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With Trump in White House, Criminal Justice Reformers Will Look Elsewhere

Donald Trump never got specific on what he'd do on criminal justice reform. That leaves reformers looking for action on the local level.
Image: The White House seen from outside the north lawn fence in Washington
The White House seen from outside the north lawn fence in Washington September 22, 2014.KEVIN LAMARQUE / Reuters

With a man who campaigned as "the law-and-order candidate" headed for the White House, the movement to reform America's criminal justice system is approaching a crossroads.

Will efforts to ease mass incarceration and inequitable policing stall under Donald Trump?

His tough-on-crime rhetoric seems to point that way.

But Trump never got very specific about criminal justice policy, other than its impact on immigration and national security. So while there are a number of steps he could take to undo reforms pushed by President Obama — an executive order against blacklisting felons from jobs, the early release of nonviolent drug prisoners, telling prosecutors to focus on high-level dealers — it's not clear whether Trump will act on them.

At this point, reform advocates don't put much faith in the federal government's ability to change the system. A bill that would ease sentencing laws has stalled in Congress, and there's no indication it would pick up any momentum under President Trump. Obama's initiatives are viewed as modest and limited, because they impact only federal courts and prisons, where a small fraction of American criminal cases are handled.

The biggest thing missing from the White House come January, reform advocates say, will be a president who speaks on their behalf.

At his Republican National Convention speech last summer, Trump accused Obama of rolling back "decades of progress made in bringing down crime." In a later speech he criticized Obama's clemency initiative, calling some drug offenders who've been released early "bad dudes."

Related: Are Bipartisan Efforts on Criminal Justice Reform at an Impasse?

"I think Trump made it clear that there is not any mantle he is picking up from Obama," said Rashad Robinson, spokesman for the Color of Change PAC, which presses reform issues around the country.

That is why Robinson and others are looking away from Washington for a path forward. They see hope in several state and county elections, where voters on both sides of the political divide supported change.

"The reform movement all along has been local," said John Pfaff, who teaches criminal justice policy at Fordham University School of Law. "And on Tuesday night there was reason to be optimistic."

One of the most telling scenes unfolded in Oklahoma, a conservative state that Trump won easily. Voters there backed a ballot initiative to reclassify small-time drug possession and property crimes as misdemeanors, rather than felonies. They also approved a companion measure that allows the state to invest the money saved from those changes into mental heath and drug-treatment services.

In California, which Trump lost, voters approved a measure that will allow nonviolent prison inmates to be considered for earlier parole — and give judges, not prosecutors, the power to decide if a juvenile should be tried as an adult.

In New Mexico, where Trump also lost, voters agreed to change the state constitution to prevent detention of defendants who are not dangerous or a flight risk "solely because of financial inability to post a money or property bond." That is considered a key element of a broader movement to make America's pretrial justice system more fair.

And in several states across the political spectrum, voters approved the easing of marijuana laws, either by making the drug legal or by allowing its medical use.

Derek Cohen, deputy director of Right On Crime, a conservative reform organization, said the state ballots showed the effectiveness of proceeding slowly and with small steps.

"We're seeing a movement steeped in incremental change and prudence — conservative with a lower case c," Cohen said. "There's an openness to, 'Guys, maybe we should do something different. It's costing us an arm and a leg and we're not getting any bang for the buck, and recidivism is no better.'"

Related: Cash Bail, a Centerpiece of the Justice System, Is Facing Its Undoing

On a more local level, district attorneys in Tampa, Houston and Denver were unseated by challengers backed by reformers, including Color of Change and billionaire liberal George Soros, who were criticized for meddling in local politics.

Those elections followed similar upsets earlier this year in Chicago, St. Louis, Orlando and Henry County, Georgia.

"This all speaks to a growing movement that has a lot of potential to start building a pool of prosecutors who are interested in reforming a broken system," Robinson said.

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The one outlier on Tuesday was the death penalty. Voters in three states — California, Oklahoma and Nebraska — approved measures that protected capital punishment, with California set to speed up the pace of executions.

But reformers explained that away by pointing out that the death penalty affected a relatively small subset of the criminal justice system. There are about 2,905 people currently on death row in America, according to the Death Penalty Information Center.

"Its impact on criminal justice is less than people think," Pfaff said.

But while reformers said they were encouraged by the local ballot results on Tuesday, they also said they will look for signs from Trump, no matter how subtle.

Inimai Chettiar, who directs the Justice Program at the Brennan Center for Justice in New York, said she could see Trump choosing not to meddle with federal reform efforts. "He's campaigned on other issues, so I would imagine that he will have a lot of energy expended on them," Chettiar said.

She added that some members of Trump's circle of supporters include Republicans who have supported pieces of the reform agenda. That includes Newt Gingrich and Chris Christie.

Cohen agreed, noting that Trump — a real estate mogul —could embrace the conservative doctrine of cutting government spending.

"I think his business sense will will underscore more efficient ways of getting things done," Cohen said.