CRIMINAL JUSTICE IN PRESIDENT TRUMP’S FIRST 100 DAYS Ames C. Grawert and Natasha Camhi THE ISLAMOPHOBIC ADMINISTRATION | 1 Brennan Center for Justice at New York University School of Law ABOUT THE BRENNAN CENTER FOR JUSTICE The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that seeks to improve our systems of democracy and justice. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving Constitutional protection in the fight against terrorism. Part think tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, the courts, and in the court of public opinion. ABOUT THE BRENNAN CENTER’S JUSTICE PROGRAM The Brennan Center’s Justice Program seeks to secure our nation’s promise of “equal justice for all” by creating a rational, effective, and fair justice system. Its priority focus is to reduce mass incarceration while keeping down crime. The program melds law, policy, and economics to produce new empirical analyses and innovative policy solutions to advance this critical goal. ABOUT THE BRENNAN CENTER’S PUBLICATIONS Red cover | Research reports offer in-depth empirical findings. Blue cover | Policy proposals offer innovative, concrete reform solutions. White cover | White papers offer a compelling analysis of a pressing legal or policy issue. © 2017. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial” license (see http:// creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web pages is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint. ABOUT THE AUTHORS Ames C. Grawert is the John L. Neu Justice Counsel in the Brennan Center’s Justice Program. He spearheads research covering statistical, legal, and policy analysis to advance criminal justice reform. Previously, he was an assistant district attorney in the Appeals Bureau of the Nassau County District Attorney’s Office, and an associate at Mayer Brown LLP. He holds a J.D. from New York University School of Law, and a B.A. from Rice University. Natasha Camhi is the Special Assistant to the Director of the Brennan Center’s Justice Program. She contributes to the program’s legal and policy research and writing. Before joining the Brennan Center she worked as an arts educator, curator, and development coordinator for a variety of community- oriented non-profit organizations. ACKNOWLEDGEMENTS The authors are grateful to Michael Waldman and Inimai Chettiar for their substantive and strategic input and editing; to members of the Justice Program for their research support and guidance; and the Communications team for their editing and communications assistance. TABLE OF CONTENTS Executive Summary 1 I. CRIME RHETORIC AND POLICY 4 II. FEDERAL PROSECUTION AND DRUG POLICY 8 III. POLICING 15 IV. PRIVATE PRISONS 19 V. FEDERAL SENTENCING LEGISLATION 21 Conclusion 24 Endotes 25 EXECUTIVE SUMMARY In his Inaugural Address, President Donald Trump pledged to address the rising specter of “American carnage” — “the crime and gangs and drugs that have stolen too many lives and robbed our country of so much unrealized potential.”1 The last time a president addressed rising crime in his inaugural address was 1997. Then, with crime near historic peaks (at 4,891 offenses per 100,000 people),2 President Bill Clinton spoke of the need to “help reclaim our streets from drugs and gangs and crime” so that “our streets will echo again with the laughter of our children, because no one will try to shoot them or sell them drugs anymore.”3 Trump’s dark portrait of America, however, comes at a time when the national crime rate is near historic lows — 42 percent below what it was in 1997.4 As his first 100 days near an end, what has the president done to address crime and criminal justice? And what can the country expect in the weeks and months ahead? So far, many of the administration’s actions are symbolic. But they evidence a clear return to the discredited “tough on crime” rhetoric of the 1990s, and suggest a significant departure from the Obama administration’s approach to criminal justice. Trump’s turn also directly contradicts the emerging consensus among conservatives, progressives, law enforcement, and researchers that the country’s incarceration rate is too high, and that our over-reliance on prison is not the best way to address crime. As crime remains near historic lows — despite local, isolated increases — these proposed changes are, ultimately, solutions in search of a problem.5 Taken to an extreme, they would set back the national trans-partisan movement to end mass incarceration. This analysis documents the following key shifts in federal policy since January 20th: • Misguided Fears of a New Crime Wave. President Trump has repeatedly cited misleading statistics to push a false narrative about rising crime and call for urgent, drastic action.6 This focus on fear over fact, unprecedented for a modern president, helps justify the administration’s most controversial policies. Trump and his new attorney general, Jeff Sessions, insist that they must “Make America Safe Again,” citing outside forces that have brought in drugs and violence — justifying a travel ban, a border wall with Mexico, and mass deportations.7 The administration has also issued several executive orders focused on combatting this phantom crime wave, without offering solutions to solve the real and serious localized problems of violence in Chicago and Baltimore. The taskforces created by these orders may recommend new federal criminal laws or new mandatory minimums, especially for crimes against police officers and drug offenses. This new tone from Washington also risks derailing a decade-long bipartisan effort to reduce prison populations in states. If the public incorrectly believes that crime is rising, there may be less support for state and local reform. • A New War on Drugs? President Obama and Attorney General Eric Holder took several steps to reduce the federal imprisonment rate, which dropped by 9.5 percent since 2007.8 In 2013, the Justice Department deprioritized prosecuting nonviolent marijuana cases, providing more CRIMINAL JUSTICE IN PRESIDENT TRUMP’S FIRST 100 DAYS | 1 latitude to states, and issued a directive to federal prosecutors to reduce charges in lower-level nonviolent drug cases.9 Now, Sessions is poised to reverse those reforms. He has been one of the most vocal opponents of bipartisan criminal justice reform. He derailed a Republican-led, modest sentencing reform bill last year, and opposed many of Holder’s initiatives.10 Since taking office, Sessions has given several speeches calling for a return to harsher federal charging policies, and issued memoranda directing U.S. Attorneys to stand by for such major policy shifts.11 Sessions could revoke key Holder-era initiatives, directing federal 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.12 He has since issued several executive orders directing the Justice Department to more vigorously enforce immigration law.13 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 do not cooperate with federal immigration authorities (i.e. “sanctuary cities”). The Department of Homeland Security is also expanding its detention capacity.14 • Decreased Oversight of Local Police. Historically, the Justice Department has played a key role overseeing and regulating civil rights violations committed by local police departments.15 Under Obama, the Justice Department opened more than 20 investigations into police misconduct and enforced more than a dozen “consent decrees” with local police departments.16 These settlements, overseen by a federal court, require officers to work with communities and improve policing practices.17 Sessions outright rejects this role for the federal government, labeling it as part of a broader “war on police.” He has directed a review of all existing consent decrees and attempted to stall pending agreements.18 This trend will likely continue, potentially emboldening police 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” — correctional facilities operated by private corporations on behalf of the Bureau of Prisons.19 Now, BOP is free to continue and expand the use of private prisons, a signal that Sessions expects the federal prison population to grow. • Possible Federal Sentencing or Reentry Legislation. Last year, Republicans, including