Administration is Poised to Undo Bipartisan Efforts to End Mass Incarceration

The Trump administration has painted a dark portrait of America, using archaic rhetoric and misleading or false crime statistics. As the first 100 Days comes to an end, a new analysis by the Brennan Center for Justice at NYU School of Law looks at what the president and his team have done so far to address crime and justice, and what the country can expect in the weeks and months ahead.

Researchers examined key shifts in federal policy since January 20:

Misguided Fears of a New Crime Wave: Since day one, Trump has invoked an image of “American carnage,” often citing misleading statistics to push for urgent, drastic action. This false narrative helps prop-up his most controversial policies, from a travel ban to a border wall to mass deportations. The president has also signed three executive orders that lay the foundation for the Justice Department to act on his perceived threats. This new tone risks disrupting the trans-partisan movement to decrease prison populations, and could reduce support for federal, state, and local reforms.



Since day one, Trump has invoked an image of “American carnage,” often citing misleading statistics to push for urgent, drastic action. This false narrative helps prop-up his most controversial policies, from a travel ban to a border wall to mass deportations. The president has also signed three executive orders that lay the foundation for the Justice Department to act on his perceived threats. This new tone risks disrupting the trans-partisan movement to decrease prison populations, and could reduce support for federal, state, and local reforms. A New War on Drugs?: Attorney General Jeff Sessions is poised to reverse 2013 Justice Department reforms that deprioritized prosecution of non-violent marijuana cases, provided more latitude to states, and issued directives for federal prosecutors to reduce charges in lower-level, nonviolent drug cases. Since taking office, Sessions has given several speeches calling for a return to harsher federal charging policies. He could direct prosecutors to pursue maximum penalties in drug cases even in states where marijuana is legal. Notably, the administration has shown interest in expanding treatment options for opioid addiction, which disproportionately affects white, rural communities, while increased marijuana prosecutions would more affect communities of color.



Attorney General Jeff Sessions is poised to reverse 2013 Justice Department reforms that deprioritized prosecution of non-violent marijuana cases, provided more latitude to states, and issued directives for federal prosecutors to reduce charges in lower-level, nonviolent drug cases. Since taking office, Sessions has given several speeches calling for a return to harsher federal charging policies. He could direct prosecutors to pursue maximum penalties in drug cases even in states where marijuana is legal. Notably, the administration has shown interest in expanding treatment options for opioid addiction, which disproportionately affects white, rural communities, while increased marijuana prosecutions would more affect communities of color. Increased Immigration Enforcement and Detention : Shortly after the election, Trump pledged to deport as many as 3 million undocumented immigrants. He has since issued several executive orders directing the Justice Department to more vigorously enforce immigration laws. Sessions responded by fast-tracking the hiring of new immigration agents, ordering all U.S. Attorneys to prioritize immigration cases, and threatening to strip funding from cities that don’t cooperate. The Department of Homeland Security is also expanding its detention capacity.



: Shortly after the election, Trump pledged to deport as many as 3 million undocumented immigrants. He has since issued several executive orders directing the Justice Department to more vigorously enforce immigration laws. Sessions responded by fast-tracking the hiring of new immigration agents, ordering all U.S. Attorneys to prioritize immigration cases, and threatening to strip funding from cities that don’t cooperate. The Department of Homeland Security is also expanding its detention capacity. Decreased Oversight of Local Police : Historically, the Justice Department has been a key player in overseeing and regulating civil rights violations committed by local police departments. Sessions outright rejects this role, and has already made moves to reduce federal oversight, ordering a review of existing or possible consent decrees. This trend will likely continue, and his approach could embolden departments to become more aggressive.



: Historically, the Justice Department has been a key player in overseeing and regulating civil rights violations committed by local police departments. Sessions outright rejects this role, and has already made moves to reduce federal oversight, ordering a review of existing or possible consent decrees. This trend will likely continue, and his approach could embolden departments to become more aggressive. Increased Use of Private Prisons : Sessions recently revoked an Obama-era memorandum that directed a wind-down of federal use of private prisons. Now, the Bureau of Prisons is free to use them more, a signal that Sessions expects private facilities to house an increasing number of federal prisoners and immigration detainees.



: Sessions recently revoked an Obama-era memorandum that directed a wind-down of federal use of private prisons. Now, the Bureau of Prisons is free to use them more, a signal that Sessions expects private facilities to house an increasing number of federal prisoners and immigration detainees. Possible Federal Sentencing or Reentry Legislation: Sessions was one of the most ardent opponents of a moderate, bipartisan sentencing reform bill that made its way through Congress last year, calling it a “criminal leniency bill.” But, the president has shown some interest, dispatching his son-in-law and top aide Jared Kushner — who supports reform — to Capitol Hill to meet with the bill’s sponsors. It remains to be seen whether Kushner, or some conservatives’ support for expanding reentry services, will influence the president’s actions.

“So far, much of the administration’s moves on crime and justice have been symbolic,” said Ames Grawert, a counsel in the Brennan Center’s Justice Program. “But they signal a significant departure from the Obama administration’s approach, and contradict emerging consensus from researchers, conservatives, progressives, and law enforcement that over-reliance on prison is not the most effective way to reduce crime.”

“A vast majority of steps President Trump and his team have taken so far on criminal justice issues are solutions in search of a problem,” said Inimai Chettiar, the director of the Brennan Center’s Justice Program. “They’re using unsubstantiated and inflammatory rhetoric to reinstate policies that hugely contributed to mass incarceration in America. They didn’t work in the past, and won’t work now.”

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