prison in the US are held at the federal level). That’s why its name is clear that it’s meant to be a first step. (Trump once proposed a Second Step Act that was even more limited, seeking only to ease barriers to employment for people released from prison, but it hasn’t been mentioned in his 2020 campaign or as part of his platform.)

There is nothing about Trump’s record that suggests he wants to reform prison sentences and release people from prison early. He’s said the opposite: In 2016, he criticized Obama for “releasing violent criminals from the jails, including drug dealers, and those with gun crimes. And they’re being let go by the thousands. By the thousands.”

“I think he saw [the First Step Act] as a politically convenient move — perhaps to pick up some Black and Hispanic supporters,” John Pfaff, a criminal justice expert at Fordham University, told me. “But it wasn’t much.” He added, “His current posturing about ‘law and order’ and everything tied in that phrase is where his true underlying values have always been and remain.”

Trump’s support for the First Step Act seems to be a result of heavy lobbying for the law by his son-in-law, whose dad went to prison. Kushner reportedly convinced Trump to go along with the law by appealing to the president’s ego — pointing out criminal justice reform is a thing Obama couldn’t do, but Trump could.

In the aftermath, Trump’s Justice Department has at various times resisted or slow-walked the implementation of the First Step Act — with federal prosecutors, for example, actively resisting the release of some inmates who qualify under the law.

Meanwhile, the commutation and pardon of Alice Johnson was not so much a policy act as it was a favor for a celebrity. Trump agreed to the commutation only after Kim Kardashian met with him at the White House, imploring Trump to use his pardon powers to grant relief to Johnson. Trump listened, commuting Johnson’s life sentence for a nonviolent drug crime so she could get out of prison early.

Trump is no stranger to using his presidential powers to help out his friends and allies. He pardoned political ally and former Maricopa County, Arizona, sheriff Joe Arpaio, commuted adviser Roger Stone’s sentence, and discussed pardoning former national security adviser Michael Flynn.

If Trump genuinely cared about criminal justice reform, this isn’t how he would handle pardons and commutations. Obama, for example, set up a broad program to give pardons and commutations to people caught under punitive “tough on crime” laws — and that led to Obama setting a record in cutting prisoners’ sentences. Experts and Democratic politicians have called for setting up a clemency board to relax people’s prison sentences without an act of Congress.

But Trump has actively criticized such approaches, complaining that they allowed Obama to let thousands of inmates free.

It’s of course possible to have moderate or mixed views on criminal justice issues. Some people, for example, support reforming the police and reducing incarceration but argue that more aggressive measures, like defunding or abolishing the police, go too far. And it’s possible to simply have changed your mind on criminal justice issues, as the evidence and US’s experience show “tough on crime” policies don’t work. Both of these examples match Biden’s stated views as he runs for president.

But there’s simply no indication that this is true for Trump. He supported the First Step Act, but has called for and through his Justice Department enabled harsher sentences and more aggressive policing. He commuted Johnson’s life sentence for her involvement in a cocaine trafficking ring, but has called for the death penalty for drug traffickers and dealers, and criticized Obama for using the same pardon powers to release people in similar situations to Johnson’s. These are just contradictions.

Trump’s reelection could have big repercussions for crime politics and policy

For much of Trump’s first term, his “tough on crime” views didn’t seem to play a big role in the day-to-day work of the criminal justice system. That was in part a reflection of how the US criminal justice system works: It’s actually the local and state governments, not the feds, that oversee the vast majority of policing and incarceration, with about 88 percent of prison inmates held in state facilities and the vast majority of the 18,000 or so police departments in the US run at the local or state level. Even under Trump, the federal prison population fell from nearly 186,000 in 2017 to less than 156,000 today.

Then Minneapolis police officers killed George Floyd, setting off Black Lives Matter protests, looting, and riots across the country. That was followed by a rise in murders in big US cities, and renewed demonstrations and unrest following the Kenosha, Wisconsin, police shooting of Jacob Blake.

So Trump ramped up his “tough on crime” rhetoric, characterized by his “LAW & ORDER!” tweets — changing the subject from his botched handling of the Covid-19 pandemic, which led to a resurgence in cases and deaths in the US unlike what most other developed nations have seen.

His rhetorical focus could have an impact. The president doesn’t have much legislative sway on a lot of criminal justice issues, with previous attempts at encouraging states to embrace certain policies in this space, such as Biden’s punitive 1994 crime law, falling short.

But the bully pulpit, experts say, can play a powerful role, signaling not just to the general public but to other lawmakers and the police what’s within the realm of the acceptable. As Pfaff, who’s deeply skeptical of federal impact over criminal justice issues, told me, “The president’s biggest power is his bully pulpit.”

Maybe the actual impact doesn’t matter to Trump. Maybe he doesn’t care if there are no major policy changes at any level regarding criminal justice. Maybe he doesn’t actually care if the federal prison population drops or rises under his watch. Maybe all that matters to him is he says and does the kinds of things that persuade enough of his base and swing voters to lead him to victory in November.

Courtney Parella, a spokesperson for the Trump campaign, responded in a statement: “On one hand, you have Joe Biden’s who was as an architect of mass incarceration which unfairly and disproportionally impacted minority communities, on the other hand you have President Trump who has worked to fix Biden’s failures and is reforming America’s criminal justice system to help restore peace and security across the nation. The choice could not be more clear, President Trump is the only person in this race who will continue to advocate for fairness in our justice system and safety in our communities.”

Still, a Trump victory would send a message through the US and its criminal justice system. It would signal that swing voters are okay with the excesses of the current system, and reject the protests of the past year. It would come off as an endorsement of Trump’s own “tough on crime” approach.

Some experts and observers also worry that if Trump wins, his victory would demonstrate that a platform of “law and order” and “tough on crime” still works. It’s speculative, but there’s an intuitive sense to the idea: By winning, Trump would show not only that such a platform is effective enough to win the White House, but effective enough to distract from a historic, botched federal response to a pandemic that’s now killed more than 189,000 Americans and caused the economy to collapse.

“These are tried-and-true strategies some people thought had died,” Barkow said. “But if [Trump] succeeds running a campaign like this, people will double down and do more of it.”

So far, the gamble doesn’t seem to be working. Trump is behind 7 points in national polling averages and 3 points in polling averages for top battleground states, including Wisconsin.

But if it does work, it could damage the loose bipartisan coalition that has come together for criminal justice reform over the past few years. That could translate not just to federal action, but local and state changes as well. And after four years in which Trump’s “tough on crime” views didn’t amount to much policy change nationwide, the ideas that he’s pushed for decades could come back to the mainstream in a big way.

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