Advocates working within the criminal legal system (CLS) are bracing for the impact of what President Donald J. Trump has promised. Whether the federal death penalty or police immunity, the political landscape will be a defensive one for advocates. There will be differences between the CLS policies of President Trump’s first administration and his second: his staff will know the levers of power, but we will be prepared for the tactics and policies of this administration.
Despite challenges to CLS reform, momentum in traditionally conservative states may impact federal policy. For example, robust re-entry efforts have decreased the South Carolina prison population by 30% over 11 years, and Texas has started to utilize alternatives to incarceration. Since the U.S. prison population peaked in 2009, there has been an 11% decline in incarceration rates with drops in crime. During these next four years, the Trump administration can take inspiration from conservative states’ progress and remind themselves of President Trump’s first term advancements.
A Glimpse in the Past
After years of advocacy, then-President Trump signed the 2018 First Step Act (PL 115-391). Under the legislation, there are provisions for long-term sentencing reform, anti-recidivism programming, and the reauthorization of the Second Chance Act (SCA).
Though this law is a step toward criminal legal reform, it leaves mandatory minimum sentences in place. This type of sentencing requires judges to give a baseline amount of imprisonment, regardless of extenuating factors, like poverty, that can cause crime. Mandatory minimum sentencing was originally imposed in the 1980s as a “tough on crime” strategy, yet the impact of mandatory sentencing is an increase in mass incarceration. There is no longer judicial flexibility for sentencing, leading to facility overcrowding, specifically with nonviolent crimes like drug offenses.
Where We are Headed
In his acceptance speech at the 2024 Republican National Convention, President Trump outlined his policy objectives: invest in police, mandate stop and frisk, discipline minors, etc. This includes plans to funnel Department of Justice (DOJ) grants into police departments. The shoveling of money to police has the potential to take funds away from prison alternatives such as work or diversion programs.
A related issue is immigration enforcement. President Trump intends to greatly expand the incarceration of immigrants. He will also require local law agencies receiving DOJ grants use the stop-and-frisk policy. This policing measure is known to have a heavy racial bias and leads to higher chances of police brutality. Furthermore, the mandated searches would contribute to the already exorbitant over policing in Black and brown neighborhoods.
Lastly, the President intends to use the authority of the Department of Education and the Department of Justice to discipline youth with a criminal record. This is an attack on youth, specifically against Black and brown youth, in the name of public safety. Attempting to reduce crime by incarcerating younger individuals will not have the deterrence effect President Trump is hoping for. Individuals age out of criminal behavior, so locking kids away for years is not justifiable. There are much better, non-punitive approaches to address children who are committing crimes with diversion programs.
A Window of Hope
These next four years will not be strictly defensive. We have hope on the state level. Texas has several youth justice bills signed into law. One example of positive legislation: HB 3186, a bill related to youth diversion strategies and procedures for children accused of fine-only offenses in municipal and justice courts. Similarly, the South Carolina Department of Corrections (SC DOC) saw a 30% drop in their prison population. SC DOC Director Bryan Stirling partners with charities and state agencies to ease the re-entry process. The Governor of Tennessee has even proposed and signed reform bills into law. The Alternative to Incarceration Act has many reform provisions like court-sponsored drug treatment programs and probation caps for felony offenses.
Though a second Trump Administration does not leave a door wide open for criminal legal system reform, it does leave a window cracked.
