Sentencing Reform

Does Trump's Super Bowl Ad Signal More Progress on Sentencing Reform?

While the president seems sincerely concerned about "very unfair" drug penalties, it's not clear whether he thinks his work in that area is done.

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Donald Trump's presidential campaign, like Michael Bloomberg's, sponsored a Super Bowl ad featuring a black woman. In Bloomberg's case, the woman was Calandrian Kemp, a gun control activist whose 20-year-old son, George, was shot to death during a 2013 brawl at a park in Richmond, Texas. Trump's ad focused on Alice Johnson, a nonviolent drug offender whose sentence the president commuted in 2018. Trump's decision to emphasize criminal justice reform makes political sense, but it also reflects a seemingly genuine concern about cases like Johnson's that might lead to more progress in this area.

"Alice Johnson was sentenced to serve life in prison for a nonviolent drug offense," the TV spot's opening caption says. "Thanks to President Trump, people like Alice are getting a second chance." That's followed by footage of Johnson reuniting with her family and tearfully thanking Trump for setting her free. "Politicians talk about criminal justice reform," another caption says. "President Trump got it done. Thousands of families are being reunited."

The ad refers not just to the act of clemency for Johnson, whom Trump introduced during his 2019 State of the Union speech, but also to his support for the FIRST STEP Act, a 2018 law that shortened the sentences of many federal drug offenders. Although that law did not go as far as other sentencing reform bills that Congress has considered in recent years, it is accurate to say that it will benefit thousands of current federal prisoners, considering both its retroactive application of the shorter crack cocaine sentences that Congress approved in 2010 and its expansion of time credits for good behavior and for participation in job training and rehabilitation.

Going forward, other changes made by the law, including reductions in mandatory minimum sentences for repeat offenders, modification of enhanced penalties for drug offenses involving firearms, and an expanded "safety valve" that enables certain defendants to avoid mandatory minimums, are expected to result in shorter prison terms for more than 2,000 people each year. These are significant improvements, and Trump deserves credit for signing the bill despite resistance from hard-line Republicans such as Sens. Tom Cotton (R–Ark.) and John Kennedy (R–La.).

The ad's claim that other politicians merely "talk about criminal justice reform," while Trump "got it done," is more dubious. The Fair Sentencing Act, which prescribed the shorter crack sentences that the FIRST STEP Act made retroactive, was approved nearly unanimously by Congress in 2010 and signed into law by Trump's predecessor, Barack Obama. And after a disappointing start, Obama ultimately granted 1,715 commutations, more than any other president in U.S. history and more than his 13 immediate predecessors combined. Almost all of the beneficiaries were drug offenders.

So far Trump has commuted just six sentences, including Johnson's and one other drug offender's. But that is actually six times as many commutations as Obama approved during his first term. Trump could still do much more good with his clemency powers if he is re-elected and puts his mind to it. Whether he is inclined to do that is another question.

Trump's concern about "very unfair" drug sentences seems sincere, if intermittent and inconsistent. "Alice's story underscores the disparities and unfairness that can exist in criminal sentencing, and the need to remedy this total injustice," he said in last year's SOTU address. He bragged that the FIRST STEP Act had "reformed sentencing laws that have wrongly and disproportionately harmed the African American community." But it's not clear whether Trump recognizes that the law he signed, as its name suggests, was relatively modest and that further reform is needed. It does not bode well that Trump, even while decrying unjust crack sentences, favors harsher penalties for drug offenses involving fentanyl.

Trump, who received just 8 percent of votes cast by African Americans in 2016, obviously has a political interest in improving his image among blacks, not to mention white moderates who care about criminal justice reform or who see his support for shorter drug sentences as a reassuring sign from an administration that is frequently portrayed as racist. Trump's other Super Bowl ad brags that "unemployment for African Americans fell to a new low" under his administration.

Bloomberg faces a somewhat similar problem, given his long history of staunch support for the New York Police Department's "stop, question, and frisk" program, a position he repudiated only upon launching his 2020 presidential campaign. But while the former New York City mayor's focus on guns in his Super Bowl ad is of a piece with his defense of that racially divisive program (which he portrayed as an effective deterrent to gun carrying), Trump's emphasis on criminal justice reform is surprising given his Nixonesque "law and order" platform in 2016. And while much of Bloomberg's gun control agenda involves sending more people to prison for longer periods of time, Trump chose to highlight policies that move in the opposite direction.

Still, it is highly uncertain whether a re-elected Trump would expend any more political capital on this issue, which is not mentioned at all in the "Law and Justice" section of his campaign website. The phrase "criminal justice reform" appears just twice on the website: in a survey question asking which issues the Trump campaign should emphasize and on the "Black Voices for Trump" page, which includes a link to a Washington Times story about the Super Bowl ad.