In Brief:
- Trump has advocated aggressive policing tactics and pledged to repeal a Biden executive order that limited police use of force.
- During his first term, Trump signed a major bill limiting some sentences, but his new administration is expected to push for lengthier sentences.
- Congress could put its own stamp on criminal justice, considering several bipartisan bills regarding criminal records and cocaine sentencing disparities.
On the campaign trail, Donald Trump painted a dire picture of a violence-torn United States where residents lived in fear. He told Detroit residents they were likely to be raped or mugged walking across the street. He often scapegoated immigrants: Mass immigration, he said, has “brought crimes, drugs, misery and death.” He even claimed immigrants were genetically predisposed to murder. Drug addiction, dangerous mental illness and homelessness have become too common a sight in cities, turning them into “unlivable, unsanitary nightmares,” his campaign said.
Trump promised he’d restore “law, order, safety and peace.” A tough-on-crime approach and mass deportation are key parts of Trump’s domestic agenda. Many jurisdictions, meanwhile, are already pursuing more punitive approaches. Washington, D.C., increased gun crime penalties, Tennessee moved to overturn a city’s ban on pretextual traffic stops and Vermont approved a bill deepening penalties for retail theft. Some cities and states, meanwhile, are banning people experiencing homelessness from sleeping in public areas and compelling unsheltered people with addiction issues to receive drug treatment or else face arrest.
For most of this century, movement on criminal justice has been toward so-called reform policies that have aimed to keep people out of prison by giving them the tools they need to avoid re-offending, such as job training and drug treatments. Advocates argue it’s a mistake to pull the plug on such efforts.
Trump advocates for minimal limits on law enforcement and for encouraging police to use any and all methods to combat crime, even if that means suspending residents’ constitutional rights and allowing officers to act aggressively and “lawlessly,” according to Delores Jones-Brown, professor at the John Jay College of Criminal Justice and founding director of its Center on Race, Crime and Justice.
“I'm afraid with our new incoming administration that there's going to be more of an emphasis on the police as the answer to virtually anything that's considered wrong in society,” she says. “We're not going to just be limiting policing to serious violent crime, and we're not going to be limiting policing to using mechanisms that are within the constitutional standards.”
Trump’s new term will begin at a time when both violent crime and most property crimes are down nationally and murder rates have fallen dramatically. But other indicators of strain are apparent. Police are solving fewer crimes. Drug overdose deaths, while down significantly this year, are still higher than they were before 2020. And homelessness -– while not a crime -– has been increasing.
At any rate, everyday people likely aren’t looking at crime data, and political support for national actions may depend more on how residents feel walking around their neighborhoods, says Kevin Ring, vice president of criminal justice Advocacy at Arnold Ventures, a philanthropic organization that funds research into criminal justice policy.
“Homelessness and … disorder are being conflated with crime,” Ring says. “People are walking out their house [and] the city smells like marijuana. There might be needles on the street. Everything at their stores is locked behind the counter. And they're like, ‘Ugh, this doesn't feel right.’ And so they have the perception that their neighborhood’s not safe, even if crime is down.”
Trump Will Loosen Police Oversight
Signaling a different approach, Trump is expected to repeal an executive order that President Biden signed in 2022. It was a wide-ranging order that addressed issues including officers’ mental health, police recruitment, conditions in jails and safeguards against excessive use of force, and it restricted or banned chokeholds and no-knock entries. The order also created a national police misconduct database and limited law enforcement agencies’ ability to obtain certain military equipment.
Under the Biden administration, state and local governments have received federal dollars for violence intervention and civilian crisis response programs. Some may now be moving quickly to use any unspent funds as a hedge against the possibility that the new Trump administration will claw back the money, says Insha Rahman, director of Vera Action, which advocates for criminal justice reform measures.
Many rural areas, which tended to vote overwhelmingly for Trump, face steep challenges accessing mental health and addiction treatment. This could generate support from the new administration for programs such as crisis centers where police can bring people who are experiencing substance abuse or mental health issues, rather than taking them to jail, says Marc Levin, chief policy counsel at the Council on Criminal Justice, a nonpartisan research group.
During Trump’s first term, his attorneys general, Jeff Sessions and William Barr, limited pattern-and-practice investigations, which are intended to investigate whether a state or local police agency has repeatedly engaged in unlawful or unconstitutional practices, as well as consent decrees to compel the agency to improve.
Sentencing and Prisons
Trump himself is the first convicted felon to become president (although whether he’ll ever be sentenced is another question). Back in 2018, Trump signed the First Step Act, a reform package aimed at reducing recidivism. That law, among other things, granted more exemptions from mandatory minimums for low-level nonviolent drug offenses.
In this term, Trump is expected to push for stiffer sentences. He has promised expanded use of the death penalty, especially for drug dealers, traffickers and smugglers. Jim Burch, president of the National Policing Institute, anticipates that the new administration may take a more aggressive approach to enforcing federal laws around drug trafficking and transnational firearm trafficking.
Trump’s Justice Department may direct federal prosecutors to seek the highest possible charges against offenders, says Lauren-Brooke Eisen, a senior director at the Brennan Center for Justice. Some observers also expect federal prosecutors to actively take cases away from local prosecutors, which happened during Trump's first term.
Current DOJ investigations into potentially unconstitutional conditions in prisons might continue under Trump, Eisen says, but the department is unlikely to launch new investigations. In terms of private prisons, both Biden and Barack Obama sought to phase out federal contracts with them, but Trump remains a supporter of their use.
Possible Action in Congress
Eisen anticipates that the next few years could see Congress act on several bills with bipartisan support that were introduced in the current Congress.
The Clean Slate Act would seal criminal records for people convicted of low-level nonviolent federal drug offenses, as well as those arrested but not convicted. Twelve states have passed their own versions of this bill, Eisen says.
The Fresh Start Act would give states grants for automatically sealing certain criminal records, while the EQUAL Act would eliminate the sentencing disparity between crack and powder cocaine, which has led to lengthier sentences primarily for Black offenders.
Earlier this year, Congress passed the Federal Prison Oversight Act, establishing methods for receiving complaints about federal prisons and inspecting them, but has yet to fully fund it.
