Criminal Justice Reform During The Trump Administration

On May 12th, Attorney General Sessions took the first step toward following through on President Trump’s campaign promise to reinstate “tough on crime” policies. In his memo, Sessions rescinded an Obama era memo in which Eric Holder instructed federal prosecutors to avoid bringing charges against low-level drug offenders that would result in lengthy mandatory minimum sentences. Taking the opposite approach, Sessions is directing federal prosecutors to charge low-level drug offenders as harshly as possible. Although this policy change is very disturbing, supporters of criminal justice reform should not be discouraged: substantial criminal justice reform remains both possible and likely if advocates continue to fight.

This is primarily because the Trump administration is limited in the degree to which it can prevent reform. Although the U.S. is the country with the second highest incarceration rate, federal policies have little to do with this reality. Of the roughly 2.2 million people locked up in prison or jail, fewer than 200,000 (less than 10%) are incarcerated in federal facilities, nearly 700,000 are incarcerated in county jails, and more than 1.3 million are incarcerated in state prisons. What this means is that criminal justice reformers should predominately focus on changing policies at the state and local levels.

Fortunately, although the current political climate makes reform at the federal level unlikely, criminal justice reform has started at the local level. For instance, in recent years, liberal states, like Maryland and California, and conservative states, like Oklahoma and Alaska, have passed legislation that reduces the severity of criminal sentencing, especially for certain nonviolent offenses. To continue this momentum, it is imperative that activists work to convince the public to support further reform. Obtaining public support is crucial because: 1) It may sway state representatives to support reform; 2) Ballot initiatives, voted on by the public, have been a powerful tool for criminal justice policy-making; and 3) Prosecutors, who have tremendous discretion in levying charges, are typically elected locally by the public.

Although the public tends to support criminal justice reform for nonviolent offenses, there are several strategies that activists can follow to further bolster support. A recent study I conducted, published in this May’s edition of Crime & Delinquency, suggests that certain messages are more effective than others at increasing public support for eliminating incarceration for nonviolent offenses. I found that emphasizing the high financial costs of incarceration, the ineffectiveness of prison as a crime reduction tool, and the massive growth in the use of incarceration caused by harsher sentencing (not more crime) were most effective. By contrast, emphasizing racial disparities in incarceration, the harm done to children, and the mental health, substance abuse, and childhood challenges common among people in prison—while important points— were no more effective in increasing support for criminal justice reform than providing no message at all.

These results present a challenge for me, and most likely, many other criminal justice reform advocates. I became interested in criminal justice reform largely because of the racial disparities in incarceration, the harm it does to children and communities, and the overall massiveness of its scope. I am disappointed that only one of these three messages (the massiveness of its scope) seems to persuade the general public and that themes that appeal to self-interest (financial costs and ineffectiveness as a crime reduction tool) tend to be the more consistently effective than those that appeal to fairness.

To make my advocacy most effective, I plan to emphasize the themes of economic costs (i.e. it costs approximately $30,000 to incarcerate a person for a year), ineffectiveness as a crime reduction tool (i.e. within 5 years, approximately 75 percent of people released from prison are rearrested), and the incredible growth of incarceration (i.e. the US incarceration rate is more than 4 times higher today than in 1970, even though crime rates are almost exactly the same) in future conversations. Criminal justice reform is too important, the stakes are too high, and the opportunity at the local level is too great to avoid this focus and instead focus on what may be seen as more of the “human” costs. Although I understand if other advocates are hesitant to take this same approach, I hope that most will take this plunge with me. Even if you choose not to use this strategy, make your voice heard in whatever way you can. People behind bars in many ways are voiceless, so we must fight for them.