Advocates of criminal justice reform have become doomsayers since Donald Trump's election as president. That's not without reason. Trump's choice for attorney general, Alabama senator Jeff Sessions, a former federal prosecutor and failed Reagan appointee to the federal bench, has been one of the most strident anti-criminal justice reform voices in Congress. He said soon after his selection that he opposed any review of federal sentencing guidelines, and he criticized President Obama's practice of commuting the sentences of many first-time non-violent drug offenders.
In the event (now increasingly unlikely, thank goodness) that either New Jersey governor Chris Christie or former New York City mayor Rudy Giuliani were to be named to the cabinet, they would raise the number of former federal prosecutors there to three. I can tell you from firsthand experience that federal prosecutors, past and present, are no friends of sentencing reform, leniency, or ramping down the so-called "war on drugs," which has resulted in the highest incarceration rates in the world, especially of minorities.
I'm not optimistic about the next four years.
Others are not as pessimistic as I am. Bill Keller, the former executive editor of The New York Times and the current editor in chief of The Marshall Project, a nonprofit news organization that focuses on criminal justice issues, wrote last week in the Times that he believes Trump can actually promote criminal justice reform as president. Keller says that his views may be wishful thinking, but he believes that Trump eventually will have a "Nixon in China moment." That is, the only president who can really get prison reform and sentencing reform into law is the president who opposed it most stridently.
Keller makes several points. First, 2017 is not an election year. Consequently, members of Congress will not have to confront hostile constituents on the campaign trail accusing them of being weak on crime. The time to act on a controversial measure is in an off year.
Second, Obama will be out of office. Keller argues that the reason Senate Majority Leader Mitch McConnell (R-Kan.) never called a popular bipartisan reform bill to a vote over the past two years was because he despised Obama personally.
Third, Sessions won't be in the Senate anymore to block a bill. True, he'll be whispering in Trump's ear and lobbying him to kill whatever hope of sentencing reform may end up on the president's desk. But he won't have the authority to single-handedly kill a bill, like he did in the Senate.
Fourth, McConnell wants to pass something into law that has bipartisan support, not because it's the "right" thing to do or because it's what's best for the country. He wants to pass a bipartisan measure into law because the Democrats couldn't do it when they were in power. It's not very nice, but that's how Washington works.
With all that said, I think Keller is wrong. I don't think Trump, Sessions, or anybody else in the new administration has a secret plan to liberalize anything. And because of that, those of us who care about these issues have to turn to the states. Ninety percent of incarcerated individuals are held in state, county, and local facilities and are subject to state sentencing laws.
It is the state legislatures that make those laws and state judges who hand down the sentences. It is those people on whom the rest of us should put pressure. It may be, in the case of sentencing reform and prison reform, that the feds will follow, rather than lead, whether Trump and Sessions like it or not.
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