Criminal Justice

The Shaky Foundation of Trump's Pose As a Criminal Justice Reformer

The president's case rests on two accomplishments, while his plans for a second term echo the mindless toughness he intermittently condemns.

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Joe Biden's long history of promoting draconian sentences, hard-line anti-drug policies, and proliferating death penalties is an easy target for any politician who is serious about criminal justice reform. But there is little evidence that description applies to President Donald Trump, who has repeatedly slammed Biden as "the chief architect of mass incarceration and the War on Drugs" while presenting himself as an opponent of excessively punitive policies—a major theme of this week's Republican National Convention.

Trump's bona fides as a reformer consist of two accomplishments. First, he supported the FIRST STEP Act, a 2018 law that included some modest but significant drug sentence reductions. Second, he has issued 25 pardons and 11 commutations, some of which seem to reflect a sincere belief in rehabilitation and a genuine concern about unjust penalties. Most famously, Trump freed Alice Marie Johnson, a nonviolent, first-time offender who received a life sentence for her role in a Memphis-based cocaine distribution ring. Johnson, whom the president introduced during his State of the Union speech last year, was featured in a Trump campaign ad during this year's Super Bowl and is scheduled to speak at the Republican convention on Thursday night.

Although it did not go as far as many reformers would have liked, the FIRST STEP Act, which passed with overwhelming support in the House and Senate, was a clear improvement that freed thousands of drug war prisoners, and Trump deserves credit for backing it. The fact that he has used his clemency powers not only to help his cronies but to ameliorate some real injustices is also laudable. Barack Obama, who eventually commuted a record 1,715 sentences, approved just one petition during his first term. But when it comes to his plans for a second term, Trump has said little about criminal justice, and what he has said is inconsistent with the image he is trying to project.

The second-term agenda that Trump unveiled this week, like the "Law and Justice" section of his campaign website, does not mention criminal justice reform. But it does list five points under the heading "Defend the Police," a rejoinder to the "Defund the Police" movement. Trump's wish list does not inspire confidence in his commitment to reversing Biden's mistakes.

Trump wants to "fully fund and hire more police and law enforcement officers," which sounds an awful lot like a central element of the "1994 Biden Crime Bill" (as the former vice president proudly calls it). Yet Trump says that law epitomizes the Democratic nominees's role in promoting mass incarceration and should make African Americans think twice about voting for Biden. "Anyone associated with the 1994 Crime Bill will not have a chance of being elected," Trump tweeted last year. "In particular, African Americans will not be able to vote for you. I, on the other hand, was responsible for Criminal Justice Reform, which had tremendous support, & helped fix the bad 1994 Bill!"

Trump wants to "increase criminal penalties for assaults on law enforcement officers." He does not explain why current penalties are inadequate or how he would change the state laws that prescribe them. Perhaps Trump has in mind laws that treat assaults on police as hate crimes, which result in arbitrary sentence enhancements that are predictably deployed against members of the same minority group that Trump says has disproportionately suffered from the policies Biden championed. Here, too, Trump sounds like the Biden of the 1980s and '90s, who was keen to show that Democrats could be just as mindlessly "tough on crime" as Republicans.

Trump wants to "prosecute drive-by shootings as acts of domestic terrorism." That would be inconsistent with the current federal definition of terrorism as "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." It does not make much sense to put violence between urban gangs in the same category as the ideologically motivated 9/11 attacks or 1995 Oklahoma City bombing. But again, the point is emotional rather than logical, reflecting the same mentality that gave us the ever-escalating criminal penalties Trump faults Biden for supporting.

Trump wants to "bring violent extremist groups like ANTIFA to justice," which seems unobjectionable until you contemplate how members of that ad hoc, decentralized, and vaguely defined movement are to be identified. Punishing people for their alleged membership in a group rather than their individual actions is a recipe for indiscriminate penalties of the sort that Trump intermittently condemns.

Trump wants to "end cashless bail and keep dangerous criminals locked up until trial." That proposal is a direct swipe at a reform widely supported by critics of the criminal justice system, who say people should not be imprisoned prior to trial simply because they cannot afford bail, which punishes them without a conviction, impairs their ability to mount a defense, and pressures them into plea deals that otherwise would be less appealing. By describing defendants as "dangerous criminals," Trump erases the presumption of innocence and ignores all the defendants, including alleged drug offenders, who are "locked up until trial" even though they do not plausibly pose a threat to the general public.

Unlike Trump, whose campaign website does not address criminal justice reform in any substantive way, Biden has a lot to say on the subject. He has repudiated the mandatory minimums and death penalties he once supported, saying they should be abolished. He also wants to eliminate the irrational sentencing disparity between the smoked and snorted forms of cocaine, which was created by a 1986 law that Biden wrote and resulted in strikingly unequal treatment of black defendants. That gap was reduced by the Fair Sentencing Act of 2010, a law signed by Obama and supported by Biden that casts doubt on Trump's claim that only he can deliver "real criminal justice reform."

While continuing to resist the repeal of federal marijuana prohibition, Biden now calls for decriminalizing cannabis consumption and automatically expunging "all prior cannabis use convictions" (neither of which would have much of an impact at the federal level, since the Justice Department rarely prosecutes low-level marijuana cases). He also says states should be free to legalize marijuana, which is similar to the position Trump has implied he supports and has taken in practice.

One need not believe that Biden's conversion is completely sincere to recognize that the current climate of opinion within the Democratic Party would make reverting to his old drug-warrior instincts politically difficult. Trump, by contrast, is trying to have it both ways, assuring unreconstructed conservatives that he will be tougher on crime than Biden while telling moderates he understands that criminal penalties are frequently arbitrary and disproportionate. Reconciling those seemingly contradictory messages may not be possible, and it surely would require more thoughtfulness than Trump has demonstrated so far.

NEXT: 2 Dead, 1 Gunman Arrested In Kenosha Riots, As Family of Jacob Blake Calls for Calm

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  1. “Trump says some shit, film at 11.” I keep trying to tell you, trying to parse some meaning out of the random shit that falls out of Trump’s face is a fool’s errand, if you spent 5 minutes thinking about what Trump said, you’ve spent about 30 times as much time thinking about it than Trump spent thinking about it when he said it.

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    5. There’s some truth to your post. Look at Trump’s statements as if he’s encouraging people on all sides to act better and not engage in crime/violence. Don’t we all want our police working well and funded to do so?

      Sullum takes a negative view of Trump’s “have it both ways” ambiguous positions, e.g. “Perhaps Trump has in mind laws that treat assaults on police as hate crimes” when “Trump wants to ‘increase criminal penalties for assaults on law enforcement officers'”. Seems to me, people are assaulting officers in these riots (mostly thrown rocks/frozen bottles of water, etc.) and are released with the charges dropped when the police catch them with evidence. That’s not right. I do agree drive by shootings aren’t terrorism but that matters not to the victims. Further, I see nothing wrong with keeping dangerous criminals locked up until trial – we already do that. Is someone objecting to detention of Ghislaine Maxwell for example?

      Sullum should consider looking at Trump’s actions as if he’s a closet libertarian for the potential positives to libertarians, and encourage more of it. Or otherwise wait until Trump pushes policy positions that aren’t subject to interpretation about what he meant. Another example is his paragraph on Trump ending cashless bail, assuming Trump wants to lockup poor people for petty crimes. I’m for arresting, indicting and prosecuting people for graffiti, and if they’re poor should we let them back on the street because they can’t provide bail? I don’t see why, considering how they not only don’t take care of themselves they are harming others, they can afford spray paint.

      Sullum would do better to examine the changes to policy Trump brings (he did for 2 paragraphs), than to assume the worst (for 5 paragraphs). Perhaps Trump is trying to have it both ways, or perhaps Trump sees both sides of the issue and is trying to fairly balance them. He’s made some progress on that.

      IMHO Biden isn’t balancing both sides of the issue: he’s going from too tough on crime to essentially not enforcing certain laws and ignoring the victims of riots and not always peaceful protests. That’s like going from supporting the KKK to supporting government mandated affirmative action.

  2. Being tough on crime and requiring inordinately long prison sentences are 2 different things.

    1. This is the conflation that is really starting to irritate me. Like, where did “tough on crime” turn into supporting unreasonably long and harsh sentencing.

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  3. The president’s case rests on two accomplishments, while his plans for a second term echo the mindless toughness he intermittently condemns.

    Lol. Wow.

    First step, no biggie. Just one little accomplishment. What else have you done?!?

    1. a clear improvement that freed thousands of drug war prisoners

      Oh! But it only counts as one accomplishment.

    2. Trump wants to “fully fund and hire more police and law enforcement officers,” which sounds an awful lot like a central element of the “1994 Biden Crime Bill” (as the former vice president proudly calls it).

      Except for the calls for the whole increased training of officers bit… which requires more funding. Literally what reform advocates have been asking for.

      https://www.latimes.com/politics/story/2020-06-16/trump-to-call-for-increased-funding-for-police-training

    3. Unlike Trump, whose campaign website does not address criminal justice reform in any substantive way, Biden has a lot to say on the subject.

      Oh. You win this argument.

      1. Not the campaign website!
        Wow, that’s some pretty deep investigation.

      2. “…Biden has a lot to say on the subject…”

        Which totally outweighs his 40 plus years in the Senate, doing his level best to throw the book at black men involved with the drug trade.

        Disappointing. Sullum really used to not be this bad. And on Drug War issues—his bread and butter—to boot.

        I blame the Purple-Haired One. Or her employer’s benefactors and primary donors.

        1. Not to mention the criminal record of his VP pick.

          1. I mean criminal justice…

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        2. Sullum chose his side. No one should be surprised.

  4. So the good news about Biden is that he’s been undoing the damage he’d previously done, while the bad news about Trump is that he might not keep doing the category of good things he’s been doing?

    1. Well no. He’s talking about undoing the damage he has already done. He hasn’t done anything. He didn’t as VP. He didn’t while in Congress. But he says this time, pinkie swear.

  5. The Shaky Foundation of Trump’s Pose As a Criminal Justice Reformer
    The president’s case rests on two accomplishments…”

    How many did the Bushs’, Clinton and Obama achieve in their first terms?

    “Yes, but orangemanbad”.

    Touché, Sullum. You have a point.

  6. Nobody has ever gone against their campaign website.

    1. Whoops. Meant to reply to Mother’s lament

    2. Hey now! Trump thought about that Second Amendment Coalition for at least a second or two after he got elected!

  7. Dozens of dead and wounded.
    Millions in damages.
    More death and destruction to come.

    We’re seeing leftist justice reform, and that’s what it looks like.

  8. Man, is it all hands on deck to write as many disparaging articles about Trump because the RNC convention is going on and he’s getting some positive press?

    1. Sure looks like it. Imagine what the second week of November will look like here?

      1. Oh lord, if he wins in November the hysterics from the media will be brain exploding.

  9. Actually, I would really like to hear SCOTUS consider the argument that drive-bys are terrorism. We usually think of terrorism as political, but the definition said social objectives as well. Is it actually a stretch to suggest that drive-bys do not accomplish a social objective of intimidating the neighborhoods in which gangs operate to encourage silence and prevent snitching? I don’t want to assign too much intelligence and forethought to gangbangers, but drive-by shootings seem to kill innocent bystanders a lot more than the actual target(s) of violence. Perhaps that is by design and maybe we should have a debate on whether that type of crime should be penalized more severely.

    1. I did some initial research and apparently Trump is not the only one considering this. There are two Democrat state legislators in Tennessee, rep G.A. Hardaway and sen Sara Kyle, who have introduced HB1478/SB1315 that defines drive-by shootings as community terrorism.

  10. Yeah I guess we should just let shit burn and hope for the best. It seems reason is starting to hedge a bit now that people are gearing up for more serious conflicts. Hard to tell though. Maybe when they get to something you care about you’ll be calling for the police to help you. Of course will they be there after getting defunded?

    Meanwhile it’s all tds all the time here even when he does what you want. Since there is no winning why play. Trumps win should start a new era all right.

  11. >>which sounds an awful lot like a central element of the “1994 Biden Crime Bill”

    wow man you’re having difficulty with comparison and contrast today

  12. Not the greatest on criminal justice reform no doubt, but still got more done in 4 years than Obama did in 8. Sort of the same story on foreign policy.

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  15. “Trump wants to “end cashless bail and keep dangerous criminals locked up until trial.””

    The three suspects in the killing of 11-year-old Davon McNeal, who was caught in the crossfire of a gang shootout in D.C., all had prior violent crime convictions and pending felony firearms charges, and were all out of jail pending trial. Actually, quite a few of the murder suspects in D.C. have prior convictions or arrests for violent crime, and either pled down or never went to jail.

  16. This is so hard to keep dealing with.

    These are the pages of Reason.

    This is where civil libertarians who care about real criminal justice reform congregate. This is our issue.

    Trump is no libertarian – at least not by his estimation. Or by ours.

    Yet he has actually tackled one of our issues. And seems to be indicating that he’s trying to do more.

    And on the other side we have Biden. And Harris.

    Literally the two poster children for whatever the opposite side of the criminal justice reform movement is. Biden actually is the parent of the Crime bill. And Harris is literally the prosecutor who fights to keep innocent people in jail. This is not hyperbole. This is not some analogy or metaphor or even a partisan “reading of the tea leaves” or “listening for dog whistles”.

    The contrast on this issue could not be more stark.

    You have the only president who has actually pushed the ball in the correct direction… maybe ever.

    And you have the team that has been ramming the ball down our throats.

    But we are going to claim that Trump’s actions thusfar don’t actually mean anything? Are we really that desperate?

    I get it. Orange man bad. Great. Everybody hates Trump. He tweets stuff… fine.

    But you can’t be serious about this one. This is a slam dunk. If criminal justice reform is your thing, there is not even a discussion.

    Trump may not be the date you wanted to bring to the party, but at least he showed up and is dressed appropriately. Sure, he’s a boor and he keeps flirting with other people’s dates, but he’s there and he even asked you to dance.

    Biden/Harris didn’t bother coming to the party, and they showed up at your house with a chain saw and a flamethrower instead.

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