WASHINGTON — The federal government was in many ways a newcomer to criminal justice reform when in 2013 the Obama administration put its full backing behind an effort to revamp what then-Attorney General Eric Holder described as a “broken’’ system.
The centerpiece of that plan called for doing away with mandatory minimum sentencing policies that resulted in prolonged prison terms for thousands of non-violent offenders.
The strategy, also backed by an unusual bipartisan coalition in Congress, tracked a dramatic shift away from harsh justice policies in states across the country.
Enter President-elect Donald Trump.
The Republican billionaire’s oft-repeated “law and order’’ refrain, some analysts suggest, harkens back to the punitive era of the 1990s, one that federal, state and local authorities have been attempting to unravel by supporting more proportional punishment to offenders while reducing costly prison populations.
At the Justice Department, Trump’s strong support for law enforcement also would likely signal a departure from an aggressive posture taken by the department’s Civil Rights Division to investigate police misconduct and seek institutional changes in American law enforcement.
“It remains to be seen what policies he chooses to support, but the rhetoric has been fairly unhelpful,” said Inimai Chettiar, Justice Program director at the non-partisan Brennan Center for Justice at New York University School of Law.
Chettiar said that Trump has not articulated a criminal justice plan, other than dark references during the campaign to rampant violent crime in U.S. inner cities, where he has called for a return of racially charged stop-and-frisk practices. The tactic, which allows police to detain and search people on the basis of reasonable suspicion of criminal activity, was found to be unconstitutional as applied in New York City.
Vice President-elect Mike Pence, Chettiar said, has been more clear in his pursuit of changes to criminal justice policies. In last month’s debate with Democratic nominee Tim Kaine, the Indiana governor affirmed his support for measures adopted in his home state, which seek to divert non-violent offenders from prison and provide treatment to addicted and mentally ill offenders.
“We have got to do a better job recognizing and correcting the errors in the system that do reflect on institutional bias in criminal justice,” Pence said during the debate.
Udi Ofer, director of the ACLU’s Smart Justice Campaign, said that while there was “hope” that Trump would change his views on stop-and-frisk tactics, advocates were drawing more encouragement from measures that won approval Tuesday in states that Trump also carried.
In Oklahoma, for example, voters approved ballot initiatives that reclassified some drug and property crimes from felonies to misdemeanors in an effort to slash the state’s costly prison population. A separate measure also was approved to direct any savings to fund rehabilitation and treatment services to those non-violent offenders.
“President-elect Trump hasn’t held office before, so we don’t have a lot to go on,” Ofer said. “But states have the most power to determine who should and should not be in jail. There is no question that the federal government has a role to play, but I think we have been encouraged in the last 24 hours that bipartisan criminal justice reform is alive and well, even in the reddest of states.”
Anthony Romero, executive director of the American Civil Liberties Union, called the actions in Oklahoma, with the second-highest incarceration rate in the nation, a “game-changing moment” for the national justice reform movement.
How that movement will be reflected in a Trump administration — more specifically, in a Trump-led Justice Department — remains unclear.
“There is room for someone to support both law and order criminal justice reform,” said Marc Levin, policy director for Right on Crime, a conservative arm of the movement to change justice procedures. “Criminal justice, outside of the talk about law and order, wasn’t really a central part of the campaign. The states are where most of the action is happening now, though the attorney general, whoever that is in a Trump administration, will have an influential bully pulpit.”
Trump has not identified his nominees for cabinet positions, but public discussion about his possible choices for attorney general have included former New York mayor Rudy Giuliani, a former U.S. attorney; New Jersey Gov. Chris Christie, also a former U.S. attorney; and Sen. Jeff Sessions, R-Ala., another former federal prosecutor.
Whoever wins confirmation as the nation’s chief law enforcement officer inherits a Justice Department that, during the Obama administration, has aggressively pursued another controversial practice: police misconduct and institutional law enforcement problems, ranging from discrimination to excessive force. Trump, meanwhile, has expressed unflinching support for police.
“I don’t think a Trump Justice Department will give anybody a free pass,” Levin said. “It’s more likely that a new attorney general will take a different tack.”