Criminal Justice Reform: Trump’s Indifference vs. Harris’s Mixed Record
Republicans briefly took a less punitive approach to the issue—but will now demonize Harris for considering doing the same.
ON THE FIRST DAY OF the Republican National Convention in Milwaukee, I ran into Newt Gingrich. He was in the back of an elevator that I stepped on to. I didn’t see him at first, but then I heard his unmistakable voice. I got off the elevator, and after the former speaker of the House stepped out, I asked him if he was still involved in the issue of criminal justice reform. “Yes,” he answered, saying Donald Trump was “very supportive” of efforts to reduce prison populations. And then he was gone, before I could say something witty like, “Yeah, there’s a whole bunch of January 6th rioters he wants to set free.”
Of course, Gingrich was hosing me. Trump, should he win (or steal) the upcoming election, has no more intention of pursuing criminal justice reform than he does any of his other promises, like exempting tips from taxation, quickly curing cancer and Alzheimer’s, and ending inflation with a wave of his hand. Addressing racially discriminatory and pointlessly punitive approaches to crime is an issue Trump embraced only briefly and then abandoned.
Not that he doesn’t still talk about it. Here was Trump on June 15, while speaking at a black church in Detroit that for some reason had a mostly white audience:
We passed historic criminal justice reform, something that they’ve been after, people have been after for—mostly the black community—for years and years. And to get it done, they needed me. And as you know, President Obama tried. Biden doesn’t even try. Well, he doesn’t have to, because we got it done, but we’re going to get it improved. But President Obama tried, was unable to get it done. You needed conservative votes, and I got conservative votes, and we got criminal justice reform done. Nobody else could have done that, and we’re very proud of it.
It’s a much better appeal for Trump to make to black voters than, say, suggesting they should support him because he has been “discriminated against” in the same way they have been. But it’s still a bit convoluted. To review: Biden “doesn’t even try” to reform the justice system, but he “doesn’t have to, because we got it done,” except for needed improvements. And what those improvements are is anybody’s guess.
A search for the terms “criminal justice reform” and “criminal justice” on the “News” section of Trump’s campaign website yields a “No results found.” The twenty “CORE PROMISES” listed as Trump’s “Platform” refer just once to the words “crime” or “criminal” (understandably a touchy subject for the four-times-indicted former president), and you probably won’t be surprised by the angle: “STOP THE MIGRANT CRIME EPIDEMIC, DEMOLISH THE FOREIGN DRUG CARTELS, CRUSH GANG VIOLENCE, AND LOCK UP VIOLENT OFFENDERS.”
The broader 2024 GOP platform mentions crime and criminals several times, but never to suggest there is any interest on the part of Trump or his party to ease off the throttle of mass incarceration and draconian sentencing. (According to the Brennan Center for Justice, the United States accounts for less than 5 percent of the world’s population but nearly 25 percent of its prisoners, an incarceration rate it maintains at an annual cost of $260 billion even though crime rates are at thirty-year lows.)
Rather, the platform mentions how political leaders have allowed “our cities to be overtaken by crime” and how “Republicans will cut federal Funding to sanctuary jurisdictions that release dangerous Illegal Alien criminals onto our streets.” Stuff like that.
Trump’s acceptance speech at the Republican convention similarly made no mention of criminal justice reform as it spread lies about out-of-control crime. Immediately after again invoking “the late, great Hannibal Lecter” as an example of the kind of person now pouring into the United States, Trump falsely claimed “our crime rate is going up, while crime statistics all over the world are going down. Because they’re taking their criminals and they’re putting them into our country.”
Trump, a criminal justice system reformer? Please.
CONTRARY TO TRUMP’S CLAIMS, Obama not only tried but succeeded in passing significant criminal justice system reforms. He signed the Fair Sentencing Act, which reduced sentencing disparities between powder and crack cocaine, increased the availability of clemency for individuals sentenced under outdated laws, and backed the Department of Justice’s “Smart on Crime” initiative to focus resources on more serious crimes, reduce punishments for low-level nonviolent convictions, and reduce recidivism.
Trump’s Department of Justice promptly ended the Smart on Crime and clemency initiatives, but he did sign into law the First Step Act of 2018. The legislation sought to shorten sentences for nonviolent drug offenders and address racial inequalities in the justice system. It included measures to enhance judicial discretion in sentencing, reduce some mandatory minimum sentences, increase credits for good behavior, and expand rehabilitative programming for people in federal prisons. It passed the House on a voice vote and the Senate by a margin of 87 to 12.
It was a pivotal development in a remarkable larger story. In 2007, a group of Texas-based conservatives launched an initiative called Right on Crime to pursue “cost-effective approaches that also enhance public safety.” The prison system, the group says on its website, should target dangerous and repeat offenders but not be used in a way that “makes nonviolent, low-risk offenders a greater risk to the public upon release than before they entered.”
Over time, Right on Crime attracted signatories including Gingrich, Jeb Bush, Rick Perry, Richard Viguerie, and Grover Norquist. One of the initiative’s high-profile supporters was Chuck Colson, the former special counsel to President Richard Nixon who went to prison on Watergate-related charges and became a convert for criminal justice reform. Colson founded a group called Prison Fellowship, from which conservative interest in prison reform generally flows. In an excerpt of an interview with Salon in 2010, two years before he died, that Right on Crimes posted online, Colson had this to say:
When I was in prison, I saw the absolute futility of the prison system. There’s no way you can take a bunch of criminals, stick ’em in a dormitory where they sit around at night comparing the crimes they committed and how they’re going to do it next time, and expect to rehabilitate them. It’s demeaning, it’s demoralizing, it doesn’t give people aspirations to do the right thing. It almost encourages the wrong thing. So I got out of prison and I realized: This isn’t working.
While it makes a certain amount of practical sense to save the buckets of cash that are now being poured into a criminal justice system only to make offenders more dangerous and the public less safe, there is also a moral component to the movement. In 2015, during an appearance to tout Right on Crime at the Wisconsin state Capitol, Norquist teared up as he talked about the damage that the prison system is doing to “families, lives, and neighborhoods.” This issue has touched some conservative hearts.
Trump’s First Step Act resulted in the expedited release of some 30,000 federal inmates between 2019 and early 2023. And the law was demonstrably successful, with a recidivism rate of just 12 percent for those released as a result, compared to 45 percent among the general prison population.
At an April 2019 Prison Reform Summit, Trump lauded the First Step Act and announced a Second Step Act to be “focused on successful reentry and reduc[ing] unemployment for Americans with past criminal records.” But nothing ever came of it, and he never mentioned it again.
While Trump droned on about his astonishing success at reforming the criminal justice system—in 2020, his campaign aired a Super Bowl ad featuring Alice Johnson, a black woman whose life sentence for a first-time, low-level drug offense Trump commuted—the First Step Act was not his idea. A writer for Vox notes that the bill was “almost wholly the work of Congress, including both Democratic and Republican legislators” and was largely a continuation of reforms that began under Obama. It drew groans from some Republicans who were otherwise loath to openly disagree with Trump. In 2021, Senator Tom Cotton of Arkansas called the law—which he had opposed—“a grave bipartisan mistake.”
In May 2022, Politico ran an article under the headline, “Trump’s criminal justice reform bill becomes persona non grata among GOPers.” It stated:
When Donald Trump signed a long-sought criminal justice reform measure into law in 2018, he had visions of using the legislation to make major inroads with Black and moderate swing voters.
The First Step Act was not just hailed as a rare bipartisan achievement for the 45th president but as the beginning of a major shift in GOP politics, one that would move the party past the 1980s tough-on-crime mindset to a focus on rehabilitation, racial fairness and second chances.
Three-and-a-half years later, few Republicans—Trump included—seem not at all interested in talking about it.
Now the message has completely morphed back to the same old, same old: Get tougher on criminals, and use crime as a wedge issue to scare up votes.
SO HOW DOES KAMALA HARRIS, Trump’s presumptive Democratic rival for the presidency, fare on the issue of criminal justice system reform?
In 2005, early in her stint as San Francisco’s district attorney, Harris launched Back on Track, an effort to reduce recidivism among low-level drug-crime defendants. She later boasted that she created an “initiative that was a model and became a national model around people who were arrested for drugs and giving them jobs.”
As California’s attorney general from 2011 to 2017, Harris remained steadfast in her personal opposition to the death penalty, but she also appealed the ruling of a federal court that would have marked the end of the practice in California; a three-judge panel agreed with her argument and overturned the decision. Harris also disappointed progressives by failing to take a position on a 2014 ballot initiative to reduce certain low-level felonies to misdemeanors. It passed without her support.
In January 2019, when Harris was pondering a bid for president as a self-described “progressive prosecutor,” Lara Bazelon, a law professor and the former director of the Loyola Law School Project for the Innocent in Los Angeles, took her to task in a New York Times op-ed. Not only had Harris repeatedly failed to heed appeals to support criminal justice reforms, Bazelon wrote, she “fought tooth and nail to uphold wrongful convictions that had been secured through official misconduct that included evidence tampering, false testimony and the suppression of crucial information by prosecutors.”
And Joel Engel, an author and pro-bono investigator who had experiences with Harris’s office during her tenure as state attorney general, has argued that some of that maneuvering to uphold convictions was the simple result of careerism. Her deputies in two cases, he writes, “seemed less concerned with doing justice than with keeping the conviction count up and scoring a payday for the state.”
The Trump camp will, of course, go after Harris from the opposite direction, accusing her of being aggressively pro-criminal and a dire threat to public safety. One certain prong of attack will be her support during the 2020 protests over the police killing of George Floyd for a Minnesota bail fund used to free arrested protesters and poor defendants. The Trumpsters will also make hay over DeVaughndre Broussard, who in 2007—one year after being released on probation by Harris’s office for an earlier offense—killed Oakland Post Editor Chauncey Bailey with a shotgun. (Conversely, no doubt, Trump will take full personal responsibility for any January 6th convicts he pardons who go on to commit other crimes. Kidding!)
In her 2019 memoir, The Truths We Hold: An American Journey, Harris bashed the cash bail system that favors the rich, called for greater police accountability, and declared that “America has a deep and dark history of people using the power of the prosecutor as an instrument of injustice.” (Sounds like something Trump would agree with wholeheartedly.)
During a Democratic primary debate in August 2020, Harris was attacked by fellow candidate Biden over a crime lab scandal that led to the dismissal of 1,000 drug cases during her tenure as San Francisco’s district attorney. Harris said she had no knowledge of the drug lab issues at the time, although in 2010 a judge ruled that her office violated defendants’ civil rights by not disclosing what it did know about problems in the lab to their defense attorneys.
She was also ripped at this same debate by Hawaii Rep. Tulsi Gabbard for allegedly having “blocked evidence that would have freed an innocent man from death row until the courts forced her to do so.” In that case, Harris, as California attorney general, did oppose additional DNA testing that was later granted to a convicted killer named Kevin Cooper. Harris later urged that the testing be done. A 2023 independent report found “extensive and conclusive” evidence of Cooper’s guilt. He remains on death row (and maintains his innocence).
During this 2020 presidential primary, according to the Marshall Project, which advocates for criminal justice system reform, “Harris worked to shed some of her tough-on-crime image and ran to the left of Biden on most criminal justice issues, including solitary confinement, federal mandatory minimum sentences and decriminalizing border crossings.”
As vice president, Harris backed the creation of a federal sentencing review unit to consider early release for prisoners who have served at least ten years of sentences of twenty years or more. Meanwhile, the Biden administration has approved a smaller share of clemency petitions than any president going back to Jimmy Carter, with George W. Bush and Trump coming in second and third place, respectively.
Some of Harris’s positions on key criminal justice issues have evolved over time. In 2010, the year she was elected California attorney general, Harris opposed a statewide initiative to legalize recreational marijuana. In 2015, she came out in support of legalizing medical marijuana, and in 2019, she called for general legalization. As vice president, she supported the Biden administration’s issuing of pardons for Americans convicted of federal marijuana possession. (Trump has said he would “probably” support bipartisan legislation to end the federal ban on marijuana and leave the issue up to the states.)
As Newt Gingrich and other conservatives once realized, criminal justice reform is a great idea, one that could save dollars, reduce misery, and make us all safer. But it’s fraught with political peril and grist for easy attack ads meant to frighten voters. Don’t expect either Trump or Harris to call for it loudly and clearly.
That’s because, in the end, the key word in the term criminal justice system is not justice, or even criminal, but system.
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