In many ways, Donald Trump as president is a nightmare for criminal justice reformers. He has declared himself “the law and order” candidate and falsely painted American cities as hellholes with skyrocketing crime rates. Hillary Clinton, on the other hand, had pledged to “reform our criminal justice system from end-to-end.”
But Trump’s stunning victory—while scary for many other reasons—isn’t a death blow to the reform movement. While Trump can undo changes President Obama made and prevent serious criminal justice reforms at the federal level for the next four years, the policies that are arguably more important to fighting mass incarceration are happening at the state and local levels.
Overall, it was a mixed-bag election night for criminal justice. Even while Trump clinched the White House, reformers won important victories in state and local races that could lead to real declines in incarceration. And yet: the death penalty won in all three states where it was on the ballot.
The tension between Trump’s law and order rhetoric and the reform victories down the ballot points to a sometimes overlooked truth: The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.
And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose incumbent DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.
The president does not actually have that much power over the policies that lead to mass incarceration.
Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states.
New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail. And recreational marijuana won in Massachusetts and California, so fewer people will be sent to prison for pot possession in those states.
“Even states like Oklahoma that voted overwhelmingly for Trump voted in favor of fairly sweeping criminal justice reform referendums at the same time,” said John Pfaff, a Fordham University law professor who studies incarceration.
Meanwhile, Trump as president will be severely limited in how much he can affect state and local criminal justice policy. His only real options to do so unilaterally would involve redirecting some federal grants or using the “bully pulpit” of the presidency.
“Historically, those approaches have not been very successful,” Pfaff said. At least when it comes to criminal justice reform, Pfaff said, “federalism is going to be fairly protective,” because Trump wouldn’t be able to increase incarceration in the state and local systems that account for the lion’s share of American inmates.
Of course, Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators like Alabama’s Jeff Sessions, Trump’s chief ally in the body. While Trump doesn’t seem to have directly addressed the bill, his past statements don’t make him seem amenable to the idea.
Moreover, Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, Attorney General Rudy Giuliani—or whoever Trump picks—could rip up the Obama directive telling federal prosecutors to focus on the most serious drug cases and ask for less mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons (a prospect that has sent private prison company stocks soaring the morning after the election).
And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.
Trump’s election is a shock for justice reform groups working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. Nkechi Taifa, an activist at the Open Society Foundations who helped fight for drug policy reforms, told me she couldn’t believe what had happened.
“We’ve always had an uphill battle on criminal justice,” Taifa said. “I just think we need to redouble our efforts. I don’t think we should retreat.”
With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. But Taifa said he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents. “I’m saying to Obama, ‘What have you got to lose?'” Taifa said. “If he’s going to drop the mic, drop it that way.”
For families waiting to hear back about clemency decisions, Trump’s win was a sucker-punch. Obama “is my only hope,” Miquelle West, whose mother has applied for clemency from Obama, told me in a text message this morning. West said she doubted that her mother, who is serving a life sentence, would have a chance to be released after inauguration day. “I don’t see Trump being compassionate,” she said.
Besides Trump, another big criminal justice story from election night was the popularity of the death penalty: Voters in California rejected a proposal to abolish capital punishment and instead approved a referendum that will speed up executions. In Nebraska, voters reinstated the death penalty after the state legislature abolished it last year. And in Oklahoma, a measure passed enshrining capital punishment in the state constitution.
“California just made a mistake the size of Texas,” Ana Zamora, the manager of the California campaign against the pro-death penalty measure, said in an email. “We cannot say with any certainty that California will not execute an innocent person.”
While the results are disappointing for death penalty abolitionists, the number of executions in America has fallen drastically over the last few years. And even though voters support capital punishment at the ballot box, they are doing so less often in jury boxes. Juries have to wrestle with the idea of sentencing a real person to death, instead of looking at the issue in the abstract; last year, they did so to the fewest defendants in 41 years.