Criminal-Justice Experts Hunt for Clues on Trump

WASHINGTON (CN) – One plank of the platform that won the election for President-elect Donald Trump was a tough-on-crime promise to “Make America Safe Again.”

“When I take the oath of office next year, I will restore law and order to our country,” Trump proclaimed during his speech at the Republican National Convention in Cleveland four months ago.

Trump warned audiences across the country about murder epidemics in crime-ridden inner cities, and praised the former stop-and-frisk policy in New York that a federal judge slammed in 2013 for unfairly targeting minorities.

The murder rate is actually one of many statistics Trump misrepresented, but his notion that America is soft on crime struck a nerve with supporters.

Now, with Inauguration Day on the horizon, advocates of criminal-justice reform wonder what putting Trump in the Oval Office will mean to the quiet, bipartisan momentum their cause has built during President Barack Obama’s administration.

Trump himself offers little to go on – his nonexistent political experience coupled with consistently inconsistent positions, such as whether women should face “punishment” for undergoing legal abortions.

As for the politicians in Trump’s inner circle, running mate Mike Pence signed a bill in 2013 as governor of Indiana that criminalized lying on a marriage-license application. This was two years before the Supreme Court outlawed gay-marriage bans like the one in Indiana, at a time when couples protested such laws by applying for marriage licenses the law prohibited. Pence’s law was problematic for such protests since online applications in Indiana included separate sections designated as male and female.

Reformers can take heart, however, with a law Pence signed in the same year that reduced sentences for some drug offenses and made it easier for people convicted of crimes to rejoin their communities.

“Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Pence said in a statement on the bill at the time.

Earlier as a congressman, Pence also voted for the Second Chance Act, which set aside federal money for criminal re-entry programs.

Ames Grawert, counsel at the Brennan Center for Justice, is cautiously optimistic.

“That’s really encouraging if that’s what he believes,” Grawert said. “If that’s the sort of outlook he brings to the White House, and Mike Pence has a real role to play in setting policy, that could be pretty good.”

At the same time, though, Trump has also been close to people like Rudy Giuliani, the former mayor of New York City and proud champion of stop and frisk. Giuliani is now reportedly one of the top candidates for secretary of state.

“If a President Trump were to do something to incentivize states to enact stop-and-frisk programs, we think that would be worrying,” Grawert said.

Experts also hope that Trump gleaned support from criminal-justice reform from New Jersey Gov. Chris Christie, an erstwhile confidante of the president-elect’s who enacted bail-reform legislation in his state.

Christie has nevertheless taken stances at odds with reform, such as his willingness to prosecute users of recreational marijuana under federal drug laws.

Reformers are also taking into account Trump’s dynamic with the more traditional Republicans on Capitol Hill at odds with the president-elect.

Grawert called it “really hopeful” that Speaker of the House Paul Ryan backed criminal-justice reform bills in what was a particularly divisive election season.

“Despite some pessimism and some cause for concern, I think there’s a chance we could see federal sentencing reform,” Grawert said.

One bill in the works is the Sentencing Reform and Corrections Act, which would reduce mandatory-minimum sentences for low-level offenders and make changes to how federal prisons administer re-entry programs. The bill has support from 16 Republicans, as well as Democratic leadership, but has been stalled in the Senate for over a year.

Sen. John Cornyn, a Texas Republican, noted last week that Trump’s transition team has not specifically commented on the bill – signaling possible friction between those in Congress who support the effort and those on Trump’s team.

“Obviously the president is going to be an important partner in this effort and I think that there are elements of the legislation that they regard more favorably than others,” Cornyn told reporters last week. “My sense is that they don’t like the sentencing-reform stuff but the prison reform, which is successful in states like Texas, that seems to have bipartisan support. But we’re just going to have to have that conversation and find out what it would look like.”

Meanwhile Trump has tapped one of the harshest critics of the bill, Sen. Jeff Sessions, as his choice for America’s next attorney general.

Though the attorney general does much more than weigh in on criminal-justice-reform issues, Trump’s decision to appoint Sessions has reformers fearing his campaign rhetoric will spill into his governing.

“It’s disappointing that despite the fact that so many Republicans agree on and embrace sentencing reforms, they have picked one of the few who stood against it in the Senate last year,” Grawert said.

The Justice Department has broad power to instruct U.S. attorneys on what charges to seek when prosecuting federal crimes, meaning Sessions and Trump could seek to impose the harshest possible charges on federal offenders.

Though Sessions was actually early on calling for the reduction of the gap in punishments for powdered and crack cocaine, Kara Gotsch, director of strategic initiatives at The Sentencing Project, said the Alabama senator’s recent stances on criminal-justice-reform issues represent “30-year-old thinking.”

This could jeopardize the bill’s bipartisan support.

“Obviously, wherever the president is, the Republican leadership in Congress is going to be taking their cues from a President Trump,” Gotsch said. “And if he’s signaling he’s not going to be supporting a reform, then that’s going to harm our efforts.”

Pointed to the momentum that Obama brought to the issue when he took office, Gotsch noted that congressional leadership would be unlikely to push for reforms without Trump’s endorsement.

On the other hand, criminal-justice reforms are not exclusive to the federal level, meaning many changes might be able to go forward irrespective of President Trump’s support.

Derek Cohen, deputy director of conservative criminal-justice advocacy group Right on Crime, predicted Trump might be willing to let states make changes as they see fit, without bringing in the federal government.

Trump might even be be a stronger proponent than Obama was of other efforts at criminal-justice reform that Cohen supports, such as changes to mens rea provisions that would force prosecutors to prove ill intent to convict a defendant.

“I honestly think we’ll get a warmer reception from the incoming administration than we did from the outgoing administration,” Cohen said.

Policy wonks remain in the dark, however, as near-constant coverage of the election season elicited few specifics from Trump on criminal-justice reform.

“The problem here is that since he hasn’t articulated a clear policy agenda for criminal justice, what we’re sort of doing is we’re separating tea leaves,” Grawert said. “There are a couple that point one way, there are a couple that point another. And until he makes some real appointments, it will be tough to know which one is which.”