Election Night was, among many other things, a choice between Donald Trump’s vision of America as a violent dystopia demanding “law and order” and Hillary Clinton’s vision of an inhumane criminal justice system in need of reform “from one end to the other.” The darker vision was largely a figment of the Republican’s imagination — see our fact-checking — but, barring a Nixon-to-China epiphany, Trump seems likely to take the election as a mandate to put on the iron gloves.
There is much the new president can do, or undo, in his first days, just by focusing on President Obama’s executive orders. He can, for example, roll back tighter background checks on gun purchasers and revoke the limits on keeping juveniles in federal solitary confinement. He can repeal Obama’s order to “ban the box” on federal employment applications that identifies those with criminal records, regarded as a barrier for people who have served their sentences in getting back into the work force. His new attorney general (former New York City Mayor Rudy Giuliani has been mentioned) could swiftly reverse the Obama-era instruction to prosecutors to charge fewer low-level drug crimes and the recent Department of Justice decision to stop using for-profit prisons.
Oh, and don’t forget Trump’s vow to pursue criminal charges against Hillary Clinton. And his professed intent to turn the machinery of law enforcement against millions of undocumented immigrants. Trump’s victory may be fatal to the unusually bipartisan campaign to reduce prison sentences, invest in rehabilitation, and otherwise render the federal justice system more humane and effective. The Republican Party platform adopted at the July convention nods to red states that have reduced prison populations and calls for “mens rea” legislation, which would oblige prosecutors to prove a defendant intended to break the law. In general, Trump’s law-and-order entourage — Giuliani, New Jersey Gov. Chris Christie, Milwaukee County Sheriff David Clarke and others — constitutes a virtual counter-reform movement, favoring longer sentences, fuller prisons and militarized policing. His natural allies on Capitol Hill are men like Sens. Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.), who this year blocked even the most incremental reforms.
Some reform advocates, who viewed Trump’s rise with a sense of dread, may well opt to turn their attention to the states, where most of America’s criminal justice is practiced, and where officials of both parties have been receptive to alternatives.