Most likely Donald Trump will undo many changes President Obama has made and with the help of the Senate and the Supreme Court prevent important criminal justice reforms at the federal level for the next four years. But it is a blessing in disguise that many reforms are constituted on a state and local level. The main disaster however is that death penalty won’t be abolished in all three states where it was on the ballot. Remember “The Central Park 5”?
About 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.
And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.
The president does not have that much power over the policies that lead to mass incarceration. Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states. New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail.
President Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators.
Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, the appointed Attorney General could direct federal prosecutors to focus also on minor serious drug cases and ask for tough mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons. Prisons for sale, so to say. And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.
Trump’s election is a shock for the many USA justice reform groups’ working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. Maybe he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents.
For families waiting to hear back about clemency decisions, Trump’s win was a disaster. I sincerely hope that Obama preserves some of his legacy by granting a large number of prisoners clemency and reduce disproportionate sentences for other inmates.