Over the past eight years, President Barack Obama has made reforming the country’s criminal justice system a priority. The next president’s priorities aren’t likely to be the same.
“I know that anxiety is the elephant in the room today,” Obama senior advisor Valerie Jarrett told a room full of local leaders yesterday at a White House event meant to highlight the president’s criminal justice reform achievements. But advancing the cause, she said, “should not depend on one person who occupies this office. It should depend on all of you.”
The president has left them with a lot to work with. During his two terms, Obama has directly confronted the country’s ballooning prison and jail populations. He took on the uneasy relationships between the police and the public, especially minority communities, and repeatedly invited civil rights and Black Lives Matter movement leaders like DeRay McKesson to the White House. He was the first sitting president to ever visit a federal prison. He commuted 1,023 federal prison sentences, more than the last 11 presidents combined. The Department of Justice, under his leadership, has funded police body cameras and led investigations into instances of police brutality in places like Baltimore and Ferguson, Missouri. Recently, the administration launched an effort to end its contracts with federal privately-owned prisons.
When Trump takes over, however, cities and states may well face an administration seeking to roll back many of these Obama-era reforms. The president-elect campaigned on a theme of “law and order” and has called “black lives matter” an “inherently racist” term. He has appointed Alabama Senator Jeff Sessions, a staunch criminal justice reform opponent, to be the next attorney general.
If Trump does try to undo Obama’s work, current Attorney General Loretta Lynch told the crowd yesterday, it is up to cities and states to be the incubators of these ideas and to push for change in their own communities. After all, presidents have not always led the way on criminal justice reform, she said. Historically, much of that effort has started at the local level. “I urge all of you to hold onto those lessons. Hold onto those lessons and use them,” Lynch said.
What Cities and States Can Do
But how much power will local leaders really have if a Trump administration starts working against their goals? In theory, a lot.
Of the 2.2 million people who are currently incarcerated in the United States, fewer than 10 percent are locked up in federal prisons. The rest are in state prisons and local jails. States have the power to enact sentencing and bail reform and decriminalize offenses like marijuana possession. Counties can institute new police training programs and set up diversion programs for people with addiction issues or mental illness. Even in solidly red states, much of this work has already begun. In Texas, home to the country’s largest prison population, former Governor Rick Perry instituted diversion programs to keep low-level first-time drug offenders out of prison and started rehabilitation programs for parole and probation violators. The state was able to shut down three prisons largely thanks to these efforts.
That even a staunchly conservative state like Texas has prioritized criminal justice reform gives reform advocates hope that such efforts will persist beyond the Obama administration. “The state houses and the executive branch are dominated by Republicans, but that’s where the reforms have occurred,” says Laurie Garduque, director of justice reform at the MacArthur Foundation. “Criminal and juvenile justice are two areas of public policy where there’s been support across the ideological spectrum.”
But others warn that a new administration can offer states incentives to follow its lead. In 1994, for example, former President Bill Clinton’s crime bill provided billions of dollars in funding for states that adopted harsher sentencing requirements. Critics blame the law for driving the explosion in incarceration rates in this country.
“There’s a lot of policy the federal government can set that puts their thumb on the scale of local policy,” says Ames Grawert, counsel for the Brennan Center’s Justice Program.
The president-elect has already signaled that these precedent-setting programs are coming, calling for an end to federal funding for so-called “sanctuary cities” that refuse to cooperate with enforcement efforts against undocumented immigrants.
“If that becomes the official policy of the administration, I’d be concerned about how quickly some state and local governments might look at the bottom line of the budget and say, ‘We can’t afford to not play ball here,'” Grawert says.
The best hope for justice reformers, however, is also the simplest: many of the local policies instituted over the last eight years, from rehab to education to sentencing reforms–have worked. Recidivism rates in places like California are dropping, and the prison population in the US has fallen, if only slightly. For the next four years, cities and states will likely find themselves on their own to protect and build on those successes.