What Trump's Election Would Mean for Criminal Justice Policy

Under President Donald Trump, the federal government executed the most prisoners of any administration in more than a century. Before Trump's tenure, only three federal prisoners had been executed since 1988 and none since 2003. Thirteen were put to death during Trump's term, all during the last six months he served. By contrast, under President Biden, the Justice Department imposed a moratorium on seeking the death penalty back in 2021.

As the Republican nominee for president this year, Trump has promised to expand the use of the death penalty by applying it to drug dealers. He has also pledged to expand immunity protections for police, including when they rough up protesters. At rallies and at the Republican National Convention, incidents of “migrant crime” have been a central part of his argument for toughening border security and deporting individuals residing in the country illegally.

In some ways, none of this is a surprise. Trump has always been a “law and order” guy. For his critics, one of his indelible offenses occurred back in 1989, when he took out full-page ads in newspapers calling for the death penalty for the Central Park Five, a group of African American teenagers who served long prison sentences in a notorious rape case. They were later exonerated, but Trump has never apologized for the ad.

But while he talked tough in 1996 — and despite his support for executions while in office — Trump signed one of the most sweeping prison and criminal justice reform laws in decades. Building on efforts at the state level, the First Step Act of 2018 shortened sentences for some nonviolent offenders, with the goal of reducing incarceration rates while improving prison conditions.

“The First Step Act, agree with it or disagree with it, has to be considered one of the more significant legislative victories of Trump’s time in the White House,” says Heath Brown, who teaches at the John Jay College of Criminal Justice.

Trump has seldom mentioned the law on the campaign trail. His overall message of tougher penalties and support for police has most observers convinced not only that he will pursue a punitive approach at the federal level, but that his election will be a further impediment against criminal justice reform efforts at the state level, which are already encountering considerable resistance.

Florida Gov. Ron DeSantis, for instance, vetoed a package of criminal justice reform bills that had bipartisan support back in June. Polling indicates that a sizable majority of California voters support an initiative on the November ballot that would toughen penalties for drug crimes and retail theft, partially rolling back a criminal justice reform measure that voters approved a decade ago.

For her part, Vice President Kamala Harris, the Democratic nominee for president, has sought to highlight her work as a prosecutor putting away murderers and rapists. Although she’s talking tougher than she did during her abortive 2019 run for president, no one thinks she would take as hard a line overall as Trump.

“What happens with the outcome of this election in November will have a huge bearing on whether we find ourselves with momentum again for criminal justice reform, or whether we are still in this backlash moment,” says Insha Rahman, a vice president at the Vera Institute of Justice, which supports criminal justice reform.

Getting Control of Crime

Different people mean different things when they say “criminal justice reform,” but the general approach that gained support from both progressives and conservatives has been efforts at reducing incarceration rates, notably by supporting drug treatment and job training programs designed to keep former prisoners from re-offending. From about 2007, when the effort took root in Texas, until the pandemic, these kinds of criminal justice reform measures were a rare area of bipartisan cooperation and success.

But with the pandemic came an increase in crime, notably homicides and other violent crimes. Politically, Democrats were hung with the soft-on-crime label, with slogans such as “defund the police” hurting the party in both 2020 and 2022.

“People feel like these criminal justice reform measures and the progressive prosecutors — all that has been a failed approach,” says Michael Rushford, president of the Criminal Justice Legal Foundation, a conservative nonprofit in Sacramento, Calif. “People want to reverse course a bit, because they are witnessing and experiencing epidemic theft.”

FBI statistics indicate that crime rates have come down since their heights during the pandemic. Last week, the FBI reported that murders and manslaughter were down 11.6 percent in 2023 compared to the previous year, with rape down 9.4 percent.

Rushford and other critics contend that the FBI paints a misleading picture and is not representing the many crimes that occur but aren’t reported.

“It’s a lie,” Trump said back in April, when presented with a similar set of statistics showing a reduction in homicides.

What Policies He’d Pursue

If elected, Trump is expected to rescind an executive order issued by Biden in 2022 that put limits on use of force such as chokeholds by police, sought to curb their purchases of military equipment and encouraged use of non-police responders such as mental health professionals to respond in some situations.

Trump instead would turn to local law enforcement as a major tool in his effort at mass deportation. He has also called for an expansion not only of death sentences but actual executions. And he intends to direct federal prosecutors to seek the stiffest penalties possible in more cases.

U.S. attorneys are likely to be busy. What are known as 922(g) prosecutions, under which individuals with prior records are charged with illegally possessing firearms in order to transfer their cases to federal jurisdiction, have been comparatively light under Biden. That wouldn’t be the case under Trump.

“What we saw during the first Trump administration was very blue cities, like Philadelphia and San Francisco, had the federal government stepping in” to take over cases, says Zack Smith, a senior legal fellow at the conservative Heritage Foundation. “By using limited resources effectively, U.S. attorneys can make an impact, and we haven’t seen that with the Biden administration.”

When Trump was president, the Justice Department not only pursued the death penalty, but often specifically did so in cases that occurred in states that had abolished or minimized use of executions.

Don’t Expect a Second Step

The First Step Act had wide, bipartisan support, but it was heavily pushed within the White House by Jared Kushner, Trump’s son-in-law and adviser. Kushner’s father Charles had been convicted on federal charges of making illegal campaign contributions, tax evasion and witness tampering, although he was later pardoned by Trump.

With criminal justice reform already receiving blowback and Trump positioning himself as an anti-crime crusader, it may be difficult to imagine he’d expand the effort to reduce incarceration.

On the other hand, a number of the people in his orbit played roles in enacting the First Step Act and still support its aims. One of the chairs of his transition team is Linda McMahon, the chair of the America First Policy Institute, which is home to a criminal justice center headed by two people instrumental in passing the First Step Act. 

“If we think that personnel is policy and who’s chosen to be at the table matters, there are some people who look fondly at that act who have a seat at the table,” says Brown, the John Jay College professor, who’s just published a book about the Biden transition.

Trump continues to view passage of the First Step Act as a Nixon-goes-to-China moment — something that could only have happened because of his conservative credentials on the issue. But while there may be people taking part in the campaign who support criminal justice reform and they may get jobs in the administration, there are clearly going to be others who support and encourage Trump’s desire to pursue tough-on-crime policies.

“The new attorney general will be a law enforcement type of guy,” Rushford says, “as opposed to a political guy.”